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29 October 2017- 11:55pm BT Céramiques – Quebec Superior Court finds that the mere suspicion of tax evasion and corrupting CRA officials is insufficient to invalidate audit information Email this Content Jarvis found that where the predominant purpose of a particular inquiry is the determination of a penal liability (e.g., under s. 239 of the ITA), CRA officials may not have recourse to the inspection and requirement tools in the ITA. In reversing the decision of the Court of Quebec to invalidate evidence obtained in a search and seizure of a Quebec registrant (BT Céramiques), which was believed to have fraudulently claimed input tax credits and corrupted CRA officials, Payette JCS stated: When it commenced the audit, the CRA only had suspicions that BT Céramiques was engaged in tax evasion and that a “grand patron” in the CRA was assisting it. … [T]he judge contrasted “auditing” and “investigation” … without noting that the audit powers themselves constitute powers of investigation, and without pausing to determine if the objective of the steps she described was to establish penal liability of the respondents. ...

11 August 2019- 11:42pm Royer – Court of Quebec finds that the principal residence did not include the portion thereof occupied by the grandmother performing an essential care function Email this Content Similarly to the federal principal residence exemption, the Quebec exemption requires that “the housing unit is ordinarily inhabited in the year by the individual, his spouse or former spouse or his child.” ... Agence du revenu du Québec, 2019 QCCQ 4163 under s. 54(1) – principal residence- (a) and s. 248(1) – disposition. ...

13 November 2017- 1:06am Barclays Wealth Trustees – English Court of Appeal indicates that the determination of whether there is a single trust should accord with how a trust lawyer would view the matter Email this Content Henderson LJ rejected a submission on behalf of HMRC that a separate settlement (i.e., trust) was created whenever further property was contributed to be held by the trustee of a previously-settled trust. He stated that his single-trust view was “how a trust lawyer or practitioner would view the matter,” and also was consistent with the statutory definition (in the Inheritance Tax Act 1984) of “settlement,” which referred to “any disposition or dispositions of property … whereby the property is for the time being … held in trust….” ... Commissioners for Her Majesty's Revenue and Customs, [2017] EWCA Civ 1512 under s. 104(1) and Statutory Interpretation – Interpretation/Definition Provisions. ...

14 May 2020- 12:36am Cristofaro – Court of Quebec finds that a non-resident with no sources of income in Quebec nonetheless could transfer a tax credit to a Quebec taxpayer Email this Content In 2003-0026827, CRA applied Oceanspan to find that a non-resident student who has no Canadian sources of income is precluded from transferring her unutilized tuition credits to her resident father under ITA s. 118.9 because: an individual who is not resident in Canada and who has no Canadian source income would not be entitled to the tuition and education tax credits. ... He went on to indicate (at para. 49) that in any event, the daughter could be considered to be “subject to tax” (or “liable for tax” to use his preferred translation, and also essentially the phrase considered in Crown Forest): The income tax legislation … applies to all Canadian residents … because they may, in one year or another, earn business income in Quebec…. ...

25 June 2018- 1:23am CIBC – Tax Court of Canada finds that Visa’s fees to CIBC were subject to GST given inter alia that it was not a “person at risk” Email this Content CIBC issued Visa credit cards and utilized a credit card payment system that was operated and managed by Visa Canada. ... The Queen, 2018 TCC 109 under ETA s. 123(1) – supply, asset management service, financial service – s. ... (r.5), Financial Services and Financial Institutions (GST/HST) Regulations, s. 4(2)(b), s. 4(3)(c), s. 4(1) – person at risk. ...

Solo Capital – UK Supreme Court confirms 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”) sued in an English civil court 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 appellants (“Solo Capital”) 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. ... Summary of Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP & Ors [2023] UKSC 40 under Statutory Interpretation – Revenue Rule. ...

11 February 2019- 12:30am Forbes Painting – Federal Court finds that CRA is required to consider financial hardship in s. 221.2 credit transfer requests Email this Content The taxpayer (Forbes) did not file its corporate income tax returns for its 2006 and 2007 years, showing a refund position, until well beyond the three-year limitation under s. 164(1) for claiming those refunds. ... Before returning the matter for redetermination by another delegate, Boswell J stated: The ability of a corporate taxpayer to continue as a going concern … is a factor that should be weighed …. …When assessing a request for the re-apportionment of an SBC, the Minister should also have regard to whether denial of the request might possibly result in the Minister’s inability to collect outstanding tax arrears from a taxpayer. … [T]he decision [is] unreasonable because it is not apparent or transparent that Forbes’ financial hardship was a factor in the decision-making process. ...

11 August 2021- 10:54pm Vocan – Tax Court of Canada finds that supplies to insurers of injury assessment reports were not GST/HST exempted Email this Content Vocan supplied assessment reports to insurance companies or law firms regarding individuals injured in motor vehicle accidents. ... Vocan submitted that its facility was a health care facility, being “a facility … operated for the purpose of providing medical … care,” so that its supply of the reports was exempted under Sched. ...

30 May 2022- 11:04pm Khanna – Federal Court of Appeal finds that a gross negligence penalty could not be sustained where the trial was all about the taxpayer’s husband and she was ignored Email this Content The taxpayer conceded that she had unreported income from rental properties owned equally by her and her husband, but appealed the imposition of a gross negligence penalty. Monaghan JA noted that the taxpayer was not called to testify (which the Crown could have done) and that essentially the only testimony was of the taxpayer’s husband, which “was almost entirely about his actions and inactions,” so that essentially “nothing on the record address[ed] her involvement in or knowledge about the details of the rental business … and nothing on the record establish[ed] whether … the appellant knew she had unreported income prior to receipt of the reassessments.” ...

14 January 2024- 10:36pm Duval – Quebec Superior Court indicates that it has jurisdiction to consider requests for judicial review of ARQ refusals to reassess consequentially on a federal reassessment Email this Content The Quebec taxpayers did not object to ARQ reassessments that denied ½ of their claimed business loss for 2010 – but then successfully appealed to the Tax Court similar federal reassessments of that year. ...