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24 June 2019- 12:57am Black – Tax Court of Canada finds that an ancillary income-earning purpose for making a loan whose terms were never finalized was sufficient to satisfy s. 20(1)(c)(i) Email this Content Conrad Black controlled both Hollinger Inc. ... Rossiter CJ accepted Black’s position that the borrowed money had been used by Black to make a loan to Inc., so that Black was entitled to an interest deduction on his borrowed funds, stating: … Black and Inc. reached an agreement on the essential terms of the loan and left the details to be worked out at a later date. The fact that a formal document outlining those essential terms was to be prepared later on and signed … does not alter the validity of the earlier contract. … Since Black had an obligation to pay interest expenses on the Quest Loan, Black had to earn interest income on the loan to Inc. in order for him to be made whole. … … While I find that this was an ancillary purpose compared to his primary purpose of helping Inc., that was a bona fide objective of his investment, which is capable of providing the requisite purpose for interest deductibility under paragraph 20(1)(c). ...

Furthermore, the research agreement was similar to the development agreement in Aeronautics, which was found in that case to “constitute … a legally-enforceable arrangement capable of establishing de facto control under subsection 256(5.1)” – and the facts here were similar to Lyrtech and Solutions Mindready. Respecting the argument, in the alternative, of the Crown, that the declaration of trust constituted an agreement referred to s. 251(5)(b)(i) and, having regard to there being a discretionary trust, s. 248(25) deemed CO2 Public to be beneficially interested in CO2 Trust, Smith J stated that although it was unnecessary for him to address this argument: It appears to me however that this Court is bound by the decision … in … Propep. ... The Queen, 2019 CCI 286 under s. 127(1)- Canadian-controlled private corporation – (a). ...

Before reversing the decision below that the masters were Class 8(j) tangible capital property, and agreeing with the ARQ that they instead were eligible capital property (now Class 14.1 property), Schrager JA referenced s. 18 of the Copyright Act, which provided that “the maker of a sound recording has a copyright in the sound recording, consisting of the sole right to … [inter alia] reproduce it in any material form,” and then stated (at para. 31): There are intangible rights … as described in section 18 … which were purchased in association with the physical tapes. ... The value is found in what is recorded on the plastic or cellulose and what Respondent can do with it – i.e. make and sell good quality copies …. ... Unidisc Musique Inc., 2021 QCCA 393 under Class 14.1, s. 152(8) and General Concepts – Onus. ...

4 May 2021- 11:09pm Blue Bridge – Federal Court of Appeal finds that CRA was not responsible for analyzing whether information requested by France could be used contrary to the French Treaty Email this Content Art. 26(1) of the Canada-France Convention provides for exchanges of “such information as is foreseeably relevant … to the administration or enforcement of the domestic laws concerning taxes of every kind … imposed on behalf of the Contracting States, insofar as the taxation thereunder is not contrary to the Convention.” ... She stated: The judge rightly concluded that a requirement for thorough research and analysis of the facts and the law of the requesting State would impede the proper and effective operation of the Convention’s provisions …. ... Canada (National Revenue), 2021 CAF 62 under Treaties – Income Tax Conventions – Art. 27. ...

Under that law … Mr Fowler is deemed not to be in employment but rather carrying on a trade. Henderson LJ (also in the majority) stated: My approach does not depend to any significant extent on the provisions of article 3(2) … however, I would accept … that the purpose of article 3(2) is to anchor the provisions of the treaty … to the domestic tax law of the Contracting State which is applying the treaty. ... Summary of Fowler v HM Revenue and Customs [2018] EWCA Civ 2544 under Treaties – Income Tax Conventions – Art. 3(2). ...

Sommerfeldt J then considered the exception in ETA s. 191(5), which provides that an individual builder is not required to so self-assess where “after the construction … of the complex … is substantially completed, the complex is used primarily as a place of residence for the individual [or family].” He quoted the conclusions of Hogan J in Coates that: [S]ubsection 191(5) … requires … a simple factual determination as to whether or not the property was used as a family home after it was substantially completed. … [T[he exception cannot be interpreted as requiring that the property have been built only for purely personal reasons. ... The Queen, 2020 TCC 115 under ETA s. 123(1) – builder – (f) and s. 191(5). ...

To avoid this result, the trustees entered into an agreement with the Rémillard Brothers, in intended reliance on s. 256(7)(a)(ii), providing: The Trustees hereby undertake to exercise their powers … according to the directives provided by the Brothers and to make no decision regarding the Historia Trust without first obtaining the agreement of the Rémillard Brothers. … If the Trustees or any of them disagree with the directives received from the Rémillard Brothers, they must then resign …. ... Article 1275 of the Civil Code of Quebec (the CCQ) provided: The … beneficiary may be a trustee but he shall act jointly with a trustee who is neither the settlor nor a beneficiary. ... The King, 2024 CCI 76 under s. 104(6)(b) and General Concepts – Illegality. ...

6 April 2017- 12:23am Cybernius – Federal Court orders the Minister to make a taxpayer-requested s. 221.2(1) transfer between two taxpayer accounts Email this Content S. 221.2(1) gives CRA the discretion to transfer amounts between different tax accounts of a taxpayer. CRA refused a taxpayer request to transfer a credit balance respecting the taxpayer’s Part I tax – which had arisen because CRA had garnished amounts to collect an arbitrary assessment for some taxation years which later turned out not to have any significant Part I tax liability – to satisfy its arrears of source deduction remittances. McVeigh J found that CRA had acted unreasonably in not granting this request – which initially had been refused on the grounds that at the time of the request, a subsequent year’s return was overdue – given that by the time the matter came before her, the taxpayer was no longer delinquent in its filing obligations – and effectively ordered CRA to grant the transfer request. ...

31 March 2019- 11:25pm Lavrinenko and Morrissey – Federal Court of Appeal finds that “near equal” means no lower than 45% Email this Content While normally the Canada child tax benefit (CCTB) and the GST/HST credits (the “Benefits”) can at most be claimed by only one parent, individuals who are a child’s “shared‑custody parent” are each entitled to ½ of the Benefits. ... Canada, 2019 FCA 51 under s. 122.6 – shared-custody parent – para. (b) and summary of Morrissey v. Canada, 2019 FCA 56 under s. 122.6 – shared-custody parent – para. (b). ...

20 January 2020- 12:00am Morris – Court of Quebec finds that disclosure of part of a legal opinion in an audit report was not a waiver of privilege Email this Content The taxpayer, who faced tax evasion charges, argued that there had been waiver of the privilege attached to a legal opinion prepared by a notary working for the ARQ when part of that opinion was included in an audit report that had been provided to him. ... In finding that there had been no such waiver, so that the opinion continued to be protected by the privilege, Asselin JCQ stated: Only the client can waive it. … [T]he disclosure of part of the legal opinion does not constitute an implied waiver of the right to legal professional privilege. … [T]here is no evidence that the auditor … was authorized, in the course of her duties, to disclose it in whole or in part. ... Morris, 2019 QCCQ 7635 under s. 232(1) – solicitor-client privilege and Charter – s. 7. ...