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5 February 2020- 1:32am Prince – Federal Court of Appeal confirms that a CRA proposal letter is not a judicially-reviewable “decision” Email this Content Rennie JA confirmed the decision of Annis J that a CRA “proposal” letter to the taxpayer setting out proposed reassessments for his 2007 to 2016 taxation years and giving him 30 days to provide additional information and representations was not a “decision” that the Federal Court had the jurisdiction to review under the Federal Courts Act. Furthermore, CRA had subsequently reassessed the years in issue and, under ss. 152(8) and 169, such “reassessments [were] valid and binding until set aside by the Tax Court” – so that it was not relevant that, prior to the proposal letter and such reassessments, the taxpayer had requested an internal review of the Minister’s decision not to admit most of the years in question to the voluntary disclosure program. That previous VDP request was effectively a request for potential relief from penalties and interest, and in this regard Rennie JA noted that CRA had the discretion under s. 220(3.1) to waive such amounts, with such exercise of discretion being “subject to public law scrutiny and remedies in the Federal Court” – so that there was nothing untoward about the taxpayer’s unsuccessful VDP application having been rendered completely moot. ...

26 February 2020- 12:35am Clément – Tax Court of Canada finds that s. 8(1)(b) did not cover legal costs of an action to extend the period of employment Email this Content The taxpayer worked as a provisional judge for the Montreal Municipal Court up until 2005, and then served as a full-time judge up until 2012, at which time he was forced to resign as he had attained the age of 70 – which meant that he was 23 months short of the requisite years of full-time service required to generate a full pension. ... Respecting his alternative ground- seeking a declaration that the three years during which he acted as a provisional judge be taken into account in the calculating his pension – she noted inter alia that s. 8(1)(b) did not extend to amounts that would have been included in his income under s. 56 rather than s. 5. ...

19 March 2020- 11:24pm Grewal – Federal Court finds that an accepted voluntary disclosure that included loans did not stop CRA from later assessing s. 163(2) penalties for failure to include them in income Email this Content A voluntary disclosure included a description of various loans and did not volunteer that they gave rise to taxable benefits. ... In dismissing the taxpayer’s application for judicial review of the decision to impose the penalties, Shirzad J stated (at paras 37 and 38): … If taxpayers could re-characterize taxable income or benefits as non-taxable benefits in their applications to the VDP and thereby escape penalties from future audits for having “disclosed” the amounts in this application, it would be contrary to the purpose of the VDP and its public policy rationale, which is meant to promote compliance with Canada’s tax laws …. ...

3 April 2020- 12:39am Valero – Federal Court of Appeal finds that requested judicial review of CRA’s requiring audit information collaterally attacked CRA’s assessing responsibility Email this Content Valero did not withhold under Reg. 105 on fees paid to non-resident carriers for international shipping services on the basis that such carriers’ income therefrom was exempt from Canadian tax. ... In finding that such a request could not succeed, Rivoalen JA stated: … If an order setting aside the requirement for information is granted, the Minister will be prevented from properly exercising her powers under the Act. … The Minister has not yet assessed. ...

5 May 2020- 12:01am Athletes 4 Athletes Foundation – CRA is ordered to produce any irrelevant material (e.g., re other Foundations) that was before it when rejecting a registration request Email this Content The appellant Foundation appealed from the refusal of the Minister to register it as a Canadian amateur athletic association on the grounds inter alia that the Minister had considered “irrelevant information in comparing the [Foundation] to other applicants and existing registered CAAAs.” ... Laskin JA found that the Rules merely required the Minister to produce the documents which were in the hands of the decision-maker when the decision was made – and not to provide various other requested documents (e.g., the constating documents of all registered CAAAs at the time of the decision). However, the affidavit of the CRA decision maker stated that “all relevant materials upon which the CRA relied … have been produced.” ...

18 May 2020- 11:14pm Baril – Court of Quebec finds that executive with furnished apartments in Calgary and a family home in Montreal failed to establish Alberta residency Email this Content An executive of an airport security firm (Garda) was assigned significant responsibilities for the Prairie provinces (but not to the exclusion of duties performed in Montreal and Toronto). She rented a succession of furnished apartments in Calgary and took the position that she had become a resident of Alberta – notwithstanding that she remained the co-owner with her husband of the family home in Montreal, where two of their four children were still under their charge, and that she “visited” Montreal much more than her husband visited Calgary (in addition to seeing her family during Florida vacations). ... Baril never intended to live in Alberta other than to carry out her duties as Garda required. … Ms. ...

15 July 2020- 11:15pm Andersen – Minister’s reassessments for unreported insurance proceeds failed due to failure to assume what was the policies’ adjusted cost basis Email this Content The taxpayers terminated life insurance policies for personal purposes, and were ultimately reassessed to include in their income the gross amounts received by them. Spiro J set the stage by noting that “In order for the Minister to assess a policyholder under … subsection 148(1)… the “adjusted cost basis” of the policy to the policyholder immediately before its disposition must be determined,” and by stating: The courts have consistently held that unless the Minister’s assumptions of fact are sufficient to support the assessment under the relevant legislation, the onus does not shift to the taxpayer. ... The Queen, 2020 TCC 51 under General Concepts – Onus. ...

5 October 2020- 11:17pm Filion – Court of Quebec finds that an office holder received no taxable benefit from improper expense charges which were docked from his compensation early the next year Email this Content In 1998, a deputy got the National Assembly of Quebec to pay $23,000 in expenses which supposedly were expenses of his constituency office, but which were later established to be in significant part of a personal nature (leading to his imprisonment for fraud in 2004). ... The National Assembly did indeed pay out sums to third parties on the basis of misrepresentations … from the plaintiff, but it recompensed itself through set-off in the first days of 1999. At the time the plaintiff filed his return in April 1999 for his 1998 taxation year, he did not retain a taxable benefit resulting from his [mis]conduct …. ...

3 November 2020- 11:00pm Westcoast – Tax Court of Canada finds that an employer was not entitled to ITCs for the GST/HST on reimbursed employee health care services Email this Content Westcoast reimbursed (through Manulife as its agent) employees who had incurred various health care services – including some which were GST/HST-taxable, namely, acupuncture, massage therapy, naturopathy and homeopathy services. ... The Queen, 2020 TCC 116 under ETA s. 175(1)(b), s. 123(1) – recipient and s. 170(1)(b)(ii). ...

17 November 2020- 10:46pm PCI Géomatics – Quebec Court of Appeal finds that a loan that was not repayable if the borrower’s revenues consistently declined was a forgivable loan Email this Content A company (PCI) engaged in R&D activities for the development of software for satellites, received a non-interest-bearing loan from Industry Canada that was repayable by it (on a formula basis) over the following 15 years: in equal annual instalments if its revenues were stable; in amounts up to 1.65 times the advances received if its revenues increased consistently and significantly over the 15-year repayment period – but not at all if its revenues decreased steadily throughout the 15-year repayment period. ... PCI Géomatics Entreprises Inc., 2020 QCCA 1342 under s. 127(9) – government assistance. ...