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24 April 2017- 11:27pm Samarkand – Court of Appeal of England and Wales indicates uncertainty on whether a partnership exists when its only partners are preliminary partners Email this Content Arden LJ followed Eclipse in finding that a film tax shelter partnership was not carrying on a trade given that the film it acquired was immediately leased out for a stream of licensing payments which matched its debt servicing commitments- so that in essence its business was “the payment of a lump sum in return for a series of fixed payments over 15 years.” ... Summaries of Samarkand Film Partnership No. 3 & Ors v Revenue and Customs, [2017] EWCA Civ 77 under s. 96, s. 248(1)- business and s. 96(1)(a). ...

25 February 2019- 12:10am Dickinson – Court of Appeal of England and Wales states that Revenue must not let the application of its internal policies preclude the exercise of its statutory discretion Email this Content In the course of considering whether a determination by HMRC to issue advance payment notices to taxpayers before their appeals of tax assessments were heard amounted to an unlawful abuse of power (it did not), McCombe LJ discussed the tension between the desirability of HMRC developing and applying policies consistently while at the same time being mindful of the need to exercise its discretion. ... Summary of Dickinson & Ors v Revenue and Customs [2018] EWCA Civ 2798 under ETA s. 315(3). ...

17 March 2022- 11:11pm Cheshire Cavity – Court of Appeal of England and Wales finds that a cavity formed out of rock to store gas was not “plant” Email this Content The taxpayer, which constructed and operated gas storage facilities in the UK, was found not to be entitled to capital allowances in respect of the expenditure incurred on the introduction of water into salt bearing rock so as to dissolve the rock and create an impervious cavity, and the displacement of the resulting brine by the introduction of gas (“de-brining”) so as to permit the storage of gas in the cavity, on the basis that the cavities were not “plant” (an undefined term). ... Summary of Cheshire Cavity Storage 1 Ltd & Anor v Commissioners for Her Majesty's Revenue and Customs [2022] EWCA Civ 305 under Reg. 1102(2). ...

4 April 2022- 10:52pm Westcoast Energy – Federal Court of Appeal confirms that an employer was not entitled to ITCs for the GST/HST on reimbursed employee health care services Email this Content Westcoast reimbursed (through Manulife as its agent) employees who had incurred various health care services – including some which were GST/HST-taxable, namely, acupuncture, massage therapy, naturopathy and homeopathy services. ...

5 April 2023- 11:35pm A-Supreme Nursing – Tax Court of Canada finds that the provision of agency nurses to seniors’ homes qualified as exempt nursing services Email this Content The appellant, in addition to providing nurses directly to individuals, placed nurses in the Ontario long-term care facilities and nursing homes of other clients and did not charge GST/HST on the related fees in reliance on the exemption for nursing services in Sched. ... Summary of A-Supreme Nursing & Home Care Services Inc. v. The King, 2023 TCC 39 under ETA Sched. ...

19 October 2023- 11:23pm Pier 1 Imports – Federal Court of Appeal confirms that there can be both a statutory appeal and an application for judicial review of the same CITT order Email this Content The Attorney General brought both an appeal pursuant to s. 68(1) of the Customs Act regarding alleged errors of law in an order of the Canadian International Trade Tribunal and an application for judicial review regarding the alleged unreasonableness of such order. In discussing the issue as to whether s. 18.5 of the Federal Courts Act precluded the judicial review application given the statutory appeal mechanism, Boivin JA adopted the finding in inter alia Best Buy (2021 FCA 161) that in such circumstances, “a complete bar to judicial review would be incompatible with the rule of law” and that both types of errors are reviewable: “errors of law are reviewable under the correctness standard via the statutory appeal mechanism in subsection 68(1) of the Customs Act, while errors of fact are reviewable under the reasonableness standard through an application for judicial review …”. ...

12 September 2016- 10:47pm Acornwood – UK Upper Tribunal softens a judicial rule that the income-producing purpose test should not track the actual use of the expenditure by the expenditure’s recipient Email this Content A UK tax shelter entailed the investors using borrowed money of 80 and their own funds of 20 to fund an LLP, which used 95 of this sum to purchase rights to a future stream of payments from a company (“Shamrock”) whose business it was to exploit IP. ... Summary of Acornwood LLP & Ors v. Revenue and Customs Commissioners, [2016] BTC 517, [2016] UKUT 0361 (Tax and Chancery Chamber) under s. 18(1)(a)- income-producing purpose. ...

7 March 2017- 12:51am Farm Credit Canada – Tax Court of Canada finds that “loan corporation” for GST/HST purposes has a broader meaning than its provincial regulatory meaning Email this Content A listed financial institution, whose definition includes a “person whose principal business is the lending of money,” will usually also be a selected listed financial institution (SLFI) if it has a cross-Canada business. ... In my view, if Parliament had intended such a result it would have added that specific condition to the legislation. … Neal Armstrong. ...

13 April 2018- 12:37am Stamatopoulos – Quebec Court of Appeal finds that the ARQ failed to establish that a named supplier to the taxpayer did not act as a supplier or intermediary Email this Content A taxpayer (Stamatopoulos) serviced clothing manufacturers by securing sewing services for clothes that then were delivered to the manufacturer. ... Stamatopoulos, 2018 QCCA 474 under Input Tax Credit Information (GST/HST) Regulations, s. 2 – intermediary. ...

20 August 2019- 1:07am Brandimarte – Federal Court reviews CRA decision to partly waive interest that accrued over 35 years, and rejects comparison to those with complete interest relief Email this Content Taxpayers who were the innocent (albeit, perhaps aggressive) victims of a tax fraud, i.e., purported partnerships giving rise to large reported losses in the mid-1980s where, in fact, the partnerships were non-existent, ultimately had their Tax Court actions decided against them in 2014, and sought relief in 2014, or 10 years previously, for accrued interest. ... In Ludco … the Federal Court of Appeal held that evidence about other taxpayers who had benefited from an interest deduction for loans obtained in circumstances identical to those of the appellants was inadmissible…. ...