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20 June 2018- 11:51pm Davis – Tax Court of Canada finds that an individual who was well advanced in his steps to return to Canada had a “habitual abode” in the U.S. ... Davis … habitually lived in the U.S. Neal Armstrong. Summary of Davis v. The Queen, 2018 TCC 110 under Treaties – Income Tax Conventions- Art. 4. ...

4 July 2018- 7:00am Béliveau – Tax Court of Canada finds that insurance benefits received by an ill dental surgeon to cover her practice expenses were taxable receipts Email this Content The taxpayer, a self-employed dental surgeon, received benefits totalling over $600,000 under three Great-West policies during a two-year period of illness. ... In affirming the Minister’s assessment, which treated the amounts paid out to the taxpayer under the first two policies as s. 9 income, Favreau J stated: The surrogatum principle … is applicable [under which] the tax treatment of sickness insurance benefits depends on what such benefits are intended to replace being, in this case, the general expenses of carrying on the dental clinic. ... The Queen, 2018 CCI 87 under s. 9 – compensation payments and s. 18(1)(a)- income-producing purpose. ...

15 July 2018- 11:42pm Fortnum – Tax Court of Canada applies the residual presumption in favour of the taxpayer Email this Content S. 118.5(1)(b) accords a tuition credit to “a student in full-time attendance at a university outside Canada in a course leading to a degree” subject to exclusions for inter alia fees “paid in respect of a course of less than three consecutive weeks duration.” ... He also stated: [W]here the application of the ordinary principles of interpretation may not resolve the issue … the matter should be resolved by recourse to the residual presumption in favour of the [taxpayer, citing Placer Dome]. ... The Queen, 2018 TCC 126 under s. 118.5(1)(b) and Statutory Interpretation – Resolving Ambiguity. ...

16 July 2018- 10:56pm Aitchison Professional Corporation – Tax Court of Canada finds that s. 160 does not catch the transfer of valuable services to a non-arm’s length person Email this Content At a time that a lawyer (“James”) owed $2.1 million in taxes, he transferred his law practice to a professional corporation and thereafter worked for it as an unpaid volunteer or employee. ... He added: This case demonstrates that there is clearly a gap in section 160 … [but s]imply amending section 160 to cause it to cover the non-arm’s length provision of services may have undesired consequences. … If a tax debtor spent all of his or her free time caring for his or her aging parents, would the Minister assess the parents for the fair market value of that care? ...

7 August 2018- 11:28pm Kau – Tax Court of Canada finds declaration of non-residency from a vendor to be insufficient to avoid s. 116(5) liability where there were indicators of a non-resident address Email this Content S. 116(5) indicates liability for failure to withhold under s. 116 on a purchase of taxable Canadian property from a vendor who in fact is non-resident unless “after reasonable inquiry the purchaser had no reason to believe that the non-resident person was not resident in Canada.” ... Russell J stated that, given the presence of “red flags:” [W]hat happened in this case did not constitute “reasonable inquiry”. … Simple questions such as what was the Vendor’s permanent address as opposed to “address for service” and provision of a copy of the Vendor’s driver’s license, would have done much to bring clarity to this situation without undue further efforts. … [S]ubsection 116(5)(a), calls for and deserves more than a brief, baldly stated affidavit or solemn declaration when there are factual red-flags potentially suggestive of non-residency. ...

4 December 2018- 11:40pm Ryanair – European Court of Justice finds that takeover expenses incurred in order to earn management fees from the target would generate VAT deductions Email this Content Ryanair sought to deduct VAT incurred on its expense incurred in a takeover bid on the basis that it intended to earn management fees from the target – even though this intention was not realized since, for competition law reasons, it ultimately was permitted to acquire only a portion of the target’s shares. ... Before so concluding, the Court stated: [T]he right to deduct, once it has arisen, is retained even if the intended economic activity was not carried out and, therefore, did not give rise to taxed transactions …. ...

Legault Joly Thiffault – Supreme Court of Canada finds that a shareholder generally cannot sue for bad tax advice provided to the corporation Email this Content A Quebec trust, whose sole asset was its investment in the holding company for a group of retirement residences companies (Groupe Melior) that became bankrupt following an ARQ assessment, sued the professional advisors of Groupe Melior on the basis that they had set up a flawed tax structure for Groupe Melior. ... Harbottle (1843), 67 E.R. 189 “which categorically bars shareholder recovery for faults committed against a corporation,” stating: The corporate veil is impermeable on both sides; just as shareholders cannot be liable for faults committed by the corporation, so too are they barred from seeking damages for faults committed against it …. ... Legault Joly Thiffault, s.e.n.c.r.l., 2018 SCC 55 under General Concepts – Negligence. ...

22 January 2019- 11:46pm Prima Properties – Tax Court of Canada finds that a taxpayer was not negligent in failing to ask its accountant about a change in use of its rental property Email this Content CRA assessed the taxpayer on the basis that there was a change in use of its rental property from commercial activity to exempt rental activity, when it started to rent the property to an NPO for homeless people, thereby triggering GST equal to the previously claimed input tax credits for the property. ... The taxpayer’s principal, as a lay person, could not be expected to recognize the issue of triggering a change of use – and to expect him “to initiate a discussion with [the company’s accountant] concerning the possible application of a highly technical provision of the Act would be to hold him to an unrealistically high standard of care.” Finally: Aridi … found that it was not sufficient to show negligence on the part of the taxpayer’s professional advisor in making the misrepresentation, and that the taxpayer must also be shown to have acted in a negligent or careless manner. ...

25 January 2019- 12:22am Bourgault – Tax Court of Canada independently assesses whether a rectification judgment was “justifiably obtained” Email this Content The written agreement for the purchase by the taxpayer of shares of a real estate corporation (“Quatre Saisons”) stated that the purchase price was to be satisfied by the payment to the vendor (“Placeval”) of 50%, then 30%, of the sales proceeds of real property of Quatre Saisons- and then sewed confusion by stating that such proceeds were to be paid to Placeval as commissions. ... Before granting the taxpayer’s appeal from the assessment, Favreau J first indicated that the Crown was not bound by the Court order “as neither the Attorney General of Canada nor the Minister was involved in the application,” and also found that the judgment was not “ res judicata.” ... The Queen, 2019 CCI 6 under General Concepts – Rectification. ...

7 March 2019- 12:26am FTQ – Federal Court of Appeal affirms that a payment in substance made to walk away from a worthless investment did not qualify under s. 18(1)(a) Email this Content The taxpayer agreed with the City of Chandler that it would no longer use any loan repayment proceeds received by it from a City-owned corporation- that had failed in an costly attempt to restart a paper mill close to the City – to invest in a prospective replacement economic-development LP to be sponsored by the City, but would instead make a “gift” of the loan repayment proceeds (which ended up totalling $9.3 million) to the City, for which it received charitable receipts. ... The Queen, 2018 CCI 3, aff'd on s. 18(1)(a) grounds 2019 CAF 36 under s. 110.1(1)(a) and s. 18(1)(a) – income-producing purpose. ...