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Solo Capital – Court of Appeal of England and Wales finds that the revenue rule does not apply to fictitious tax refund claims made by a non-taxpayer Email this Content The Danish Customs and Tax Divisions (“SKAT”) brought claims in an English civil court seeking to recover £1.44 billion which it had paid based on allegedly fraudulent claims for refunds of Danish dividend withholding tax – SKAT alleged that most of the defendants had fraudulently misrepresented that they, as shareholders of Danish companies, had been subject to withholding at a rate in excess of the Treaty-reduced rate on dividends when, in fact, they never had held any shares in any of the relevant Danish companies. ... There was no tax due and those who committed the fraud were never taxpayers. … [W]hat SKAT is saying entitles it to repayment is not that the … alleged fraud defendants owe it tax or have cheated it out of tax, but that it was induced by fraudulent misrepresentation to pay away monies to these persons to which they were not entitled on any basis. ... Summary of Skatteforvaltningen v Solo Capital Partners LLP, [2022] EWCA Civ 234 under Statutory Interpretation – Revenue Rule. ...

16 August 2020- 11:41pm MMV Capital – Tax Court of Canada finds no GAAR abuse in acquiring an approximate 100% interest in a Lossco but with no change of de jure control Email this Content A venture capital corporation (MMV Finance) acquired 49% of the voting common shares of a corporation (MMV) in interim bankruptcy proceedings and subscribed $1,000 for a large number of non-voting common shares giving it over 99.9% of all the common share equity. ... Bocock J did not consider it to be a GAAR abuse for MMV to deduct its ample losses from the income generated by the loan portfolio, stating: Parliament … deliberately kept the reference to de jure control in 111(5) instead of adopting a de facto standard. … Evidence was not presented to show that the board did not have the actual authority to make material decisions on behalf of MMV. … The presence of the longstanding, bright-line test of de jure control bears … witness to the rejection of applying the GAAR in the circumstances of this appeal as regards subsection 111(5). ...

25 July 2024- 11:54pm Centrica – UK Supreme Court finds that professional fees incurred in pursuing a subsidiary sale but before the deal was struck were capital expenditures Email this Content The taxpayer, an intermediate UK holding company for subsidiaries in various countries, incurred fees of an accounting firm, Netherlands law firm and an investment banker in connection with the difficult process for accomplishing a share sale of, or an asset sale by, a Netherlands subsidiary (“Oxxio”). ... Money expended to achieve a disposal of a capital asset is properly regarded as being of a capital nature. … The fact that there was no certainty that the Oxxio business would be sold does not make the expenditure revenue in nature. … Indeed, expenditure on an abortive capital disposal transaction is capital expenditure nonetheless …. ... Summary of Centrica Overseas Holdings Ltd v Commissioners for His Majesty’s Revenue and Customs, [2024] UKSC 25 under s. 18(1)(b) – capital expenditure v. expense- asset disposal expenses. ...

5 June 2018- 12:09am Iberville Developments – Tax Court of Canada finds that the starting ACB of a partnership interest was determined exclusively under s. 97(2)(b) Email this Content All you gotta do to offset the capital gain from a property sale is run the sale through a new partnership. ... Thus, it did not matter whether the taxpayer was issued additional units on the drop down – all it continued to have was a partnership interest with a nil cost, and with an ACB as increased only as contemplated under s. 97(2)(b) (i.e., to $20 in the above example). ... S. 97(1) does not explicitly deal with adjustments to the cost or ACB of a partnership interest – but Boyle J nonetheless helpfully stated that “subsection 97(1) … would be the specific rule which would provide that a transferor partner’s cost of their partnership interest is fair market value.” ...

3 July 2018- 12:50am Pomerleau – Federal Court of Appeal finds that GAAR applied to converting soft ACB (generated from crystallizing the capital gains deduction) into pseudo-hard ACB under s. 53(1)(f.2) for use in extracting surplus Email this Content To simplify the facts somewhat by ignoring transactions in which the taxpayer accessed tax attributes of his sister, the taxpayer wanted to extract $2M from a family corporation, and was willing to do so on a basis that resulted in him receiving a deemed dividend of $1M provided that he was able to extract the other $1M tax free by using the previous step-up of the ACB of the shares of him (and his sister) to $1M using the capital gains deduction. ... To this end, subparagraph 84.1(2)(a.1)(ii) requires going beyond the ACB of the shares concerned – or of the shares for which they are substituted – and enquiring as to the source of the funds which constituted them in order to ascertain if they were subjected to tax. … This rationale was circumvented by the plan implemented by the appellant. ...

4 December 2022- 11:02pm FU2 – Tax Court of Canada finds that Senate vacancies do not invalidate ITA bills passed by it Email this Content The taxpayer appealed a reassessment of its 2011 taxation year – made in reliance on a retroactive amendment made to the relevant ITA provision in 2014 – on the grounds that the amending Act was passed by a Senate that had substantial vacancies, contrary to Part IV of the Constitution Act, 1867 (which has detailed provisions respecting the appointment of specified numbers of senators from each province). ...

3 December 2013- 11:29pm Versteegh – UK First-tier Tribunal finds no benefit to the parent from a downstream loan with the in-kind interest thereon paid to a sister subsidiary Email this Content A UK group of companies engaged in a childishly vacuous scheme to generate an interest deduction in one group company (the borrower) without a corresponding income inclusion to the lender or any other group company.  ... Summary of Versteegh Ltd & Ors v. Commissioners, [2013] UKFTT 642 (TC), under s. 15(1) and s. 9 – exempt receipts. ...

11 July 2016- 11:50pm Deluca – Ontario Superior Court finds that CRA has no duty to protect taxpayers from participating in tax shelters Email this Content The taxpayer’s claim against CRA for negligence in failing to revoke the registration of a charity on a timely-enough basis (so that he suffered losses as a result of making supposedly valuable donations to the charity) was struck by Dunphy J in its entirety. Among other grounds, he stated: The ITA cannot be construed to impose a duty on the Minister or his or her officials to administer the registration and supervision of registered charities in order to protect taxpayers from the risk of dealing with them… Tax shelters are an instance where the private good competes directly with the public good. … [T]he risk of such deductions being disallowed ought most efficiently to rest with those seeking to benefit from the scheme rather than with taxpayers at large. … Neal Armstrong. Summaries of Deluca v Canada, 2016 ONSC 3865 under s. 171(1), General Concepts – Negligence, Charter s. 15. ...

29 November 2022- 11:00pm Brown – Federal Court of Appeal finds that the higher Stewart hurdle for an activity with a “personal element” is not engaged merely by a personal reason for the activity Email this Content The taxpayer (Mr. ... It is possible to find a personal reason why any person is carrying on a particular activity. … Neal Armstrong. ... Canada, 2022 FCA 200 under s. 3(a) – business source. ...

11 June 2018- 12:11am Almadhoun – FCA finds that the TCC, after finding against the taxpayer, improperly directed CRA to “seriously” consider interest relief and tax remission Email this Content The Tax Court had held that the taxpayer was not entitled to the Canada child tax benefit during the years in question, but referred the matter back to the Minister so that “taxpayer relief in the form of a waiver of any applicable interest and penalties under the Act and also a remission of taxes pursuant to the Financial Administration Act ” may be “seriously consider[ed].” ... Nor is it for the Tax Court to interfere with the discretion of the Minister, if only by suggesting that the Minister “may” seriously consider taxpayer relief in the form of a waiver of any applicable interest and penalty under the Act, and a remission of taxes …. ... Canada, 2018 FCA 112 under s. 122.6 – “eligible individual”- (e), s. 171(1)(b)(iii), Charter s. 15(1) and Statutory Interpretation- ordinary meaning. ...