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10 December 2020- 11:20pm Edward Enterprise – Federal Court refuses addition to a disclosure compliance order of a condition that CRA give notice before disclosing the information to another authority Email this Content The Minister sought a compliance order under ETA s. 289.1(1) (similar to ITA s. 231.7(1)) to compel a Canadian corporation (EEIGI) to provide information needed in an audit. ... Southcott J stated: … EEIGI is seeking this relief without having articulated with any precision a basis in either fact or law for its concern that it may in the future face dissemination of the Required Information in a manner that offends the Charter. … [R]equiring CRA to disclose, in the course of an investigation, the fact that the investigation is taking place could compromise the investigation. ...

4 January 2021- 10:46pm BCS Group – Federal Court of Appeal finds that a corporation must be represented by counsel in General Procedure appeals Email this Content In Masa Sushi, Graham J found that a corporation could not appear “in person” in a General Procedure matter and had to appear through counsel, so that a Rule purporting to permit a corporation to appear in person with the Court’s consent would be ultra vires. ... It can only be represented by an agent who is a distinct person than the corporation. … By adopting detailed provisions dealing with representation in the Act, the legislator limited the TCC’s implied power to control who may represent the corporation in their courtroom, especially in proceedings subject to the General Procedure. … [T]he common law/civil law concept that a corporation cannot appear in person because of its very nature strongly suggest[s] that under section 17.1 [of the TCCA], a party who is a corporation must be represented by counsel as defined by subsection 17.1(2). ...

21 January 2021- 10:46pm MacDonald – Federal Court of Appeal finds that the Crown’s seeking an increased costs award was impermissible relitigation Email this Content After the taxpayer’s success in MacDonald in the Tax Court, he secured an enhanced costs award from the Tax Court based on a settlement offer he had made. ... Since the TCC’s enhanced cost order (under Rule 147(7)) was wholly contingent on the order it made in the underlying action, when that order was reversed, its Rule 147(7) order was rendered a nullity – there was nothing for the Crown to appeal. ... MacDonald, 2021 FCA 6 under General Concepts – Res Judicata. ...

7 July 2021- 10:56pm Wall – Federal Court of Appeal confirms that three successive sales of newly-constructed homes over a period of under 5 years were made in the course of a business or adventures Email this Content The taxpayer purchased three homes in Vancouver in succession between 2004 and 2009, demolished each one, constructed a new house and sold it less than two years after the purchase date. ... Wall’s “ex-post facto testimony regarding his intentions cannot overwhelm the manifestations of a different purpose objectively ascertainable from the record”. … Evidence contradicting the taxpayer’s arguments included: Each house was listed for sale before the occupancy permit was obtained. ... Summaries of Wall v The Queen, 2021 FCA 132 under ETA s. 123(1) – builder- (f), s. 191(5) and Sched. ...

29 August 2021- 11:01pm Rémillard – Federal Court finds that the open court principle ousted a taxpayer’s need for privacy Email this Content Pamel J granted the taxpayer’s application to exclude various items from the common evidentiary record that created a risk of identity theft, but did not make a confidentiality order regarding the taxpayer’s financial information and certain information regarding third parties. In finding that the taxpayer had not satisfied the first of the three conjunctive Sierra Club tests, namely, that “court openness poses a serious risk to an important public interest,” Pamel J stated: [The taxpayer’s] preference for discretion with respect to his affairs and his desire to remain out of the public spotlight are not an important public interests. … [T]here must be an element of an individual’s privacy concerns that elevates them to a public concern, beyond personal concerns and sensibilities (Sherman at para 54). ... Rémillard’s personal safety, an attack on his dignity, a risk of psychological harm or a risk to his professional reputation. … Regarding the related issue of tax secrecy, he stated: There is no indication that [the taxpayer’s] tax information requires different protection from the usual protection for all other tax records. ...

16 January 2022- 10:37pm Froehling – Federal Court finds that the taxpayer failed to demonstrate why his RRSP over-contribution was attributable to reasonable error Email this Content The taxpayer over-contributed to his RRSPs for the 2018 taxation year in December 2018 and, upon realizing his error in March of 2019, filed a return reporting the Part X.1 tax on his over-contribution (which was assessed largely as filed)- and then applied for waiver of the tax pursuant to s. 204.1(4). Aylen J noted that in Connolly “the applicant had provided little detail as to why he made the mistake that resulted in his over-contribution and did not appear to have made any inquiries, whether with his accountant, his bank or his employer, to confirm his RRSP contribution room … [so that] the Federal Court of Appeal concluded that his error likely could not be said to have been a reasonable one,” and found that she was faced with a similar situation here, stating: The onus was on the Applicant to ensure that he did not over-contribute to his RRSP and if there was any lack of clarity or understanding as [to] the contribution room available to him, the Applicant was expected to seek advice …. ...

26 January 2022- 10:56pm CIBC – Tax Court of Canada states that the continued correctness of PC Bank “now hangs by a thread” because of the narrowing of the financial services definition Email this Content After President's Choice Bank (the “2009 Decision”) determined that services supplied by a subsidiary of Loblaw (“PC Bank”) to CIBC were exempt arranging-for “financial services,” the ETA definition was then retroactively amended (through the addition of paras. ... (r.4) and (r.5), and further stated: The judgment … rendered [in the 2009 Decision] now hangs by a thread because of the new financial services definition. ... The Queen, 2022 TCC 26 under General Concepts – Res Judicata. ...

15 February 2022- 11:47pm Harding – Tax Court of Canada applies the Chopp principle that a s. 15 benefit is conferred where the shareholder ought to (but did not) know of the benefit Email this Content The taxpayer was the sole shareholder and director of a holding company which, in turn, was the majority shareholder of a logging company, which had been paying significant premiums on insurance policies (arranged by the taxpayer’s stepdaughter, a licensed insurance broker) on the life of the taxpayer and of his spouse and for which, at times, the beneficiaries were his spouse and stepchildren. In confirming the reassessments of the taxpayer under s. 15(1) in the amounts of the premiums, St-Hilaire J stated: … Chopp confirmed… that a benefit may be conferred without any intent or actual knowledge on the part of the shareholder if the circumstances are such that the shareholder ought to have known. ... The purchase of policies … for which significant premiums were paid and for which there were several changes to the beneficiaries over several years, is not and cannot be treated as a simple bookkeeping error. ...

17 February 2022- 10:44pm Hong Kong Style – Tax Court of Canada indicates that a CRA program to detect “zapped” sales did not alter the taxpayers’ burden to displace the Minister’s assumptions Email this Content Two incorporated restaurants were alleged by the Minister to have used “zapping” software to delete a portion of their sales, with the proceeds for the deleted sales being appropriated by their individual shareholder. ... Before so concluding, he volunteered his views on the likely irrelevance of the Algorithm to the matter of the burden on the taxpayers to displace the Minister’s assumptions as to unreported income, stating: The Appellants are under no obligation to prove that the … Algorithm is deficient or unreliable. ... The Queen, 2022 TCC 9 under General Concepts – Onus. ...

28 February 2022- 11:04pm Ghermezian – Federal Court finds that s. 231.1(1) authorizes CRA to compel the production of existing documents, but not to compel written answers Email this Content The Minister applied for s. 231.7 compliance orders respecting CRA requests for various documents made pursuant to s. 231.1(1) (and s. 231.2(1)). ... However, he accepted that “s 231.1 … does not authorize issuance of a demand compelling the recipient to provide, through written answers to questions, substantive information relevant to a taxpayer’s tax position” as contrasted to “authoriz[ing] compulsion of only pre-existing documentation.” ... Ghermezian, 2022 FC 236 under s. 231.1(1), s. 231.2(1), s. 231.6(2), s. 244(5) and General Concepts – Evidence. ...