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In applying Deans Knight to reverse the Tax Court finding that there was no abuse of s. 111(5), Monaghan JA stated (at paras. 34-35): The object, spirit and purpose of subsection 111(5) – its rationale – is “to prevent corporations from being acquired by unrelated parties in order to deduct their unused losses against income from another business for the benefit of new shareholders”. ...

CRA took the view that Iris, contrary to its claims, had not experienced a significant decline in its qualifying revenues, and denied the claims – initially on the basis of exercising its discretion under s. 164(1.6), which provides that the Minister, before the time for filing the taxpayer’s return for the year, “may refund to the taxpayer all or any part of the [deemed CEWS] overpayment” arising under s. 125.7(2). ... Whether the Minister erred in determining that there was no overpayment is to be adjudicated in the Tax Court; whether the Minister erred in refusing to refund an overpayment is for the Federal Court to decide. … The relief sought makes clear that the essential character of the notice of application is a challenge to the correctness of the finding that no “amount” is payable by way of a refund under subsection 125.7(2) and to vacate the notice of determination. … Subsection 152(1.2) … provides for objection and appeal rights following a notice of determination, and Parliament has directed that those proceedings are to be in the Tax Court of Canada …. ...

In rejecting the Bank’s position, Woods JA indicated: Given that “Parliament seeks certainty, predictability and fairness in tax legislation … [i]f Parliament did not intend to impose interest when a loss carryback is claimed as a result of an audit adjustment, it is likely that Parliament would have provided for this with explicit language” (para. 39). ... It was “likely that Parliament knew that subparagraph (b)(iv) could function in a manner similar to a penalty … [and] that substantial interest could accrue under subparagraph (b)(iv) if the carryback request resulted from an audit” (para. 50). Although the Crown’s position could “result in different treatment between loss carrybacks and …. loss carryforwards … Parliament enacted a specific provision dealing with loss carrybacks, and it chose not to adopt an analogous provision for loss carryforwards” (para. 53). ...

In finding that such CCA claims could not be treated as having been revised, Webb JA noted (at para. 36) that “ Nassau Walnut … drew a distinction between an election and a designation” and found (at para. 41) that “the comments in Nassau Walnut with respect to an election, and the inability of a taxpayer to change an election absent a specific provision in the Act permitting such a change, are applicable in this case.” He further stated (at paras. 38, 49): The choice made by the Trust in deciding what amount of CCA to claim in each year is akin to an election as described above by this Court. … If the Trust would have had sufficient income within the relevant time period to use the non-capital losses, then it would have benefited from carrying these non-capital losses forward to the year of profitability. In effect, the Trust would have been entitled to use several years of CCA to reduce its income, rather than only the CCA for the year in which it had a profit. … If the Trust is permitted to revise its earlier claims for CCA, this would defeat the purpose chosen by Parliament of having non-capital losses only available for a particular period of time. ...

Stratas JA noted that Rule 109 required that “the proposed intervener’s submissions … must be useful to ‘the determination of a factual or legal issue related to the proceeding’” (para. 6), that “[t]he originating document before the Court... defines the factual and legal issues in the proceeding” (para. 8) and that “[f]or this reason, interveners have to take the issues as they find them and cannot raise new issues” (para. 9). ... Here, the parties had not put in issue the Minister’s designation of DAC as a CCPC in its notice of reassessment (presumably a designation pursuant to s. 89(1) – public corporation – (c)(ii)), whereas QPG wished to intervene on the issue of whether such a designation overrode the legislative criteria imposed by the Act for determining CCPC status. ... Before dismissing the motion to intervene, Stratas JA stated (at paras. 25-27): The issue raised by QPQ … seeks to reinvent the theory of the case. ...

In confirming the decision of the Minister to revoke the registration of the Foundation under s. 168(1)(e) (and before going on to find that the decision of the Minster to revoke under s. 168(1)(b) on the grounds that the consulting fees had not been established to satisfy the requirement for the Foundation to devote all of its resources either to charitable activities or as gifts to qualified donees), Woods JA stated (at paras 37-39, and 43): Prescient Foundation … pointed out that revocation should be limited to instances of “material or repeated non-compliance” …. [T]he Foundation failed to provide any records that demonstrated what consulting services …[Mr.O] provided for the fees he received. … [A] bald reference to consulting projects in an invoice that cannot be corroborated with other evidence does not satisfy the records requirement of the Act. It was reasonable for the Minister to conclude that the failure to maintain supporting documentation to enable verification of the consulting fees paid to … [Mr.O] justified the revocation of the registration, especially since … the Foundation showed no willingness to comply in the future…. … This Court has held that if a charity’s books and records are insufficient for the CRA to assess whether the charity is in compliance with its obligations under the Act, this may be sufficient ground upon which to revoke the charity’s charitable status …. ...

Canada, 2020 FCA 90-- summary under Redundancy/reading in words Summary Under Tax Topics- Statutory Interpretation- Redundancy/reading in words narrower construction avoided rendering language redundant Before going on to indicate that the expansive interpretation of s. 149(1)(d.5) submitted by the taxpayer would have the effect of making it unnecessary in the provision to refer to a municipality, Mactavish JA stated (at para, 52): [L]egislatures generally avoid the use of unnecessary or superfluous words in legislation, and that every word in a statute is presumed to have a specific role to play in advancing the legislative purpose: … Proulx, 2000 SCC 5 ….. ...

In allowing the taxpayer’s appeal from the disallowance of expenses claimed under s. 8(1)(f), Rennie J.A. stated (at para. 6): [R]egarding the contract objectively, it was an implicit or implied term that the employee would be required to incur certain costs in order to earn the commissions contemplated by the contract; see Sattva [2014 SCC 53, [2014] 2 S.C.R. 633] at para 49 [“in contractual interpretation, the goal of the exercise is to ascertain the objective intent of the parties — a fact-specific goal — through the application of legal principles of interpretation”]. ...

Noël C.J. also agreed with the Tax Court’s rejection of the taxpayer’s submission that given that the word “pour” used in the French version of s. 160(1)(e)(ii) was narrower than “in respect of” used in the English version, s. 160 did not extend to interest that had accrued on the tax payable by the affiliate subsequent to the 2003 transfer date, stating (at paras. 46-47): The phrase “in respect of” is broad and all encompassing … and the word “pour” in the French text can have a similarly broad meaning. … It can be seen that both texts can be read so as to capture interest that accrues on the transferor’s liability from the year of the transfer onwards. This aligns with the purpose of subsection 160(1) which is to allow for the collection of “the total of all amounts” that the transferor is liable to pay under the Act without any distinction as to the makeup of these amounts … and without any time limitation. … Words and Phrases in respect of ...

In finding that the taxpayer’s statement of claim should be struck, Woods JA applied the principle that even “if … a party is a stranger to a transaction, the transaction must still be described with sufficient detail that the other party can identify it” (para. 80) and noted, regarding the taxpayer’s allegation that the Audit Division shared information gathered from the requirement letters with criminal investigators, that the “pleading does not link the alleged sharing of information to any particular criminal investigation” (para. 83). Furthermore, although a general statement of the Minister suggested “that audits may precede criminal investigations … this is permitted in Jarvis ” (para. 72). ...