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12 December 2017- 12:14am The Rulings Directorate has a services standard of providing an ATR within about 4 ¼ months, excluding delays for taxpayer information Email this Content Some points made by Costa Dimitrakopoulos (the new Director General) and Lori Carruthers on the Directorate's ATR service include: The Directorate’s services standard is for 85% of Advance Tax Ruling requests to be resolved within 90 business days of receipt of all essential information (or, it would appear from other remarks, within 90 business days of receipt of the request, but excluding the days that the ball is in the representative’s court to provide missing information). The Directorate met its service standard in 2015-16 (at 87%), but fell short this last year (at 78%). (90 business days equates to about 4 ¼ months.) ...

. – Federal Court finds that CRA failed to consider whether late T1135s were filed “voluntarily” for earlier years notwithstanding subsequent years being under review Email this Content A taxpayer had a history of filing its T2 returns late and had been subject to various CRA demands to file them. ... However, he was unwilling to make the same inference with respect to the earlier years, and there was no evidence that CRA had thought adequately about the proposition that it was perhaps unlikely that in assessing the later returns it would not have focussed on the absence of T1135s for the earlier years – and, in fact, the CRA officer appeared to not realize that those earlier years had already been assessed or, at any rate, was indifferent to that fact. ...

25 April 2018- 11:59pm Van Steenis – Tax Court of Canada finds that “return of capital” distributions by a mutual fund reduced the unitholder’s deductible interest Email this Content Graham J agreed with CRA’s position (in e.g., 2003-000082) that returns of capital received by a unitholder in a REIT or other mutual fund trust give rise to a change in the current use of the funds under the still-outstanding loan of the unitholder that had funded the units’ purchase. ... Graham J considered that it truly accorded with the scheme of the Act to characterize trust distributions in excess of the s. 104(13) income distributions as being returns of the unitholder’s capital, stating: Subparagraph 53(2)(h)(i.1) reduces the unitholder’s adjusted cost base in the fund by the amount of capital distributed to him or her. … The fact that distributions of capital are not treated as income until they exceed the amount of a unitholder’s investment clearly indicates that Parliament viewed distributions of capital as being returns of the unitholder’s own investment. ...

12 June 2018- 1:18am Wolf – Tax Court of Canada finds that revenues earned by an individual through an LLC could be included in determining what were his business revenues for services-PE purposes Email this Content A U.S. engineer provided services to Bombardier in Canada over a 188-day period (straddling the 2011 and 2012 years). ... His reasoning appears to be that the LLC’s revenues (from U.S. manufacturing and licensing of a patent generated by the taxpayer) all arose from the same expertise and design work of the taxpayer respecting aircraft fuel lines as were also being exploited in the 2011/12 work for Bombardier – and that the LLC was merely a passive vehicle for divvying up the profits generated from this enterprise engaged in by the taxpayer in conjunction with a third party. ...

13 July 2018- 12:32am Hydro-Québec – Federal Court refuses to permit CRA to require Hydro-Quebec to furnish information on its commercial customers Email this Content The Minister sought judicial authorization under ITA s. 231.2(3) and ETA s. 289(3) for making a demand of Hydro-Quebec to furnish listed particulars (e.g., address for invoicing and of electricity use, late payment identification and telephone number) for all its commercial customers who were charged the regular electricity rate – so that CRA could compare this information with what it had in its own files. ...

20 January 2019- 11:21pm Delia – Court of Quebec finds that a director showed due diligence in relying on accounts for his corporation that did not show a remittance obligation Email this Content The ARQ commenced a QST audit of a corporation (Motostar) after its voluntary dissolution by its sole individual shareholder (Delia) and assessed Motostar for some unremitted QST – and then assessed Delia for the same amount under the Quebec equivalent of ETA s. 323(1) (and ITA s. 227.1(1).) ...

23 January 2019- 11:57pm Poirier – Tax Court of Canada considers whether ETA s. 296(2.1) can be used to overcome the 2-year deadline for claiming the NRRP rebate Email this Content An individual (Poirier) applied for the new housing rebate on his purchase of a new condo unit even though he had already agreed to lease it out effective the closing date. ... Smith J indicated that the jurisprudence was unclear whether s. 296(2.1) could be applied to require CRA to grant an offsetting credit for the NRRP rebate when it assessed Poirier to deny the new housing rebate – so that he did not foreclose the possibility that s. 296(2.1) could thereby overcome the two-year deadline. ...

31 January 2019- 12:21am Stewart – Tax Court of Canada finds that a mortgage issued in a scam had full FMV Email this Content The RRSPs of the two taxpayers and for 117 other investors were defrauded. ... He also found that there was no income inclusion in the RRSP annuitants’ income under s. 146(9)(b), on the basis that such mortgage interests had a fair market value that equaled rather than being less than the cash consideration paid by the RRSPs therefor, stating that: The fact that they paid a price similar to the price paid by 117 other individuals evidences that they negotiated the price in “a market not exposed to any undue stresses and composed of willing buyers and sellers dealing at arm’s length”. … …[P]aragraph 146(9)(b) does not apply in a situation where a taxpayer directs his/her RRSP to make an investment with an arm’s length party for what the taxpayer believes is a fair market value consideration and the investment turns out to be a poor investment. ...

15 February 2019- 12:49am Milne – Ontario Divisional Court confirms that the executors per se do not hold their property in trust Email this Content The Ontario Divisional Court has overturned a decision of Dunphy J below that a primary will that covered property which needed probate in order to be transferred (as opposed to all the other property of the testator, such as private company shares, which was covered by a secondary will) was void because it did not satisfy one of the requirements for a valid trust, namely, that there be certainty of subject matter. First, Marrocco ACJ, speaking for the unanimous Court, stated that “A will may contain a trust, but this is not a requirement for a valid will” – so that it did not matter whether the primary will satisfied the test of the “three certainties” for the existence of a trust. ...

11 March 2019- 12:42am Klopak – Federal Court confirms an apparent denial of penalty relief for voluntarily disclosing a tax return error Email this Content Although the facts are quite unclear, what may have happened is that the Canadian-resident individual, who worked in the U.S. as a subcontractor to a rock band, originally filed late Canadian tax returns on the basis that his Canadian tax liability was offset by foreign tax credits for the U.S. taxes payable on his income. ... The taxpayer argued inter alia that as he “came forward with a voluntary disclosure in a timely fashion … it was unreasonable for the [CRA] Delegate to not exercise discretion in waiving the penalties.” ...