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14 September 2016- 12:54am Gervais – Tax Court of Canada finds that a basis averaging scheme to transfer half of a capital gain to the taxpayer’s wife was an abusive circumvention of the attribution rules Email this Content The taxpayer’s wife (Mrs. ... The Queen, 2016 CCI 180 under s. 245(4), s. 245(3) and s. 245(1) – tax benefit. ...

5 October 2016- 10:48pm Dell – Supreme Court of Spain finds that the local premises of a commissionaire were a fixed place of business of the non-resident principal Email this Content In civil law, a commissionaire is an entity that sells in its own name for the account of another. ... Sprague, "Observations on Treaty Interpretation – Spanish Supreme Court Addresses Commissionaires," Tax Management International Journal, 2016, p 55 under Treaties- Article 5. ...

17 November 2016- 12:42am Athabasca University – Tax Court of Canada finds that a University’s purpose in acquiring books for its students was their education rather than the (free) “sale” of the books to them Email this Content Athabasca University, which provided online courses to its students and delivered printed books to them without any additional charge, was entitled to a GST rebate on its purchases of the books provided that it could be considered, as required by ETA s. 259.1(2) to have acquired the Books “otherwise than for the purpose of supply by way of sale.” ... (This latter point may have been adverting to the fact that “sale” is defined for ETA purposes to “include any transfer of the ownership of the property”- so that, technically, a sale might include a gift – but her focus instead was on there being no “supply” of the books.) ...

9 December 2016- 12:19am Durocher – Federal Court of Appeal suggests obiter that it is proper for the Tax Court to pass on the alleged nullity of a contract in the context of passing on the correctness of an assessment Email this Content A financial institution, which was controlled by a non-resident, acquired an option to subscribe at a future date for the majority of the equity of a holding company for an Opco which, if actually exercised by it, would have violated a prohibition in the Act respecting financial services (Quebec) against it acquiring greater than a 20% stake in the company. ... Before so concluding, he stated obiter, respecting a Crown argument that it would have been beyond the competence of the Tax Court to (instead) declare that the options were invalid under Quebec law: [T]he role of the TCC, when confronted with an argument based on nullity in the context of an appeal under the ITA, cannot be assimilated to that of a Superior Court which has the power to “declare” a contract to be a nullity for all purposes pursuant to section 33, 35 and 142 of the Code of Civil Procedure … (see in comparison Markou v. ...

21 December 2016- 1:04am Great-West Life – Federal Court of Appeal states that the GST “financial services” definition should be applied based only on the “predominant elements” supplied Email this Content A third party (Emergis) provided automated claims processing services to Great-West Life, which administered or insured various client drug plans, so that the prescription drug claim of an employee would be processed at the pharmacy counter upon presentation of a magnetic card. ... " More interestingly, he also found that in the absence of this Regulation, the service would have been exempt as being for the payment of insurance policy claims – notwithstanding that the Emergis service entailed the provision of taxable supplies described in para. ...

23 December 2016- 12:43am Starflex – Quebec Court of Appeal indicates that gifts to charities likely cannot be deducted as business expenses Email this Content Art. ... In confirming the refusal below to allow this amendment, the Court of Appeal essentially found that Olympia was inconsistent with the Symes approach to statutory interpretation, stating: The specific tax treatment provided in the TA respecting gifts must prevail similarly to the pronouncements of the Supreme Court in Symes …. ...

27 December 2016- 9:25pm Grimes – Tax Court of Canada finds that holding company shares should not be discounted for shareholder level exit taxes, and applies a minority discount re a NAL party’s voting control Email this Content In determining the fair market value of a trust’s shares of a Holdco wholly-owning an Opco, the Tax Court found that there should be no discount to the FMV of the Holdco shares to reflect income taxes that would be payable by the trust on a redemption by it of its Holdco shares. ... The Queen, 2016 TCC 280 under General Concepts – FMV. ...

29 January 2017- 11:53pm PPP Group – Tax Court of Canada finds that automobile replacement “warranty” payments did not qualify for ITCs under ETA s. 175.1 Email this Content A Quebec company (“PPP”) through car dealers offered motor vehicle replacement “warranties,” which, in the event of the loss of the vehicle through accident or theft, would cover the difference between the depreciated value of the vehicle (which was covered by the regular insurer) and the cost of a new replacement vehicle. ... The Queen, 2017 CCI 2 under ETA s. 175.1, 169(1) and General Concepts – Illegality. ...

7 February 2017- 11:49pm Barrick Gold – Tax Court of Canada finds that gains from closing out gold hedges on the sale of a mine were included in mining production profits Email this Content The definition of “gross resource profits” included income from “the production and processing in Canada of…ore.” ... The Queen, 2017 TCC 18 under Reg. 1204(1)(b)(ii) and General Concepts – Accounting Principles. ...

2 March 2017- 11:24pm Ozerdinc Family Trust v Gowling – Ontario Superior Court of Justice finds that the test of causation of damages from professional negligence is a “but for” test Email this Content It was acknowledged that a tax lawyer had fallen below the relevant standard of care in failing to advise clients that a new family trust which replaced an old family trust would, by virtue of s. 104(5.8), have a deemed disposition of its assets only four years later- which, in fact, occurred (see Grimes). ... Summary of Ozerdinc Family Trust v Gowling, 2017 ONSC 6 under General Concepts – Negligence. ...