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31 December 2019- 12:03am Friedman – Federal Court does not follow its interpretation in Lin that a requirement letter insufficiently specified who was covered Email this Content The Friedmans, a married couple, who had not filed T1135 returns, each received Requests for Information under s. 231.1(1) (“RFIs”) that were addressed to them personally, and stated inter alia: Your personal income tax returns and any other related or associated entities have been selected for audit …. [Y]ou may have offshore holdings that you have failed to disclose …. In order to expedite and facilitate our audit, we will require a clear understanding of all entities with which you had a connection or affiliation during the taxation years noted above. … Please send us back the attached questionnaire fully completed within 30 days …. ...

The presumption that a reasonableness review should be applied can be rebutted where there is a statutory appeal mechanism in place (thereby entailing application of a standard of correctness to questions of law) – however, the Court made it clear that this did not include provisions, such as ss. 18 to 18.2, 18.4 and 28 of the Federal Courts Act – so that this aspect does not appear to apply to reviews of CRA decisions (other than assessments). ... Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment” …. ... Rather than confirming a meaningful presumption of deference for administrative decision-makers … the majority’s reasons strip away deference from hundreds of administrative actors subject to statutory rights of appeal; rather than following the consistent path of this Court’s jurisprudence in understanding legislative intent as being the intention to leave legal questions within their mandate to specialized decision-makers with expertise, the majority removes expertise from the equation entirely and reformulates legislative intent as an overriding intention to provide — or not provide — appeal routes; and rather than clarifying the role of reasons and how to review them, the majority revives the kind of search for errors that dominated the pre- C.U.P.E. era. ...

29 July 2021- 11:05pm Canada North – Supreme Court of Canada finds that a CCAA court can order a super-charge that has priority over a s. 227(4.1) deemed trust Email this Content The Crown challenged an order of the Alberta judge in CCAA proceedings regarding the Canada North group of companies that “priming charges” pursuant to s. 11 of the CCAA for counsel fees, costs of the monitor and financing charges of an interim lender would rank in priority to all other security interests and charges, arguing that this priority was contrary to s. 227(4.1). ... She also stated: [C]ourts should still recognize the distinct nature of Her Majesty’s interest and ensure that they grant a charge with priority over the deemed trust only when necessary. … In the concurring reasons of Karakatsanis J (writing for herself and another Justice), she agreed that s. 227(4.1) does not satisfy the requirements for a trust, and seemed to emphasize the importance of giving breadth to the discretion of a CCAA judge under s. 11 of the CCAA in order to “further the remedial objectives of the CCAA ” and given that at the end of the day the final CCAA order should provide for payment of the source deduction amounts. ... Canada North Group Inc., 2021 SCC 30 under s. 224(4.1), General Concepts – Ownership, Statutory Interpretation – Interpretive/Definition Provisions and Interpretation Act, s. 8.1. ...

11 March 2024- 10:47pm Singapore Telecom – Federal Court of Australia, Full Court finds that an independent enterprise would have agreed to allow cross-border interest to be capitalized, but not to make it contingent on cash flow Email this Content The taxpayer (“STAI”)- a wholly-owned Australian subsidiary of a Singapore public company- purchased in June 2002 all the shares of an Australian telecommunications company from a Singapore sister company (“SAI”). ... It rejected the contention of STAI that the amount of interest actually paid over the 10 year period was equal to or less than that which might be expected to have been paid between independent parties in similar circumstances over the same period, as the transfer-pricing standard was required to be met on a tax year by tax year basis – and the Commissioner had the discretion to adjust the interest for earlier years upwards. ... Summary of Singapore Telecom Australia Investments Pty Ltd v Commissioner of Taxation [2024] FCAFC 29 under Treaties – Income Tax Conventions – Art. 9. ...

22 August 2023- 11:33pm Independent Order of Foresters – Tax Court of Canada finds that Foresters could reduce its taxable life insurance income by allocating assets to an exempt insurance business Email this Content The taxpayer was a Canadian resident fraternal benefit society and a life insurer providing accident and sickness (“A&S”) benefits, and individual life insurance to its members. ... The King, 2023 TCC 123 under Reg. 2401(2)(d) and Reg. 2400(1) – Canadian investment fund – (a)(ii)(B). ...

30 July 2018- 7:26am Armour Group – Federal Court of Appeal finds that a lump sum paid on the acquisition of a property subject to a ground lease to the purchaser group coupled with the ground lease surrender did not generate a lease termination deduction Email this Content An investment company (“Armour”), which was the lessee under a long-term ground lease from the Province of Nova Scotia, had constructed a building on the property and leased the building back to the Province. ... Canada, 2018 FCA 134 under s. 18(1)(b) – capital expenditure v. expense – contract cancellation. ...

21 November 2018- 6:29am Mazraani – Supreme Court of Canada finds that the Tax Court’s pressuring witnesses to speak in English, not French, required a new hearing Email this Content A laid-off “independent contractor” (Mazraani) appealed to the Tax Court on the basis that he had instead been employed in insurable employment for EI purposes. ... Before affirming the decision of the Federal Court of Appeal ordering a new hearing before a different judge in response to these violations of the witness’s and counsel’s language rights under s. 133 of the Constitution Act, 1867, s. 19 of the Charter and s. 14 and 15 of the Official Languages Act, Gascon and Côté JJ stated: [E]ven if there was no error in the decision on the merits, the language rights in question would be compromised if no remedy was granted … [A] new hearing will generally be an appropriate remedy for most language rights violations. … The judge’s insistence that [Industrial’s counsel] speak English during most of his argument constitutes a flagrant violation of the lawyer’s language rights. … [T]he order for a new hearing was fully justified. … The violations were numerous and, in some cases, serious and repeated, and they brought the administration of justice into disrepute. ...

In dismissing the appeal, Noël CJ stated that this finding:...necessarily flows from … the loan agreements which made each of the appellants’ entire donation conditional on the loan being approved by the lender. As “no part of [the interconnected transaction] can be considered a gift that the appellant[s] gave in the expectation of no return” … [i]t follows that there was no gift whether the matter is considered from a common law or a civil law perspective. … He also stated: [W]here a person anticipates receiving tax benefits that exceed the amount or value of an alleged gift, the donative intent is necessarily lacking. ... Canada, 2019 FCA 299 under s. 118.1(1) – total charitable gift and General Concepts – Stare Decisis. ...

31 August 2023- 11:01pm Whitecap Energy – Alberta Court of King’s Bench finds that the Attorney General could revive a dissolved corporation for the purpose of making a s. 160 assessment of the shareholder Email this Content An Alberta corporation (Whitecap) had been wound up into its sole shareholder. ... Principally at issue was whether the Attorney General had standing as an “interested party,” which was relevantly defined to “mean … a creditor of a dissolved corporation … or …a person designated as an interested person by an order of the Court.” In finding that the Attorney General was not a “creditor,” Schlosser J stated: Taxpayers remain liable for tax when income is earned …. notwithstanding that no return is filed. ...

15 November 2022- 12:00am Adboss – Tax Court of Canada strikes the Minister’s pleading of an assumption that a company’s “controlling mind and management” was in Canada as a mixed statement of fact and law Email this Content The Minister’s reply, to the taxpayer’s appeal of an assessment of it to deny zero-rating of taxable supplies made by it to a mooted non-resident (“Lowfroc”) on the basis that Lowfroc was a resident of Canada, pleaded “assumptions” including that Lowfroc was incorporated in Cyprus, that the taxpayer had no correspondence with any Lowfroc-connected persons in Cyprus and that “at all material times, the controlling mind and management of Lowfroc was in Canada.” Lafleur J found that the quoted phrase referenced the jurisprudential test of “central management and control,” and further noted that the “location of the ‘central management and control’ of a corporation … is actually the legal test that must be applied to determine the residency of a corporation.” In explaining the decision to strike under Rules 53(1)(a) (“delay … fair hearing”) and (c) (“abuse of … process”), she stated: [B]ecause the Appellant will have to speculate as to the facts underlying the conclusion of mixed fact and law of the Minister that the “controlling mind and management” of Lowfroc was in Canada, and because the Appellant therefore cannot be properly prepared for and proceed with discoveries, this will prejudice or delay the fair prosecution of the appeal and constitutes an abuse of the Court’s process. ...