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4 March 2025- 10:37pm RTI – Court of Quebec confirms that it had no jurisdiction to deal with over-remittances of source deductions Email this Content Couture JCQ confirmed that the Court of Quebec had no jurisdiction to consider a Notice Of Objection of the taxpayer based on the failure of the ARQ to refund source deductions which it alleged that it had over-remitted, given that the Quebec equivalent of ITA s. 171(1) only accorded the Court of Quebec jurisdiction to deal with assessments. ...

15 December 2019- 11:46pm Landbouwbedrijf Backx – Federal Court of Appeal confirms that a Dutch company with a sole Dutch director was resident in Canada Email this Content When a Netherlands couple immigrated to Canada in 1998 to acquire a dairy farm here, they created a structure under which the farm was held in a partnership which was held by them directly as to 51% and as to 49% through a Netherlands holding company (“B.V.”) of which the wife’s sister (a Netherlands resident) was the sole director. ... IV(3) of the Treaty in this regard – which provides: Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both States, the competent authorities of the States shall endeavour to settle the question by mutual agreement.... ...

27 January 2020- 12:23am Promutuel Réassurance – Tax Court of Canada finds that 27 insurance companies who acted in a cooperative manner were a “group of persons” for s. 256(7)(d) purposes Email this Content 27 mutual general insurance companies (the “MGICs”), which were non-share corporations carrying on insurance businesses in their respective territories in Quebec, were found by Favreau J to constitute a “group of persons,” so that s. 256(7)(d) applied to their transfer of (Class A) shares, representing the voting control of a taxable Canadian trust company (“ProCap”), to a corporation without share capital (“ProRé”) engaged in the reinsurance of casualty risk and of which they were members. ... These findings turned in significant part on the role of a non-share corporation (the “Federation”) which did not have any capital participation in ProRé, and whose affairs were administered by a board of directors consisting of 10 individuals – seven directors and three managing directors of different MGICs. ...

8 November 2020- 11:00pm Glencore – Full Federal Court of Australia finds that it accorded with arm’s length transfer pricing for an Australian sub to agree to pricing that gave up some price upside for less volatility Email this Content An Australian subsidiary (“CMPL”) of Glencore Switzerland (“GIAG”), which had a high-cost copper mine, agreed with GIAG (who was the sole purchaser of the mine output) to amend its supply contract in early 2007 after there had been a surge in world copper prices. ... Before so concluding, the majority made numerous observations on transfer pricing principles, as they bore on the determination of an arm’s length price, including: “one should include all of the objective circumstances of the actual... mine” and the “objective circumstances of the copper concentrate market as at February 2007” however, “it would be appropriate to exclude any considerations that are the product of C.M.P.L.’s non-arm’s length relationship with G.I.A.G. and the broader Glencore Group” which “would include whatever attitude or policy C.M.P.L. had formed about the issue of risk when selling to G.I.A.G” “C.M.P.L. … could legitimately adopt a more conservative approach to risk so long as it was commercially rational to do so, and it is what an independent party dealing at arm’s length might reasonably be expected to have done” “the possibility of a range of arm’s length outcomes, each of which would be sufficient to answer the statutory test, is supported by authority” Neal Armstrong. ...

19 August 2021- 10:55pm Foix – Tax Court of Canada finds that s. 84(2) applied to a hybrid sale transaction Email this Content The shareholders of a private Canadian company (“W4N”) exploiting a valuable item of software had agreed in principle to sell W4N to a U.S. public company (“EMC”) for U.S.$50 million. ... He stated: As in RMM Equilease, EMC and EMC Canada, by virtue of their purchase of the business assets and shares of W4N, were the vehicles and intermediaries through which the distribution of W4N's funds or property to or for the benefit of its shareholders took place as a result of the earlier reorganization. … It does not matter that EMC and EMC Canada had other very significant interests in the share and asset purchase agreement. ...

., 3295940) – Tax Court of Canada finds that a circular use of capital dividends abused s. 55(2) and the purpose of the CDA Email this Content The taxpayer (3295940) was a holding company holding a shareholding in a Target with a low ACB (even after using safe income on hand to step up such ACB), whereas the holding company (Micsau) holding shares in 3295940 had a high ACB for its shares. ... That being the case, the alternative transactions involving the sale of 3295940 shares cannot be submitted for comparison …. ...

22 February 2023- 8:48am Foix – Federal Court of Appeal confirms that s. 84(2) extends to the indirect distribution of liquid assets of the target through its sale to an arm’s length purchaser cum “facilitator” Email this Content The shareholders of a private Canadian company (“W4N”) exploiting a valuable item of software had agreed in principle to sell W4N to a U.S. public company (“EMC”) for U.S.$50 million. ... He went on to indicate that “the scope of subsection 84(2) is sufficiently broad to counter this type of distribution when the property being distributed is fungible and a third-party facilitator is involved in the extraction process” and that “it would be contrary to Parliament’s intention to turn a blind eye to the existence of a distribution or appropriation for the sole reason that, for example, the shareholder received the target corporation’s property as a creditor rather than as a shareholder … or, as in the present case, that the funds received by the shareholder originate directly from a third party but indirectly from the target corporation.” ...

2 January 2024- 11:49pm Madison Pacific – Tax Court of Canada finds that two companies acted in concert to effectively acquire control of and transform a Lossco so as to access its losses contrary to s. 245(4) Email this Content The appellant (“MPP”) was an insolvent, publicly traded, mining company with accumulated net capital losses of $72.7 million. ... In this regard, after having noted that “the majority in Deans Knight highlighted that, while there had been no acquisition of control, there had been ‘the functional equivalent of such an acquisition of control’ by the company who effected the series of transactions (Matco)”, he indicated: [T]he Madison-Vanac Group fundamentally transformed the Appellant. … They structured the series of transactions in a way that ensured they would receive substantially all of the benefit from the application of those losses to a completely new business. ...

1 July 2024- 10:57pm Dow Chemical – Supreme Court of Canada indicates that the Tax Court lacks jurisdiction to review CRA decisions regarding s. 247(10) downward adjustments Email this Content The Minister indicated that she would not exercise her discretion to allow the request of the Canadian taxpayer (“Dow”) a requested “downward” adjustment under s. 247(10) (to increase the interest expense of Dow on a loan from a Swiss affiliate); and subsequently assessed Dow so as to make upward transfer pricing adjustments, but not any downward adjustment. ... Dow’s theory would lower the “bar by interpreting s. 18.5 to exclude the Federal Court’s jurisdiction not just where a decision is subject to an express statutory appeal, but also where it is merely captured by an appeal provision by implication” – which was “likely to provoke litigation about which discretionary decisions are caught, implicitly, by statutory appeal provisions in other settings” (para. 8). ...

11 August 2024- 11:47pm Onex – Federal Court finds that CRA should consider, in light of the remedial nature of ss. 220(2.1) and (3), that they could be used to accommodate a late election not listed in Reg. 600 Email this Content In 2014, Bill C-43, which amended the FAPI rules in relation to partnerships, provided that the new rules would apply to taxation years ending after July 12, 2013, unless the taxpayer elected, under Bill C-43, to have the amendments be deemed to have come into force on January 1, 2010. ... Regarding the CRA position that, even if it had the discretion under s. 220(3) to accept the filing of a new T5013 return, no extension was appropriate, Régimbald J found that CRA had failed to consider inter alia that its reassessment “would create injustices” given Onex’s representations that “they always intended to benefit from the ultimate tax result now provided by Bill C-43, and that their request was not an attempt at retroactive tax planning” – and that CRA had “failed to explain why, in its view, the ‘harsh consequences’ in this case better reflected Parliament’s intention”. ...