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18 February 2020- 11:49pm Barejo – Federal Court of Appeal finds that the amount payable under a “debt” for s. 94.1(1)(a) purposes need not be crystallized until maturity Email this Content An offshore fund ("SLT"), in which the taxpayer had an interest, invested in instruments (labelled as "Notes") of non-resident subsidiaries of Canadian banks. ... After stating that “subsection 94.1(1) … contemplates in express terms that an instrument that derives its value from fluctuating portfolio investments can be a debt” and that a narrow construction of “debt” would go contrary to the purpose of the above provisions of “annual imputation of income while … foreign investments are in place,” Noël CJ found that future crystallization of the amount due was sufficient, and concluded: When regard is had to the text, context and purpose of paragraph 94.1(1)(a), a debt arises for purposes of this provision when an amount or credit is advanced by one party to another party; an amount is to be paid or repaid by that other party at some point in the future in satisfaction of the advance and this amount is fixed or determinable or will be ascertainable when payment is due. As these three conditions are present here … this suffices to dispose of the appeal …. ...

14 August 2022- 11:02pm Coopers Park – Tax Court of Canada grants production of documents reviewed by the GAAR Committee in a similar case that then was applied to the taxpayer Email this Content The taxpayer, which had been assessed under s. 245(2) to deny the carryforward of losses and credits, sought the discovery of proposals made by CRA to two unrelated taxpayers that set out its understanding of the facts and its legal analysis thereof. ... In finding that they were discoverable, Owen J stated: [I]n GAAR cases, the legal analysis of the Minister in support of the policy relied upon is subject to discovery. … [R]eliance is not the test for relevance. … [C]onsideration of the documents in the context of the audit of the Appellant is sufficient to make them relevant for the purposes of discovery. ... After noting that “[i]f the GAAR Committee had considered the Appellant’s case, there is no doubt that the Appellant would be entitled to discovery of all non‑privileged documents considered by the GAAR Committee in deciding to assess the Appellant under the GAAR,” Owen J stated: [T]he Appellant is equally entitled to all non-privileged documents considered by the GAAR Committee in deciding to assess under the GAAR the unrelated taxpayer described in the Similar Case … because that decision directly resulted in the subsequent decision to assess the Appellant under the GAAR. ...

23 June 2017- 7:58am 2763478 Canada – Tax Court of Canada finds that not all the transactions in a value-shift scheme were infused with an estate-freezing purpose Email this Content An individual did not sell his shares of an operating company (Groupe AST) directly to a third-party purchaser. ... Although, unlike Triad Gestco and 1207192, the capital gains – to be offset by the value-shift loss – were realized in internal transactions, this was not a relevant difference. ...

28 January 2018- 11:31pm Gauthier – Federal Court finds that CRA is not precluded from using information received under the VDP to reassess taxation years before the 10-year s. 220(3.1) period Email this Content The applicant transferred $300,000 to a Bahamas bank account in 1978. ... In refusing this request, Martineau J indicated that, under ss. 165(3) and 171, the Tax Court had the power to cancel an assessment, and stated: …The public interest — i.e. the orderly application of the ITA — takes precedence here over the financial and other inconveniences that the applicant may face by having, like all taxpayers, to follow the normal challenge procedure set out in the ITA. ...

Masse DJ nonetheless found that the taxpayer was carrying on business, stating: … He certainly could demonstrate better business practices and I note that his record keeping leaves much to be desired but I still conclude that he conducted his activities with a level of commerciality sufficient to constitute a business. …. His ventures have seen prior successes and he … is continuing to pursue similar opportunities in hopes of repeating his prior success. ... The Queen, 2020 TCC 98 under s. 3 – business source/reasonable expectation of profit. ...

14 May 2019- 12:30am Pierre – Court of Quebec finds that a couple had a fraught but “conjugal” relationship Email this Content In Quebec they are referred to as “de facto spouses” rather than “common-law partners” but otherwise the federal and Quebec definitions are quite similar. Both reference the concept of cohabiting “in a conjugal relationship,” and both provide that they cease to be common-law partners/spouses if (to use the Quebec language) they have ceased “cohabiting … for a period of at least 90 days … because of a breakdown of their conjugal relationship.” ... Agence du revenu du Québec, 2019 QCCQ 2137 under s. 248(1) – common-law partner. ...

24 May 2020- 11:53pm Fowler – UK Supreme Court finds that deeming an employee to be an independent contractor did not oust the Treaty Employment-Income Article Email this Content A U.K. domestic income tax provision deemed the diving activities of a South African resident in the North Sea to be the carrying on of a U.K trade, notwithstanding that in fact he was an employee. ... He noted that the UK domestic deeming provision instead only had a limited purpose, which was to give the diver access to more generous deductions from income, and stated that to apply this limited “deeming provision … so as to alter the meaning of terms in the Treaty with the result of rendering a qualifying diver immune from UK taxation would be contrary to its purpose.” ... Summary of Fowler v Commissioners for Her Majesty’s Revenue and Customs [2020] UKSC 22 under Treaties – Income Tax Conventions- Art. 3 and Statutory Interpetation – Interpretation Provisions. ...

25 July 2018- 12:29am Canada Without Poverty – Ontario Superior Court of Justice declares that ss. 149.1(6.2)(a) and (b) are of no force and effect Email this Content A registered charity devoted most of its resources to public policy advocacy with a view to ending poverty. ... In response to the Attorney General’s argument that “the Applicant has a right to free speech, not to subsidized speech” through the ability to issue charitable receipts, Morgan J stated: [T]he evidence is that the Applicant cannot function – or will have difficulty in functioning – in the absence of registered charitable status. ...

9 May 2021- 9:58pm CRA acknowledges that Cameco may limit the use of s. 247(2)(d) recharacterization – and that s. 247(2)(c) must take into account the parties’ relationship Email this Content Regarding the CRA response to the TCC and FCA decisions in Cameco, CRA stated “that these decisions may limit situations where the re-characterization provision in paragraphs 247(2)(b) and (d) could be applied … [h]owever, the CRA will continue to consider the application of the re-characterization provision where appropriate.” CRA further stated: The CRA will continue to administer … 247(2)(a) and (c) in a manner consistent with the guidance … [in] General Electric [para. 54]: “…The task in any given case is to ascertain the price that would have been paid in the same circumstances if the parties had been dealing at arm’s length. ...

22 November 2016- 10:54pm Alexander College – Federal Court of Appeal finds that a private college qualified as a “university” for GST purposes Email this Content The ETA states that a "’university’ means a recognized degree-granting institution or an organization that operates a college affiliated with, or a research body of, such an institution. ... The Queen, 2016 FCA 269 under ETA s. 123(1) – university, Sched. V, Part III, s. 7 and Statutory Interpretation – Interpretation Provisions. ...