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8 October 2019- 11:14pm Weaver – Quebec Court of Appeal applies the REOP doctrine to a “gentleman farmer” Email this Content A full-time engineer also maintained two horses, which his two daughters rode in equestrian competitions. ... In reversing the finding below that this “gentleman farmer” was entitled to his claimed losses, the Court stated: [T]he judge did not analyze the activities of the respondent in relation to the objective factors laid out … in Stewart, namely, (1) the profit and loss experience in past years; (2) the taxpayer’s training; (3) the taxpayer’s intended course of action; and (4) the capability of the venture to show a profit. … [I]t is difficult to conclude that the predominant intention of the respondent was to derive profit from the equestrian activities of his daughters and that he showed serious businesslike conduct. ... Weaver, 2019 QCCA 1687 under s. 3(a) – business source. ...

3 August 2020- 10:55pm Contact Lens King – Tax Court of Canada finds that on-line sales of contact lenses were not zero-rated given failure to copy purchasers’ prescriptions Email this Content A GST/HST registered U.S. corporation sold and delivered contact lenses (typically replacement contact lenses) to Canadian consumers without verifying that they had a matching prescription. ... II, s. 9 (which requires inter alia that the contract lenses “are, or are to be, supplied under the authority of a prescription prepared … by [a qualified practitioner] for the treatment or correction of a defect of vision,” Smith J stated: [I]t is not sufficient … that the appellant's website inform the consumer of the need for a valid prescription. The appellant must itself obtain a copy of the prescription … from which it can be concluded that the consumer has a prescription "for the treatment or correction of a defect of vision. ...

15 October 2020- 12:04am Bouclair – Court of Quebec orders a stay of a federal tax evasion prosecution based on an ARQ audit file gathered for Quebec civil penalty purposes Email this Content A Revenue Quebec audit team gathered incriminating evidence respecting the alleged diversion of company funds to pay for the construction of a chalet for its CEO (by allegedly paying false invoices directed to it by the builder). RQ did not accord any of the Jarvis protections to the company and its CEO, because it had no intention of criminally prosecuting – it was content to impose the equivalent of s. 163(2) penalties (in addition to the tax) – as did CRA, a year later, following the RQ lead. ... However, he stated that he could not “condone … a practice” of using a “treasure trove of ready-made files for ‘investigation’ and prosecution containing uncautioned conscripted evidence,” as “otherwise, the Jarvis protections simply melt away.” ...

This KPMG plan, if it worked, had the tax advantage over the base case of permitting the tax-free distribution of the Gennium surplus to the family members by Satoma Trust – but instead, the Gennium dividends were retained in Satoma Trust for reinvestment. ... Pilon informed of the risk of applying the GAAR did not end in 2005. … Timely advice on CRA's new approach could have led to rectification of the structure and minimized both the risk and the extent of an assessment. ... KPMG, 2024 QCCS 760 under General Concepts – Negligence. ...

These factors are addressed in the TD Securities decision. … These conclusions are within the range of possible outcomes of the MAP process. ... CGI … filed its Notice of Application for Judicial Review… only a few days after the request for an assessment. ... Summaries of CGI Holding LLC v MNR, 2016 FC 1086 under Treaties – Art. 4 and s. 227(10.1). ...

In finding that this Italian legislation was contrary to the VAT Directive, so that VAT was applicable to the payments made by an Italian subsidiary (San Domenico Vetraria) to its Italian parent (Avir) to reimburse the latter for the payroll costs of a staff member who had been seconded to San Domenico Vetraria, the 7 th Chamber of the European Court of Justice stated: [A] supply of services is effected ‘for consideration’ … if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient. …. [T]he secondment was carried out on the basis of a legal relationship of a contractual nature between Avir and San Domenico Vetraria … [and] there was reciprocal performance, namely the secondment of a director from Avir to San Domenico Vetraria, on the one hand, and the payment by San Domenico Vetraria to Avir of the amounts invoiced to it, on the other. ... Agenzia delle Entrate, Case C-94/19 (ECLI:EU:C:2020:193) (7 th Chamber) under ETA, s. 123(1) – supply. ...

I adopt that view, except to the extent that either of the Appellants has acknowledged, or it is patently obvious, that a particular expenditure was incurred for a personal purpose …. He went on to find that, even if there had been a misrepresentation, there was no neglect or carelessness, given that the taxpayers had “thoughtfully and carefully considered the nature of the Dog Activities, and, in consultation with their accountants, concluded that those activities were a business” – although there was carelessness in deducting those of the expenses which clearly were personal. ... The King, 2024 TCC 167 under s. 152(4)(a)(i), s. 3(a) – business, and s. 162(2). ...

15 September 2016- 11:13pm Anderson – Saskatchewan Court of Appeal finds that transaction documents could not be declared retroactive to the previously-agreed effective date, as this would undercut the Tax Court Email this Content When CRA gave notice in 2013 of a proposed audit, the taxpayer’s accounting firm realized that it had failed to instruct the taxpayer’s lawyers to prepare the documents to implement a s. 85 transfer of assets to the taxpayer’s corporation, which the taxpayer had agreed to in a June 6, 2011 meeting with them. ... In confirming a decision of the judge below to refuse to declare that the 2013 documents had retroactive effect to June 6, 2011, Lane JA stated (paras. 29, 34): The Chambers judge...saw the application for a declaration for what it was – an attempt to obtain equitable relief not available from the Tax Court, which is a superior court of record but not a court of inherent jurisdiction, and to thereby attempt to determine the outcome of an assessment appeal by essentially binding the hands of that Court. … [He] recognized the specialized nature of the Tax Court and its jurisdiction to decide the ultimate issue concerning the tax implications of the rollover. ... Summary of Anderson v Benson Trithardt Noren LLP, 2016 SKCA 120 under General Concepts – Rectification. ...

10 October 2016- 2:55pm Zone3 – Federal Court of Appeal declines to require CAVCO to consider extending favourable certification guidelines to the taxpayer’s TV production Email this Content In the Federal Court below, Martineau J had ordered the Canadian Audio-Visual Certification Office (“CAVCO”) to reconsider a decision to reject a leading Quebec TV producer’s application for certification of a TV series. The essential problem was that CAVCO’s advance notice of a negative determination- on the basis that the production was “in respect of a game, questionnaire or contest” and, therefore, ineligible for the Canadian film or video production tax credit under Reg. 1106(1), “excluded production,” (b)(iii) – did not address the taxpayer’s position that the shows’ question-and-answer format merely served as a vehicle for effectively presenting the show’s informational (historical) content, and did not disclose that, in fact, the application had been rejected through the mechanical application of a “decision tree” that the taxpayer did not find out about until later. ... Zone3-XXXVI Inc., 2016 CAF 242 under Reg. 1106(1) “excluded production” – (b)(iii). ...

29 November 2017- 1:37am Greither Estate – B.C. Supreme Court finds that taking back excess boot cannot be rectified under the BCA provision for correcting “corporate” mistakes Email this Content A non-resident estate, whose shares of a Canadian company had stepped-up basis under s. 70(5) but had nominal paid-up capital, was advised by a tax lawyer who had forgotten about s. 212.1. ... Meyer J noted the somewhat narrow list of types of corrections in s. 229 and found that “the mistake of not completing the Transaction in the most tax effective manner does not … fall within these subsections.” ... Canada (Attorney General), 2017 BCSC 994 under General Concepts – Rectification. ...