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14 March 2021- 11:26pm Polonovski – Court of Quebec prefers IT-218R over CAE Email this Content Two individuals acquired a rental property, consisting of a duplex and triplex, in 2004. ... Agence du revenu du Québec, 2020 QCCQ 8943 under s. 9 – capital gain v. profit – real estate, computation of profit. ...

18 April 2021- 11:30pm Nonis – Tax Court of Canada finds that a U.S. resident avoided Canadian tax on employment income from a Canadian employer when he ceased performing active duties Email this Content The taxpayer, Mr. ... Nonis continued to be an employee after his “termination” (albeit, with virtually non-existent duties), Bocock applied the principle that, under “paragraph 4(1)(b) of the Act, if a taxpayer works partly in Canada and partly in another country in the same taxation year, the taxpayer’s taxable Canadian income for the year is the amount earned while working physically in Canada” – so that Mr. ... Bocock found that s. 115(2)(c.1)(i) essentially dealt with signing bonuses received by non-residents regarding pending Canadian employment, and that s. 115(2)(c.1)(ii), which refers to “remuneration … for services to be performed in Canada” was there to prevent avoidance “where a signing bonus is represented as something else.” ...

13 June 2021- 11:24pm Bresse Syndics – Federal Court of Appeal finds that a trust deed requirement that the trustees be the Pubco directors gave Pubco de facto control of a trust subsidiary Email this Content A public company (CO2 Public), operating a high-tech business, carried on its SR&ED through a private company (CO2 Technologies) that was held by a discretionary trust whose beneficiaries were CO2 Public and special-purpose subsidiaries thereof. ... He stated: Fiducie’s deed of trust operated in such a way that by electing Public CO2’s board of directors, Public CO2’s shareholders also elected Fiducie’s trustees, as they had to be directors of Public CO2. … Thus, Public CO2 had the power to terminate the trustees’ functions by revoking or not renewing their mandate as directors. … [T]he mechanism put in place clearly gave Public CO2 the ability to change the appellant’s board of directors or to influence in a very direct manner those who had that ability. ...

26 September 2021- 11:24pm BMO – Federal Court of Appeal approves the extensive reasons of Walker J in confirming that CRA did not unreasonably reject the Bank’s proposed ITC methodology Email this Content In affirming the decision of Walker J below in the BMO case, Noël CJ stated: [T]he Federal Court identified the correct standard of review and applied it properly. ... Canada (Attorney General), 2020 FC 1014, aff'd 2021 FCA 189 under s. 141.02(18), s. 141.01(5), s. 123(1) – financial service – para. ...

30 September 2021- 10:58pm Odette Estate – Tax Court of Canada finds that a promissory note subsequently repaid in cash could not be equated to cash consideration for s. 118.1(13)(c) purposes Email this Content The appellant estate donated shares of a private company (Edmette), which were non-qualifying securities, to a private foundation with which it did not deal at arm’s length. ... The only consideration received at the time of the disposition was the Promissory Note. … Parliament does not want to grant a tax credit where the donor is not impoverished and the charity is not enriched. A non-arm’s length promissory note creates no real obligation to pay. … [I]t is important to show that the charity is actually enriched and the donor is in fact impoverished. ...

23 November 2021- 10:40pm Newave – Federal Court states that allegations of procedural fairness at the audit stage can be addressed at the objection or appeal stage Email this Content After a lengthy audit, CRA concluded that the “business” of the applicant (Newave) consisted of generating fraudulent input tax credit claims. ... Regarding the first application, he stated: [T]he real goals of the applicant’s first Notice of Application were not to remedy alleged procedural fairness concerns, but instead were to halt and attempt to control CRA’s reassessment process. … In substance, the content of the pleading is an attempt to interfere with the Minister’s statutory duty to assess. … [A]ny allegations about procedural fairness at the audit stage can be remedied at the objection or appeal stage…. ...

19 January 2022- 10:43pm 9056-2059 Québec – Tax Court of Canada finds that ETA s. 153(2) requires a reasonable allocation of consideration between component supplies Email this Content In order to promote the sale of its farm products (mostly honey), the appellant developed a “labyrinth” of trails on its forest lands and, when it sold tickets for access by visitors to the trails, stipulated that the ticket, generally sold for $12, also constituted a coupon of $1.50 to be applied to the purchase of honey or other products. ... Before confirming the resulting reassessments that treated $1.50 of the ticket prices as being zero-rated consideration for the honey or other food products, and the balance as consideration that was subject to tax, Boyle J indicated that s. 153(2) required that the “cost of admission to … the … forest must be reasonably divided between access to the labyrinth and other activities, and the mandatory purchase of a coupon to be exchanged for a honey or maple food product,” and then stated: Appellant was unable to present any valid reason why the value of the initial coupon should be other than $1.50, which is what it charged for the same coupons when purchased individually. ...

Irving – Quebec Court of Appeal finds that servicing fees paid by a property user to the owner for services that it performed on behalf of the owner were not leasing revenues Email this Content A loss consolidation transaction involved a company (“IPPL”) in the Irving group of companies transferring, in December, its pollution control equipment on a rollover basis to an affiliated lossco, which then sold the equipment for $120M to the group profitco (“JDI”), which then claimed $120M of CCA and, in January of the next year, transferred the equipment back to IPPL on a rollover basis. ... In rejecting the ARQ submission that IPPL did not validly operate the equipment on behalf of JDI, Mainville JCA stated (at paras. 43-44, 46): [I]t is undisputed that a taxpayer may carry on a business through an agent. … The fact that the agent and the principal are related companies does not change this principle. This was the case in Stubart …. As the trial judge concluded, we are dealing with clear contracts and uncontradicted evidence that confirm that the designation of the transactions as services agreements does reflect their true legal effects. ...

13 September 2022- 10:54pm Distributions Maroline – Quebec Court of Appeal finds that a Quebec employer must pay Quebec health and QPP premiums on rewards paid to a 3rd-party’s Ontario employees Email this Content The taxpayer (“Maroline”) was assessed for failure to include rewards that it paid to salespersons employed by independent retailers in Ontario in the payroll total on which it reported Quebec health premiums (“contributions”) payable by it pursuant to the Act respecting the Régie de l'assurance maladie du Québec (the “LRAMQ”). ... The Court noted that the literal wording of the relevant provisions (which were similar in this regard to ITA Regs. 100(1) – “employee” and 100(4)) had the effect of deeming those salespersons to be employees of Maroline who reported for work at the Quebec Maroline office out of which the rewards were paid. ... The liability arises from the fact that the wages are paid by the respondent from an establishment in Quebec. … [T]he judge was of the view that the interpretation advocated by the appellant accords the LRAMQ extraterritorial application. ...

27 September 2022- 11:37pm Abdat – Federal Court finds that CRA reasonably refused remission of tax that had been agreed to be paid pursuant to a settlement agreement Email this Content After having reached a settlement with CRA on favourable terms of his Tax Court appeal of net worth assessments, Abdat brought an action against CRA for damages (which later was dismissed). ... Grammond J further stated: It stands to reason that a remission order should not normally be used as an alternative avenue of appeal for a taxpayer who has failed to pursue the remedies available under the Income Tax Act, let alone as a means of overriding a settlement to which the taxpayer has agreed. … Internal disagreement alone does not prove the outcome of the objection and appeal process to be wrong …. ...