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1 December 2024- 11:39pm Magren – Federal Court of Appeal finds it an abuse of the capital gains system to recognize a capital gain increment to a CDA account when there was no net change in economic position Email this Content The taxpayers were private companies controlled by a resident individual (Grenon), whose RRSP held 58% of the units of a publicly traded income fund (“FMO”). ... After noting that Triad Gestco had found that “the capital gain system … [is] aimed at taxing increases in ‘economic power’” rather than only “an arithmetic difference”, Monaghan JA stated that “[t]he appellants had neither an economic gain nor an economic loss; there was absolutely no change in their economic power as a result of their participation in the FMO reorganization” and “[a]s in Triad Gestco … avoidance transactions frustrated the object, spirit and purpose of the capital gain and capital loss provisions in the Income Tax Act.” ... Canada, 2024 FCA 202 under s. 245(1) – benefit, s. 245(4), s. 245(2), s. 104(6), General Concepts – Ownership, Sham. ...

However, it was precluded by statute from going back more than three years with its refund claims – but there was no such time limitation where a repayment of VAT was claimed based on there being “a decrease in consideration for a supply.” ... Lord Legatt stated: What is required … is a change in the consideration actually received by the supplier. … All that has happened is that the taxpayer has had second thoughts about how the consideration received at the time of the supply should be analysed for tax purposes. A similar issue could arise under ETA s. 232, which provides for a potential GST/HST reduction where, after GST/HST has been charged on the consideration for a supply, “for any reason, the consideration … is subsequently reduced.” ...

23 June 2025- 12:02am St-Joseph – Quebec Court of Appeal finds that the transformation of 2 floors of commercial building to residential use did not qualify as a “termination” of commercial activity for QST purposes Email this Content St-Joseph incurred costs in converting the 1 st and 2 nd floors of a 12-storey mixed-use tower from commercial rental use into rental seniors’ residences (RSRs). It argued based on the QSTA equivalent of ETA s. 141.1(3)(a) that it had incurred the costs “in connection with the … termination of a commercial activity” of it, so that such costs were deemed to have been incurred in the course of its commercial activity, thereby entitling it to input tax refunds under the Quebec equivalent of ETA s. 169(1) – B(c). In rejecting this position and before dismissing St-Joseph’s appeal, the Court stated: [Its] argument … fails to explain how the transformation aimed at a new activity is, in itself, related to the termination of the previous activity. … [T]he expenses for the renovation and transformation into an RSR were not related to the termination of the commercial rental activity …. ...

13 December 2018- 12:06am Jayco – Tax Court of Canada finds that the taxpayer has no remedy in a costs award for LC fees paid to secure its GST/HST obligation until reversed Email this Content After its successful appeal of a GST/HST assessment, Jayco sought to include, in the costs recoverable from the Crown, the $1.4 million paid by it to JP Morgan in order to obtain a letter of credit to secure the GST/HST it owed until the assessment was reversed. In rejecting this claim, D’Auray J stated: In essence, Jayco is submitting that the Minister ought to have exercised her discretion differently and not taken any collection action on the GST/HST assessed. … This Court does not have jurisdiction to review the Minister’s exercise of that power—that jurisdiction rests with the Federal Court. … The Rules are clear that disbursements will only be awarded if they are essential to the conduct of the proceedings. … The interest was not paid by Jayco to establish that the Minister’s assessment was incorrect …. ...

14 April 2024- 10:11pm Kute Knit – Quebec Court of Appeal confirms denial of supervisory SR&ED salary claims under Reg. 2900(2)(b) which were asserted rather than proven Email this Content The taxpayer, which was acknowledged by the ARQ to be engaged in SR&ED, had claimed percentages (ranging from 15% to 75%) of the salaries incurred during its 2011 and 2012 taxation years for various management and supervisory employees as being the times that they were directly supervising the prosecution of SR&ED within the meaning of the Quebec equivalent of Reg. 2900(2)(b). ... Other than this table, the appellant did not file supporting documents regarding the percentages set out therein, be they time sheets, SR&ED progress reports, correspondence, minutes of meetings, internal notes or emails related to these tasks, nor did it … call any of the employees from these two groups as witnesses to support these percentages …. The Court found no reviewable error in the finding below that the taxpayer had thus failed to “demolish” the ARQ assessments by making out a prima facie case, that the ARQ’s premise — of the taxpayer not having shown that the reported portions of each employee’s salary could reasonably be attributed to the prosecution of SR&ED — was false. ...

7 February 2023- 12:04am Marchessault – Court of Quebec finds that frequent visits by an Alberta worker (without a permanent Alberta home) to his Quebec parents and friends did not establish Quebec residence Email this Content The taxpayer started in 2006 to work exclusively at a succession of pipeline-construction jobs in Alberta (or, on occasion, in B.C.) in all but about three or four of the winter months- during which he would visit his parents and friends in Quebec (while generally staying in a hotel), or travel to warmer locations. ... Marchessault must deprive himself of the opportunities afforded by his mode of life to visit his parents in order to break his ties of residence to Quebec. … Mr. ... However, the … [quoting Thomson] “spatial bounds within which he [spent] his life” were within Alberta throughout the Period …. ...

5 February 2025- 8:02am Bell Canada – Federal Court of Appeal finds that Ontario electricity suppliers made single supplies of electricity notwithstanding separate regulatory and delivery charges Email this Content Bell Canada was required as a result of ETA s. 236.01 and the related regulation to recapture 100% of the input tax credits that it claimed in respect of the 8% Ontario HST that it paid on the consideration for the supplies to it in Ontario of electricity. ... In affirming this finding, Boivin JA distinguished Kevin Davis Dentistry, which gave effect to the expressed Parliamentary intent to “provide for different tax treatment of supplies of orthodontic appliances and orthodontic service” whereas, here, the Ontario regulations did “not amount to as clear an indicator of Parliament’s intent as the GST Act did in Kevin Davis Dentistry ”. ... Canada, 2025 FCA 27 under ETA s. 123(1) – supply. ...

12 July 2020- 11:15pm Matthew Macisaac Consulting – Tax Court dismisses request for Rule 58 determination that reporting gains as on capital rather than income account was not a “misrepresentation” Email this Content The taxpayer was reassessed for quite a number of taxation years for which the main substantive issue was whether dispositions of shares in an offshore fund were on capital account – but many of the earlier years were beyond the normal reassessment period. ... In dismissing the motion, she stated: I cannot agree with the Appellant’s proposition … that a question of income versus capital necessarily amounts to a difference in opinion. … [T]he factual circumstances of the appeal will determine whether the issue of income versus capital is purely a difference of opinion or not. … The question of whether a misrepresentation under subparagraph 152(4)(a)(i) contemplates fact only or mixed-law-and-fact, should properly remain with the trier of fact to determine in conjunction with the related substantive issues. ...

He stated: [T]he appellant spent almost all of his time playing poker. … Despite his unusual lifestyle and his propensity to ridicule his opponents, the appellant was a serious businessman. … The appellant adopted objective standards of risk management and minimization. ... At this level of winnings by the appellant over such a long period of time, I am satisfied that the appellant had a reasonable expectation of being able to make a living at playing poker …. ... The King, 2023 CCI 12 under s. 3(a) – business source. ...

Each objected – but no appeal to the Tax Court had yet been launched. ... Pikes had never been paid for by them, contrary to s. 23(3) of the OBCA), stating: … [T]he Tax Court has jurisdiction to interpret s. 23(3) of the OBCA. … Parliament has created a specific court with expertise in tax matters and has created a specific process to address tax issues. ... Summary of Mandel v. 1909975 Ontario Inc., 2020 ONSC 5343 under General Concepts – Rectification. ...