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Livent – Supreme Court of Canada finds that auditor negligence in providing comfort to investors in a public company did not result in liability Email this Content Deloitte was found to have negligently provided a comfort letter in October 1997, which assisted Livent in raising money from new investors, and to have also negligently provided an unqualified audit opinion in April 1998 respecting Livent’s 1997 financial statements. Gascon and Brown JJ, speaking for a bare majority of the Supreme Court, found that Deloitte was not liable to the receiver for Livent for the negligent comfort letter, because it helped accomplish Livent’s purpose of raising money, stating: Deloitte never undertook, in preparing the Comfort Letter, to assist Livent’s shareholders in overseeing management; it cannot therefore be held liable for failing to take reasonable care to assist such oversight. … Consequently, the increase in Livent’s liquidation deficit which arose from its reliance on the Press Release and Comfort Letter was not a reasonably foreseeable injury. ... Summary of Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63 under General Concepts – Negligence. ...

3 July 2018- 12:51am MacDonald – Federal Court of Appeal effectively affirms George Weston, and finds that the existence of a hedge does not turn on intention Email this Content An individual with a significant long-term holding in common shares of a public company (BNS) entered into a cash-settled forward which had the effect of establishing a short position against a portion of his BNS shareholding. ... He was aware of the hedging effect which the Forward Contract would have on the BNS shares …. ... MacD onald, 2018 FCA 128 under s. 9 – capital gain v. income – futures/forwards/hedges. ...

18 March 2019- 12:26am Morrison 2002 Maintenance Trust – Court of Appeal of England and Wales finds that identifying the form of ultimate sale was not essential to finding a pre-ordained series Email this Content Three “Scottish Trusts” exercised their put to sell shares of a listed public company to trusts (the “Irish Trusts”) with similar terms for the shares’ cost base of £4.5M; and the Irish Trusts sold the same shares eight days later to Merrill Lynch for £14.3M, who then sold the shares into the market. ... Newey LJ stated that he agreed with the First-tier Tribunal: that the sale to Merrill Lynch "sufficiently corresponded to the scheme as planned" and … it "would be extraordinary if the application of the Ramsay approach could be defeated by the sale being to brokers rather than to the market by brokers on behalf of the Irish Trustees" …. ... Summary of The Trustees of the Morrison 2002 Maintenance Trust & Ors v Revenue and Customs [2019] EWCA Civ 93 under s. 248(10). ...

9 April 2025- 11:35pm Galea – Privy Council finds that whether an activity qualifies as “carried on with a view to profit" turns on the taxpayer’s subjective intention Email this Content Whether the taxpayer could deduct his 92% share of the losses incurred by a Mauritius partnership (of which he was the dominant partner) from his other sources of income turned on whether the partnership was carrying on a “business,” whose definition in the Mauritian Income Tax Act 1995 relevantly referred to "any trade … or undertaking, or any other income earning activity, carried on with a view to profit. ... Summary of Galea v The Assessment Review Committee & Anor (Mauritius) [2025] UKPC 17 under s. 3(a) – business. ...

10 July 2022- 11:06pm Procon Mining – Tax Court of Canada finds that shares which were acquired as part of a mining contract business were capital property Email this Content A mining contractor subscribed for shares of junior mining companies as an inducement to be awarded mine development work and as an investment. ... Summary of Procon Mining & Tunnelling Ltd. v. The Queen, 2022 TCC 71 under s. 18(1)(b) – capital loss v. loss. ...

4 December 2022- 11:02pm FU2 – Tax Court of Canada finds that Senate vacancies do not invalidate ITA bills passed by it Email this Content The taxpayer appealed a reassessment of its 2011 taxation year – made in reliance on a retroactive amendment made to the relevant ITA provision in 2014 – on the grounds that the amending Act was passed by a Senate that had substantial vacancies, contrary to Part IV of the Constitution Act, 1867 (which has detailed provisions respecting the appointment of specified numbers of senators from each province). ...

1 December 2024- 11:39pm Magren – Federal Court of Appeal finds it an abuse of the capital gains system to recognize a capital gain increment to a CDA account when there was no net change in economic position Email this Content The taxpayers were private companies controlled by a resident individual (Grenon), whose RRSP held 58% of the units of a publicly traded income fund (“FMO”). ... After noting that Triad Gestco had found that “the capital gain system … [is] aimed at taxing increases in ‘economic power’” rather than only “an arithmetic difference”, Monaghan JA stated that “[t]he appellants had neither an economic gain nor an economic loss; there was absolutely no change in their economic power as a result of their participation in the FMO reorganization” and “[a]s in Triad Gestco … avoidance transactions frustrated the object, spirit and purpose of the capital gain and capital loss provisions in the Income Tax Act.” ... Canada, 2024 FCA 202 under s. 245(1) – benefit, s. 245(4), s. 245(2), s. 104(6), General Concepts – Ownership, Sham. ...

It follows that the complex mosaic of generally accepted accounting practice … will generally have little part to play.” ... The Court noted that many of the above propositions were supported by Backman – quoting, for example, the statement in Backman that it “will be sufficient for a taxpayer to show that there was an ancillary profit-making purpose. ... Summary of Ingenious Games LLP & Ors v Revenue and Customs [2021] EWCA Civ 1180 under s. 96. ...

CRA denied the companies’ applications for relief from interest and penalties accrued during their 2014 through 2020 taxation years, made on the basis of “extraordinary circumstances leading to … financial hardship.” ... Schnell] remained responsible to take the necessary measures … to ensure that all obligations [were] met when required” and failed to do so. ... & Latigo Trucking Ltd. v. Canada 2023 FC 1728 under s. 220(3.1). ...

27 October 2016- 11:48pm Ingenious Media – UK Supreme Court finds that statutory exceptions to taxpayer confidentiality should be construed narrowly in light of the common law of confidentiality Email this Content A senior British tax official disclosed, in an “off the record” interview with some journalists, that the schemes of a particular promoter of film tax shelters had been generating large losses to the fisc, and they published this and other confidential information. HMRC argued that this disclosure was justified by a statutory provision which authorized a “disclosure … made for the purposes of a function” of HMRC, noting their “general desire to foster good relations with the media or to publicise HMRC’s views about elaborate tax avoidance schemes,” as well as to the possibility of getting tips from the journalists. ... Summaries of Ingenious Media Holdings plc & Anor, R (on the application of) v Commissioners for HMRC [2016] UKSC 54 under s. 241(4)(a) and Statutory Intepretation- Principle of Legality. ...