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Canada, 2023 QCCS 3510, rev'd 2025 QCCA 134-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission transaction documents rectified because they did not implement the parties' intention to not trigger Part IV tax Four individuals held their indirect holdings of 10%, 10%, 5% and 5% of the common shares of a Canadian-controlled private corporation (Structures) through three holding companies (the "Holdcos"). ...

Samarkand Film Partnership No. 3 & Ors v Revenue and Customs, [2017] EWCA Civ 77-- summary under Business Summary Under Tax Topics- Income Tax Act- Section 248- Subsection 248(1)- Business non-trading business At issue was whether two partnerships which acquired interests in films and immediately leased their acquired interest for fixed, increasing, secured and guaranteed rental payments for a 15 year period, and were acknowledged to have a business, were carrying on a trade. ... " In affirming the finding below (initially made by the First-Tier Tribunal) that the partnerships were not carrying on a trade, Arden LJ stated (at paras 59, 61, 66): … [I]t is now clear from Eclipse … that the question whether what the taxpayer actually did constitutes a trade has to be answered by standing back and looking at the whole picture…. … The [FTT’s] overall assessment of the commercial nature of the agreements as the payment of a lump sum in return for a series of fixed payments over 15 years…was not a crude conclusion based on an impermissible transformation of the taxpayers' activities into an economic equivalent, but rather a way of expressing the ultimate inference of fact which they drew from the totality of the primary facts which they had found. ...

Anderson v Benson Trithardt Noren LLP, 2016 SKCA 120, aff'd 2017 SCC CanLii 8568-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission drop-down documents could not be declared retroactive to the previously-agreed effective date, as this would undercut the Tax Court The taxpayer’s accountants met with him on October 6, 2011, when it was agreed that he would transfer personally-owned land and equipment on s. 85 rollover basis to his corporation in order to facilitate paying off a loan owing by him to the corporation. ... In dismissing the appeal, Lane J. stated (at paras 29, 34): … The Chambers judge was correct to limit the application of the rectification remedy as he did. He saw the application for a declaration for what it was – an attempt to obtain equitable relief not available from the Tax Court, which is a superior court of record but not a court of inherent jurisdiction, and to thereby attempt to determine the outcome of an assessment appeal by essentially binding the hands of that Court. … The Chambers judge properly limited his decision to the issue between the appellants themselves. ...

Samson, 2023 QCCA 332-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission date of Quebec agreement did not reflect the parties’ existing intention to realize a loss The respondent (Samson) and a corporation (Bourgade) implemented a plan set out in a tax-planning memo of a tax advisor that contemplated that they would transfer their shares of a corporation (CRP) in December 2013 after having satisfied the conditions for realizing a business investment loss under s. 50(1)(b)(iii). This result was premised on their having had a November 30, 2013 taxation year – which had occurred for Bourgade, but not for Samson who, as an individual, had a calendar taxation year. ... 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. … The answer might have been different if the rectification had given the taxpayer an additional tax benefit that he had not anticipated at the time of his tax planning. ...

Amos-Yeo, [2015] EWHC 2480 (Ch)-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission number of transferred shares rectified to access capital gains incentive In order that the life tenants of two trusts (the 1968 and 1987 settlements) could access a reduced rate of U.K. capital gains tax on a sale of shares of a company held by the two trusts, it was necessary that they have held 5% of the nominal capital and of the voting rights for one year prior to closing the sale. ... In granting an application to rectify the agreements for the sales to the life tenants to increase the number of shares sold, the Court stated (at paras. 29, 36, 38): As Barling J in Giles, [2014] EWHC 1373 points out, the distinction drawn in this criterion is between a mistake as to the effect of a document and a misapprehension of what the fiscal or other consequences are of a document which does not in fact misimplement the parties' or donor's intention. … [T]he parties' intention was that the defendants should receive…enough shares…to satisfy the ER requirements. ... …[T] herefore the claimants have shown a sufficient mistake to found the jurisdiction to rectify the agreements. … [T]he parties to the agreements had a sufficiently specific intention which was not reflected in the agreements as executed by them. ...

Attorney General of Canada, 2024 ONSC 1955-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission trust allocation resolution rectified so as to set out specific amounts After a discretionary family trust realized a capital gain from a share sale, the sole trustee passed a resolution in that year providing that “[t]he income of the Trust be allocated to the [three stated] Beneficiaries of the Trust payable by way of demand Promissory Note in such amounts to be determined when the income of the Trust is ascertained ….” ... Rady J found that the evidence established that there was an agreement to allocate at least $375,000 (i.e., ½ of the capital gains amount eligible for the capital gains deduction) to each of the three beneficiaries, although there was insufficient evidence to establish that the entire taxable capital gain was agreed to be so allocated. ...

Graymar Equipment (2008) Inc v Canada (Attorney General), 2014 DTC 5051 [at at 6802], 2014 ABQB 154-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission no judicial notice that tax avoidance is the intention of a commercial transaction The applicants were a limited partnership ("FRPDI") and the partnership's wholly owned corporation ("Graymar"). ... And at para. 72: [T]o skate over the requirement, as Juliar does, of showing the intention underlying the original transaction – would effectively render CRA (and, by extension, Canadian taxpayers) the insurer of tax advice providers. ...

The Queen, 2015 DTC 5084 [at at 6035], 2015 BCSC 1256-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission true agreement was to access s. 113(1)(a) deduction rather than avoid capital gains tax The taxpayer (Mr. ... Zhang incorporated a B.C. company ("Beamtech") and secured approval from a Chinese authority for the transfer of his shares of LABest to Beamtech for cash consideration of U.S.$150,000 – which was effected without further specific advice from Bob. ...

Commissioner of Taxation, [2015] FCAFC 154, aff'd [2016] HCA 42-- summary under Payment & Receipt Summary Under Tax Topics- General Concepts- Payment & Receipt payments under phantom units not received when they vested In 1994, a non-resident executive was granted units which entitled him, on retirement, to receive payments calculated by reference to the consolidated profits of Glencore International AG, a Swiss corporation ("GI"). ... There was therefore no derivation of income in the 2007 income year when the first two instalments, though due, were merely withheld from payment to the appellant. … The applicant derived the first two instalments as income when, in January 2008, they were paid, with his agreement, to the FTA by GI on his behalf. ...

Baytex Energy Ltd v Canada (Attorney General), 2015 DTC 5057 [at 5807], 2015 ABQB 278 (CanLII)-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission rectification allowed retroactive to 1 January 2007 despite inconsistency with 2008 amendments The applicant (“BEL”) owned and operated oil and gas properties. ... CRA determined that the trust had additional income of $528 million for the 2007 – 2010 period. ...