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12 January 2018- 12:14am Gervais – Federal Court of Appeal confirms that a basis averaging scheme to transfer half of a capital gain to the taxpayer’s wife was an abusive circumvention of the attribution rules Email this Content The taxpayer’s wife (Mrs. ... Gervais’ return, Noël CJ stated that the above result was: contrary to the object, spirit and purpose of subsections 73(1) and 74.2(1), the purpose of which is to ensure that a gain (or loss) deferred by reason of a rollover between spouses or common-law partners be attributed back to the transferor. … Because the rollover provided for in subsection 73(1) deferred this accrued gain [of $1M] in its entirety, the whole of the gain realized on the sale to [the third party] had to be attributed back to Mr. ...

17 January 2018- 12:41am 6305521 Canada – Court of Quebec finds that an incorporated repairman reporting to a foreman was not carrying on a personal services business Email this Content An individual was the sole shareholder and employee of a corporation. ... ARQ, 2017 QCCQ 14869 under s. 125(7) – personal services business. ...

19 January 2018- 12:07am North Shore – Federal Court of Appeal finds that previously-collected HST is not “credited” by the supplier to the purchaser under ETA s. 232 unless the sum is put at the purchaser's disposal Email this Content A supplier (Menova) received substantial down payments respecting its sale of solar array projects, and then became insolvent before earning more than a fraction of the down payments. ... [As] Menova did not put funds at the disposal of North Shore when it issued the credit memos … section 232 does not apply to the transactions at issue as HST was not credited to North Shore. ...

ClearFlow – Ontario Superior Court finds that a “discount fee” was interest Email this Content A typical loan made by the lender (ClearFlow) to the borrower bore base interest rate of 12% p.a. compounded monthly, an administration fee that was charged when the Loan was initially advanced, and each time it renewed (of, say, 1.81% of the loan balance), and a “discount fee” of 0.003% per day of the outstanding principal. ... However, the discount fee was interest – as to which he stated his acceptance of the conclusion in Sherway Centre that “an amount paid as compensation for the use of money for a stipulated period can be said to accrue day-to-day.” ...

7 March 2018- 1:11am Rowntree – Federal Court of Australia indicates that a loan or other contract can only be achieved explicitly or by being evinced by conduct Email this Content If a shareholder is the sole director of his company, then it should follow that an advance made to him by his company was a loan if that was his intent, right? ... Coincidence of the identity of the sole director, the sole shareholder and the person by whom services are provided does not mean that the corporate decision to enter into a service contract and the actual formation of the contract can take place wholly within the individual’s head and be revealed, if at all, only when it suits him or her to reveal it. and that: The question … is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. ...

9 March 2018- 12:53am Samaroo – B.C. Supreme Court awards taxpayers $1.7 million in damages for malicious prosecution by CRA Email this Content A couple who operated a restaurant in B.C. have been awarded $1.7 million in damages (including $750,000 in punitive damages) against CRA for malicious prosecution. ... Canada Revenue Agency, 2018 BCSC 324 under General Concepts – Malicious Prosecution and Charter- s. 24(1). ...

28 March 2018- 11:37pm Stewardship Ontario – Tax Court of Canada finds that statutorily-mandated waste recycling charges were consideration for a taxable supply Email this Content Stewardship Ontario (“SO”) was a not-for-profit corporation that operated, as part of a regime governed by the Waste Diversion Act, 2002 (Ontario), an Ontario program for recycling various types of waste such as paints, solvents, batteries, empty propane tanks and antifreeze. ... The Queen, 2018 TCC 59 under ETA s. 123(1) – supply, consideration, service, s. 141.01(2). ...

3 April 2018- 11:37pm Bauer – Federal Court of Appeal finds that CRA could constitutionally issue a s. 231.2 requirement to the taxpayer’s bank during a Special Investigations review Email this Content The CRA special investigations division issued s. 231.2 requirements to two banks to get the taxpayer’s bank statements, and used these to assess him for over $5M a year in unreported business income. ... In confirming that the Tax Court had correctly struck out this pleading, Webb JA stated: While using requirements under section 231.2 of the ITA to obtain information or documents after an investigation has commenced may result in that information or those documents not being admissible in a proceeding related to the prosecution of offences under section 239 of the ITA, it does not preclude that information or documents from being admissible in a Tax Court of Canada proceeding where the issue is the validity of an assessment issued under the ITA. … [T]he CRA’s power to issue requirements under section 231.2 of the ITA to obtain information or documents that will be used for the administrative purpose of reassessing a taxpayer is not suspended by the commencement of an investigation. ...

10 April 2018- 1:14am Humane Society – Federal Court of Appeal states that Rule 317 applications cannot be used for fishing expeditions Email this Content Federal Court Rule 317 provides that “A party may request material relevant to an application that is in the possession of a tribunal [e.g., CRA] whose order is the subject of the application….” ... It, therefore, seems clear that the appellant was on a fishing expedition. ­­­­­­­­­­­­­­­­­­­ ...

12 April 2018- 12:10am Satoma Trust – Federal Court of Appeal finds that using ss. 75(2) and 112(1) to pay tax-free dividends to a family trust thwarted s. 112(1)’s expectation of ultimate taxation of those earnings Email this Content A tax plan turned upon dividends that in fact were paid to a family trust (Satoma Trust) being attributed under s. 75(2) to a corporation (“9134”) that was connected to the dividend payer, so that the dividends deemed to be paid to 9134 were eligible for the intercorporate dividend deduction. ... Canada, 2018 CAF 74 under s. 245(1) – tax benefit, s. 245(4) and s. 3. ...