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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. ...

Solo Capital – Court of Appeal of England and Wales finds that the revenue rule does not apply to fictitious tax refund claims made by a non-taxpayer Email this Content The Danish Customs and Tax Divisions (“SKAT”) brought claims in an English civil court seeking to recover £1.44 billion which it had paid based on allegedly fraudulent claims for refunds of Danish dividend withholding tax – SKAT alleged that most of the defendants had fraudulently misrepresented that they, as shareholders of Danish companies, had been subject to withholding at a rate in excess of the Treaty-reduced rate on dividends when, in fact, they never had held any shares in any of the relevant Danish companies. ... There was no tax due and those who committed the fraud were never taxpayers. … [W]hat SKAT is saying entitles it to repayment is not that the … alleged fraud defendants owe it tax or have cheated it out of tax, but that it was induced by fraudulent misrepresentation to pay away monies to these persons to which they were not entitled on any basis. ... Summary of Skatteforvaltningen v Solo Capital Partners LLP, [2022] EWCA Civ 234 under Statutory Interpretation – Revenue Rule. ...

14 November 2022- 11:59pm 1410109 Ontario – Tax Court of Canada finds that a “gratuity” that was required to be paid was subject to HST Email this Content The contract of an incorporated banquet hall with its event customers stipulated: “All Pricing is Subject to 13% HST and 15% Gratuities.” ... He dismissed the taxpayer’s appeal, on the basis that the gratuities were not voluntary, stating: Subsection 133(b) combined with subsection 138(a) … suggests that tips included in an agreement are part of the overall supply of prepared meals, which is subject to HST. … The ETA defines “consideration” as “any amount that is payable for a supply by operation of law.” ... The King, 2022 TCC 141 under ETA – 123(1) – consideration. ...

13 December 2022- 11:10pm Abedipour – Tax Court of Canada finds that a house construction not being an adventure in the nature of trade was corroborated by its custom design features Email this Content Whether the taxpayers were required to charge HST on the sale of their newly-constructed home turned, under para. ... This strongly suggests that they built the home only for themselves. … [T]he Appellants left nothing for a potential purchaser to customize. … The fact that the Appellants finished everything to their own personal taste strongly suggests that they built the home only for themselves. ... The King, 2022 TCC 155 under ETA s. 123(1) – builder – para. (f). ...

Boivin JA noted that: “The Judge recognized that the CRA investigators owed the appellants a duty of care … but found that the investigation was not carried out in a manner that could be characterized as negligent and was not motivated by malice or any other improper purpose”. ... Boivin JA found “no reason to disturb the Judge’s findings” – their appeal was dismissed. ... The King, 2023 FCA 12 under General Concepts – Negligence & Fault. ...

23 June 2025- 12:02am St-Joseph – Quebec Court of Appeal finds that the transformation of 2 floors of commercial building to residential use did not qualify as a “termination” of commercial activity for QST purposes Email this Content St-Joseph incurred costs in converting the 1 st and 2 nd floors of a 12-storey mixed-use tower from commercial rental use into rental seniors’ residences (RSRs). It argued based on the QSTA equivalent of ETA s. 141.1(3)(a) that it had incurred the costs “in connection with the … termination of a commercial activity” of it, so that such costs were deemed to have been incurred in the course of its commercial activity, thereby entitling it to input tax refunds under the Quebec equivalent of ETA s. 169(1) – B(c). In rejecting this position and before dismissing St-Joseph’s appeal, the Court stated: [Its] argument … fails to explain how the transformation aimed at a new activity is, in itself, related to the termination of the previous activity. … [T]he expenses for the renovation and transformation into an RSR were not related to the termination of the commercial rental activity …. ...

9 October 2017- 1:54am Insta-chèques – Quebec Court of Appeal finds that a company in a cheque-cashing business was a listed financial institution under the ETA Email this Content A Quebec company whose business was to cash cheques was found to be a financial institution under ETA s. 149(1)(a)(iii), namely, a person “whose principal business is as a … dealer in … financial instruments.” ... The Court stated: [T]he author Simon Labrecque properly states that the term “dealer” … relates to a person “whose business consists of dealing in financial instruments for its own account…” where this is for the purpose of profit. ... Agence du revenu du Québec, 2017 QCCA 1491 under ETA s. 149(1)(a)(iii) and s. 123(1) – debt security. ...

27 September 2023- 12:35am Mold Leaders – Tax Court of Canada finds that challenging engineering involving standard procedures was not SR&ED Email this Content ML was engaged in the custom designing and making of injection moldings. ... [The president’s] answers did not reveal or identify technological uncertainties being addressed in a scientific manner. … ML’s favoured approach … was to basically try various options, anticipating that one likely would work. ... The King, 2023 TCC 127 under s. 248(1) – SRED. ...