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HMRC took the startling position that the period of ownership began running from the time that the taxpayer entered into an agreement to purchase the apartment – and it was not even constructed until about three years later – but with the taxpayer occupying it as his main residence only from the time of the closing onwards until its sale at a gain. ... Newey LJ found that this deeming provision did not sufficiently inform what was meant by the “period of ownership,” and in rejecting HMRC’s position stated: HMRC's case … runs counter to the ordinary meaning of the words "period of ownership". ... Summary of Higgins v Revenue and Customs [2019] EWCA Civ 1860 under General Concepts – Ownership. ...

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. ...

4 March 2020- 12:41am Zomaron – Tax Court of Canada finds that a service of inducing merchants to use credit card processing services was an exempt financial service Email this Content CRA viewed the taxpayer (Zomaron) as essentially a marketing arm of two “Processors” (e.g., “Elavon”) that accessed the credit card issuer and payment network to pay a merchant whose customer had used a credit card, and then used a portion of the fee (e.g., 2%) paid by the merchant at the end of the month to pay the interchange fees of that network and split the balance of the fee between itself and Zomaron in the agreed proportions. ... This, I find, is the predominant element of the supply provided by Zomaron to [the Processors].... … Even if the supply provided by Zomaron to the Processors involved services of a promotional nature, since these do not represent the predominant element of the supply, paragraph (r.4) has no application …. ... The Queen, 2020 TCC 35 under s. 123(1) – financial service – (r.4). ...

16 August 2020- 11:41pm MMV Capital – Tax Court of Canada finds no GAAR abuse in acquiring an approximate 100% interest in a Lossco but with no change of de jure control Email this Content A venture capital corporation (MMV Finance) acquired 49% of the voting common shares of a corporation (MMV) in interim bankruptcy proceedings and subscribed $1,000 for a large number of non-voting common shares giving it over 99.9% of all the common share equity. ... Bocock J did not consider it to be a GAAR abuse for MMV to deduct its ample losses from the income generated by the loan portfolio, stating: Parliament … deliberately kept the reference to de jure control in 111(5) instead of adopting a de facto standard. … Evidence was not presented to show that the board did not have the actual authority to make material decisions on behalf of MMV. … The presence of the longstanding, bright-line test of de jure control bears … witness to the rejection of applying the GAAR in the circumstances of this appeal as regards subsection 111(5). ...

The relevant QSTA provisions, which were broadly similar in this regard to ETA ss. 225(1) – A(a), 228(2) and 222(1), required that a person receiving payment of a policy premium collect the tax thereon as agent for the Minister and remit such tax to the Minister. ... In going on to confirm the imposition of penalties on the taxpayers pursuant to the Tax Administration Act (generally calculated as 15% of the amounts they had remitted one month late), the Court stated: The defence of due diligence allows for the avoidance of administrative penalties imposed by a statute where an error of fact is made in good faith, but not where there is an error of law. … … To allow the taxpayer to escape the consequences of failing to meet its obligations by proposing a different interpretation of the legislative provisions would open a loophole that is difficult to reconcile with [the self-assessment] principle. ... Assurances générales Desjardins Inc., 2022 QCCA 57 under ETA s. 225(1) – A(a) and ITA s. 227(8)(a). ...

16 May 2022- 11:17pm Jefferson – Federal Court of Appeal indicates that a taxpayer had not “demolished” the Minister’s assumption where it is demonstrated to be somewhat incorrect Email this Content The taxpayer relied on a statement in Hickman that the “initial onus of ‘demolishing’ the Minister’s exact assumptions is met where the appellant makes out at least a prima facie case.” ... In rejecting this position, Monaghan JA stated that the taxpayer “places far too much emphasis on the word ‘exact’ and gives insufficient weight to the word ‘demolish’ in … Hickman. ” and further stated that “establishing some consideration for the cheques is not sufficient to demolish the Minister’s assumption,” noting in this regard that the “purpose of pleading the assumption is to provide the appellant with notice of the case the appellant has to meet” and here, the taxpayer knew that, in the context of a s. 160 assessment, he needed to establish that he had provided fair market consideration for the cheques, “not merely some consideration.” ... Canada, 2022 FCA 81 under General Concepts – Onus. ...

13 June 2022- 11:17pm CFI Funding Trust – Tax Court of Canada finds that GST/HST supporting documentation can be originated by the recipient and be in electronic form Email this Content A securitization trust (“CFI”) used a concurrent lease structure under which it became the concurrent (head) lessee of automobiles from automobile dealer and sublessor of the automobiles to the dealership customers, and financed the automobile dealers by prepaying rents under the head leases. Before finding that CFI had satisfied the documentary requirements for claiming ITCs for the HST on the rent prepayments, and in rejecting the Crown position that various CFI spreadsheets did not satisfy its alleged requirement that “a supporting document … must originate from or be signed by the [supplier]”, Hogan J stated: [T]he broad term “form” was used in subsection 169(4) of the Act and section 2 of the Regulations because Parliament was mindful of the benefits of paperless record keeping. … [I]nformation stored on a registrant’s computer server qualifies as supporting documentation. … [T]he Regulations do not set out a general requirement for the supporting documentation to be issued or signed by the supplier. ... The Queen, 2022 TCC 60 under Input Tax Credit Information (GST/HST) Regulations – supporting documentation. ...

19 June 2022- 11:12pm Triskelion – Tax Court of Canada leaves open the argument that days cannot be counted twice under the 183-day test for a services PE under the Canada-US Treaty Email this Content A U.S. ... Tax Treaty, which referenced a test that “the services are provided in [Canada] for an aggregate of 183 days or more in any twelve-month period with respect to the [Canadian project]” – so that there was a services PE based on the taxpayer’s Canadian services provided during the 12-month period ending in March 2016. ... The Queen, 2022 TCC 63 under Treaties – Income Tax Conventions – Art. 5. ...

25 September 2022- 11:17pm Deegan – Federal Court of Appeal confirms that FATCA-required disclosures do not constitute an unreasonable seizure contrary to the Charter Email this Content Woods JA confirmed the rejection by the Federal Court of the position of two American citizens, who had had no significant connection with the U.S. since early childhood, that the information-reporting requirements in ITA Part XVIII (the “Impugned Provisions”) resulted in the unreasonable seizure of financial information belonging to U.S. persons in Canada, contrary to s. 8 of the Charter. She stated: The Impugned Provisions … are similar to information automatically provided to the CRA for regulatory purposes (e.g., T4s by employers, T5s by financial institutions, and taxpayers’ annual disclosure of foreign holdings). … It is difficult to see how a seizure contemplated by the Impugned Provisions significantly intrudes into privacy interests, as the appellants appear to suggest. Accordingly, I see no reason in this case to revisit the comment in Jarvis that the entire ITA is a regulatory statute. … Quite simply, the Impugned Provisions are an example of international cooperation in the administration of income tax laws. … Neal Armstrong. ...

29 November 2022- 11:00pm Brown – Federal Court of Appeal finds that the higher Stewart hurdle for an activity with a “personal element” is not engaged merely by a personal reason for the activity Email this Content The taxpayer (Mr. ... It is possible to find a personal reason why any person is carrying on a particular activity. … Neal Armstrong. ... Canada, 2022 FCA 200 under s. 3(a) – business source. ...