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6 January 2020- 11:52pm Healius – Federal Court of Australia finds that lump sum payments made to lock-up doctors as customers for a 5-year period were currently deductible Email this Content A subsidiary (“Idameneo”) of an Australian public company that provided medical centre facilities and services to doctors in consideration for 50% of the fees generated by them. ... At the end of the five year period, the doctor was free to go …” “the character of the outgoings was as a payment to win a customer” The above finding that a five-year agreement did not give rise to an enduring benefit is consistent with BP Australia, which has also been cited in Canada. ... Summary of Healius Ltd v Commissioner of Taxation [2019] FCA 2011 under s. 18(1)(b) – capital expenditure v. expense – contract purchases. ...

20 July 2020- 12:01am Immeubles Zamora – Quebec Court of Appeal confirms that an LP sold a seniors residence shortly after construction to an unsolicited purchaser on income account Email this Content Bouchard JCA agreed with the Court of Quebec that two taxpayers, who were each 10% limited partners of a limited partnership that constructed a seniors residence, as well as owning the general partner, realized, as to their 10% shares, gains on income account when, shortly after the facility opened its doors, one of them was approached by a business associate, who asked what was their price, and agreed to purchase for the price that was named. Bouchard JCA indicated this being an isolated transaction and their not being “flippers” was not decisive, the judge had not erred in noting the complete absence of any business plan or other documentary proof of their lack of motivating intention to sell and that “the judge did not commit a reviewable error … by holding that the appellants had a secondary intention to divest themselves of their project in the event of an interesting offer being made to them.” ... Agence du revenu du Québec, 2020 QCCA 894 under s. 9 – capital gain v. profit – real estate. ...

10 August 2017- 12:48am MacDonald – Tax Court of Canada finds that “the law still requires a close linkage between the purported hedging instrument and the underlying asset” Email this Content An individual with a significant long-term holding in common shares of a public company (BNS) entered into a cash-settled forward which had the effect of establishing a short position against a portion of his BNS shareholding. ... The Queen, 2017 TCC 157 under s. 9 – capital gain v. income – futures/forwards/hedges. ...

20 September 2019- 2:02am SPE Valeur – Tax Court of Canada finds that criminally seized documents could be used in a subsequent civil reassessment under s. 163(2) Email this Content The Criminal Investigations Directorate seized records of taxpayers in connection with its investigation, but ultimately returned the file to the audit branch based on a cost-benefit analysis. ... In finding that there had been no infringement of the taxpayer’s s. 8 Charter rights, so that the seized documents were admissible and not excluded under s. 24(2) of the Charter, D’Auray J noted that “ Brown [2013 FCA 111] … determined that documents seized in a criminal search could be admitted into evidence on the appeal of an assessment,” and that the taxpayers had no reasonable expectation of privacy respecting the seized documents. ...

5 June 2020- 12:22am Watson – Full Federal Court of Australia finds that expenses incurred in administering a litigation settlement fund were not deductible from the related interest income Email this Content A trust for distributing $300M in class action damages to the class claimants earned $8.4M in interest income on the funds and incurred $4.3M in various expenses in assessing the claims of the various claimants before distributing the damages. ... Summary of Watson as trustee for the Murrindindi Bushfire Class Action Settlement Fund v Commissioner of Taxation [2020] FCAFC 92 under s. 18(1)(b) – capital expenditure v. expense – oversight or investment management. ...

22 September 2020- 11:06pm Hansen – Tax Court of Canada finds that CRA could not open up years where an individual annually purchased, occupied, improved and sold a home Email this Content An individual in the concrete pouring or foundation repair business sold five homes in succession over a six-year period after having occupied and improved them. ... The Queen, 2020 TCC 102 under s. 152(4)(a)(i), s. 9 – capital gain v. profit – real estate, and s. 163(2). ...

8 July 2021- 11:57pm Libicz – Federal Court suggests that a clear representation made by CRA officials within the scope of their authority as to an administrative process they will follow is binding Email this Content Not surprisingly, Elliott J found that CRA was not bound to follow a procedure in its Collections Manual that, by the time it actually implemented the action that the taxpayers complained about (merely withdrawing a certificate of taxes owing that CRA had filed under ETA s. 316 rather than permanently canceling it), had been amended by a subsequently-issued internal directive. ... She stated: A legitimate expectation arises when a government official makes “clear, unambiguous and unqualified” representations within the scope of their authority to an individual about an administrative process that the government will follow: … Mavi, 2011 SCC 30 …. ...

7 June 2022- 11:15pm Investissements 3,38 – Court of Quebec finds that a lender’s gain from selling a foreclosed home was a business profit Email this Content A closely-held corporation (“3.38”) run by a retired notary (Blouin) made a mortgage loan to an individual who, a year after the second advance under the loan, defaulted, with 3.38 then foreclosing and, five months later (after having done some minor work on the home) selling it at a gain, representing 32% of the sales proceeds. ... Agence du revenu du Québec, 2022 QCCQ 2534 under s. 9 – capital gain. v. profit – real estate. ...

30 November 2017- 12:28am Abdalla – Tax Court of Canada finds that a “poorly worded” CRA-drafted waiver nonetheless was good enough to effect a valid waiver of appeal rights when signed Email this Content In rejecting taxpayers’ submissions that they had not given valid waivers of their right to appeal, Rossiter CJ quoted the statement in Saskatchewan River Bungalows, [1994] 2 SCR 490 that: Waiver will be found only where the evidence demonstrates that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them. In finding that this test was satisfied here, he stated that although the waiver letter drafted by CRA was “poorly worded … if read in its entirety … there is a sufficient and adequate explanation in the letter [such] that a person would have full knowledge of the rights being waived.” ...

13 January 2019- 10:31pm Abdalla – Federal Court of Appeal confirms the test to be applied in determining a waiver’s validity Email this Content Rossiter CJ had found that taxpayers had given valid waivers of their right to appeal: even though the waiver letter drafted by CRA was “poorly worded … if read in its entirety … there is a sufficient and adequate explanation in the letter [such] that a person would have full knowledge of the rights being waived.” ...