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17 March 2022- 11:12pm Burke – Federal Court of Appeal reverses an administrative tribunal decision rather than referring it back for reconsideration Email this Content In 2017, the Minister of Employment and Social Development determined that Ms. ... In this regard, she referred to the statement in Vavilov as to the desirability of avoiding an “endless merry-go-round of judicial reviews and subsequent reconsiderations,” noted that the facts were not in dispute and also stated that “other factors identified … [in] Vavilov such as concerns about delay, fairness to the parties, costs to the parties and the efficient use of public resources, support a finding that the matter should not be remitted to the Appeal Division for redetermination.” ... Burke, 2022 FCA 44 under Federal Courts Act, s. 52(c)(i) and Statutory Interpretation – Absurdities. ...

9 May 2022- 11:01pm CS Communication – Court of Quebec finds that that expenditures under an agreement to develop software for a 3rd party pursuant to its specifications qualified for SR&ED ITCs Email this Content A software development company (CS Canada) entered into an agreement with Pratt & Whitney for the sale to of aeronautical control system software. ... Agence du revenu du Québec, 2022 QCCQ 1175 under s. 127(9) – contract payment- (a). ...

. – Tax Court of Canada denies the deductibility of Saskatchewan potash tax “base payments” on the basis that they were not incurred to produce income Email this Content The taxpayer, which produced and sold potash from mines in Saskatchewan, was subject to both a profit tax and to the making of “base payments” under the Mineral Taxation Act, 1983 (Saskatchewan). ... Owen J went on to find that deduction of the base payments was also denied for those taxation years by former s. 18(1)(m) – on the basis that this provision essentially denied deductibility of a tax that could "reasonably be regarded as being in relation to” mineral production, and on his view that the potash sales on which the base payment tax actually focused “related” to the antecedent production. ... The Queen, 2022 TCC 75 under s. 18(1)(a) – income-producing purpose and s. 18(1)(m). ...

11 August 2022- 10:59pm Stroud – Tax Court of Canada applies the Moldowan REOP tests for GST/HST purposes Email this Content Moldowan indicated that an activity should have a reasonable expectation of profit (REOP) to qualify as a business, and suggested that, in determining whether there is a REOP, the “following criteria should be considered: the profit and loss experience in past years, the taxpayer’s training, the taxpayer’s intended course of action, the capability of the venture as capitalized to show a profit after charging capital cost allowance.” ... After reviewing the unsatisfactory evidence presented by the taxpayer, who had reported very large losses (with meagre documentary support) from a racehorse farm and modest profits from his law practice (in years before he was disbarred), Spiro J stated: Having applied the criteria … in Moldowan, I find that each factor (other than time spent), weighs heavily in favour of the conclusion that the Appellant did not carry on his farm business with a reasonable expectation of profit. ... The Queen, 2022 TCC 86 under ETA s. 123(1) – commercial activity. ...

26 September 2022- 11:33pm Contact Lens King – Federal Court of Appeal finds that a requirement to make supplies pursuant to a prescription did not require obtaining a copy of the prescription Email this Content The zero-rating for contact lenses in Sched. ... He noted that the supplier, after the reporting periods in issue, had commenced requiring customers to certify that they had the prescription in their possession – and, regarding this customer attestation requirement, stated: [I]t is not for this Court, in this context, to measure its impact on the burden imposed on the appellant. ... II, s. 9, s. 286(1) and Statutory Interpretation – Inserting Words. ...

11 October 2022- 11:06pm Peach – Federal Court of Appeal distinguishes between not challenging a taxpayer’s business acumen and measuring by what a reasonable business person would have done Email this Content In his 2011 taxation year, the taxpayer earned $27 in revenue and deducted over $19,600 in business expenses from a business of selling life insurance and mutual funds to a client base largely consisting of friends and family. ... Keeping establishes that the Tax Court’s role is not to evaluate a taxpayer’s business acumen, a principle the Tax Court respected …. ... Canada, 2022 FCA 163 under s. 67, s. 3(a) – business and s. 152(4)(a)(i). ...

15 February 2023- 10:33pm Buhler Versatile – Tax Court of Canada finds that increasing the horsepower of a tractor by 20% was SR&ED Email this Content Wong J allowed the claim of the taxpayer, which was the only Canadian manufacturer of agricultural tractors, respecting a project to build a four-wheel drive tractor with 85 horsepower (or about 20%) above the current industry maximum. ... She also found that the scientific method had been followed – and documented well enough, although only marginally so. ... The King, 2023 TCC 18 under s. 248(1) – SR&ED. ...

9 March 2023- 11:20pm Ossai – Federal Court sets aside a CRA decision on the basis that it was unintelligible Email this Content Although the facts are more intricate, they essentially involved the taxpayer, in early 2021, promptly withdrawing $29,000 from his TFSA when he discovered (before being so notified by CRA) that he had over-contributed by $20,000 – then shortly thereafter, contributing a further $6,000 to his TFSA, not realizing that under the “excess TFSA amount” definition, such contributions were not offset by his “excess” TFSA withdrawal earlier in the year of $9,000 because it is only a prior, not a current, year’s withdrawals that restore contribution room. ... CRA denied his request for relief under s. 207.06(1) on the basis that the removal of the excess contributions did not occur within a reasonable time frame – but provided no explanation as to why the $9,000 excess withdrawal in 2021 did not offset the further 2021 contributions. ...

1 May 2023- 11:41pm Quintal – Court of Quebec finds that amounts paid to a client to induce him to purchase a life insurance policy were income under s. 12(1)(x) Email this Content Quintal and other clients of an insurance broker (Chabot) participated in a scheme of Chabot to defraud life insurance companies, whose math depended on the commissions generated to Chabot from the sale of whole life policies substantially exceeding the premiums payable under those policies during the first two years of their term (beyond which, they could be cancelled without Chabot being required to repay his commissions). ... The principal (unsuccessful) argument of Quintal that the payments received by him from Élan were not includible in his income pursuant to the equivalent of s. 12(1)(x) was that those amounts were not received by him “in the course of earning income from … property.” ... Quintal by Élan were inducement payments since without them … he would never have purchased such an insurance policy at such a cost.” ...

8 August 2023- 11:01pm Az-Zahraa Housing Society – Federal Court finds that CRA had fettered its statutorily-accorded discretion by strictly adhering to its published guidelines Email this Content A non-profit society received assistance from a government organization (BC Housing) towards its goal of providing affordable accommodation to lower-income renters by selling some of its condo units to BC Housing, with BC Housing then providing those units to the society on a rent-free basis. ... Section 259 … simply does not lay out any criteria for the exercise of the Minister’s power to designate an entity as a municipality. ... Canada (National Revenue), 2023 FC 842 under ETA s. 259(1) – municipality. ...