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The King, 2023 TCC 127-- summary under Scientific Research & Experimental Development Summary Under Tax Topics- Income Tax Act- Section 248- Subsection 248(1)- Scientific Research & Experimental Development challenging engineering involving standard procedures was not SR&ED The taxpayer (ML), carried on a business of the custom designing and making of injection molding including for the automotive industry. ... [His] …answers did not reveal or identify technological uncertainties being addressed in a scientific manner. … ML’s favoured approach … was to basically try various options, anticipating that one likely would work. For me that is indicative of routine engineering or standard procedures. … ...

Oroville Reman & Reload Inc. v. Canada, 2016 TCC 75-- summary under Territorial Limits Summary Under Tax Topics- Statutory Interpretation- Territorial Limits an assessment of a U.S. softwood importer who did not carry on business in Canada was an unauthorized extraterritorial exercise of enforcement jurisdiction The taxpayer was a U.S. subsidiary of a Canadian lumber producer. ... Although a few – including Oroville – were U.S. companies, the vast majority of the importers of record who paid the duties were Canadian lumber producers. ... This can only be so if the application of the SLPECA to the Appellant is justified on the ground of territoriality. … Translated to the case at bar, the question is whether there is a "real and substantial link" between Canada and the activities giving rise Canada's claim for tax. ...

Deloitte & Touche, 128 OR (3d) 225, 2016 ONCA 11, rev'd in part 2017 SCC 63-- summary under Negligence, Fiduciary Duty and Fault Summary Under Tax Topics- General Concepts- Negligence, Fiduciary Duty and Fault auditors liable for failure to detect the company’s own fraud effected through its senior management A negligent audit by an auditing firm (“Deloitte”) of a Canadian public corporation (“Livent”), in which Deloitte failed to discover that senior management was fraudulently misstating the financial statements, was found by the trial judge to have resulted in damages to Livent, so that Deloittte was liable to the receiver-manager for Livent. ... In rejecting this submission, Blair JA noted (at para. 113) that the rationale for such an illegality (or “ ex turpi causa ”) defence “was to avoid “damage to the integrity of the legal system,” whereas this concern did not arise here as “the actual fraudsters will not profit from their wrongdoing and have not evaded criminal sanction…[n]or will Livent profit from the wrongdoing” (para. 156). ...

The Queen, 2019 TCC 65 (Informal Procedure)-- summary under Scientific Research & Experimental Development Summary Under Tax Topics- Income Tax Act- Section 248- Subsection 248(1)- Scientific Research & Experimental Development development of custom software qualified as SR&ED The taxpayer, which was an engineering firm specializing in developing public transit related technology, engaged in a project to develop its web‑based system using algorithms and GPS data to provide accurate real‑time data for predicting the arrival time of public transit buses. In finding that the taxpayer satisfied the five-factor test in Northwest Hydraulic Smith J stated (at paras 19, 21, 22, 25, 27, 28): [T]he objectives which the Appellants sought to achieve were sufficiently uncertain during the subject years. … [T]he Appellant’s Project was much more than “quality control or routine testing (…)” excluded by paragraph (f) of the Act, and … there was a “technological risk or uncertainty”. ... I … find that Appellant applied the scientific method and that its activities were structured to remove a technological uncertainty through the formulation and testing of its hypothesis. … [P]aragraph (d) of the definition of SRED includes “work undertaken for the purpose of achieving technological advancement for the purpose of creating new, or improving existing, materials, devices, products or processes, including incremental improvements thereto”. ...

Collins Family Trust v Canada (Attorney General), 2019 BCSC 1030, aff'd 2020 BCCA 196, rev'd 2022 SCC 26-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission Fairmont cast doubt on but did not overrule Pallen After noting that the applications before him for the rescission of transactions entailing reliance on an interpretation of s. 75(2) that was established by Sommerer to be incorrect – and that in Pallen “which concerned an almost identical set of facts … rescission was granted” (para. 3), Giaschi J stated (at para. 5): I agree with the submissions of the respondent that the decisions... in Fairmont and Jean Coutu have seriously undermined Pallen. ... [holding] that a tax plan similar to the ones before me (and therefore also similar to the plan in Pallen) constituted abusive tax avoidance and was subject to GAAR. … In Satoma the primary purpose was found by the trial judge to be to avoid payment of any tax…. ...

Attorney General of Canada, 2017 ABCA 393-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission cannot use general equitable jurisdiction to do an end run around the narrow (post- Fairmont) rectification doctrine A last-minute requirement of a lender (“ATB”) to the target corporation (“Krang Energy”) for ATBH’s loan to be repaid on closing resulted in the purchase price being reduced by $35M and that amount being lent by an affiliate of the buyer (a predecessor (“Viking Holdings”) to the appellant in this action) to Krang Energy to fund the loan repayment. ... The means that the parties utilized in pursuit of their goal of a tax-neutral transaction – and not the goal of tax neutrality – are the primary focus of a rectification application. ... There is no principled basis, in the guise of exercising our equitable jurisdiction, to pump theoretical steroids into the rectification doctrine and give it the strength or force that the Supreme Court of Canada recently and consistently has declined to do. … ...

Canada, 2017 FCA 39-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission foreign rectification order not dispositive The taxpayer’s Barbados and Cyprus subsidiaries paid amounts to the taxpayer in 2004, 2005 and 2006 as dividends and then, following CRA proposals to assess the dividends, obtained rectification orders from the applicable Barbados and Cyprus courts declaring that the amounts instead were loans to it (or otherwise gave rise to indebtedness). ... Moreover, since these foreign orders involve the appellant and its Foreign Affiliates and not the Minister, a third-party to the foreign proceedings, there is nothing to enforce against the Minister; homologation is therefore a non-issue. … However, Boivin JA further stated (at paras 19-20): I cannot agree … that pursuant to article 2822 C.c.Q. these foreign orders are dispositive and that the Minister has no choice under the ITA but to accept the dividends are actually loans because the orders from Barbados and Cyprus say so. ... These determinations are for the Tax Court judge to make, with a full evidentiary record at his or her disposal. … On this basis, he concluded that Lamarre ACJ should not have answered the Rule 58 question, and set aside her judgment and dismissed the Rule 58 motion before the Tax Court. ...