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12 April 2019- 12:32am Samaroo – malicious prosecution claim against CRA founders in B.C. ... Although CRA had suspected that the Samaroos had failed to provide the “till tapes” for one of the daily shifts to the corporate bookkeeper, Harris JA indicated that the trial judge had erred in considering “proof of the till tape theory, a particular scheme, as essential to proving the actus reus ” of the alleged s. 239(1)(d) offence- whereas, in fact: [T]he actus reus of the offence does not depend on proof of any particular method by which taxable income is not reported. ... Canada Revenue Agency, 2019 BCCA 113 under General Concepts – Malicious Prosecution. ...

5 May 2019- 11:33pm Praesto Consulting – Court of Appeal of England and Wales finds that a company was entitled to input tax credits for VAT on legal-fee invoices addressed only to its executive Email this Content A key employee (Mr Ranson) of an IT consulting firm (“CSP”) left along with three other employees to set up a competing firm (“Praesto”). ... The availability to Praesto of an input tax credit for the VAT included in the Sintons invoices turned on a VAT provision providing such a credit for “VAT on the supply to him [the taxable person] of any goods or services being … goods or services used or to be used for the purpose of any business carried on or to be carried on by him.” ... CSP was seeking to put Praesto out of business as its competitor. … The FTT [below] was satisfied and found that the litigation was effectively being brought against Mr Ranson and Praesto, even though Praesto had not been joined to the proceedings. ...

7 May 2019- 11:49pm CRA indicates that "an interest … in a corporation other than shares" includes debt Email this Content A private foundation that, at the end of a taxation year, holds more than 20% of a class of a corporation’s class of shares (for example, as the result of a bequest) faces a potential penalty under s. 188.1(3.1). ... The issue lies in s. 188.1(3.2), which states that if a private foundation enters into a transaction to avoid a “divestment obligation percentage” by substituting shares for "an interest … in a corporation other than shares," then such interest is deemed to have been converted back into shares at their FMV. When asked about this, the Charities Directorate stated: [W]e take the said term [“interest”] to include (in a broad, general sense) any right to have the advantage accruing from anything, and any right in the nature of property (such as a right of a creditor for repayment from the debtor's assets, as in the foundation's case), and not limited to stock options or other rights to acquire shares …. ...

9 May 2019- 11:33pm Hoch – Tax Court of Canada finds that “or” is generally disjunctive Email this Content The principal rabbi at a Toronto schul beneficially owned (together with his wife) 3/8ths a Toronto home, and the schul beneficially owned the other 5/8ths. ... He indicated that “or … in the ordinary sense is prima facie disjunctive” but “can also be conjunctive in limited circumstances,” – and such limited circumstances were not made out here. ...

28 May 2019- 12:39am MEO – European Court of Justice finds that an early termination fee was consideration for the contracted service Email this Content Subscribers to the services of a Portuguese telecommunications company (“MEO”) agreed to pay for a minimum subscription period- and when they discontinued service before the end of that guaranteed period they were required under the terms of their contracts to pay a lump sum equal to their monthly subscription fee multiplied by the number of remaining months in the guaranteed period. ... Summary of MEO — Serviços de Comunicações e Multimédia SA v. Autoridade Tributária e Aduaneira, ECLI:EU:C:2018:942 (ECJ (5th Chamber)) under ETA s. 123(1) – consideration. ...

6 June 2019- 11:09pm PCI Géomatics – Court of Quebec applies McLarty to find that a loan which was repayable only out of increasing revenues was not a forgivable loan Email this Content The ARQ assessed on that basis that a non-interest-bearing loan received by a satellite–imaging company (PCI) from Industry Canada was a “forgivable loan,” so that its amount reduced the SR&ED pools of PCI for investment tax credit purposes. ... In finding that the loan was not a forgivable loan, Dortélus JCQ noted that PCI was required to provide loan security and was subject to various restrictive covenants, and then stated: The fact that there existed a certain uncertainty as to the frequency of repayment of the loan which … depended on fluctuations in the PCI revenues does not suffice to qualify the amounts advanced as government aid. ... Agence du revenu du Québec, 2019 QCCQ 2688 under s. 127(9) – government assistance. ...

19 June 2019- 12:00am 3087-1883 Québec – Federal Court finds that a determination of CRA not to reassess a taxpayer is a reviewable decision Email this Content Two co-owners paid a portion of the expropriation proceeds received for one of their properties to their affiliated tenant of that property. ... Walker J found that the refusal of CRA to reassess was a decision that could be subject to judicial review (e.g., if the decision was unreasonable) – although, of course, the substantive question of whether the requested adjustment was correct could not be reviewed by her. ... In any event, CRA had no legal obligation to issue a reassessment notice following the taxpayer request – that was a decision that was within its discretion (s. 152(4) used the word “may”). ...

10 July 2019- 12:01am National Car Parks – Court of Appeal of England and Wales finds that car park machines that did not refund coin payments thereby received extra consideration for VAT purposes Email this Content A customer pays for parking in a car park by going to the ticket machine which, on its tariff board, displays a price for one hour of £1.40 – but also states that change is not given. ... Summary of National Car Parks Ltd v Revenue and Customs [2019] EWCA Civ 854 under ETA s. 123(1) – consideration. ...

18 July 2019- 12:07am Retfalvi – U.S. 4th Circuit finds that Art. 26A of the Canada-U.S. ... Article 26A does not levy taxes. … We agree with the government that Article 26A merely facilitates collection of an already existing debt. ... USA, No. 18-2158 (U.S.C.A., 4 th Circuit, 16 July 2019) under Treaties – Income Tax Conventions- Art. 26A. ...

10 September 2019- 11:44pm Mark Anthony – Federal Court of Appeal finds that an exemption provision should not be interpreted to give CRA discretion as to its scope Email this Content An excise duty exemption applied to Canadian cider if it could be said that it was “produced in Canada and composed wholly of agricultural or plant product grown in Canada.” ... In rejecting the CRA position in this regard, Webb JA stated: The Crown’s interpretation … [is] that all ingredients that are included in the packaged product must be agricultural or plant products grown in Canada, except those that are permitted to be added by the CRA, on the basis that they are “incidental”. This would result in a delegation of authority to the CRA to decide what wine will qualify for the exemption. … [I]t would not have been the intent of Parliament to implicitly delegate this authority to the CRA. ...