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28 July 2021- 10:29pm Ménard – Court of Quebec applies the kiddie tax to a trust’s distribution of a capital gain, realized on a crystallization transaction, to a minor beneficiary Email this Content In 2012, a discretionary family trust engaged in a capital gains crystallization transaction in which it disposed of shares, having a modest ACB, of a small business corporation wholly-owned by the trust in consideration for shares of a new class of the same corporation, and then allocated and distributed the capital gain to its beneficiaries, one of whom was a minor. ... The statutory language relevantly required that an “amount can reasonably be considered to be attributable to a taxable capital gain … of a trust from a disposition of shares … that are transferred, either directly or indirectly … to a person with whom the specified individual does not deal at arm's length….” Taxpayer’s counsel argued that this language required that there be two distinct transactions – first, a disposition, and second, a transfer – whereas here the disposition and the transfer instead were one and the same transaction. ...

7 March 2018- 1:11am Iggillis – Federal Court of Appeal indicates that privilege is not lost when a tax opinion is shared with a party with a “sufficient common interest in the same transactions” Email this Content Solicitor-client privilege over a tax-planning memo prepared for the purchaser in a tax-structured purchase transaction by a tax lawyer was not lost when the tax lawyer provided the memo in draft form to the vendors' tax lawyer, whose comments resulted in memo revisions. ... Webb JA stated: [W]hen dealing with complex statutes such as the Income Tax Act, sharing of opinions may well lead to efficiencies in completing the transactions and the clients may well be better served as the application of the Income Tax Act will be of interest to all of the parties to the series of transactions. … [The appellants] had sufficient common interest in the transactions to warrant a finding that … the … memo is protected from disclosure by solicitor-client privilege. ... The Queen, 2018 FCA 51 under s. 232(1) – solicitor-client privilege. ...

20 December 2019- 12:42am Loyer Succession – Federal Court allows review application for failure of CRA to consider a penalty-waiver agreement of the ARQ for the same unreported income Email this Content The estate of a suspected drug dealer, who had been murdered, was assessed by the ARQ for income that he had not reported. CRA followed suit with assessments made on the same basis – but CRA did not follow the ARQ’s lead when the latter agreed with the estate to waive all gross negligence penalties- and did not even mention the Agreement to this effect between the estate and the ARQ in its second level review of the estate’s request under s. 220(3.1) for relief. ... The failure to do neither … had the effect… of “depriving the process of justification, transparency and intelligibility,” to adopt … Telfer …. ...

Jagot J (speaking for the majority) found for the Commissioner (i.e., no rollover relief to Mr Ellison) partly on the basis of her doubts that there had been such a prior transfer (concluding that “the orders vested statutory rights and a beneficial interest of some kind in Ms Ellison but … I do not consider that interest can be characterised as beneficial ownership.”) ... She made a guarded finding that a person could have a proprietary interest in a specified portion of a larger pool of fungible assets, stating: [T]he weight of authority is that there can be a valid trust over a fungible pool of assets provided the assets and relevant proportions for the different beneficiaries are identified with sufficient certainty. … If, given the terms of the declaration and the nature of the property, the trustee is constituted as nothing more than a bare trustee on behalf of the beneficiary in respect of the beneficiary’s proportional interest, it may well be that there has been a change of ownership …. ... Summary of Ellison v Sandini Pty Ltd [2018] FCAFC 44 under General Concepts – Ownership, s. 248(1) – disposition, s. 73(1)(b) and General Concepts – Evidence. ...

LeBlanc JA stated: [T]he TCC scrupulously followed the approach … required of it under Safeway. In particular, it concluded from the evidence before it that the appellant's sole motivation at the time of the acquisition of the land in question was clearly to resell it at a profit, noting in this regard that the appellant had never intended to carry out the development project desired by the City of Mascouche. … [T]he lands in question … were located in close proximity to the future train station … [and] the City of Mascouche had undertaken, in order to facilitate the implementation of the development project on the axis of such station, to modify its urban plan and by-laws, to achieve, before the end of 2007, free circulation on the land and to complete certain infrastructure work. ... The Queen, 2021 CAF 229 under s. 9 – capital gain v. profit – real estate. ...

6 March 2025- 10:49pm Brookfield Renewable Power – Quebec Court of Appeal confirms the reduction of the deductible interest on loss consolidation loans from 14% to 8.75% based on parent’s borrowing costs Email this Content Loss consolidation transactions between a “Lossco” in the Brookfield group (“BRPI”) and “Profitcos” resulted, for instance, in BRPI holding $2.3 billion of loans in its Profitco subsidiary, and the Profitco holding $2.3 billion of preferred shares of its parent until this reciprocal arrangement was reversed five months’ later. ... Instead, he favoured an approach based on the correct criterion, taking into account the particular nature of the transactions carried out … in the context of the consolidation of losses … and retaining, as an objective element … the financing costs incurred by the parent company and BRPI at the relevant time. ...

20 April 2018- 12:20am Travel Document Service – Court of Appeal of England and Wales finds that an anti-avoidance provision based on “one of the main purposes” for holding a loan applied to a deemed loan Email this Content A British taxpayer (TDS) used a total return swap to cause its share investment in a subsidiary (LGI) to be deemed to be a loan. ... He also rejected HMRC’s submission that "’main’ … means ‘more than trivial’," stating: A purpose can be "more than trivial" without being a "main" purpose. ... Summaries of Travel Document Service & Ladbroke Group International v Revenue & Customs (Rev 1) [2018] EWCA Civ 549 under Statutory Interpretation – Interpretation Provisions and s. 83(2.1). ...

However, he indicated (in what you might term 2 nd-tier obiter) that there would have been such misuse: The policy, or underlying rationale, of the exemption … is to promote competition of affiliates operating in international markets. … [I]t follows that Loblaw Financial was misusing this exemption as it was not competing in any manner in any international market. ... The Queen, 2018 TCC 182 under s. 165(1.11), s. 95(1) – foreign bank, investment business, para. ... (c), s. 9 – capital gain v. profit – foreign exchange, s. 152(4.01)(a)(ii), s. 245(3), s. 248(10), s. 245(4), s. 95(2)(l). ...

The object of the business property exemption was to provide a “ tax break [that] encourages foreigners to invest in immovable property situated in Canada in which businesses are carried on (e.g. mines, hotels, or oil shales).” ... Canada “could also have insisted on a subject-to-tax provision” under which it would forego its right to tax capital gains only if the other state actually taxed those gains – but did not. ... Alta Energy Luxembourg S.A.R.L., 2021 SCC 49 under s. 245(4), Treaties – Income Tax Conventions, Art. 4, Statutory Interpretation- Treaties. ...

10 January 2017- 11:47pm Igloo Vikski – Supreme Court of Canada finds that an “includes” definition could reasonably be viewed as being limited by the listed items Email this Content A decision of the Supreme Court dealt with characterizing the precise nature of the hierarchy of Rule 1 of the General Rules for the Interpretation of the Harmonized System (scheduled to the Customs Tariff Act) over Rule 2(b). ... In her dissenting reasons, Côté J pointed out that the approach of the CITT – that resort can only be made to Rule 2(b) if the goods in question (here, goalie gloves) could first be considered to be described in more than one heading – did not work because (for reasons relating the World Harmonized System Explanatory Notes) they fell within neither mooted heading (gloves, mittens or mitts – or other articles of plastics) – whereas this problem did not arise if the two Rules were applied in a somewhat more integrated manner. ... Igloo Vikski Inc., 2016 SCC 38 under Customs Tariff Act- General Rules for the Interpretation of the Harmonized System – Rule 2(b), and Statutory Interpretation – Interpretation/Definition Provisions. ...