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Canada (National Revenue), 2021 FCA 62-- summary under Subsection 231.7(1) Summary Under Tax Topics- Income Tax Act- Section 231.7- Subsection 231.7(1) Minister obtained compliance order re French request for trust details re French wealth tax Art. 26(1) of the Canada-France Convention provided for exchanges of “such information as is foreseeably relevant … to the administration or enforcement of the domestic laws concerning taxes of every kind … imposed on behalf of the Contracting States, insofar as the taxation thereunder is not contrary to the Convention.” ... Blue Bridge argued that it was the Minister’s responsibility to ensure that the “taxation … not contrary to the Convention” condition in Art. 26 was met before transmitting the requested information to France, whereas here, France was seeking to impose tax under a French wealth-tax statute which attributed all foreign trust assets to a French settlor or beneficiary in order to subject them to the tax, which in its view raised the possibility of the information being used to levy tax contrary to the Convention. ... She stated (at para. 47, TaxInterpretations translation): The judge rightly concluded that a requirement for thorough research and analysis of the facts and the law of the requesting State would impede the proper and effective operation of the Convention’s provisions …. ...

. … The Tax Court [under s. 171(1)] can only vacate, vary or refer an assessment back to the Minister. The opinion rendered by the Minister under subsection 247(10) … is not an assessment, although it will affect an assessment. … Even if the Tax Court could review the opinion without quashing it, since the existing opinion would remain in place (and therefore there would not be an opinion of the Minister that it would be appropriate to make the downward adjustment), on what basis could the assessment be referred back to the Minister? ...

There are four types of inputs for the purposes of section 141.02 — direct inputs, excluded inputs, exclusive inputs and non-attributable inputs — informing the appropriate allocation method that is to be used by a financial institution in calculating its ITCs. ...

The Crown submitted that “where a transfer is effected through a number of preordained transactions that together result in the transferor’s patrimony being depleted … [the word] ‘time’ [in s. 160] can encapsulate the whole of the transactions effecting the transfer” (para. 28). In rejecting this submission, Noël CJ stated (at para. 58): [T]he adequacy of the consideration given must be measured against the value of the property transferred by way of a “snapshot” taken at the point in time when the transfer takes place. … [I]t is not disputed that Newco gave Oldco adequate consideration at that time …. ... In further reversing the finding below, that the note (the “Oldco Note”) issued by Oldco to redeem its shares only had nominal value so as to engage the application of s. 160, he stated (at paras. 62-63): [I]t was not open to the Tax Court judge to hold that the Newco note had “considerable” value and that the Oldco note had a “nominal” value since both were backed by the same assets (Reasons at para. 57). … I also agree …that the Oldco note represented a bona fide debt in the face amount of $30 million. … The law is clear that the payment of a bona fide debt cannot trigger the application of subsection 160(1) which is precisely what took place when the notes were discharged …. ...

. … Mr. Racine cannot be said to have sat in appeal from a decision he made. ... Sokol. … Dr. Sokol’s evidence was clear, compelling, and demonstrated the appellant’s knowing involvement in the scheme. … Although the above was sufficient in itself to result in the dismissal of this appeal, for the sake of completeness Gleason JA also addressed the other arguments, finding that the organization “had inadequate control over the distribution of funds in Israel” (para. 60); it did not ensure that that the agent used the charity’s resources to carry out activities on the charity’s behalf (paras. 63 and 44); it failed to keep accurate books and records by falsifying minutes of Board of Directors’ meetings and not maintaining documentation to support travel expenses, remuneration paid to fundraisers, activities in Israel and the donation scheme (para. 65); and it failed to file accurate information returns (paras. 74 and 75). ...

In my view, Justice Paris followed the correct approach when he determined the purpose of the series of transactions on an objective basis – that is, by ascertaining objectively the purpose of each step by reference to its consequences – rather than on the basis of the subjective motivation of Mr. ...

In finding that CO2 Public had de facto control of CO2 Technologies as described in s. 256(5.1), so that the latter was not a Canadian-controlled private corporation, Noël CJ stated (at paras. 26-29): … [A]ccording to Duha Printers, it can be relevant to examine the deed creating a trust that is a shareholder of a corporation in order to determine whether this instrument restricts the ability of trustees to exercise their voting rights on the shares held by the trust …. In this case, it is not necessary to determine whether Fiducie’s deed of trust imposed on the trustees this type of restriction because … that deed gave Public CO2 de facto control of the appellant following the criteria developed in McGillivray. … 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. … ...

… [Under the Agreement] [t]he obligation to pay the consideration is linked to the promotional and marketing services to be provided by Aeroplan to CIBC … [and] the other obligations of Aeroplan (which would include issuing Aeroplan Miles to CIBC’s customers) are incidental to the promotional and marketing services. … Just as in Global Cash, the agreement under which the consideration for the supply was paid by CIBC should play a dominant role in determining what was acquired for the amounts that were paid. … The issuance of Aeroplan Miles to CIBC’s customers cannot be elevated to be the predominant supply when such issuance of Aeroplan Miles is not even mentioned in the referral activities for which the consideration was payable. … The legal relationship between CIBC and Aeroplan is defined by the agreement between these two parties. There is nothing to suggest that this agreement is not a bona fide agreement. … Before dismissing CIBC’s appeal, he declined to address the second argument. ... This may be a boon for cunning drafters and their bag of tricks. … [T]he element that gives the supply commercial efficacy—the predominant element of the supply—is the right to allocate Miles. ...

…[T]hat procedure … is wholly inconsistent with the asserted implied term. ... The concept of delivery … is to be interpreted in the same manner as …delivery in the applicable sales of goods legislation (Jayco …). ...

Canada, 2019 FCA 299-- summary under Stare Decisis Summary Under Tax Topics- General Concepts- Stare Decisis consent judgments had no precedential value In rejecting arguments that the Federal Court of Appeal should not follow its earlier decision in Maréchaux, Noël CJ stated (at para 52): … [T]his Court will not overrule a prior decision unless it can be shown that in rendering it, the Court overlooked binding precedents or ignored relevant statutory authority…. ... Noël CJ also stated (at para 61): … [T]he four Consent Judgments signed by the Minister involving other participants in the [subject leveraged donation] Program for taxation years subsequent to the enactment of subsections 248(30)-(32)… are of no assistance to the appellants. ...