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21 July 2022- 11:55pm CIBC – Tax Court of Canada finds that the predominant element supplied by PC Bank to CIBC was a right to access Loblaw customers, engaging the (r.5) HST financial service exclusion Email this Content A subsidiary ("PC Bank") of Loblaw (“LCL”) had agreed with CIBC for CIBC to provide retail banking services under LCL's President's Choice trademark. ... (r.5) of the financial service definition provided an exclusion from financial service for “property … that is delivered or made available to” CIBC “in conjunction with” CIBC selling financial products of PC Bank, the supply made by PC Bank to CIBC was taxable. ... The Queen, 2022 TCC 83 under ETA s. 123(1) – financial service, para. ...

This result was premised on their having had a November 30, 2013 taxation year – which had occurred for Bourgade, but not for Samson (who had a calendar taxation year). ... This is consistent with … Jean Coutu. This is not a case where the taxpayer is seeking a tax benefit that he did not anticipate at the time of his tax planning. ... Samson, 2023 QCCA 332 under General Concepts – Rectification. ...

26 February 2024- 11:07pm Yao – Tax Court of Canada finds that the denial of the CCB benefit to refugee claimants was not contrary to the Charter Email this Content Bocock J held that he was bound by the decision in Almadhoun (2018 FCA 112) that, as a matter of statutory interpretation of s. 122.6 – eligible individual- s. ... Regarding s. 7 (security of the person), Bocock J noted the finding in Carter (2015 SCC 5) that security of the person is engaged by “state interference with an individual’s physical or psychological integrity, including any state action that causes physical or serious psychological suffering” and found that “[w]hile the mental health of the [refugees before him] was impacted, this does not constitute a ‘serious and profound effect’ ….” ... The King, 2024 TCC 19 under s. 122.6 – eligible individual- s. (e)(ii), Charter, s. 7(1), s. 15(1). ...

28 June 2024- 12:11am Lemay Co – Federal Court finds that the taxpayer had a reasonable argument that s. 125.7(5)(a) did not preclude it from making an amended increased CEWS claim Email this Content On audit, CRA determined that Lemay had made Canada Emergency Wage Subsidy (CEWS) claims for periods 6, 7 and 13 to 15 that were excessive to the extent of $311,204 but had underclaimed for periods 8 to 12. ... Later, CRA rejected a further Lemay submission that CRA could accept its additional refund claims by virtue of ss. 164(1)(b) and 152(3.4) – on the basis inter alia that s. 125.7(5)(a) limited the amount of the CEWS subsidy to the amount initially claimed by the taxpayer. ... In rejecting such claim, Régimbald J stated: [I]t is not clear, in light of sections 125.7(5), 152(3.4) and 164(1)(b), considered together and which are the subject of the application for judicial review, that the ITA does not allow the Minister to accept an amended prescribed form as requested by the plaintiff. … [T]he defendant has therefore not discharged its burden of demonstrating that it is clear and obvious that the interpretation proposed by Lemay has no reasonable chance of acceptance …. ...

30 April 2019- 11:50pm 984274 Alberta – Tax Court of Canada finds that CRA had no statutory authority under the Act to recover $1.7M that it had paid to a taxpayer in error Email this Content The taxpayer (“984”) reported a capital gain on its 2003 sale of land on the basis that it had acquired it from its parent (Henro) on a rollover basis. ... However, the resulting 2015 reassessment of 984 could not be justified as valid based on s. 169(3) because the 2010 assessment was itself invalid – hence, 984 was not an appealing “taxpayer” referred to in s. 169(3) (as it was not engaged in a valid appeal procedure). This meant that the only basis for justifying the 2015 assessment of 984 was that, pursuant to s. 160.1(1), the 2010 refund represented an amount that had been “refunded to a taxpayer … in excess of the amount to which the taxpayer was entitled as a refund under this Act.” ...

The ETA definition of a non-profit organization provides (similarly to the definition in ITA s. 149(1)(l)) that a qualifying NPO must be “organized solely for a purpose other than profit” and that “no part of [its] income is payable to, or otherwise available for the personal benefit of, any … member.” ... VI, s. 17 where such memberships are “in professional associations that give the right to practice a profession or to use a title … as these benefits exceed the allowable benefits listed in paragraphs (a) to (f)” of s. 17. ... Summaries of 21 August 2019 GST/HST Interpretation 195314 under ETA s. 123(1) – NPO and Sched. ...

True, at that point Oldco had divested itself of its most valuable business assets – but it held in lieu thereof Newco preferred shares to be redeemed for a $30M note owing to it by Newco, which had those assets. ... Noël CJ stated that there indeed was consideration going the other way in the form of “Newco in turn … surrender[ing] the shares which had a corresponding $30 million value in its hands.” ... Canada, 2021 FCA 17 under s. 160(1), s. 248(10) and General Concepts – Effective Date. ...

The various reasons of Woods JA for rejecting the Bank’s position included: Given that “Parliament seeks certainty, predictability and fairness in tax legislation … [i]f Parliament did not intend to impose interest when a loss carryback is claimed as a result of an audit adjustment, it is likely that Parliament would have provided for this with explicit language”. ... It was “likely that Parliament knew that subparagraph (b)(iv) could function in a manner similar to a penalty … [and] that substantial interest could accrue under subparagraph (b)(iv) if the carryback request resulted from an audit”. ... Canada, 2024 FCA 192 under s. 161(7)(b)(iv), s. 111(1)(a), and Statutory Interpretation – French and English Version. ...

After finding that there was a tax benefit and avoidance transactions (being the establishment of the Income Funds through which the RRSP could invest in the businesses), Smith J also found that there was an abuse under s. 245(4), stating: [T]he object, spirit and purpose of subsection 146(4) is to prevent an annuitant from making tax deductible contributions … and then using those funds for business purposes and thus take advantage of the tax-exempt status of the plan. … [T]he acquisition by the RRSP Trust of 99% of the units of the Income Funds defeated the object, spirit and purpose of the provision and was contrary to the Parliament intention that a mutual fund trust was to be widely held. It was certainly not within the contemplation of Parliament that a mutual fund trust that was a qualified investment for RRSP purposes would effectively become one investor’s alter ego. … [T]he Appellant sought to abuse the RRSP regime and the provisions of the Act by establishing the Income Funds …. After finding that the Minister’s assessment of the taxpayer himself respecting the RRSP income pursuant to s. 56(2) was unsupported by the wording of that provision, Smith J went on to indicate that he would have upheld the reassessments of the taxpayer in those amounts on the basis of the GAAR, but for this resulting “in a duplication of the tax which the Minister has also sought to impose on the RRSP Trust pursuant to subsection 146(10.1)” – which could not “be considered ‘reasonable in the circumstances’ as contemplated in subsection 245(5).” ...

17 July 2017- 12:56am Club Intrawest – Federal Court of Appeal splits a service in relation to a cross-border vacation home portfolio into two geographic components Email this Content Under the usual approach to applying the GST single-supply doctrine, a Canadian-resident non-share corporation, most of whose members had time share points which entitled them to book stays at Canadian, U.S. and Mexican resort condos beneficially owned by the corporation, would have been found to be receiving its annual fees from them as consideration for a single supply of a service, namely, funding the operating costs of the time share program. This gave rise to a conundrum, as ss. 142(1)(d) and 142(2)(d) respectively deem a supply of a service in relation to real property inside Canada or outside Canada to be made in Canada or outside Canada – so that a single supply here, which would have related to both, would have been deemed to be made both inside and outside Canada. ... Canada, 2017 FCA 151 under ETA s. 142(1)(d) and General Concepts – Agency. ...