Search - 屯门 安南都护府

. … 4. Notwithstanding the preceding provisions of this article, the term “permanent establishment” shall be deemed not to include— … (e) the maintenance of a fixed place of business solely for the purpose of advertising, the supply of information, scientific research or any other activity, if it has a preparatory or auxiliary character in the trade or business of the enterprise …. ... Unfortunately, the ITAT … jumped to the conclusion that the Mumbai office was for coordination and execution of the project itself. ... Also… the Mumbai Project Office … would fall within Article 5(4)(e) of the DTAA, inasmuch as the office is solely an auxiliary office, meant to act as a liaison office between the Assessee and ONGC. … ...

Fitzpatrick J. then stated (at paras. 174, 176-177): I [disagree]… that Wesbild cannot exonerate itself by merely showing there is a potential legal argument that would support the filing position and that it must show what legal arguments were actually considered before the return was filed. … The CRA invites the court to infer that there was no consideration of the legal issues by reason of the fact that Mr. Kopstein’s opinion was not put into evidence. … …What that advice entailed is not before the Court. However, I was not referred to any authority… that, in considering this issue, Wesbild is compelled to waive its right to assert privilege …. ...

In confirming (subject to a minor variation) ARQ assessments which included the distributed income amounts in the income of the taxpayer under the Quebec equivalent of ITA s. 104(13) (TA s. 663), Bourgeois JCQ stated (at paras. 97-99, 108, TaxInterpretations translation): … Michael and Megan each acted as an accommodation party, whether as an agent or nominee, for their father. … Michael and Megan never had control of the sums that were paid to them by the Trust. … [T]he children had no idea at the time, or even today, what sums were distributed to them by their father for their own expenses. … Thus, since Caplan was also a Trust beneficiary, the facts demonstrate that it was he who appropriated most of the income distributed to the children and, as a consequence, TI section 663 applied to tax, in the hands of the plaintiff, the sums paid by the Trust to the children. ...

In confirming the inclusion of the distributed income amounts in the income of the father under the Quebec equivalent of s. 104(13), Bourgeois JCQ stated (at paras. 97-99, 108, TaxInterpretations translation): … Michael and Megan each acted as an accommodation party, whether as an agent or nominee, for their father. … Michael and Megan never had control of the sums that were paid to them by the Trust. … [T]he children had no idea at the time, or even today, what sums were distributed to them by their father for their own expenses. … ...

. … De Beers [CIT v. De Beers India Pvt. Ltd (2012) 346 ITR 467 (Kar), I.T.A. No. 35/2010]...posed the question, as to “what is [the] meaning of make available”… and proceeded...as follows: … [T]o fit into the terminology "making available", the technical knowledge, skill, etc., must remain with the person receiving the services even after the particular contract comes to an end. … The technical knowledge or skills of the provider should be imparted to and absorbed by the receiver so that the receiver can deploy similar technology or techniques in the future without depending upon the provider. Technology will be considered "made available" when the person acquiring the service is enabled to apply the technology. … [P]ayment of consideration would be regarded as "fee for technical/included services" only if the twin test of rendering services and making technical knowledge available at the same time is satisfied. … [I]t is not even the case of the Assessing Officer that the assessee, i.e. recipient of services was enabled to use these services in future without recourse to BT Canada. ...

. … Corporate decisions and acts can only be achieved in explicit ways…. ... (emphasis added) Beazley P went on to say (91 NSWLR at 430-431 [84]): Whilst Barrett J’s opinion that entry into a contract must be apparent in some concrete way may be accepted, there can be no question that, as McHugh JA (Hope and Mahoney JJA agreeing) held in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR [97326] at 11,117: “… a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words. ... The conduct of the parties, however, must be capable of proving all the essential elements of an express contract. ” (citations omitted) (emphasis added) The significance of the emphasised passage from McHugh JA’s reasons is that the task for the fact finder … where there is no document recording an alleged contract, is to examine the acts and conduct relied on in the context in which they occurred to ascertain whether objectively they evince a contract. … ...

RQ did not accord any of the Jarvis protections to the company and its CEO, because it had no intention of criminally prosecuting – it was content to impose the equivalent of s. 163(2) penalties (in addition to the tax) – as did CRA, a year later, following the RQ lead. ... However, he stated that he could not “condone … a practice” of using a “treasure trove of ready-made files for ‘investigation’ and prosecution containing uncautioned conscripted evidence,” as “otherwise, the Jarvis protections simply melt away” (paras. 297-8). ... In order to ensure that the taxpayer’s constitutional rights are respected, such a broad discretionary decision must have a built-in mechanism by which it ensures that the taxpayer will not later be prosecuted on the basis of the fruits of such an expansive audit. … Considered as a whole, the history of this investigation directly harms the integrity of the justice system and irreparably compromised the community’s sense of fair play and decency. ...

The Board first recognized the common law position (also referred to in the Cadillac Fairview decision, which it referred to) that: Ownership of land confers rights in the air space above the lands and in the subsurface below the land. … [T]he subject properties’ undeveloped air space is part of the land/real estate/real property. ... Since they are not land, they cannot be a “portion of a parcel of land” eligible for a subclass. … The air spaces above the subject properties have not been severed and alienated separately by a strata plan. They are not capable of standing on their own as land. … The evidence is that the transfers of density rights are dealt with by agreements between parties and not by transfers of land under the Land Titles Act or Registry Act. … There is no doubt that the density rights to a property have a value and that this value must be considered in determining the current value of the properties. ...

Before finding that the Trusts were managed and controlled by Grad and the CFO of the Grad group of companies (“Handelsman” – also an Ontario resident), so that the Trusts were resident in Ontario rather than Alberta, Wilton-Siegel J noted (at para. 93) that the in the context of an investment trust “the principal decisions taken by trustees pertain to the investment of the assets of the trust and distributions to beneficiaries,” and stated (at paras 94, 96, 103): … [T]he Trustees were not skilled in investment matters and did not profess any skill in this regard. … [M]anagement and control of a trust may rest with a trustee who has little investment experience provided that the trustee has the power to retain others for advice and remains the ultimate decision-maker. … In my view, the mere retention by trustees of the ability to retract a prior delegation of investment decision-making authority is not sufficient to establish that management and control of the investments of the trust is exercised by the trustees where investment decisions are actually taken on a day-to-day basis by, or are otherwise subject to the control of, the delegee. Wilton-Siegel J found that Grad had effective control over investments of the Trusts stating, for instance, respecting the Cal Equities arrangement (para 125): … [T]he effect of the Cal Equities transaction was to place oversight responsibility for the investment managers firmly in the hands of Grad. ... As to the closely-held investments, Wilton-Siegel J found (at para 196): … By appointing Grad the sole director of Markham and Herrad, the Trustees effectively gave Grad the power to control the payment of any distributions from Markham Suites and Herrad and, therefore, the power to control the principal sources of income of the Family Trust and the Spousal Trust, respectively. ...

Convention provided: … United States tax paid under the law of the United States and in accordance with this Convention … in respect of income derived from sources in the United States by …a resident of Australia shall be allowed as a credit against Australian tax payable in respect of the income. … Subject to these general principles, the credit shall be in accordance with the provisions and subject to the limitations of the law of Australia as that law may be in force from time to time. ... The Article does not suggest that a credit is allowed against Australian tax payable for the whole amount of the US tax paid. … It does not prescribe how much is to be allowed as a credit. ...