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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). ...

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. ...

Livent – Supreme Court of Canada finds that auditor negligence in providing comfort to investors in a public company did not result in liability Email this Content Deloitte was found to have negligently provided a comfort letter in October 1997, which assisted Livent in raising money from new investors, and to have also negligently provided an unqualified audit opinion in April 1998 respecting Livent’s 1997 financial statements. Gascon and Brown JJ, speaking for a bare majority of the Supreme Court, found that Deloitte was not liable to the receiver for Livent for the negligent comfort letter, because it helped accomplish Livent’s purpose of raising money, stating: Deloitte never undertook, in preparing the Comfort Letter, to assist Livent’s shareholders in overseeing management; it cannot therefore be held liable for failing to take reasonable care to assist such oversight. … Consequently, the increase in Livent’s liquidation deficit which arose from its reliance on the Press Release and Comfort Letter was not a reasonably foreseeable injury. ... Summary of Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63 under General Concepts – Negligence. ...

26 November 2018- 2:04am Louie – Tax Court of Canada places a temporal limitation on the advantages considered to arise from TFSA swap transactions Email this Content From May 15 to October 17, 2009, the taxpayer directed 71 “swaps” under which TSX-listed shares were transferred between her self-directed TFSA and her taxable trading account at a discount brokerage (“TDW”), or between her TFSA and her self-directed registered retirement savings plan (also with TDW). ... She was troubled that the attributable test had “no easily defined or delineated end point … regarding the length of time during which an increase may still be attributed to an impugned transaction” and noted that “A more restrictive interpretation of paragraph (b) … avoids these difficulties.” ... The Queen, 2018 TCC 225 under s. 207.01(1) – advantage- s. (b)(i), s. 207.05(3), s. 248(10) and General Concepts – FMV- shares. ...

25 September 2019- 11:58pm Lohas – Tax Court of Canada finds that buyers made purchases of iPhones as agents for a grey market reseller Email this Content A grey marketer (Lohas) of newly-released iPhones purchased them in Vancouver-area Apple stores for export to Hong Kong and Taiwan, where those models were still unavailable. ... In rejecting this argument, D’Auray J stated: … [A]ssuming the buyers purchases were in violation of Apple policy[,] at most, this made the purchase contracts voidable and not void. ... The Queen, 2019 TCC 197 under General Concepts – Agency, Input Tax Credit Information (GST/HST Regulations, s. 3(c)(ii) and General Concepts – Onus. ...

26 November 2018- 2:03am Lee – Tax Court of Canada rejects reassessments treating a Quebec discretionary trust as a sham Email this Content The taxpayer, Mr. ... Paris regarding the legal relationships created under Québec law. … [E]ven if the Appellant’s sole reason (motive) for creating the Trust and transferring the … Shares to the Trust was to save tax, that is not in and of itself evidence of a sham. ... The Queen, 2018 TCC 230 under General Concepts – Sham. ...