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In allowing the Crown’s appeal of 2010 and 2012, Dawson JA stated: … [T]he use of the phrase “directly or indirectly” evidences Parliament’s intent “to capture any and all methods through which a transaction could increase” the fair market value of a TFSA. [T]he Tax Court’s concern about “when or how far into the future an advantage … will be considered as attributable to” abusive transactions did not justify a restrictive interpretation of the definition of advantage. … [W]hile the increase in value in the TFSA in 2010 and 2012 was directly attributable to the performance of the shares held in the TFSA each year, it was indirectly attributable to the swap transactions which increased the number of shares held in the TFSA and their value. ... Canada, 2019 FCA 255 under s. 207.01(1) – advantage – s. (b)(i). ...

18 November 2019- 11:41pm Wolf – Federal Court of Appeal questions Tax Court view that an individual could derive business revenues through an LLC Email this Content A U.S. engineer provided services to Bombardier in Canada over a 188-day period (straddling the 2011 and 2012 years). ... However, this point was not argued – and the taxpayer’s appeal was dismissed anyway as there was no reversible error in the Tax Court’s finding that the taxpayer had not adduced evidence as to the US revenues of the LLC for the straddle period. ... Canada, 2019 FCA 283 under Treaties – Income Tax Conventions – Art. 5. ...

19 January 2021- 11:06pm Motter – Quebec Court of Appeal finds that a purported “tenant inducement payment” was a capital expenditure Email this Content An individual in the business of constructing and renting commercial real estate, entered into a lease agreement with Téléglobe respecting a building which he was to construct, that provided Téléglobe with “an initial Improvement Allowance” of $25.00 per square foot (or $2M). ... As in … Développement Iberville … the appellant did not establish that the work was related to the specific needs of Teleglobe and, therefore, was of no use to other tenants, and that it did not add any value to the building. … [T]he form of the expenditure (…one-off), its effect (an enduring benefit) and the purpose or rationale underlying it, all incline to the capital nature of the payment …. ... Agence du revenu du Québec, No. 500-09-027452-184 (500-80-029040-145) (Quebec Court of Appeal, 19 January 2021) under s. 18(1)(b) – improvements v. repairs/running expense. ...

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. ...

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. ...

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 …. ...

Jet2.com – Court of Appeal of England and Wales applies dominant purpose test to determining whether privilege applies to emails sent to both lawyers and executives Email this Content Is an email protected by legal advice privilege (“LAP”) if it is sent by an executive to multiple recipients, including an in-house lawyer but most of whom are fellow executives? Hickinbottom LJ stated: In respect of a single, multi-addressee email sent simultaneously to various individuals for their advice/comments, including a lawyer for his input, the purpose(s) of the communication need to be identified. … If the dominant purpose of the communication is … to settle the instructions to the lawyer then … that communication will be covered by LAP. ... (on the Application of) [2020] EWCA Civ 35 under s. 232(1) – solicitor-client privilege. ...