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8 September 2019- 11:44pm Glencore – Federal Court of Australia finds that transfer pricing should take into account the division of functions between the two cross-border parties Email this Content An Australian Glencore subsidiary (“CMPL”) with a high-cost copper mine entered into a three year extension of an agreement for the sale of copper concentrate to Glencore (“GIAG”) with a number of complicated-to-describe features which, nonetheless, were not unusual for the industry, such as deductions for treatment and copper refining charges that were notional rather than based on the actual refining costs and “quotational period optionality with back pricing” (e.g., with elements of backdating that favoured GIAG.) ... Before concluding that “the taxpayer has established that the prices that CMPL was paid by GIAG for the copper concentrate it supplied to GIAG under the … Agreement were within an arm’s length range” (and before quoting with approval the statement in Cameco that “The traditional transfer pricing rules must not be used to recast the arrangements actually made among the participants,”) Davies J stated: As made clear in Chevron, the task of ascertaining the consideration that might reasonably be expected would have been paid to CMPL for the copper concentrate that it sold to GIAG is not to be undertaken upon the hypothesis that CMPL was not a member of the Glencore Group. … [T]he relevant mine producer for the purposes of the [arm’s length] hypothetical agreement is a mine producer with all the characteristics of CMPL, which include … that it had no need for a logistics or marketing division because it sold the whole of its production for the life of the mine to a buyer with GIAG’s characteristics, namely a trader with a substantial marketing team which purchased the whole of the mine’s production for the life of the mine. ...

24 August 2021- 11:42pm Miller – Federal Court issues a s. 231.7 compliance order for a description of the terms of an oral contract Email this Content Mr. ... Miller ought to have documented in his records,” that the “requests do not stray into the problematic type of questions identified in Cameco and BP Canada ” e.g., an attempt “ to compel Mr. ... Regarding the required disclosure of the trust ledger accounts with the law firms, she stated: I do not agree that the Cameco decision establishes that a taxpayer discharges their obligation to satisfy a request that is otherwise within the scope of subsection 231.1(1) with a response that they simply do not have those documents in their possession. … [A] taxpayer is required to exercise reasonable efforts to obtain and provide to the Minister information and documentation that should be in its books and records. ...

In dismissing the appeal, Noël CJ stated that this finding:...necessarily flows from … the loan agreements which made each of the appellants’ entire donation conditional on the loan being approved by the lender. As “no part of [the interconnected transaction] can be considered a gift that the appellant[s] gave in the expectation of no return” … [i]t follows that there was no gift whether the matter is considered from a common law or a civil law perspective. … He also stated: [W]here a person anticipates receiving tax benefits that exceed the amount or value of an alleged gift, the donative intent is necessarily lacking. ... Canada, 2019 FCA 299 under s. 118.1(1) – total charitable gift and General Concepts – Stare Decisis. ...

What mattered at the time … was “the relationship of the person acquiring the [house] to the builder—one of purchase and sale—[…], not the relationship between co-purchasers”.... He further stated: [T]he principle of horizontal stare decisis … dictates that decisions of a panel of an appellate court bind future panels of that court …. ... Canada, 2023 FCA 146 under ETA s. 254(2)(b) and General Concepts – stare decisis. ...

24 March 2022- 11:07pm NCL Investments – UK Supreme Court recognizes that employee stock option expenses were as a general matter sustained on income account Email this Content The taxpayers, which were required by the UK Corporation Tax Act 2009 to calculate the “profits of [their] trade … in accordance with generally accepted accounting practice”, were found by the Court to be thereby authorized to deduct the expenses (“Debits”) recognized under IFRS when they granted stock options to employees through an employee benefit trust. In finding that this deduction was not precluded by s. 53 of the same Act, which provided that “[i]n calculating the profits of a trade, no deduction is allowed for items of a capital nature,” Lord Hamblen and Lady Rose accepted the findings below that the taxpayers’ “employees operate in a professional services business whose success depends on the availability of skilled and motivated professionals and the grant of share options to those employees is part of their remuneration package” and that the “Debits were … recurring costs that had a connection with the Appellants’ earning of income ….” ... Summary of Revenue and Customs v NCL Investments Ltd & Anor [2022] UKSC 9 under s. 18(1)(b) – Capital expenditure v. expense- contract modification or grant. ...

13 February 2020- 12:21am Alta Energy – Federal Court of Appeal confirms that Treaty shopping was not an abuse Email this Content A Blackstone LP and a U.S. shale company transferred their investment in a Canadian subsidiary (Alta Canada), that was to develop a shale formation in northern B.C., to a Luxembourg s.à r.l (Alta Luxembourg – which, in turn, they held through an Alberta partnership). ... In the Court of Appeal, the Crown conceded that the gain of Alta Luxembourg was exempted from Canadian capital gains tax by virtue of the exclusion in Art. 13(4) of the Canada-Luxembourg Treaty which provided that the Alta Canada shares were not deemed immovable property (and thus not subject to Canadian capital gains tax) on the basis that the exploration licences were property of Alta Canada “in which the business of the company … was carried on.” ... He concluded: I agree with … MIL … that the object, spirit and purpose of the relevant provisions of the Luxembourg Convention is reflected in the words as chosen by Canada and Luxembourg. ...

In May 2006, his 1999 return was reassessed to add $54 million of income based on the in-the-alternative view that he had not ceased to be a Canadian resident in 1998 – which, of course, was inconsistent with the earlier reassessment of the departure tax for that year. In June 2006, a similar departure trade case (Grant – subsequently affirmed), denied the interest deduction. ... Near JA affirmed the decision below that the decision of the Minister’s delegate to deny relief of the assessed interest had not been established to be unreasonable, noting that: Telfer … stated that a taxpayer who knowingly fails to pay a tax debt pending a decision in a related case “normally cannot complain that they should not have to pay interest” …. ...

11 November 2020- 11:18pm Yellow Point – Federal Court of Appeal confirms that an ecological gift was made in the year before it was certified as such Email this Content A taxpayer, who donated an interest in ecologically sensitive land to two qualified donees in 2008, unsuccessfully argued that the gift was not made until 2009 for purposes of computing the five-year (now 10-year) carryforward period described in s. 110.1(1)(d)(iii), because it was not until 2009 that he received the certification from the Minister of the Environment as to the land's ecologically sensitive nature and value that was required under that provision. In confirming that the ecological gift instead was made in 2008 when the gifted property was transferred, Noël CJ stated: [W]hen property is gifted … the disposition takes place when ownership of the gifted property is transferred from the donor to the donee … … There is no doubt that the appellant’s entitlement to the capital gain exemption and the related deduction did not arise until 2009 when all the conditions set out in paragraph 110.1(1)(d) and subsection 110.1(2) were met, but this does not alter the time when the “gift was made”. Noël CJ also effectively found that the word “peut” (may) in the French version of s. 118.1(11) meant the same thing as the word “shall” in the English version, stating in this regard: [T]he use of the word “peut” in the French version illustrates how “an official who is permitted to do a thing may, in addition, be obliged to do it” (Ruth Sullivan, Sullivan on the Construction of Statutes …). ...

In finding that the chambers judge had not erred in denying rectification of the written terms of the proposal, Wilcock JA noted (at para. 68) the finding in Fairmont that “rectification requires the parties to show an antecedent agreement with respect to the term or terms for which rectification is sought” and stated: [I]t is difficult to see how it can be said that the creditors would have understood the Proposal to be anything other than what was presented to them. … There was insufficient evidence of a common understanding amongst the appellant and its creditors on the matter in dispute …. ... It will not prejudice creditors or third parties … [nor] is [it] a collateral attack upon a [CRA] decision that should be challenged elsewhere. ... Summary of Williams Moving & Storage (B.C.) Ltd. v. Canada (Minister of National Revenue), 2024 BCCA 160 under General Concepts – Rectification. ...

3 January 2018- 11:38pm Cussens – European Court of Justice describes leases that were entered into in order to trigger a taxable supply at a favourable level of VAT as having “no commercial reality” Email this Content Halifax plc v Customs and Excise Commissioners [2006] EUECJ C-255/02, [2006] STC 919, established the European VAT tax avoidance doctrine that: [I]n the sphere of VAT, an abusive practice can be found to exist only if, first, the transactions concerned, notwithstanding formal application of the conditions laid down by the relevant provisions of the Sixth Directive and the national legislation transposing it, result in the accrual of a tax advantage the grant of which would be contrary to the purpose of those provisions. ... In commenting on what might be found to be the purpose of the leases, the Court stated: …[T]he leases … had no commercial reality and were entered into … with the aim of reducing the VAT liability on the sales of immovable property … which they envisaged carrying out subsequently. ... Summary of Cussens & Ors v Brosnan, Case C‑251/16, [2017] BVC 61 (European Court of Justice, 4 th Chamber) under ETA s. 274(4). ...