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8 November 2018- 12:00am Atlas Tube – Federal Court finds that CRA could compel disclosure of an EY tax due diligence report discussing uncertain tax filing positions of a target Email this Content The U.S. parent (JMC) of the Canadian taxpayer (Atlas) acquired another Canadian company (LSI), following which some of the pieces of LSI ended up in Atlas’ hands in a post-closing reorganization. ... In rejecting this argument, Southcott J stated: BP is to be read as precluding general and unrestricted access to TAWPs on a prospective basis, outside the context of an audit of particular issues. … … Unlike in BP, the Minister’s request for access to the Report in the present case is made in the context of an active audit of particular issues. ... Atlas Tube Canada ULC, 2018 FC 1086 under s. 231.1(1) and s. 232(1) – solicitor-client privilege. ...

19 March 2025- 11:20pm Csak – FCA confirms a s. 160 challenge on the basis that a TCC judgment of the transferor was incorrect, and confirms that a waiver time limit falling on a Sunday was extended Email this Content The taxpayer challenged assessments of her under s. 160(2) respecting unpaid tax of her late husband for his 1988 and 1989 taxation year by arguing that the CRA assessments of him for those years were statute-barred given that CRA had not received a waiver on a timely basis (which had been found by Owen J to be the case for his 1988 taxation year and, in the case of his 1989 taxation year, turned on the proposition that the receipt by CRA of a waiver on a Monday was one day following the expiry of the normal reassessment period on the Sunday). ... It provides relief when the time limit for doing a thing expires on a holiday, allowing the thing to be done on the next day that is not a holiday. … I am satisfied that the filing of a waiver is the “doing of a thing” for the purposes of section 26 …. … I do not view the time limited for filing a waiver as conceptually different for this purpose from the deadlines for filing a notice of objection or notice of appeal …. ... Csak, 2025 FCA 60 under s. 160(2), s. 152(4)(a)(ii) and General Concepts – Abuse of Process. ...

Woods JA also stated: … [T]he valuation report makes it clear that the report was intended to influence prospective purchasers. As for the interpretation of the tax shelter definition, there is nothing in the text or context which suggests that the provisions are intended to be limited to publicly marketed transactions. … Finance has expressed concern about “abuses through aggressive tax shelter promotions” … Th[is] concern … would be frustrated if the legislation were applicable only to certain types of promotions. ... Canada, 2021 FCA 78 under s. 237.1(1) – tax shelter – (b). ...

31 May 2022- 10:59pm Kraft Heinz – BC Supreme Court accepts that a self-help Dutch-law annulment declaration retroactively voided a s. 212.3(10)(b) contribution Email this Content A B.C. ... The request for rescission, was denied essentially for reasons of redundancy: [T]he capital contribution was governed by foreign (Dutch) law and has been completely nullified, “ ab initio ”, pursuant to Dutch law. ... Canada (Attorney General), 2022 BCSC 796 under General Concepts – Rectification & Rescission. ...

31 March 2019- 11:25pm Lavrinenko and Morrissey – Federal Court of Appeal finds that “near equal” means no lower than 45% Email this Content While normally the Canada child tax benefit (CCTB) and the GST/HST credits (the “Benefits”) can at most be claimed by only one parent, individuals who are a child’s “shared‑custody parent” are each entitled to ½ of the Benefits. ... Canada, 2019 FCA 51 under s. 122.6 – shared-custody parent – para. (b) and summary of Morrissey v. Canada, 2019 FCA 56 under s. 122.6 – shared-custody parent – para. (b). ...

Guimond JCQ found that, as this settling-out process (without oenophilic pretention, described in French as “décantation”) was part and parcel of the process for purifying the oils and was more significant than the use of the trucks in transporting the oil, the trucks qualified as processing equipment under the Quebec equivalent of ITA s. 127(9) – qualified property – (c)(i). The same concepts also are relevant for distinguishing CCA classes referencing manufacturing and processing – and, in fact, Guimond JCQ quoted the Démolition A.M. case extensively. ... ARQ, 2016 QCCQ 9461 under s. 127(9) – qualified property – (c)(i). ...

31 January 2021- 11:01pm Prairies Tubulars – Federal Court finds that requiring payment of duties before they could be appealed was not unconstitutional Email this Content Prairies Tubulars challenged the constitutionality of provisions of the Special Import Measures Act (the “Appeal Payment Provisions”) which required it to pay all outstanding duties before proceeding with the SIMA’s appeal procedure. ... Before dismissing the application, Ahmed J stated: [L]egislation may be inconsistent with section 96 … if it creates financial obstacles that impose undue hardship on potential litigants …. However, in light of the Applicant’s gross earnings … I am not persuaded … that the Appeal Payment Provisions cause it undue hardship. … Trial Lawyers is distinguishable … because the Appeal Payment Provisions are remedial, not punitive. ...

10 June 2024- 11:50pm Burlington Loan Management – Upper Tribunal finds that Irishco’s purchasing a UK interest claim from Caymansco at a tax arbitrage price did not have Treaty-reduction as a main purpose Email this Content BLM was a substantial Irish-resident investment company, which had been acquiring proved claims in the administration of Lehman Brothers International (Europe) ("LBIE" – a UK resident) since 2011. ... HMRC denied BLM’s refund claim on the basis of Art. 12(5) of that Treaty, which excluded the application of Art. 12 “if it was the main purpose or one of the main purposes of any person concerned with the … assignment … to take advantage of … Article [12].” ... Summary of Revenue & Customs v Burlington Loan Management DAC [2024] UKUT 152 under Treaties – Income Tax Conventions – Art. 12. ...

8 March 2024- 12:01am 3295940 Canada – Federal Court of Appeal finds no abuse in a tax plan producing the same gain as if the ultimate shareholder had directly used its high outside basis for its investment Email this Content The taxpayer (3295) was a holding company with a minority shareholding in a target company (Holdings) with a low ACB, whereas 3295’s parent (Micsau) had a high ACB for its 3295 shares. ... Thus, the “series’ overall result [was] consistent with the object, spirit and purpose of the capital gains regime as previously identified by this Court—that is, to tax real economic gains: Triad Gestco … “. ...

The facts are somewhat analogous to those in Global Cash Access, where Global was charged for something analogous to cheque-cashing services by the casino in fee amounts ranging from 12.5% down to 2.5%, depending on the size of the individual amounts – with Sharlow JA finding that these were for exempt encashment services. One distinction might be that it would have been less consonant with the “economic realities” (to use a phrase of Richards LJ) to characterize these amount as being paid by Global for access to the casino – and another, that the amounts were high, but not outrageous, when viewed as consideration only for encashing. ... Summary of Wiltonpark Ltd & Ors v Revenue & Customs Commissioners, [2016] EWCA Civ 1294 under ETA s. 123(1) – financial service – para. ...