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28 January 2018- 11:31pm Gauthier – Federal Court finds that CRA is not precluded from using information received under the VDP to reassess taxation years before the 10-year s. 220(3.1) period Email this Content The applicant transferred $300,000 to a Bahamas bank account in 1978. ... In refusing this request, Martineau J indicated that, under ss. 165(3) and 171, the Tax Court had the power to cancel an assessment, and stated: …The public interest — i.e. the orderly application of the ITA — takes precedence here over the financial and other inconveniences that the applicant may face by having, like all taxpayers, to follow the normal challenge procedure set out in the ITA. ...

20 March 2018- 2:04am Brochu – Quebec Superior Court decision suggests that a requirement to provide documents “immediately” is contrary to s. 231.2 Email this Content The Sherbrooke police seized $1.4M in cash and jewels, along with guns, of the plaintiff (“Brochu”), who had “underworld dealings.” ... Furthermore, the impressive quantity of particulars and documents demanded of Brochu rendered it impossible to respond immediately, particularly when taking into account that the Requirements extended to five companies as well as the personal affairs of Brochu over a period of almost 15 years. … [A] requirement certainly cannot be used to disguise a seizure made without judicial authorization. In such circumstances, section 8 of the Charter … was infringed by the ARQ…. ...

9 April 2018- 12:33am Aeronautic Development – Federal Court of Appeal finds that a non-resident exercised de facto control of a mooted CCPC by virtue of being its sole customer under a development agreement (viewed as a “supply contract”) Email this Content A Canadian corporation (ADC), which had issued voting common shares (representing voting control) for a modest amount to three Canadian employees, was found to be subject to the de facto control (as defined in s. 256(5.1)- and before its expansion by s. 256(5.11)) of a U.S. corporation (Seawind) and its controlling shareholder (Mr Silva), so that it did not qualify for refundable SR&ED investment tax credits. Gleason JA noted that McGillivray “determined that operational control is insufficient to constitute de facto control under subsection 256(5.1) … [and] that, instead, there must be some legally-enforceable arrangement or arrangements that give rise to such control.” ... Silva’s ability to make the two companies disregard the terms of the development agreement – as he decided to do when he unilaterally decided that the 5% mark-up [under the development agreement] would not be paid to ADC. ...

29 April 2018- 10:01pm ENMAX – Alberta Court of Appeal finds that interest on a loan from a tax-exempt parent should be at an arm’s length rate reflecting implicit parental credit support Email this Content A wholly-owned subsidiary (ENMAX) of the City of Calgary made 10-year subordinated term loans to ENMAX power-distribution subsidiaries at interest rates mostly of 11.5% and 10.3%. ... Summaries of Alberta v ENMAX Energy Corporation, 2018 ABCA 147 under s. 20(1)(c)(i), General Concepts – Tax Avoidance, Statutory Interpretation – Hansard, and s. 67. ...

1 November 2018- 11:26pm Satyam – Australian Full Court finds that a Treaty can impose tax Email this Content The Indian taxpayer (Satyam) argued unsuccessfully before the Full Federal Court of Australia “that tax treaties are, and can only be, exclusively relieving: that is, they are only ever ‘shields not swords’ and not the grant of a standalone taxing power and independent imposition of taxation.” ... Summary of Satyam Computer Services Limited v Commissioner of Taxation [2018] FCAFC 172 under Treaties – Income Tax Conventions – Art. 24. ...

4 February 2019- 12:55am Madison Pacific – Federal Court of Appeal indicates that a CRA memo to Finance requesting action on an "abuse" likely would be inadmissible in a GAAR case on that abuse Email this Content Predecessors of the taxpayers had been acquired for their losses in transactions where less than 50% of their voting shares, but more than 90% of their non-voting participating shares, had been acquired. ... However, she stated: [T]he documents in issue are of limited relevance and likely inadmissible at trial as, under the GAAR analysis, the question of the policy in the ITA that the taxpayer is alleged to have avoided is ultimately a question of law. … Thus, while it may well be incumbent on the Minister to set out the disputed policy in the Minister’s pleadings as a matter of fairness … it does not follow that evidence on the policy will be admissible at trial as matters of law are for a court to determine. ...

26 February 2019- 12:46am Escape Trailer – Federal Court of Canada suggests that imposing HST on goods earmarked for immediate export fails to apply s. 142 purposively Email this Content When a B.C. ... …The Officer’s literal interpretation tends to frustrate both a purposive construction of section 142 and the intent of the ETA to tax consumption of goods in Canada … [and] appears to lead to a result which is at odds with the equitable underpinnings of subsection 23(2) of the FAA. ... Canada (Attorney General), 2019 FC 31 under Financial Administration Act, s. 23(2), ETA s. 142(1)(a) and Statutory Interpretation – Ordinary meaning. ...

6 May 2019- 11:59pm Colitto – Tax Court of Canada finds that a director’s s. 227.1 liability cannot flow through to a transferee under s. 160 unless the s. 227.1(2) claim procedures have first occurred Email this Content The taxpayer’s husband (Mr. ... Colitto’s liability arose pursuant to section 227.1 … in his 2011 taxation year and was not in respect of his 2008 taxation year” – so that the condition in s. 160(1)(e)(ii) quoted above was not satisfied. ...

12 May 2019- 11:41pm Arora Trading – Tax Court of Canada finds that a fake business could not be denied its small business deduction Email this Content Ms. ... CRA assessed both the 2009 and 2010 taxation years of Arora on the basis that it was carrying on a personal services business (PSB) – so that various expenses were denied under s. 18(1)(p) and Arora’s small business deduction claims for both years were denied. ... Although this sounds a bit like a taxpayer succeeding because its business was a sham, this probably is more a matter of CRA not minding the store – it likely should have assessed Econo for the income in question (e.g., denying the management fee deduction under s. 18(1)(a) or 67). ...

22 May 2019- 11:26pm CRA indicates that it generally denies a s. 113(1) deduction where Canco has failed to prepare surplus accounts – which failure also will preclude a late-filed Reg. 5901(2)(b) election Email this Content Canco does not prepare detailed calculations of its various surplus and underlying tax balances in respect of a wholly-owned subsidiary (FA) from which it received a dividend, and claims a full s. 113(1) deduction for that dividend (without knowing how much is a deduction under s. 113(1)(a) rather than, say, s. 113(1)(d).) ... An assessment is of a particular dollar amount of tax, and it does not matter what route was reached to get to that figure – see, e.g., Consumers’ Gas. Furthermore (to draw an analogy with surplus account records), expense deductions may be accepted in circumstances falling well short of full supporting documentation – see, e.g., Staltari, Weinberger, Samra, Savoidakis, Sidhu.) ...