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. – Court of Appeal of England and Wales finds that the ability of successor to apply predecessor losses to income from the same trade did not extend to profits from an enlarged trade Email this Content A British taxpayer (Leekes) carrying on a retail trade through four stores acquired, for nominal consideration, all the shares of another company (Coles) carrying on a similar retail trade through three stores, and then effectively wound-up Coles so as to carry on the operations of the three former Coles’ stores directly. ... They cannot refer to the enlarged trade carried on by Leekes, because that trade had never been carried on by Coles, and Coles cannot therefore be deemed to have continued to carry it on. … [I]t is necessary to ascribe a deemed continuity to the former trade of Coles, although it now forms part of the merged business carried on by Leekes, and relief may only be obtained if and to the extent that Leekes then derives trading income from the former Coles trade. ... Summary of Leekes Ltd v HM Revenue & Customs, [2018] EWCA Civ 1185 under s. 111(5)(a)(ii). ...

14 June 2019- 12:08am Lounsbury – Tax Court of Canada finds that substantial completion had occurred by the time of the interim occupancy certificate Email this Content The taxpayer and her husband built a house, which was near Lake Huron and a 2 ½ hour drive away from their Brampton rental apartment and full-time employment, doing a large portion of the work themselves on weekends, with the intention of retiring there. ... This … time spent in each location is very important and must be given great weight. ...

31 May 2020- 11:32pm Laliberté – Federal Court of Appeal confirms that the Cirque du Soleil’s bearing most of the $41.8M cost of a space trip for its controlling shareholder gave rise to a shareholder benefit Email this Content The founder and controlling shareholder of Cirque du Soleil, had been found by the Tax Court to have received a taxable benefit under s. 15(1) (or alternatively, under s. 246(1)) equalling approximately 90% of the $41.8 million cost of sending him on a trip to the international space station in September and October 2009, given that the cost was borne by his family holding company and then largely passed through to the top operating company (“Créations Méandres “) in the Cirque du Soleil group, but with there being a matching contribution of capital by the holding company to Créations Méandres so that independent shareholders would not bear any of the cost of the trip. ... Canada, 2020 FCA 97 under s. 15(1) and General Concepts – Onus. ...

25 October 2020- 11:24pm Healius – Federal Court of Australia, Full Court finds that lump sum payments made to lock-up doctors at medical centres effectively controlled by the payer were capital expenditures Email this Content A subsidiary (“Idameneo”) of an Australian public company provided medical centre facilities and services to doctors in consideration for 50% of the fees generated by them. ... The Court went on to state that “[i]f all that Idameneo had done was to set up the Centres and then secured practitioners as customers to occupy the Centres and pay for services then term contracts with upfront lump sum payments might indeed be seen to be analogous to those made in BP Australia, ” where it was found that securing five-year agreements of gas stations to serve as BP gas stations did not give rise to an enduring benefit. ... Summary of Commissioner of Taxation v Healius Ltd [2020] FCAFC 173 under s. 18(1)(b) – capital expenditure v. expense- current expense v. capital acquisition. ...

8 May 2023- 8:53am CIBC – Federal Court of Appeal finds that s. 40(3.6) applied to deny an FX loss arising on shares Email this Content CIBC realized an FX loss of C$126.4 million in 2007 when shares of a US subsidiary for which it had subscribed US$1 billion approximately 11 months’ earlier were redeemed for US$1 billion. ... In dismissing CIBC’s appeal, Webb JA stated: There is nothing in subsection 40(3.6) of the ITA that would require the application of subsection 39(2) of the ITA before the loss realized on the redemption of shares is deemed to be nil by subsection 40(3.6) of the ITA. … As a result, the loss realized by CIBC on the redemption of shares is deemed to be nil and, therefore, there is no loss that could have been deemed to be a capital loss under subsection 39(2) of the ITA. ... Canada, 2023 FCA 91 under s. 40(3.6), Statutory Interpretation – Interpretation Provisions, Double Inclusions/Deductions. ...

15 April 2018- 11:48pm Smith – Tax Court of Canada references the principle that income is to be computed on a “sub-source” basis Email this Content Graham J found that a status Indian, who earned exempt income from employment and non-exempt investment income, could only deduct a registered pension plan contribution in computing his employment income (and not from his income generally), so that the deduction effectively was denied. ... The Queen, 2018 TCC 61 under s. 147.2(4) and Statutory Interpretation – Headings. ...

26 June 2018- 12:03am Ritchie – Tax Court of Canada finds that an early signing bonus was part of the proceeds of disposition of the subject property Email this Content A farmer, who rented his farm to his corporation, received an early “signing bonus” of $255,790 from Enbridge for entering into an agreement with Enbridge by the stipulated deadline under which he granted an easement for a pipeline to Enbridge. The Agreement stipulated that the $255,790 was “ an incentive for early signing of the easement agreement” rather than part of the (separately stipulated) compensation for the easement. ...

31 January 2019- 12:22am Best Buy – Federal Court of Appeal finds that CITT accorded insufficient deference to WCO opinions Email this Content Brown cow reasoning occurs when a decision is distinguished on the basis that it involved a brown cow rather than a black cow. ... He stated: Having “regard” … entails that the Tribunal should respect WCO opinions unless there is “sound reason” to do otherwise. ...

23 July 2019- 1:21am Hancock – UK Supreme Court references the Luke principle that a strained interpretation can be adopted to implement clear Parliamentary intention Email this Content Lady Arden referred with apparent approval to the principle in Luke v Inland Revenue Comrs [1963] AC 557, stating: This enables the court, when interpreting a statute, to adopt (my words) a strained interpretation in place of one which would be contrary to the clear intention of Parliament. ... Summary of Hancock & Anor v Revenue and Customs [2019] UKSC 24 under Statutory Interpretation- Redundancy. ...

17 April 2019- 11:46pm Deans Knight – Tax Court of Canada finds that the absence of an acquisition of effective control of a Lossco also demonstrated an absence of s. 245(4) abuse Email this Content The “Tax Attributes” of a Lossco (the taxpayer) were effectively sold to arm’s length investors pursuant to transactions under which: The existing shareholders of Lossco exchanged their Lossco shares for “Newco” shares under a Plan of Arrangement A private company “facilitator” (Matco) acquired a debenture of the Lossco that was convertible into shares representing 79% of its equity shares but only 35% of its voting shares (this occurred before the introduction of s. 256.1). ... He also found that there was no abuse of the loss-streaming rules (and, in particular, of ss. 256(8) and 251(5)(b)), stating: I … find that the object, spirit and purpose of subsection 111(5) is to target manipulation of losses of a corporation by a new person or group of persons, through effective control over the corporation’s actions…. [T]he circumstances referred to by the Respondent do not, in my view, indicate that Matco had effective control over the majority of the voting shares of the Appellant prior to the IPO …. ...