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21 March 2021- 10:30pm Savics – Federal Court of Appeal finds that s. 152(5) permits the restoration of an initial assessment of income that had been previously reversed by reassessment Email this Content To present simplified facts, a taxpayer reported losses from a film distribution LP of $300 per year in Years 1 through 3 and also reported (and was initially assessed for) the $100 of income-account gains that was allocated to him by the LP for Year 4. ... The taxpayer then argued that the Year 19 reassessment was invalid because it did not satisfy s. 152(5), which prohibits the Minister from reassessing beyond the normal reassessment period to include income that “was not included in computing the taxpayer’s income for the purposes for an assessment, reassessment or additional assessment made … before the end of [that] period.” ... Savics was reassessed in [Year 7], the initial assessment … was still an assessment that was made before the end of his normal reassessment period. … I do not accept that the purpose of subsection 152(5) … is to prevent the Minister, in reassessing a taxpayer under subsection 165(3) … from restoring a taxpayer to their original filing position by reinstating a particular source and amount of income that had been reported by the taxpayer, assessed as filed, and then subsequently deleted as a result of a reassessment. ...

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). ...

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. ...

9 August 2022- 11:16pm Sharp – Federal Court of Appeal finds that the taxpayer failed to allege what, if any, criminal investigations of the taxpayer were assisted by information generated by s. 231.2 demands Email this Content The respondent taxpayer alleged that s. 231.2 requirement letters issued to him were invalid because they were issued for the predominant purpose of furthering criminal investigations contrary to Jarvis. In finding that the taxpayer’s statement of claim should be struck, Woods JA applied the principle that even “if … a party is a stranger to a transaction, the transaction must still be described with sufficient detail that the other party can identify it” and noted, regarding the taxpayer’s allegation that the Audit Division shared information gathered from the requirement letters with criminal investigators, that the “pleading does not link the alleged sharing of information to any particular criminal investigation.” Furthermore, although a general statement of the Minister suggested “that audits may precede criminal investigations … this is permitted in Jarvis. ” However, the taxpayer was given leave to file an amended statement of claim on the condition that “the pleading identify with particularity the facts giving rise to the cause of action.” ...

17 December 2024- 11:22pm GFL Environmental – BC Court of Appeal finds that assumptions: should be struck where there is insufficient evidence of their making; but they can contain statements of law Email this Content The taxpayer (GFL), for a monthly charge, provided portable toilets, cleaned them and disposed of the waste. ... He also stated: I endorse the principle … in Preston that tax assumptions containing statements of mixed fact and law will not be invalidated simply on that basis if the factual underpinnings are clearly stated, there is no dispute about the legal principles and no prejudice results. ... GFL Environmental Inc., 2024 BCCA 379 under PSTA (BC), s. 1(1) – related service, and General Concepts – Onus. ...

30 April 2020- 12:48am CRA states that a PSB can deduct the “cost” of car loan interest under s. 18(1)(p)(ii) to the extent of the benefit conferred on the individual qua employee rather than shareholder – but not CCA Email this Content Under s. 18(1)(p)(ii), a corporation carrying on a personal services business is entitled to deduct “the cost to the corporation of any benefit … provided to an incorporated employee … that would, if the income of the corporation were from a business other than a [PSB] be deductible in computing its income.” ... CRA went on to indicate that no CCA could be claimed by the corporation (stating that “a capital cost allowance amount is not the cost of a benefit”) – except that if the corporation had a sales business, CCA could generally be deducted under s. 18(1)(p)(iii) to the same extent as CCA claims could have been made under s. 8(1)(j)(ii) if the marketing activity had been carried on by the individual as a sales employee. ...

16 July 2018- 10:57pm Rocco Gagliese Productions – Tax Court of Canada finds that royalties generated by a CCPC from writing TV-episode music were active business income Email this Content A company which earned royalties from the daily activities of its sole shareholder and employee in writing and producing music for TV episodes was found to be earning income from an active business and not earning income from a specified investment business. ... The Queen, 2018 TCC 136 under s. 125(7) – specified investment business, and s. 129(4) – income or loss- para. ...

7 February 2020- 12:11am Tudora – Tax Court of Canada references the principle of judicial comity in following a previous Tax Court decision on the same donation program Email this Content After already finding against a taxpayer who had participated in a donation program that had previously been found by Pizzitelli J in Mariano to not work, MacPhee J indicated that this conclusion was confirmed by the principle of judicial comity, which he described as follows: [U]nder the principles of stare decisis, judges of one Court are not bound by decisions of members of their own Court, but in accordance with the principles of judicial comity, judges should follow the decisions of their colleagues unless there is a cogent reason to depart from a prior decision. ... The Queen, 2020 TCC 11 under s. 118.1(1) – total charitable gifts and General Concepts – Judicial Comity. ...

In essence, it means ownership for the benefit of the person in question …. ... There was no evidence to suggest that Houmet could have used the funds received for any other purpose [other than to pay for the assignment to it], or that it could benefit from them in any other manner. … Further, Houmet's involvement was entirely ephemeral …. ... Summary of Hargreaves Property Holdings Ltd v Revenue And Customs [2024] EWCA Civ 365 under General Concepts – Ownership. ...

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). ...