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Johnson & Johnson Inc., 94 DTC 6125, [1994] 1 CTC 244 (FCA)-- summary under Section 9 Summary Under Tax Topics- Income Tax Act- Section 9- Expense Reimbursement reimbursement of an expense which never should have been paid reduces that expense rather than constituting income A federal sales tax refund was not receivable by the taxpayer until the Minister had given some public and irrevocable indication thereof. ...

Johnson & Johnson Inc., 94 DTC 6125, [1994] 1 CTC 244 (FCA)-- summary under Paragraph 12(1)(b) Summary Under Tax Topics- Income Tax Act- Section 12- Subsection 12(1)- Paragraph 12(1)(b) Before going on to find that a federal sales tax refund did not represent income in the taxation year in question (the 1982 taxation year) on another basis, Hugessen J.A. found that it was not receivable by the taxpayer in that year because the Minister had not yet given some public and irrevocable indication thereof. ...

In confirming the Tax Court’s finding that the amounts received in the reassessed years were ‘government assistance,” as defined in s. 127(9), Boivin JA stated (at paras. 3-4, TaxIntepretations translation): [T]he Tax Court … concluded that the amounts received by CAE were not made pursuant to an ordinary commercial agreement, having regard to the terms of the agreement and, in particular, the implicit rate of return, which he found to be substantially lower than the market rate for a comparable loan and therefore contrary to the commercial interests of a private lender …. … We are all of the view that the TCC judge properly applied the leading jurisprudential principles in this area as set out in … Consumers' Gas … CCLC Technologies … [and] Immunovaccine Technologies …. ...

Ahmar – before Strong Forming had to cease operations. In affirming that Mr. Ahmar had not made out the due diligence defence to director liability for failure to remit, Mactavish JA stated (at paras 23 and 24): … Mr. Ahmar made the conscious decision to have Strong Forming defer payment of its HST debt, and to use these revenues to satisfy other obligations in the hopes of turning the company’s financial position around. … … This Court … in Buckingham … state[ed] that the defence under section 323 “should not be used to encourage such failures by allowing a due diligence defence for directors who finance the activities of their corporation with Crown monies on the expectation that the failures to remit could eventually be cured”…. ...

In addition … Mr. Ahmar had periodically injected funds into the company in an attempt to keep things going …. ... Ahmar made the conscious decision to have Strong Forming defer payment of its HST debt, and to use these revenues to satisfy other obligations in the hopes of turning the company’s financial position around. … … This Court … in Buckingham … state[ed] that the defence under section 323 “should not be used to encourage such failures by allowing a due diligence defence for directors who finance the activities of their corporation with Crown monies on the expectation that the failures to remit could eventually be cured”…. ...

In finding that there was no basis to reverse Bopcock J's finding that the taxpayer was liable for a s. 163(2) penalty, Dawson JA stated (at paras 4, 6-7): … [T]he Tax Court articulated the correct legal test for establishing gross negligence: neglect beyond a failure to use reasonable care. … i. The appellant signed his tax return without reviewing or reading it…. ii. … This… “constituted an unusual casualness” on the part of the appellant and reflected “insouciance and an indifferent delegation of responsibility”…. iii. … [T]he appellant arranged for an escrowed investment to be made in an amount to cover his estimated tax liability [which was] inexplicably redeployed contemporaneously with the filing of the 2007 return. … … [T]hese findings … support the Tax Court’s finding of wilful blindness amounting to gross negligence. ...

In reversing the Tax Court’s finding that s. 26 of the I nterpretation Act had not extended the time for the receipt by CRA of the waiver to that Monday, Biringer JA stated (at paras. 42 – 44, 47): There is nothing in the text to suggest a limitation on the type of thing (acte ou formalité) to which the provision applies or that there be the loss of a right. … Section 26 is a remedial provision. It provides relief when the time limit for doing a thing expires on a holiday, allowing the thing to be done on the next day that is not a holiday. … I am satisfied that the filing of a waiver is the “doing of a thing” for the purposes of section 26 …. … I do not view the time limited for filing a waiver as conceptually different for this purpose from the deadlines for filing a notice of objection or notice of appeal …. The Tax Court has applied section 26 … to extend the time for filing both …. ...

In reversing the Tax Court’s finding that s. 26 of the I nterpretation Act had not extended the time for the receipt by CRA of the waiver to that Monday, Biringer JA stated (at paras. 42 – 44, 47): There is nothing in the text to suggest a limitation on the type of thing (acte ou formalité) to which the provision applies or that there be the loss of a right. … Section 26 is a remedial provision. It provides relief when the time limit for doing a thing expires on a holiday, allowing the thing to be done on the next day that is not a holiday. … I am satisfied that the filing of a waiver is the “doing of a thing” for the purposes of section 26 …. … I do not view the time limited for filing a waiver as conceptually different for this purpose from the deadlines for filing a notice of objection or notice of appeal …. The Tax Court has applied section 26 … to extend the time for filing both …. ...

In dismissing the taxpayer’s appeal, de Montigny JA stated (at paras 4-6): … Subsection 5(1) and paragraph 6(1)(a) … are quite broad as to what constitutes income. … It is clear from the language of these provisions that gratuities fall within the ambit of taxable income. ... It is the nature of the gratuity as a source of income in the hands of the appellant that matters. … … [T]he decision of the Tax Court is consistent with previous decisions according to which tips paid out of gambling winnings constitute taxable income…. ...

It did so because the parties intended to make submissions about [an] earlier remission case … and confidential tax information was involved. ... Any secrecy must be necessary, justified and minimized …. … In the Federal Court, the submissions containing confidential information were only a small part of the hearing. ...