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26 January 2021- 11:11pm CIBC – Federal Court of Appeal finds that VISA provided a GST/HST-exempt financial service to CIBC Email this Content CIBC issued Visa credit cards and utilized the Visa payment system, for which it paid fees to VISA. ... To describe the benefit that CIBC obtained from Visa’s services … as "quintessentially administrative," [as was done by the Tax Court] does not … adequately recognize the reality of the benefit that CIBC derived. ... Canada, 2021 FCA 10 under Financial Services (GST/ HST) Regulations – s. 4(2)(b). ­­­­­­­­­­­­­­­ ...

. – Quebec Court of Appeal confirms that a cross-border repo was not an abuse of the s. 17 rule Email this Content The taxpayer (“KQI”), a Canadian operating subsidiary in the Kone multinational group, used group funds advanced to it by a group company (Kone Canada), in part as an interest-bearing loan, to purchase, for a cash purchase price of $394 million, cumulative preferred shares of a US affiliate (Kone USA) from the non-resident affiliated company (Kone BV) to which such shares had recently been issued as a stock dividend. ... After rejecting the sham argument, the Court also rejected the application of the Quebec GAAR, stating: One cannot ignore the fact that financing transactions that are not loans will not generate interest but may provide for other forms of return. … A repo with a reasonable return in the form of dividends does not defeat the OSP [object, spirit and purpose] of Section 127.6. … KQI is taking advantage of … a mismatch between the tax treatment of its income (the dividends from Kone US are not taxable because they are paid out of its exempt surplus) and its expense (the interest in pays to Kone Canada is deductible). … However, the mismatch arises from the Taxation Act and the policies underlying it …. ...

He stated: [A] taxpayer should have the burden to prove, on a balance of probabilities, any facts that are alleged by that taxpayer in their notice of appeal and that are denied by the Crown. … If there are facts that were assumed by the Minister in reassessing a taxpayer and that are not inconsistent with the facts as pled by that taxpayer...the taxpayer [must] prove, on a balance of probabilities, that these facts assumed by the Minister (and which are in dispute and are not exclusively or peculiarly within the Minister’s knowledge) are not correct. … Once all of the evidence is presented, the Tax Court judge should then (and only then) determine whether the taxpayer has satisfied this burden. ... Stratas JA (with whom Woods JA agreed) stated that he found “much of what [Webb JA said] … to be thoughtful, illuminating and attractive,” but also that he declined “to express a definitive opinion on the correctness of his views on this fundamental point.” ... Canada, 2017 FCA 131 under General Concepts – Onus. ...

In finding that Maersk’s fees came within Article 9 rather than 13, Sikri J stated: '[P]rofit' from operation of ships under Article…9 … would necessarily include expenses for earning that income and … [the] more so, when it is found that the business cannot be run without these expenses. This Court … has categorically held that use of [a] facility does not amount to technical services, as technical services denote services catering to the special needs of the person using them and not a facility provided to all. ... Moller Maersk, Supreme Court Of India, Civil Appellate Jurisdiction, Civil Appeal No. 2960 of 2017 under Treaties – Art. 8. ...

28 March 2018- 1:05am Fournier – Court of Quebec finds that a taxpayer could reverse an assessment for a taxable benefit by subsequently engaging in self-help rectification Email this Content The ARQ assessed the taxpayer and his wife for taxable benefits for a period of approximately 2 ½ years on the alleged basis that during that period they occupied on a rent-free basis a condo that was owned by a non-arm’s length corporation. ... Apparently well after these assessments, the taxpayer entered into a “correcting” notarial deed with the corporation to move back the date of the transfer of ownership of the condo unit to him from the corporation from the end to the beginning of this 2 ½ year period. ... Agence du revenu du Québec, 2018 QCCQ 786 under General Concepts – Rectification. ...

4 April 2018- 11:40pm Ahlul-Bayt Centre – Federal Court of Appeal refuses to grant an injunction deferring revocation of charitable registration Email this Content CRA indicated to an Ottawa Islamic school (the “Centre”) that it would revoke the Centre’s charitable registration after 30 days by publishing a notice of intention to revoke (based on serious non-compliance). ... He stated: The evidence that significant numbers of parents would withdraw their children from the school within one or two months is … neither clear nor compelling. … While the Centre asserts that “[t]he loss of tuition revenue and the reduction of the donor base for School related fundraising will make [the Centre] financially incapable of operating the School, leading to its closure,” it has not …provided its current budget or other supporting financial information. … Its financial statements for 2016 also show an excess of revenues over expenditures of $307,242. … Neal Armstrong. ...

Pizzitelli J applied the single supply doctrine in finding that the predominant element of what was being supplied by the dealer was an exempt supply of arranging for the insurance – and that the exclusion in (r.4) of the definition of an exempt financial services for promotional and various administrative services did not apply. ... In our case, that is the car buyer who buys the insurance product and he would clearly and objectively know he was buying insurance, not the expertise or training, or commercial efficacy or profitability of the Dealer or its staff as the predominant elements of the transaction, notwithstanding that such services … may have an ancillary role to play in his decision making process…. ... The Queen, 2018 TCC 231 under ETA s. 123(1) – financial service – (r.4). ...

13 December 2018- 12:06am Jayco – Tax Court of Canada finds that the taxpayer has no remedy in a costs award for LC fees paid to secure its GST/HST obligation until reversed Email this Content After its successful appeal of a GST/HST assessment, Jayco sought to include, in the costs recoverable from the Crown, the $1.4 million paid by it to JP Morgan in order to obtain a letter of credit to secure the GST/HST it owed until the assessment was reversed. In rejecting this claim, D’Auray J stated: In essence, Jayco is submitting that the Minister ought to have exercised her discretion differently and not taken any collection action on the GST/HST assessed. … This Court does not have jurisdiction to review the Minister’s exercise of that power—that jurisdiction rests with the Federal Court. … The Rules are clear that disbursements will only be awarded if they are essential to the conduct of the proceedings. … The interest was not paid by Jayco to establish that the Minister’s assessment was incorrect …. ...

31 December 2019- 12:03am Friedman – Federal Court does not follow its interpretation in Lin that a requirement letter insufficiently specified who was covered Email this Content The Friedmans, a married couple, who had not filed T1135 returns, each received Requests for Information under s. 231.1(1) (“RFIs”) that were addressed to them personally, and stated inter alia: Your personal income tax returns and any other related or associated entities have been selected for audit …. [Y]ou may have offshore holdings that you have failed to disclose …. In order to expedite and facilitate our audit, we will require a clear understanding of all entities with which you had a connection or affiliation during the taxation years noted above. … Please send us back the attached questionnaire fully completed within 30 days …. ...

13 January 2020- 12:23am Richards – Tax Court of Canada finds that legal fees incurred in an oppression action were both on capital and income account Email this Content The main source of income of the taxpayer and her husband was distributions from a family trust of dividends from two family corporations. ... McPhee J allowed the deduction of only about 25% of the legal expenses, stating: Legal expenses incurred for the purpose of preserving capital assets are not deductible [citing Keating]. … [T]he fees incurred pursuing the Oppression litigation had as its dominant purpose, the intention to protect the Appellant’s interest in her shares in the corporations. … [T]here is no question that professional fees were incurred seeking both the support and/or the payment of dividends by the corporations and the redemption of the Appellant’s shares. … Therefore, I have apportioned the fees in issue. ... The Queen, 2019 TCC 289 under s. 18(1)(a) – legal fees. ...