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This is particularly egregious considering that the 2009 claim had been accepted on the basis of the same information given by Honey Fashions (although admittedly on the basis of the pre-QAR policies and before CBSA issued the D8-11-7 Memorandum). … [T]he CBSA should have provided an explanation to Honey Fashions with respect to its departure from past practice. … …[T]he decisions of the CBSA were not reasonable…. ... Accordingly, on the basis of … Vavilov, it was open to the Federal Court to hone in on the fact that the CBSA official made no reference to his earlier decision or to the longstanding departmental practice of accepting name change requests without certain supporting documentation. I therefore agree … that the CBSA’s decisions lack justification, transparency and intelligibility. … … A decision maker cannot deviate from earlier decisions or from a longstanding past practice, especially when it is too late for those affected by these decisions to adjust their behaviour accordingly, without providing a reasonable explanation for that departure. ...

She stated (at para. 11) that “this Court has already determined that it is reasonable for the Minister to have regard to the diligence of a taxpayer in circumstances such as this: Denso Manufacturing … 2021 FCA 236 ” and that “even if … the Minister applied the wrong test in denying its applications for late filing, [the Bank] was still required to provide a reasonable explanation for its delay under the Hennelly test, which it failed to do.” ...

In reversing the Tax Court’s finding that s. 26 of the I nterpretation Act had not extended the time for the receipt by CRA of the waiver to that Monday, Biringer JA stated (at paras. 42 – 44, 47): There is nothing in the text to suggest a limitation on the type of thing (acte ou formalité) to which the provision applies or that there be the loss of a right. … Section 26 is a remedial provision. 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 …. The Tax Court has applied section 26 … to extend the time for filing both …. ...

In reversing the Tax Court’s finding that s. 26 of the I nterpretation Act had not extended the time for the receipt by CRA of the waiver to that Monday, Biringer JA stated (at paras. 42 – 44, 47): There is nothing in the text to suggest a limitation on the type of thing (acte ou formalité) to which the provision applies or that there be the loss of a right. … Section 26 is a remedial provision. 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 …. The Tax Court has applied section 26 … to extend the time for filing both …. ...

In dismissing the taxpayer’s appeal, de Montigny JA stated (at paras 4-6): … Subsection 5(1) and paragraph 6(1)(a) … are quite broad as to what constitutes income. … It is clear from the language of these provisions that gratuities fall within the ambit of taxable income. ... It is the nature of the gratuity as a source of income in the hands of the appellant that matters. … … [T]he decision of the Tax Court is consistent with previous decisions according to which tips paid out of gambling winnings constitute taxable income…. ...

Canada, 2020 FCA 201-- summary under Paragraph 251(1)(c) Summary Under Tax Topics- Income Tax Act- Section 251- Subsection 251(1)- Paragraph 251(1)(c) a transaction with a financially subordinate company was a non-arm’s length transaction The taxpayer (“Keybrand”), its wholly-owning parent (“ BWS ”), and another Strassburger-family company were guarantors of loans made to a start-up company (“Vidabode”) by GE Capital. ... After then noting the “directing mind” test applied in the Robson Leather case (whose facts revealed “a striking similarity,” as in both cases there was “substantial debt” owing by a company with poor prospects to the relevant family – para. 54), Webb JA stated (at para. 58): Given the degree of financial dependence of Vidabode on BWS and Keybrand and the lack of any negotiation with respect to the terms and conditions (including the price) related to the share subscription, it is more likely than not that Keybrand controlled both sides of the transaction related to the issue of shares by Vidabode to Keybrand. He also stated (at paras. 68-69): [T]he lack of ordinary commercial terms that would be agreed upon by parties acting in their own interests may support a finding that the transaction is not an arm’s length transaction and, therefore, that the parties were not dealing with each other at arm’s length. … [I]n an extraordinary situation such as here, where a person pays in excess of $14 million for shares that do not have any value, the magnitude of the discrepancy raises doubts that the parties were dealing with each other at arm’s length. ...

I am not convinced and endorse the approach Justice Webb outlined in Sarmadi … repeated in Eisbrenner …. ...

Canada, 2020 FCA 97-- summary under Onus Summary Under Tax Topics- General Concepts- Onus Tax Court could determine a taxable benefit percentage (different from that assumed by the Minister) based on all the evidence The founder and controlling shareholder of Cirque du Soleil, had been found by the Tax Court to have received a taxable benefit under s. 15(1) (or alternatively, under s. 246(1)) equalling approximately 90% of the $41.8 million cost of sending him on a trip to the international space station (ISS) in September and October 2009, given that the cost was borne by his family holding company and then largely passed through to the top operating company (“Créations Méandres “) in the Cirque du Soleil group, but with there being a matching contribution of capital by the holding company to Créations Méandres so that independent shareholders would not bear any of the cost of the trip. ... There, the appellant argued that he had succeeded in demolishing the assumptions of fact contained in the Minister’s Reply and asserted that his appeal therefore had to be allowed. … [T]his Court [instead] adopted the same approach to valuation taken by the Tax Court in the instant case and calculated the value of the shareholder benefit at the end of the case based upon all the evidence tendered. ...

Canada, 2013 FCA 65, the question was whether the record “establishes that the virtually uncontested acts of non-compliance on the part of the Charity can be regarded as ‘serious’ or ‘aggravated’, ” Ryer JA agreed with the first ground as a sufficient basis for revocation, stating (at paras. 14 and 15): [T]he Charity failed to provide the Minister with books and records that would allow the Minister to determine if the appropriate amount of income tax relief was being provided by the Charity to its donors at the expense of the fisc. ...

Hence, the majority concluded that both errors were reviewable—errors of law are reviewable under the correctness standard via the statutory appeal mechanism in subsection 68(1) of the Customs Act, while errors of fact are reviewable under the reasonableness standard through an application for judicial review …. ...