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12 July 2019- 12:06am Fortyseven Park Street – Court of Appeal of England and Wales finds that users of time shares in complex with boutique-hotel level of service were using hotel or similar accommodation Email this Content The applicable VAT Directive and the similarly-worded UK VAT legislation provided that an otherwise-exempt supply by way of “leasing or letting of immovable property” was unavailable for “the provision of accommodation … in the hotel sector or in sectors with a similar function.” ... Newey JA found that the exclusion applied notwithstanding the long-term nature of the rights acquired, stating: The fact that Membership gives "the flexibility to enjoy short stays of a stated maximum amount each year, in an environment similar to a hotel and with the services which can be expected in a hotel" … was surely something that the FTT [below] could properly take into account in arriving at its assessment. ... Summary of Revenue and Customs v Fortyseven Park Street Ltd, [2019] EWCA Civ 849 under ETA s. 123(1) – residential complex. ...

13 September 2019- 12:13am Levatte Estate – Tax Court of Canada finds that 40(4) avoided the need for an estate to make a principal residence designation Email this Content An individual (Mr. ... Thus, it was not necessary that a principal residence exemption had been made – only that it would have been available. ... Warner[‘s] … husband was dying of cancer and in fact passed away only days later …leaving her as sole parent of three children. … I do not require specific details to appreciate what a difficult time this would have been for Ms. ...

6 January 2020- 11:52pm Healius – Federal Court of Australia finds that lump sum payments made to lock-up doctors as customers for a 5-year period were currently deductible Email this Content A subsidiary (“Idameneo”) of an Australian public company that provided medical centre facilities and services to doctors in consideration for 50% of the fees generated by them. ... At the end of the five year period, the doctor was free to go …” “the character of the outgoings was as a payment to win a customer” The above finding that a five-year agreement did not give rise to an enduring benefit is consistent with BP Australia, which has also been cited in Canada. ... Summary of Healius Ltd v Commissioner of Taxation [2019] FCA 2011 under s. 18(1)(b) – capital expenditure v. expense – contract purchases. ...

30 April 2020- 12:48am CRA states that a PSB can deduct the “cost” of car loan interest under s. 18(1)(p)(ii) to the extent of the benefit conferred on the individual qua employee rather than shareholder – but not CCA Email this Content Under s. 18(1)(p)(ii), a corporation carrying on a personal services business is entitled to deduct “the cost to the corporation of any benefit … provided to an incorporated employee … that would, if the income of the corporation were from a business other than a [PSB] be deductible in computing its income.” ... CRA went on to indicate that no CCA could be claimed by the corporation (stating that “a capital cost allowance amount is not the cost of a benefit”) – except that if the corporation had a sales business, CCA could generally be deducted under s. 18(1)(p)(iii) to the same extent as CCA claims could have been made under s. 8(1)(j)(ii) if the marketing activity had been carried on by the individual as a sales employee. ...

22 May 2020- 12:02am LPIC – Federal Court of Appeal finds that LPIC was not exempt under s. 149(1)(d.5) because its owner, the Law Society, did not provide municipal-type services Email this Content Lawyers’ Professional Indemnity Co. did not qualify under s. 149(1)(d.5) as being owned by a “municipal or public body performing a function of government in Canada” because its parent, the Law Society of Upper Canada, although a “public body,” did not satisfy the test of “performing a function of government.” ... The Law Society did not so qualify because its “primary focus … is on the regulation of the legal profession in Ontario, and it does not provide the type of services that are typically provided by municipalities or municipal bodies in a localized geographical area.” ... Canada, 2020 FCA 90 under s. 149(1)(d.5) and Statutory Interpretation – Interpretation Act – s. 14, Redundancy and Consistency. ...

24 May 2020- 11:53pm Fowler – UK Supreme Court finds that deeming an employee to be an independent contractor did not oust the Treaty Employment-Income Article Email this Content A U.K. domestic income tax provision deemed the diving activities of a South African resident in the North Sea to be the carrying on of a U.K trade, notwithstanding that in fact he was an employee. ... He noted that the UK domestic deeming provision instead only had a limited purpose, which was to give the diver access to more generous deductions from income, and stated that to apply this limited “deeming provision … so as to alter the meaning of terms in the Treaty with the result of rendering a qualifying diver immune from UK taxation would be contrary to its purpose.” ... Summary of Fowler v Commissioners for Her Majesty’s Revenue and Customs [2020] UKSC 22 under Treaties – Income Tax Conventions- Art. 3 and Statutory Interpetation – Interpretation Provisions. ...

20 July 2020- 12:01am Immeubles Zamora – Quebec Court of Appeal confirms that an LP sold a seniors residence shortly after construction to an unsolicited purchaser on income account Email this Content Bouchard JCA agreed with the Court of Quebec that two taxpayers, who were each 10% limited partners of a limited partnership that constructed a seniors residence, as well as owning the general partner, realized, as to their 10% shares, gains on income account when, shortly after the facility opened its doors, one of them was approached by a business associate, who asked what was their price, and agreed to purchase for the price that was named. Bouchard JCA indicated this being an isolated transaction and their not being “flippers” was not decisive, the judge had not erred in noting the complete absence of any business plan or other documentary proof of their lack of motivating intention to sell and that “the judge did not commit a reviewable error … by holding that the appellants had a secondary intention to divest themselves of their project in the event of an interesting offer being made to them.” ... Agence du revenu du Québec, 2020 QCCA 894 under s. 9 – capital gain v. profit – real estate. ...

5 August 2020- 11:47pm Samsung Heavy Industries – Supreme Court of India finds that a Mumbai liaison office for a domestic construction project was not a PE Email this Content Samsung, a resident of South Korea, was a member of a consortium for fabricating and installing offshore drilling plaforms at an oil development off the west coast of India of an India oil company (“ONGC”). ... Also… the Mumbai Project Office … would fall within Article 5(4)(e) of the DTAA, inasmuch as the office is solely an auxiliary office, meant to act as a liaison office between the Assessee and ONGC. ... Samsung Heavy Industries Co Ltd (Supreme Court) CIVIL APPEAL NO. 12183 of 2016 under Treaties – Income Tax Conventions – Art. 5. ...

10 September 2020- 11:33pm Ray-Mont – Federal Court of Appeal confirms applying 4-part Wiebe test to find employment notwithstanding intent of Quebec parties not to be employer-employee Email this Content Notwithstanding that a logistics company and workers performing loading work for it had intended their relationship to be one of independent contractors rather than of employment, the Tax Court went on to apply the four objective tests in Wiebe as to the presence of an employment relationship to find that there was one. ... This is a different articulation of the tests than by Graham J in Insurance Institute- that under “ Connor Homes … a different test must be applied [than in Wiebe] when the worker and the payor share a common intention.” ... Canada (National Revenue), 2020 FCA 113 under s. 5(1) and General Concepts – Judicial Comity. ...

28 September 2020- 11:11pm Pike – Federal Court of Australia, Full Court finds that an individual had his centre of vital interest where he was employed, rather than where he had his greater personal ties Email this Content Unusually, the tiebreaker rule for individuals in the Australia-Thailand Treaty applied the test of the country of the individual’s habitual abode second, and the country “with which the person’s personal and economic relations are the closer” third, rather than in the reverse order. ... The Court confirmed the primary judge’s conclusion that Mr Pike had a habitual abode in both countries, stating inter alia that “there is no warrant … for imputing that the habitual abode of a person is the place where the individual has spent more days.” ... Summary of Commissioner of Taxation v Pike [2020] FCAFC 158 under Treaties – Income Tax Conventions – Art. 4. ...