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In the Court of Appeal, Boivin JA indicated that the lack of homologation was irrelevant, and then stated: …[B]oth orders from Barbados and Cyprus are proof that the corporate resolutions have been rectified to authorize the dividend payments and to transform them into indebtedness, no more, no less. … I cannot agree … that…these foreign orders are dispositive and that the Minister has no choice… but to accept the dividends are actually loans because the orders from Barbados and Cyprus say so. ... These determinations are for the Tax Court judge to make, with a full evidentiary record at his or her disposal. … On this basis, he concluded that Lamarre ACJ should not have answered the Rule 58 question, and set aside her judgment and dismissed the Rule 58 motion before the Tax Court. ... The Queen, 2017 FCA 39 under General Concepts – Rectification. ...

9 January 2018- 11:27pm Kenny – Tax Court of Canada finds that foreign government assistance scuppered the “substantially all” test in s. 118.94 (which did not violate a non-discrimination Treaty Art.) ... In this regard, C Miller J stated: … [C]ases have relied on percentages as low as 76% to be considered substantially all. ... The Queen, 2018 TCC 2 under s. 118.94 and Treaties – Articles of Treaties – Art. 25. ...

14 November 2018- 12:34am Morrison – Tax Court of Canada finds that the taxpayers had the burden of disproving the Minister’s assumptions about their gift tax shelter about which they knew virtually nothing Email this Content The taxpayer, who participated in a charitable gifting program that generated receipts well in excess of the amount contributed by him, had no familiarity with how the program “worked.” ... In such circumstances, it is not unfair to the Appellants to allow the Minister to assume what went on behind the curtain. … By participating in the Programs without further inquiry, the Appellants accepted the risk that the facts behind the curtain were not what they expected them to be. ... The Queen, 2018 TCC 220 under General Concepts – Onus and s. 118.1(1) – total charitable gifts. ...

21 November 2018- 6:29am Mazraani – Supreme Court of Canada finds that the Tax Court’s pressuring witnesses to speak in English, not French, required a new hearing Email this Content A laid-off “independent contractor” (Mazraani) appealed to the Tax Court on the basis that he had instead been employed in insurable employment for EI purposes. ... Before affirming the decision of the Federal Court of Appeal ordering a new hearing before a different judge in response to these violations of the witness’s and counsel’s language rights under s. 133 of the Constitution Act, 1867, s. 19 of the Charter and s. 14 and 15 of the Official Languages Act, Gascon and Côté JJ stated: [E]ven if there was no error in the decision on the merits, the language rights in question would be compromised if no remedy was granted … [A] new hearing will generally be an appropriate remedy for most language rights violations. … The judge’s insistence that [Industrial’s counsel] speak English during most of his argument constitutes a flagrant violation of the lawyer’s language rights. … [T]he order for a new hearing was fully justified. … The violations were numerous and, in some cases, serious and repeated, and they brought the administration of justice into disrepute. ...

25 September 2019- 11:58pm Lohas – Tax Court of Canada finds that buyers made purchases of iPhones as agents for a grey market reseller Email this Content A grey marketer (Lohas) of newly-released iPhones purchased them in Vancouver-area Apple stores for export to Hong Kong and Taiwan, where those models were still unavailable. ... In rejecting this argument, D’Auray J stated: … [A]ssuming the buyers purchases were in violation of Apple policy[,] at most, this made the purchase contracts voidable and not void. ... The Queen, 2019 TCC 197 under General Concepts – Agency, Input Tax Credit Information (GST/HST Regulations, s. 3(c)(ii) and General Concepts – Onus. ...

18 February 2020- 11:49pm Barejo – Federal Court of Appeal finds that the amount payable under a “debt” for s. 94.1(1)(a) purposes need not be crystallized until maturity Email this Content An offshore fund ("SLT"), in which the taxpayer had an interest, invested in instruments (labelled as "Notes") of non-resident subsidiaries of Canadian banks. ... After stating that “subsection 94.1(1) … contemplates in express terms that an instrument that derives its value from fluctuating portfolio investments can be a debt” and that a narrow construction of “debt” would go contrary to the purpose of the above provisions of “annual imputation of income while … foreign investments are in place,” Noël CJ found that future crystallization of the amount due was sufficient, and concluded: When regard is had to the text, context and purpose of paragraph 94.1(1)(a), a debt arises for purposes of this provision when an amount or credit is advanced by one party to another party; an amount is to be paid or repaid by that other party at some point in the future in satisfaction of the advance and this amount is fixed or determinable or will be ascertainable when payment is due. As these three conditions are present here … this suffices to dispose of the appeal …. ...

26 February 2020- 11:34pm Grands Palais – Court of Quebec finds that consideration for parking spots was part of the consideration for (condo) residential complexes for new housing rebate purposes Email this Content The Quebec new housing rebate is essentially the same as the ETA equivalent, except that entitlement to it is lost at a lower dollar level of total consideration for the “residential complex” that is purchased. ... [A]lthough they constitute different cadastral lots … the interdependence and interconnection of the parking spaces to the residential units are such that they could not be considered, for the purposes of establishing the amount of the Rebate to which the purchasers were entitled, as separate components. ... Agence du revenu du Québec, 2020 QCCQ 281 under ETA s. 123(1) – residential complex – (b). ...

In finding that this Italian legislation was contrary to the VAT Directive, so that VAT was applicable to the payments made by an Italian subsidiary (San Domenico Vetraria) to its Italian parent (Avir) to reimburse the latter for the payroll costs of a staff member who had been seconded to San Domenico Vetraria, the 7 th Chamber of the European Court of Justice stated: [A] supply of services is effected ‘for consideration’ … if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient. …. [T]he secondment was carried out on the basis of a legal relationship of a contractual nature between Avir and San Domenico Vetraria … [and] there was reciprocal performance, namely the secondment of a director from Avir to San Domenico Vetraria, on the one hand, and the payment by San Domenico Vetraria to Avir of the amounts invoiced to it, on the other. ... Agenzia delle Entrate, Case C-94/19 (ECLI:EU:C:2020:193) (7 th Chamber) under ETA, s. 123(1) – supply. ...

12 July 2020- 11:15pm Matthew Macisaac Consulting – Tax Court dismisses request for Rule 58 determination that reporting gains as on capital rather than income account was not a “misrepresentation” Email this Content The taxpayer was reassessed for quite a number of taxation years for which the main substantive issue was whether dispositions of shares in an offshore fund were on capital account – but many of the earlier years were beyond the normal reassessment period. ... In dismissing the motion, she stated: I cannot agree with the Appellant’s proposition … that a question of income versus capital necessarily amounts to a difference in opinion. … [T]he factual circumstances of the appeal will determine whether the issue of income versus capital is purely a difference of opinion or not. … The question of whether a misrepresentation under subparagraph 152(4)(a)(i) contemplates fact only or mixed-law-and-fact, should properly remain with the trier of fact to determine in conjunction with the related substantive issues. ...

4 May 2021- 10:01am Gervais Auto – Quebec Court of Appeal finds that 10% interest on unsecured loans from shareholders was not unreasonable Email this Content The taxpayer financed its inventory of used automobiles held for resale through unsecured loans from the family Holdcos that were its shareholders. ... Before reversing the decision below to confirm these reassessments, the Court of Appeal stated (at para. 13, TaxInterpretations translation): The appellant was not required to make out a prima facie case that the 7.89% rate was unreasonable but, rather, that the assumption, on which the respondent relied in assessing it, that the 10% interest rate deducted from its income for the taxation years in issue was not "reasonable in the circumstances," … was prima facie … unsound. ... Agence du revenu du Québec, 2021 QCCA 459 under s. 20(1)(c) and General Concepts – Onus. ...