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27 September 2020- 11:17pm Irish Bank Resolution Corp – England and Wales Court of Appeal effectively finds that the Treaty PE Article has an embedded thin cap rule Email this Content HMRC increased the UK branch profits of the Irish taxpayers’ branch banking, or home mortgages, businesses by attributing to their UK permanent establishments notional additional free capital on the basis that if they had operated as distinct and separate enterprises, they would have had a higher amount of free capital and therefore a correspondingly lower amount of borrowed capital – with the result that HMRC disallowed interest which was actually paid to third parties. ... Otherwise the comparator provisions … cannot work. To construe the phrase "same or similar conditions" as requiring the PE's actual ratio of free to borrowed capital to be applied would be self-defeating. ... Summaries of Irish Bank Resolution Corporation Ltd v Revenue and Customs [2020] EWCA Civ 1128 under Treaties – Income Tax Conventions- Art. 7 and General. ...

Whether it was denied input tax refunds under the Quebec Sales Tax Act for the QST on its electricity purchases turned on whether it used the electricity “to produce movable property … intended for sale” within the meaning of s. 17(aa) of the Quebec Retail Sales Tax Act (“RSTA”) The Court of Quebec had followed C.R.I. ... In my view, this relief conferred a benefit on the Appellant and … constituted valuable consideration that may be characterized as "any other consideration" within the meaning of section 2(9) of the RSTA. ... Agence du revenu du Québec, 2021 QCCA 1068 under ETA s. 123(1) – consideration. ...

Smith Medicine Professional Corp – Federal Court finds that it was not unreasonable for CRA to request information under s. 231.1 (not 231.6) on a Buffalo USB key Email this Content CRA, which had been auditing the taxpayers-Dr. ... After having indicated that the reasonableness of the letters turned on a test of whether there may be considered to be “a rational connection … between the information sought and the administration and enforcement of the ITA,” Fothergill J rejected a submission that the request letters sought foreign-based information and that they should have been issued under s. 231.6, stating: I am satisfied that Dr. ... Smith personally.... … I am not persuaded that the evidence in this case is so compelling that it was unreasonable for the Minister to proceed otherwise than under s. 231.6 of the ITA. … [A] taxpayer cannot transform domestic-based information into foreign-based information merely by moving it outside the country. ...

That was not done here. … I view the statements made by counsel for the Respondent at the hearing on January 28, 2021, to the effect that the Respondent would not rely on the tax-shelter argument at trial, as being a representation or a commitment made to the Court. In the absence of a reasonable explanation as to why counsel for the Respondent now desires to resile from that representation or commitment, I am reluctant to grant leave …. ... The Queen, 2022 TCC 18 under Tax Court of Canada Rules (General Procedure), Rule 54 and General Concepts – Window Dressing. ...

28 March 2022- 12:26am BMO Nesbitt Burns – Federal Court rejects a claim that providing a full spreadsheet would breach privilege or a requirement not to disclose uncertain tax positions Email this Content CRA brought an application pursuant to s. 231.7 seeking an order requiring BMO Nesbit Burns (“BMONB”) to provide an unredacted version of a spreadsheet in connection with CRA’s audit of suspected dividend rental arrangement transactions of BMONB. ... In rejecting BMONB’s claim of privilege, Kane J stated that the spreadsheet was not more than the mere “operational outcome or end product of legal advice” and did not satisfy the requirement that it “communicate … the very legal advice given by counsel.” ... BMO Nesbitt Burns Inc., 2022 FC 157 under s. 232(1) – solicitor-client privilege and s. 231.7. ...

18 May 2022- 11:09pm Paletta – Federal Court of Appeal finds that straddle trading, with an appearance of commerciality but not engaged in for profit, was not a business Email this Content In order that he could shelter most or all of his income for an extended period of years, Paletta entered into an FX straddle-trading program, with each straddle entailing both a “long leg”, and a matching “short leg” that established a short position (under which he agreed to sell the same currency on a slightly different (future) value date), so that he was almost completely hedged- and then, near each year end, realized the targeted loss by closing out whichever of the long and short legs at that time was the loss leg of the straddle. ... Paletta … presented the plan as not being materially different from the one that was in issue in Friedberg ” whereas “the facts in Friedberg were fundamentally different as Mr. ... Paletta, 2022 FCA 86 under s. 3(a) – business source, s. 163(2), s. 248(1)- business and s. 152(4)(a)(i). ...

25 July 2022- 12:22am PC Bank – Tax Court finds that loyalty points were redeemed by a credit card issuer in the course of its financial services business so that no ITCs were available Email this Content The PC Bank case, which was released with the CIBC case, addressed two additional issues. ... (r.3) of the financial services definition, Hogan J stated (at paras. 141): The language of paragraph (r.3) indicates that “managing credit” is broader in scope than what may be commonly understood by that expression. … Neal Armstrong. ... The Queen, 2022 TCC 84 under ETA, s. 181(5), and s. 123(1) financial service – para. ...

23 August 2022- 11:04pm Blackrock Holdco – UK Upper Tribunal completely denies interest deductions under the UK transfer pricing rules because the loan was made without group support covenants Email this Content The structure for the acquisition by the BlackRock group of the target (“BGI”) entailed a BlackRock LLC (“LLC4”) lending US$4 billion to a wholly-owned LLC (“LLC5”) as well as injecting substantial equity into LLC5, with LLC5 using most of those proceeds to subscribe for preferred shares of the transaction Buyco (“LLC6” – which acquired all the shares of BGI). ... In the hypothetical transaction however, the dividend flow would need to be secured so far as possible …. In confirming the denial by HMRC of all of LLC5’s interest deductions on the basis that the loan transaction between the two enterprises (LLC4 and LLC5) was not one which would have been made by arm’s-length enterprises (i.e., it lacked covenants of LLC5 and BGI to ensure the flow of dividends from LLC5 to service the loan), the Tribunal stated: Third-party covenants that were not given as part of or in support of the actual transaction cannot be considered to be part of the hypothetical transaction as this materially changes the surrounding circumstances and alters the economically relevant characteristics of the transactions in question. … [A]n independent lender would not have made a $4 billion loan to LLC5 without such covenants being in place and that important finding should itself have determined that there was no comparable arm’s length transaction. ...

10 April 2023- 11:14pm Hootsuite – Supreme Court of BC finds that the purchase of Amazon cloud infrastructure services was not subject to BC PST Email this Content Hootsuite, which provided its customers with an online social media management system, did not itself have the servers and storage facilities to host its platform, and instead accessed those of Amazon Web Services (“AWS”). ... In finding that there was no use by Hootsuite of “software,” Thomas J stated: [T]he fundamental nature of … [this] product is to provide an on-demand computer infrastructure service. ... Summaries of Hootsuite Inc. v British Columbia (Finance), 2023 BCSC 358 under the Provincial Sales Tax Act, (B.C.), s. 1 – software, telecommunication service. ...

13 October 2016- 11:22pm Aubrey Dan Family Trust – Ontario Superior Court finds that an original assessment not dealing with tax in a particular province starts the normal reassessment period for that province Email this Content A purported Alberta trust which wanted to have more time to make submissions to CRA that it was not resident in Ontario provided a related waiver on the prescribed (T2029) federal form. ... He stated (at para 17): … If the original notice does not constitute notification of no tax payable in all provincial or territorial jurisdictions, then a taxpayer receiving such a notice, could be assessed for income taxes in any other province or territory indefinitely. … Neal Armstrong Summary of Aubrey Dan Family Trust v. ...