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5 September 2023- 11:09pm LBL Holdings – Tax Court of Canada finds that “flash” sales occurring on a reserve for immediate delivery to the trucks of non-Indians were exempted from GST Email this Content A Sobeys subsidiary (“LBL”) sold $98 million of tobacco products during the 14 months starting in January 1999 to a status Indian (Roberta MacNaughton) operating a variety store on an Indian reserve. ... The Minister’s position was that LBL sold the tobacco products to such third-party customers who were not status Indians, with MacNaughton being compensated for her involvement in this scheme through volume rebates – so that such sales were not exempted under s. 87 of the Indian Act. ... The King, 2023 TCC 130 under ETA s. 123(1) – recipient. ...

6 September 2023- 11:23pm 9127-6287 Québec – Court of Quebec prorates the s. 18(3.1) equivalent between the construction of golf course buildings and work on the golf course Email this Content The taxpayer, during the taxation years at issue, suspended the operation of its golf course to backfill two artificial lakes in its driving range and to replace its clubhouse and garage – as well as to partially construct (but never complete) a mini-golf course. ... Agence du revenu du Québec, 2023 QCCQ 4688 under s. 18(3.1) and s. 3(a) – business source. ...

27 November 2023- 11:22pm Federation of Law Societies – B.C. Supreme Court prohibits the application of ss. 237.3 and 237.4, pending the determination of their constitutional scope, to legal advisors Email this Content In the underlying constitutional challenge, the Federation sought a declaration that ss. 237.3 and 237.4 were of no force or effect to the extent they applied to legal professionals, in their role as such, based on the reporting requirements in those sections contravening ss. 7 and 8 of the Charter. ... Before agreeing to grant the injunction, Warren J found that she was: satisfied that the Federation has established at least two types of irreparable harm that would result if the injunction sought is not granted: • if confidential or privileged information is disclosed as a result of legislation that is ultimately found to be unconstitutional, individual clients will be irreparably harmed by the loss of professional secrecy, which cannot be undone, and the prospect of that occurring will have a chilling effect on the ability of individual clients to consult with their lawyers fully and freely pending a final determination of the constitutional challenge; and • the potential for the unconstitutional reporting of confidential and privileged information, and the conflicts of interest between lawyers and their clients that will arise as a result of potentially unconstitutional legislation, would irrevocably damage the solicitor-client relationship and harm the public interest by undermining the public’s confidence in an independent bar. ...

19 March 2024- 10:40pm FU2 – Federal Court of Appeal confirms that Senate vacancies do not invalidate ITA bills passed by it Email this Content The taxpayer appealed a reassessment of its 2011 taxation year, which was adversely affected by subsequent retroactive legislation, on the grounds that such legislation was passed by a Senate that had substantial vacancies, contrary to Part IV of the Constitution Act, 1867 (which has detailed provisions respecting the appointment of specified numbers of senators from each province). In confirming the decision below that this claim should be struck, Biringer JA stated: Crucially, section 35 [of the Constitution Act, 1867] makes it clear that the Senate may exercise its powers notwithstanding any vacancies, as long as there is a quorum of senators …. Accordingly, it was plain and obvious that the appellant’s Senate vacancy argument had no reasonable prospect of success …. ...

7 April 2024- 9:38pm St-Joseph – Court of Quebec finds that the transformation of 2 floors of commercial building to residential use did not qualify as a “cessation” of commercial activity for QST purposes Email this Content Starting in 2002, St-Joseph incurred costs in converting the 1 st and 2 nd floors of a 12-storey mixed-use tower from commercial rental use into residences for rental to seniors. St-Joseph argued based on the QSTA equivalent of ETA s. 141.1(3)(a) that it had incurred the costs “in connection with the … termination of a commercial activity” of it, so that such costs were deemed to have been incurred in the course of its commercial activity. In rejecting this submission, and in confirming the denial of input tax refunds, Lachapelle JCQ stated (at paras. 93, 103, TaxInterpretations translation): [T]he intention of St-Joseph was that the work carried out on the first and second floors of the Building was to adapt the building for residential or lodging use of individuals. … The Court concludes that the concept of the cessation of an activity does not include the transformation of the activity. ...

29 September 2024- 9:17pm Coopers Park – Tax Court of Canada finds that advice provided by KPMG was not protected by privilege despite KPMG’s label as the client’s agent in law firm dealings Email this Content The engagement letter between the taxpayer and other clients (the "Concord Parties"), a law firm that was to provide tax advice to the clients (Moscowitz Law), an accounting firm (KPMG Accounting) and a second law firm (Farris Law) indicated that “KPMG Accounting’s role was to act as agent on behalf of the Concord Parties to retain Moskowitz Law and to provide Moskowitz Law with factual and other information.” ... In particular, in various instances: KPMG Accounting provided independent legal advice beyond the scope of its role as agent under the Engagement Letter. … [P]roviding advice to a lawyer as part of an overall retainer, even if the lawyer then incorporates it into their own legal advice, does not make a communication privileged. ... The King, 2024 TCC 122 under General Concepts – Solicitor-client privilege. ...

10 October 2024- 11:42pm MELP – Tax Court of Canada finds that a Canadian agent’s services were not zero-rated since they were partly performed in Canada Email this Content MELP was found to be performing its services to Canadian patients who underwent bariatric surgery at the surgical unit in Mexico of a Mexican company (“LIMARP”) as agent for LIMARP given that their conduct implied an agency arrangement. Accordingly, MELP was not subject to GST/HST on the ½ portion of the patient fees that it collected as agent for LIMARP. ... VI-V-5(b), V-II-1 – “institutional health care service and s. 143(1). ...

17 April 2023- 11:23pm Bell Telephone – Tax Court finds that Bell Canada received single supplies of electricity from its Ontario electricity suppliers so that their full charges were subject to provincial ITC recapture Email this Content Bell Canada was required as a result of ETA s. 236.01 and the related regulation to recapture 100% of the input tax credits that it claimed in respect of the 8% Ontario HST that it paid on the consideration for the supplies to it in Ontario of electricity. ... As … noted in City of Calgary, such supplies are parts or components of the single overall supply of electricity. ... The King, 2023 TCC 45 under ETA s. 236.01(1) – specified provincial input tax credit. ...

9 February 2025- 11:19pm Pyxis Real Estate – Ontario Court of Appeal finds that capital dividends were agreed to be paid in amounts that overlooked a CDA deficit: no rectification Email this Content A plan was implemented for successive capital dividends to be paid up a chain of corporations so that the individual who was the ultimate shareholder could have a tax-free receipt of $1.4 million. ... The agreement here was for a $1.4 million tax-free capital dividend to be paid. … The fact that the agreement did not result in the intended fiscal objective of being tax-free, or tax neutral, is not a basis for granting rectification. ... Canada (Attorney General), 2025 ONCA 65 under General Concepts – Rectification. ...

24 September 2017- 8:12pm Pellerin – Quebec Court of Appeal finds that proof that auditors got bonuses for assessing would not change the burden of proof Email this Content The Quebec Court of Appeal rejected a submission that proof that an ARQ auditor would enjoy an increased bonus as a result of assessing the taxpayer would reverse the normal burden of proof on the taxpayer to establish prima facie proof of the incorrectness of the assessment. ... Agence du revenu du Québec, 2017 QCCA 1339 under General Concepts – Onus. ...