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28 May 2019- 12:40am Renaud – Federal Court of Appeal affirms that a benevolent law practice for indigent clients thereby had a “personal aspect," justifying use of REOP test to deny losses Email this Content A Quebec lawyer who worked full-time as a federal government employee also worked 5 to 15 hours a week providing legal services to clients of modest means. ... In affirming the decision below, Nadon JA stated that “there is no doubt that the law practice of the appellant … certainly qualifies as having a personal aspect. ... Canada, 2019 CAF 154 under s. 3(a) – reasonable expectation of profit. ...

12 July 2019- 12:06am Fortyseven Park Street – Court of Appeal of England and Wales finds that users of time shares in complex with boutique-hotel level of service were using hotel or similar accommodation Email this Content The applicable VAT Directive and the similarly-worded UK VAT legislation provided that an otherwise-exempt supply by way of “leasing or letting of immovable property” was unavailable for “the provision of accommodation … in the hotel sector or in sectors with a similar function.” ... Newey JA found that the exclusion applied notwithstanding the long-term nature of the rights acquired, stating: The fact that Membership gives "the flexibility to enjoy short stays of a stated maximum amount each year, in an environment similar to a hotel and with the services which can be expected in a hotel" … was surely something that the FTT [below] could properly take into account in arriving at its assessment. ... Summary of Revenue and Customs v Fortyseven Park Street Ltd, [2019] EWCA Civ 849 under ETA s. 123(1) – residential complex. ...

13 September 2019- 12:13am Levatte Estate – Tax Court of Canada finds that 40(4) avoided the need for an estate to make a principal residence designation Email this Content An individual (Mr. ... Thus, it was not necessary that a principal residence exemption had been made – only that it would have been available. ... Warner[‘s] … husband was dying of cancer and in fact passed away only days later …leaving her as sole parent of three children. … I do not require specific details to appreciate what a difficult time this would have been for Ms. ...

18 April 2022- 10:50pm Salama – Court of Quebec finds that the principal residence exemption was available for the whole of a duplex Email this Content The ARQ took the position that a duplex sold by the taxpayer consisted of two distinct units – the second storey, occupied by her and her son, and the ground floor (with a separate municipal address) occupied (with its own kitchen, bathroom etc.) by her mother – so that she was only entitled to the principal residence exemption on half the gain. ... Agence du revenu du Québec, 2022 QCCQ 718 under s. 54 – principal residence. ...

19 June 2022- 11:11pm Collins Family Trust – Supreme Court of Canada finds that courts cannot exercise their equitable jurisdiction to cure unintended tax consequences Email this Content A plan for the tax-free distribution of funds of family companies to family trusts entailed transactions that were intended to cause s. 75(2) to attribute substantial dividends, paid by the family companies to the trusts, to family holding companies so that the s. 112(1) intercorporate dividend deduction applied. ... Before allowing the appeal and dismissing the trusts’ petition, and in finding that the principle in Fairmont Hotels and Jean Coutu- that a “court may not modify an instrument merely because a party discovered that its operation generates an adverse and unplanned tax liability”- was not limited to situations of requested rectification and applied as well to the equitable remedy of rescission, Brown J stated: … Fairmont Hotels and Jean Coutu bar a taxpayer from resorting to equity in order to undo or alter or in any way modify a concluded transaction or its documentation to avoid a tax liability arising from the ordinary operation of a tax statute. … While a court may exercise its equitable jurisdiction to grant relief against mistakes in appropriate cases, it simply cannot do so to achieve the objective of avoiding an unintended tax liability. ... Collins Family Trust, 2022 SCC 26 under General Concepts – Rectification and Rescission, and s. 220(1). ...

21 July 2022- 11:55pm CIBC – Tax Court of Canada finds that the predominant element supplied by PC Bank to CIBC was a right to access Loblaw customers, engaging the (r.5) HST financial service exclusion Email this Content A subsidiary ("PC Bank") of Loblaw (“LCL”) had agreed with CIBC for CIBC to provide retail banking services under LCL's President's Choice trademark. ... (r.5) of the financial service definition provided an exclusion from financial service for “property … that is delivered or made available to” CIBC “in conjunction with” CIBC selling financial products of PC Bank, the supply made by PC Bank to CIBC was taxable. ... The Queen, 2022 TCC 83 under ETA s. 123(1) – financial service, para. ...

This result was premised on their having had a November 30, 2013 taxation year – which had occurred for Bourgade, but not for Samson (who had a calendar taxation year). ... This is consistent with … Jean Coutu. This is not a case where the taxpayer is seeking a tax benefit that he did not anticipate at the time of his tax planning. ... Samson, 2023 QCCA 332 under General Concepts – Rectification. ...

26 February 2024- 11:07pm Yao – Tax Court of Canada finds that the denial of the CCB benefit to refugee claimants was not contrary to the Charter Email this Content Bocock J held that he was bound by the decision in Almadhoun (2018 FCA 112) that, as a matter of statutory interpretation of s. 122.6 – eligible individual- s. ... Regarding s. 7 (security of the person), Bocock J noted the finding in Carter (2015 SCC 5) that security of the person is engaged by “state interference with an individual’s physical or psychological integrity, including any state action that causes physical or serious psychological suffering” and found that “[w]hile the mental health of the [refugees before him] was impacted, this does not constitute a ‘serious and profound effect’ ….” ... The King, 2024 TCC 19 under s. 122.6 – eligible individual- s. (e)(ii), Charter, s. 7(1), s. 15(1). ...

28 June 2024- 12:11am Lemay Co – Federal Court finds that the taxpayer had a reasonable argument that s. 125.7(5)(a) did not preclude it from making an amended increased CEWS claim Email this Content On audit, CRA determined that Lemay had made Canada Emergency Wage Subsidy (CEWS) claims for periods 6, 7 and 13 to 15 that were excessive to the extent of $311,204 but had underclaimed for periods 8 to 12. ... Later, CRA rejected a further Lemay submission that CRA could accept its additional refund claims by virtue of ss. 164(1)(b) and 152(3.4) – on the basis inter alia that s. 125.7(5)(a) limited the amount of the CEWS subsidy to the amount initially claimed by the taxpayer. ... In rejecting such claim, Régimbald J stated: [I]t is not clear, in light of sections 125.7(5), 152(3.4) and 164(1)(b), considered together and which are the subject of the application for judicial review, that the ITA does not allow the Minister to accept an amended prescribed form as requested by the plaintiff. … [T]he defendant has therefore not discharged its burden of demonstrating that it is clear and obvious that the interpretation proposed by Lemay has no reasonable chance of acceptance …. ...

30 April 2019- 11:50pm 984274 Alberta – Tax Court of Canada finds that CRA had no statutory authority under the Act to recover $1.7M that it had paid to a taxpayer in error Email this Content The taxpayer (“984”) reported a capital gain on its 2003 sale of land on the basis that it had acquired it from its parent (Henro) on a rollover basis. ... However, the resulting 2015 reassessment of 984 could not be justified as valid based on s. 169(3) because the 2010 assessment was itself invalid – hence, 984 was not an appealing “taxpayer” referred to in s. 169(3) (as it was not engaged in a valid appeal procedure). This meant that the only basis for justifying the 2015 assessment of 984 was that, pursuant to s. 160.1(1), the 2010 refund represented an amount that had been “refunded to a taxpayer … in excess of the amount to which the taxpayer was entitled as a refund under this Act.” ...