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21 March 2017- 12:26am Aeronautic Development – Tax Court of Canada finds that a situation of extreme economic dependence gave rise to de facto control Email this Content A Canadian corporation (ADC), which had issued voting common shares for a modest amount to three Canadian employees, was found to be subject to the de facto control (as defined in s. 256(5.1)) of a U.S. corporation and its controlling shareholder (Mr Silva), so that it did not qualify for refundable SR&ED investment tax credits. Hogan J noted that “ McGillivray confirms that the influence [referenced in s. 256(5.1)] must be exercisable, directly or indirectly, against the voting shareholders of the corporation.” ...

31 March 2017- 1:33am BP Canada – Federal Court of Appeal finds that taxpayers should not be compelled to disclose to CRA the uncertain tax positions comprising their tax cushion Email this Content An order of the Federal Court pursuant to s. 231.7(1) that BP Canada was to disclose tax accrual working papers (or, at any rate, the uncertain tax positions which were reflected in its tax cushion), has been reversed in part because: [The] obligation to “self-assess” does not require taxpayers to tax themselves on amounts which they believe not to be taxable. Faced with an issue that is reasonably open to debate…taxpayers are entitled to file their tax return on the basis most favourable to them. … [A]lthough auditors are entitled to be provided with “all reasonable assistance” in performing their audits (paragraph 231.1(1)(d)…), they cannot compel taxpayers to reveal their “soft spots”. ...

4 April 2017- 12:46am Nestlé Canada – Tax Court of Canada finds that the mere posting and honouring by Costco of dollar-amount discounts for which it was reimbursed by Nestlé Canada did not come within the GST/HST coupon rules Email this Content Nestlé Canada promoted the sale of various of its products at Costco warehouses by having Costco agree to post signs on the shelves indicating per each product item a discount of a fixed dollar amount per item, and then reimbursing Costco for the full amount of all discounts applied to customer purchases at the Costco warehouses. ... The Queen, 2017 TCC 33 under ETA s. 181(1) – coupon and s. 231.2. ...

10 April 2017- 1:45am bcIMC – B.C. Supreme Court held that bcIMC was immune from HST payable on its investment fund but for an intergovernmental agreement Email this Content bcIMC is a BC Crown agent which was formed to manage and hold, under a provincial statutory trust, investments for the provincial pension plans. ... He stated: Section 16 of [bcIMC’s incorporating legislation] states that bcIMC “…is not liable for taxation except as the government is liable for taxation ”. ...

18 April 2017- 2:33am Investment Trust Companies – UK Supreme Court indicates that investment funds had valid unjust enrichment claims against suppliers who had charged VAT on exempt supplies Email this Content Using Lord Reed’s simplified facts, the invoice to an investment fund of its manager included VAT of £100 based on a UK VAT provision which was later determined to have improperly treated (contrary to the EU Directive) the manager’s services as taxable rather than exempt. ... Summary of HMR Commissioners v Investment Trust Companies (in liquidation), [2017] UKSC 29 under General Concepts – Unjust Enrichment. ...

3 May 2017- 12:41am High-Crest and Birchcliff Energy – Federal Court of Appeal nullifies cases that were decided by a 2nd judge based on the trial transcript before the 1st judge Email this Content Rossiter CJ dealt with the difficulties of a Tax Court Judge in not being able to do much work by assigning the transcripts of some cases that that judge had already heard to other judges to reach a decision based on the transcript, where the parties were amenable to this approach rather than choosing to undergo a fresh trial. ... The Queen, 2017 FCA 88 under Tax Court of Canada Act, s. 14(2) and ETA, s. 191.1(1) – government funding and of Birchcliff Energy Ltd. v. ...

8 May 2017- 11:38pm TD Bank – BC Court of Appeal finds that the B.C. ... Applying Stemijon, Frankel JA stated, before remitting the extension application for reconsideration: While it was open to the Commissioner to have regard to Ministry of Finance policy statements, she erred in treating them as the only relevant consideration. … By doing so, she fettered the broad [statutory] discretion given to her…and her decision is, therefore, unreasonable. ...

28 May 2017- 10:32pm Pak...d – Tax Court of Canada places a heavy burden on those seeking a publication ban Email this Content A taxpayer, who was found in the Tax Court to have claimed expenses of what did not qualify as a business, then brought a motion for a publication ban of Masse DJ’s reasons for judgment on the basis that they contained information that would result in harm to himself, his family and the public. ... Respecting the second test, she stated: In a self-assessing income tax system, it is particularly pertinent that the public have access to decisions of this Court, so that they can better ascertain the state of the law, particularly as it relates to issues which directly affect their daily activities. … The earlier decision is now back on the Tax Court site. ...

31 May 2017- 11:13pm MP Western Properties – Tax Court of Canada states that the Crown must produce all documents “considered by officials involved in or consulted during” a GAAR-related audit Email this Content Predecessors of the taxpayers had been acquired for their losses in transactions where less than 50% of their voting shares, but more than 90% of their non-voting participating shares, had been acquired. ... Miller J stated: … It is my view that in a GAAR appeal, draft documents prepared in the context of a taxpayer’s audit or considered by officials involved in or consulted during the audit and assessment of the taxpayer should be disclosed. ...

2 August 2017- 1:16am Callidus Capital – Federal Court of Appeal finds that creditors’ personal liability, for being paid pre-bankruptcy out of GST/HST deemed-trust property, survives bankruptcy Email this Content ETA s. 222(3) provides that payments received by a secured creditor out of property that is subject to the deemed statutory trust under s. 222(1) for collected but unremitted GSTHST is itself subject to a deemed trust in favour of the Crown. ... In his dissenting reasons, Pelletier JA referred inter alia to s. 67(2) of the Bankruptcy and Insolvency Act, which reflected an intention that “Parliament put the Crown on the same footing as unsecured creditors” in a bankruptcy” – with an exception for employee source deductions, which “is explained by the fact that source deductions are amounts which belong to the employee in question…[and] this money does not belong to the employer anymore.” ...