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26 February 2024- 11:07pm Yao – Tax Court of Canada finds that the denial of the CCB benefit to refugee claimants was not contrary to the Charter Email this Content Bocock J held that he was bound by the decision in Almadhoun (2018 FCA 112) that, as a matter of statutory interpretation of s. 122.6 – eligible individual- s. ... Regarding s. 7 (security of the person), Bocock J noted the finding in Carter (2015 SCC 5) that security of the person is engaged by “state interference with an individual’s physical or psychological integrity, including any state action that causes physical or serious psychological suffering” and found that “[w]hile the mental health of the [refugees before him] was impacted, this does not constitute a ‘serious and profound effect’ ….” ... The King, 2024 TCC 19 under s. 122.6 – eligible individual- s. (e)(ii), Charter, s. 7(1), s. 15(1). ...

28 June 2024- 12:11am Lemay Co – Federal Court finds that the taxpayer had a reasonable argument that s. 125.7(5)(a) did not preclude it from making an amended increased CEWS claim Email this Content On audit, CRA determined that Lemay had made Canada Emergency Wage Subsidy (CEWS) claims for periods 6, 7 and 13 to 15 that were excessive to the extent of $311,204 but had underclaimed for periods 8 to 12. ... Later, CRA rejected a further Lemay submission that CRA could accept its additional refund claims by virtue of ss. 164(1)(b) and 152(3.4) – on the basis inter alia that s. 125.7(5)(a) limited the amount of the CEWS subsidy to the amount initially claimed by the taxpayer. ... In rejecting such claim, Régimbald J stated: [I]t is not clear, in light of sections 125.7(5), 152(3.4) and 164(1)(b), considered together and which are the subject of the application for judicial review, that the ITA does not allow the Minister to accept an amended prescribed form as requested by the plaintiff. … [T]he defendant has therefore not discharged its burden of demonstrating that it is clear and obvious that the interpretation proposed by Lemay has no reasonable chance of acceptance …. ...

12 February 2017- 11:28pm Life Choice – Tax Court of Canada finds that there can be no SR&ED without testing Email this Content A naturopathic products company (Life Choice) reviewed the literature and consulted other researchers in order to devise three new naturopathic formulations. ... The Queen, 2017 TCC 21 under s. 248(1) – scientific research & experimental development. ...

The s.à r.l. relied on the exclusion in Art. 13(4) of the Canada-Luxembourg Treaty, which provided that the Alta Canada shares were not deemed immovable property (and thus not subject to Canadian capital gains tax) if the Alta Canada licences qualified as property of Alta Canada “in which the business of the company … was carried on.” ... It is certainly not the role of the Court to disturb their bargain …. ... The Queen, 2018 TCC 152 under Treaties – Income Tax Conventions – Art. 13 and s. 245(4). ...

26 November 2018- 2:04am Louie – Tax Court of Canada places a temporal limitation on the advantages considered to arise from TFSA swap transactions Email this Content From May 15 to October 17, 2009, the taxpayer directed 71 “swaps” under which TSX-listed shares were transferred between her self-directed TFSA and her taxable trading account at a discount brokerage (“TDW”), or between her TFSA and her self-directed registered retirement savings plan (also with TDW). ... She was troubled that the attributable test had “no easily defined or delineated end point … regarding the length of time during which an increase may still be attributed to an impugned transaction” and noted that “A more restrictive interpretation of paragraph (b) … avoids these difficulties.” ... The Queen, 2018 TCC 225 under s. 207.01(1) – advantage- s. (b)(i), s. 207.05(3), s. 248(10) and General Concepts – FMV- shares. ...

30 April 2019- 11:50pm 984274 Alberta – Tax Court of Canada finds that CRA had no statutory authority under the Act to recover $1.7M that it had paid to a taxpayer in error Email this Content The taxpayer (“984”) reported a capital gain on its 2003 sale of land on the basis that it had acquired it from its parent (Henro) on a rollover basis. ... However, the resulting 2015 reassessment of 984 could not be justified as valid based on s. 169(3) because the 2010 assessment was itself invalid – hence, 984 was not an appealing “taxpayer” referred to in s. 169(3) (as it was not engaged in a valid appeal procedure). This meant that the only basis for justifying the 2015 assessment of 984 was that, pursuant to s. 160.1(1), the 2010 refund represented an amount that had been “refunded to a taxpayer … in excess of the amount to which the taxpayer was entitled as a refund under this Act.” ...

15 May 2019- 12:00am Exxonmobil Canada – Tax Court of Canada declines to impute notional income to an essential income-generating activity Email this Content A participant in the Hibernia joint venture treated its share of the costs of the initial well in one of the oil reservoirs as SR&ED on the grounds that the well provided experimental validation of the predictions made using an improved systematic and logical methodology (the “reservoir connectivity analysis,” or “RCA”) for evaluating how a reservoir is connected. ... Reg. 1204(3)(a) excluded “income … derived from transporting … petroleum” from production profits for resource allowance purposes. ... Westar – “the authority has established that 'derived from' is a term of wide import"). ...

The ETA definition of a non-profit organization provides (similarly to the definition in ITA s. 149(1)(l)) that a qualifying NPO must be “organized solely for a purpose other than profit” and that “no part of [its] income is payable to, or otherwise available for the personal benefit of, any … member.” ... VI, s. 17 where such memberships are “in professional associations that give the right to practice a profession or to use a title … as these benefits exceed the allowable benefits listed in paragraphs (a) to (f)” of s. 17. ... Summaries of 21 August 2019 GST/HST Interpretation 195314 under ETA s. 123(1) – NPO and Sched. ...

True, at that point Oldco had divested itself of its most valuable business assets – but it held in lieu thereof Newco preferred shares to be redeemed for a $30M note owing to it by Newco, which had those assets. ... Noël CJ stated that there indeed was consideration going the other way in the form of “Newco in turn … surrender[ing] the shares which had a corresponding $30 million value in its hands.” ... Canada, 2021 FCA 17 under s. 160(1), s. 248(10) and General Concepts – Effective Date. ...

18 February 2021- 11:40pm Paletta – Tax Court of Canada decision supports the offsetting of almost $200M in taxable income through straddle trades Email this Content The taxpayer in Friedberg entered into spread positions in gold futures contracts, and in the same taxation year closed out the losing legs on his straddle positions (while entering into further contracts to maintain his hedged position) but deferred closing out the remaining contracts until the subsequent taxation year. ... In finding that the taxpayer’s claimed losses (except for an $8 million overstatement of the 2002 loss due to an “egregious error” – for which a gross negligence penalty was sustained) were fully deductible, Spiro J noted: “ Friedberg stands for the proposition that straddle traders may report the results of their trades for tax purposes on a [realization] basis that does not reflect the true economic results of such trades.” ... The Queen, 2021 TCC 11 under s. 9 – timing, General Concepts – Sham and s. 163(2). ...