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27 December 2016- 9:25pm Grimes – Tax Court of Canada finds that holding company shares should not be discounted for shareholder level exit taxes, and applies a minority discount re a NAL party’s voting control Email this Content In determining the fair market value of a trust’s shares of a Holdco wholly-owning an Opco, the Tax Court found that there should be no discount to the FMV of the Holdco shares to reflect income taxes that would be payable by the trust on a redemption by it of its Holdco shares. ... The Queen, 2016 TCC 280 under General Concepts – FMV. ...

29 January 2017- 11:53pm PPP Group – Tax Court of Canada finds that automobile replacement “warranty” payments did not qualify for ITCs under ETA s. 175.1 Email this Content A Quebec company (“PPP”) through car dealers offered motor vehicle replacement “warranties,” which, in the event of the loss of the vehicle through accident or theft, would cover the difference between the depreciated value of the vehicle (which was covered by the regular insurer) and the cost of a new replacement vehicle. ... The Queen, 2017 CCI 2 under ETA s. 175.1, 169(1) and General Concepts – Illegality. ...

7 February 2017- 11:49pm Barrick Gold – Tax Court of Canada finds that gains from closing out gold hedges on the sale of a mine were included in mining production profits Email this Content The definition of “gross resource profits” included income from “the production and processing in Canada of…ore.” ... The Queen, 2017 TCC 18 under Reg. 1204(1)(b)(ii) and General Concepts – Accounting Principles. ...

2 March 2017- 11:24pm Ozerdinc Family Trust v Gowling – Ontario Superior Court of Justice finds that the test of causation of damages from professional negligence is a “but for” test Email this Content It was acknowledged that a tax lawyer had fallen below the relevant standard of care in failing to advise clients that a new family trust which replaced an old family trust would, by virtue of s. 104(5.8), have a deemed disposition of its assets only four years later- which, in fact, occurred (see Grimes). ... Summary of Ozerdinc Family Trust v Gowling, 2017 ONSC 6 under General Concepts – Negligence. ...

21 March 2017- 12:26am Aeronautic Development – Tax Court of Canada finds that a situation of extreme economic dependence gave rise to de facto control Email this Content A Canadian corporation (ADC), which had issued voting common shares for a modest amount to three Canadian employees, was found to be subject to the de facto control (as defined in s. 256(5.1)) of a U.S. corporation and its controlling shareholder (Mr Silva), so that it did not qualify for refundable SR&ED investment tax credits. Hogan J noted that “ McGillivray confirms that the influence [referenced in s. 256(5.1)] must be exercisable, directly or indirectly, against the voting shareholders of the corporation.” ...

31 March 2017- 1:33am BP Canada – Federal Court of Appeal finds that taxpayers should not be compelled to disclose to CRA the uncertain tax positions comprising their tax cushion Email this Content An order of the Federal Court pursuant to s. 231.7(1) that BP Canada was to disclose tax accrual working papers (or, at any rate, the uncertain tax positions which were reflected in its tax cushion), has been reversed in part because: [The] obligation to “self-assess” does not require taxpayers to tax themselves on amounts which they believe not to be taxable. Faced with an issue that is reasonably open to debate…taxpayers are entitled to file their tax return on the basis most favourable to them. … [A]lthough auditors are entitled to be provided with “all reasonable assistance” in performing their audits (paragraph 231.1(1)(d)…), they cannot compel taxpayers to reveal their “soft spots”. ...

4 April 2017- 12:46am Nestlé Canada – Tax Court of Canada finds that the mere posting and honouring by Costco of dollar-amount discounts for which it was reimbursed by Nestlé Canada did not come within the GST/HST coupon rules Email this Content Nestlé Canada promoted the sale of various of its products at Costco warehouses by having Costco agree to post signs on the shelves indicating per each product item a discount of a fixed dollar amount per item, and then reimbursing Costco for the full amount of all discounts applied to customer purchases at the Costco warehouses. ... The Queen, 2017 TCC 33 under ETA s. 181(1) – coupon and s. 231.2. ...

10 April 2017- 1:45am bcIMC – B.C. Supreme Court held that bcIMC was immune from HST payable on its investment fund but for an intergovernmental agreement Email this Content bcIMC is a BC Crown agent which was formed to manage and hold, under a provincial statutory trust, investments for the provincial pension plans. ... He stated: Section 16 of [bcIMC’s incorporating legislation] states that bcIMC “…is not liable for taxation except as the government is liable for taxation ”. ...

18 April 2017- 2:33am Investment Trust Companies – UK Supreme Court indicates that investment funds had valid unjust enrichment claims against suppliers who had charged VAT on exempt supplies Email this Content Using Lord Reed’s simplified facts, the invoice to an investment fund of its manager included VAT of £100 based on a UK VAT provision which was later determined to have improperly treated (contrary to the EU Directive) the manager’s services as taxable rather than exempt. ... Summary of HMR Commissioners v Investment Trust Companies (in liquidation), [2017] UKSC 29 under General Concepts – Unjust Enrichment. ...

3 May 2017- 12:41am High-Crest and Birchcliff Energy – Federal Court of Appeal nullifies cases that were decided by a 2nd judge based on the trial transcript before the 1st judge Email this Content Rossiter CJ dealt with the difficulties of a Tax Court Judge in not being able to do much work by assigning the transcripts of some cases that that judge had already heard to other judges to reach a decision based on the transcript, where the parties were amenable to this approach rather than choosing to undergo a fresh trial. ... The Queen, 2017 FCA 88 under Tax Court of Canada Act, s. 14(2) and ETA, s. 191.1(1) – government funding and of Birchcliff Energy Ltd. v. ...