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Johnson & Johnson Inc., 94 DTC 6125, [1994] 1 CTC 244 (FCA)-- summary under Section 9 Summary Under Tax Topics- Income Tax Act- Section 9- Expense Reimbursement reimbursement of an expense which never should have been paid reduces that expense rather than constituting income A federal sales tax refund was not receivable by the taxpayer until the Minister had given some public and irrevocable indication thereof. ...

Johnson & Johnson Inc., 94 DTC 6125, [1994] 1 CTC 244 (FCA)-- summary under Paragraph 12(1)(b) Summary Under Tax Topics- Income Tax Act- Section 12- Subsection 12(1)- Paragraph 12(1)(b) Before going on to find that a federal sales tax refund did not represent income in the taxation year in question (the 1982 taxation year) on another basis, Hugessen J.A. found that it was not receivable by the taxpayer in that year because the Minister had not yet given some public and irrevocable indication thereof. ...

Ahmar – before Strong Forming had to cease operations. In affirming that Mr. Ahmar had not made out the due diligence defence to director liability for failure to remit, Mactavish JA stated (at paras 23 and 24): … Mr. Ahmar made the conscious decision to have Strong Forming defer payment of its HST debt, and to use these revenues to satisfy other obligations in the hopes of turning the company’s financial position around. … … This Court … in Buckingham … state[ed] that the defence under section 323 “should not be used to encourage such failures by allowing a due diligence defence for directors who finance the activities of their corporation with Crown monies on the expectation that the failures to remit could eventually be cured”…. ...

In addition … Mr. Ahmar had periodically injected funds into the company in an attempt to keep things going …. ... Ahmar made the conscious decision to have Strong Forming defer payment of its HST debt, and to use these revenues to satisfy other obligations in the hopes of turning the company’s financial position around. … … This Court … in Buckingham … state[ed] that the defence under section 323 “should not be used to encourage such failures by allowing a due diligence defence for directors who finance the activities of their corporation with Crown monies on the expectation that the failures to remit could eventually be cured”…. ...

In confirming the Tax Court’s finding that the amounts received in the reassessed years were ‘government assistance,” as defined in s. 127(9), Boivin JA stated (at paras. 3-4, TaxIntepretations translation): [T]he Tax Court … concluded that the amounts received by CAE were not made pursuant to an ordinary commercial agreement, having regard to the terms of the agreement and, in particular, the implicit rate of return, which he found to be substantially lower than the market rate for a comparable loan and therefore contrary to the commercial interests of a private lender …. … We are all of the view that the TCC judge properly applied the leading jurisprudential principles in this area as set out in … Consumers' Gas … CCLC Technologies … [and] Immunovaccine Technologies …. ...

Canada, 2020 FCA 201-- summary under Paragraph 251(1)(c) Summary Under Tax Topics- Income Tax Act- Section 251- Subsection 251(1)- Paragraph 251(1)(c) a transaction with a financially subordinate company was a non-arm’s length transaction The taxpayer (“Keybrand”), its wholly-owning parent (“ BWS ”), and another Strassburger-family company were guarantors of loans made to a start-up company (“Vidabode”) by GE Capital. ... After then noting the “directing mind” test applied in the Robson Leather case (whose facts revealed “a striking similarity,” as in both cases there was “substantial debt” owing by a company with poor prospects to the relevant family – para. 54), Webb JA stated (at para. 58): Given the degree of financial dependence of Vidabode on BWS and Keybrand and the lack of any negotiation with respect to the terms and conditions (including the price) related to the share subscription, it is more likely than not that Keybrand controlled both sides of the transaction related to the issue of shares by Vidabode to Keybrand. He also stated (at paras. 68-69): [T]he lack of ordinary commercial terms that would be agreed upon by parties acting in their own interests may support a finding that the transaction is not an arm’s length transaction and, therefore, that the parties were not dealing with each other at arm’s length. … [I]n an extraordinary situation such as here, where a person pays in excess of $14 million for shares that do not have any value, the magnitude of the discrepancy raises doubts that the parties were dealing with each other at arm’s length. ...

I am not convinced and endorse the approach Justice Webb outlined in Sarmadi … repeated in Eisbrenner …. ...

Canada, 2020 FCA 97-- summary under Onus Summary Under Tax Topics- General Concepts- Onus Tax Court could determine a taxable benefit percentage (different from that assumed by the Minister) based on all the evidence 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 (ISS) 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. ... There, the appellant argued that he had succeeded in demolishing the assumptions of fact contained in the Minister’s Reply and asserted that his appeal therefore had to be allowed. … [T]his Court [instead] adopted the same approach to valuation taken by the Tax Court in the instant case and calculated the value of the shareholder benefit at the end of the case based upon all the evidence tendered. ...

Canada, 2013 FCA 65, the question was whether the record “establishes that the virtually uncontested acts of non-compliance on the part of the Charity can be regarded as ‘serious’ or ‘aggravated’, ” Ryer JA agreed with the first ground as a sufficient basis for revocation, stating (at paras. 14 and 15): [T]he Charity failed to provide the Minister with books and records that would allow the Minister to determine if the appropriate amount of income tax relief was being provided by the Charity to its donors at the expense of the fisc. ...

Hence, the majority concluded that both errors were 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 …. ...