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10 October 2016- 2:55pm Zone3 – Federal Court of Appeal declines to require CAVCO to consider extending favourable certification guidelines to the taxpayer’s TV production Email this Content In the Federal Court below, Martineau J had ordered the Canadian Audio-Visual Certification Office (“CAVCO”) to reconsider a decision to reject a leading Quebec TV producer’s application for certification of a TV series. The essential problem was that CAVCO’s advance notice of a negative determination- on the basis that the production was “in respect of a game, questionnaire or contest” and, therefore, ineligible for the Canadian film or video production tax credit under Reg. 1106(1), “excluded production,” (b)(iii) – did not address the taxpayer’s position that the shows’ question-and-answer format merely served as a vehicle for effectively presenting the show’s informational (historical) content, and did not disclose that, in fact, the application had been rejected through the mechanical application of a “decision tree” that the taxpayer did not find out about until later. ... Zone3-XXXVI Inc., 2016 CAF 242 under Reg. 1106(1) “excluded production” – (b)(iii). ...

6 September 2017- 10:56pm Aon – Tax Court finds that replacing a parking garage roof with one better designed to deal with a problem was currently deductible Email this Content The roof for an underground parking garage deteriorated much more quickly than expected since it also served as a platform for ground level traffic, which resulted in significant water and salt damage. ... In finding that the $4 million repair expense was currently deductible, Jorré J noted the engineering improvements (see also Shabro) but, at the end of the day, gave weight to the facts that the garage was an integral part of a larger asset (an apartment complex) and “there is no improvement in the functionality or profitability of the garage and … there is no reason to conclude that the work has had any significant effect in terms of increasing the value of [the complex] compared to its value with the garage in a good state of repairs.” ... The Queen under s. 18(1)(b) – capital expenditure v. expense – improvements v. repairs or running expense. ...

29 November 2017- 1:37am Greither Estate – B.C. Supreme Court finds that taking back excess boot cannot be rectified under the BCA provision for correcting “corporate” mistakes Email this Content A non-resident estate, whose shares of a Canadian company had stepped-up basis under s. 70(5) but had nominal paid-up capital, was advised by a tax lawyer who had forgotten about s. 212.1. ... Meyer J noted the somewhat narrow list of types of corrections in s. 229 and found that “the mistake of not completing the Transaction in the most tax effective manner does not … fall within these subsections.” ... Canada (Attorney General), 2017 BCSC 994 under General Concepts – Rectification. ...

28 January 2018- 11:30pm Mammone – Tax Court of Canada finds that an RPP revocation beyond the normal reassessment period retroactively validated an unsupportable reassessment under s. 56(1)(a)(i) Email this Content The CRA revocation of a registered pension plan (the “New Plan”) was invalid due to inadvertent failure to comply with the 30-day notice requirement in s. 147.1(12). ... In rejecting the argument under s. 152(9), he stated: The basis for reassessment is and always has been that the commuted value of the OMERS pension was transferred to a non-registered pension plan. … [D]ue to the retroactive nature of the revocation, the facts underlying that basis of reassessment were always present. ... The Queen, 2018 TCC 24 under s. 152(1), s. 152(9), s. 152(4)(a)(i) and General Concepts – Effective Date. ...

8 May 2018- 12:17am Stankovic – Federal Court finds that a taxpayer with an unreported Swiss bank account was not yet under criminal investigation Email this Content CRA found out from the French authorities that the taxpayer was on the list obtained from a disgruntled HSBC employee of those with large Swiss bank accounts. ... Russell J disagreed, stating that: Offshore accounts are not, per se, illegal and it is the duty of the Minister under the Act to inquire and ensure that those with offshore accounts are meeting their tax liabilities. … If the Respondent’s position were accepted, it would mean that, given the government’s intent to deal with offshore tax offenders, every Canadian taxpayer with an offshore bank account would be immune from compliance with the audit requests made under s 231.1(1) because this could lead to criminal proceedings at some time in the future. … [A] mere suspicion does not change the predominant purpose of an audit into a criminal investigation. See Jarvis …. He also found (following a Quebec Court of Appeal decision dealing with the same list) that CRA’s use of information stolen by the disgruntled employee did not violate the taxpayer’s Charter rights. ...

11 June 2018- 12:11am Almadhoun – FCA finds that the TCC, after finding against the taxpayer, improperly directed CRA to “seriously” consider interest relief and tax remission Email this Content The Tax Court had held that the taxpayer was not entitled to the Canada child tax benefit during the years in question, but referred the matter back to the Minister so that “taxpayer relief in the form of a waiver of any applicable interest and penalties under the Act and also a remission of taxes pursuant to the Financial Administration Act ” may be “seriously consider[ed].” ... Nor is it for the Tax Court to interfere with the discretion of the Minister, if only by suggesting that the Minister “may” seriously consider taxpayer relief in the form of a waiver of any applicable interest and penalty under the Act, and a remission of taxes …. ... Canada, 2018 FCA 112 under s. 122.6 – “eligible individual”- (e), s. 171(1)(b)(iii), Charter s. 15(1) and Statutory Interpretation- ordinary meaning. ...

26 November 2018- 2:03am Lee – Tax Court of Canada rejects reassessments treating a Quebec discretionary trust as a sham Email this Content The taxpayer, Mr. ... Paris regarding the legal relationships created under Québec law. … [E]ven if the Appellant’s sole reason (motive) for creating the Trust and transferring the … Shares to the Trust was to save tax, that is not in and of itself evidence of a sham. ... The Queen, 2018 TCC 230 under General Concepts – Sham. ...

11 February 2019- 12:30am Forbes Painting – Federal Court finds that CRA is required to consider financial hardship in s. 221.2 credit transfer requests Email this Content The taxpayer (Forbes) did not file its corporate income tax returns for its 2006 and 2007 years, showing a refund position, until well beyond the three-year limitation under s. 164(1) for claiming those refunds. ... Before returning the matter for redetermination by another delegate, Boswell J stated: The ability of a corporate taxpayer to continue as a going concern … is a factor that should be weighed …. …When assessing a request for the re-apportionment of an SBC, the Minister should also have regard to whether denial of the request might possibly result in the Minister’s inability to collect outstanding tax arrears from a taxpayer. … [T]he decision [is] unreasonable because it is not apparent or transparent that Forbes’ financial hardship was a factor in the decision-making process. ...

14 May 2019- 12:30am Pierre – Court of Quebec finds that a couple had a fraught but “conjugal” relationship Email this Content In Quebec they are referred to as “de facto spouses” rather than “common-law partners” but otherwise the federal and Quebec definitions are quite similar. Both reference the concept of cohabiting “in a conjugal relationship,” and both provide that they cease to be common-law partners/spouses if (to use the Quebec language) they have ceased “cohabiting … for a period of at least 90 days … because of a breakdown of their conjugal relationship.” ... Agence du revenu du Québec, 2019 QCCQ 2137 under s. 248(1) – common-law partner. ...

28 May 2019- 12:40am Renaud – Federal Court of Appeal affirms that a benevolent law practice for indigent clients thereby had a “personal aspect," justifying use of REOP test to deny losses Email this Content A Quebec lawyer who worked full-time as a federal government employee also worked 5 to 15 hours a week providing legal services to clients of modest means. ... In affirming the decision below, Nadon JA stated that “there is no doubt that the law practice of the appellant … certainly qualifies as having a personal aspect. ... Canada, 2019 CAF 154 under s. 3(a) – reasonable expectation of profit. ...