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16 January 2019- 11:56pm Reyes – Federal Court of Appeal finds that Columbia-source government pension was not exempt from Canadian tax Email this Content Gauthier JA found that Canada had the clear right under Art. 17 of the Canada-Columbia Convention to tax a former Columbia government employee (now resident in Canada) on a pension from Columbia that was exempt under the Columbia tax laws. ... Canada, 2019 FCA 7 under Treaties – Income Tax Conventions- Art. 18. ...

3 January 2024- 11:15pm 9331-0688 Québec – Tax Court of Canada finds that three corporations wholly-owned by an individual could not make an ETA s. 156 election Email this Content Jorré J found that three corporations were ineligible to make the ETA s. 156(2) nil consideration election because they were not “closely related,” i.e., their mutual shareholder was an individual rather than a corporation. ... The King, 2023 CCI 173 under s. 156(1) – qualifying group. ...

31 May 2017- 1:25am Green – Federal Court of Appeal states that an upper-tier partnership should not compute its income Email this Content CRA considered that business losses incurred by lower-tier partnerships (the PSLPs) were deemed to be limited partnership losses of an upper-tier LP (MLP) – which meant that they were effectively trapped in MLP given that s. 111 (and, thus, the ability to deduct limited partnership losses under s. 111(1)(e)) was only available to a taxpayer and not to a partnership such as MLP. ... [emphasis added] Since MLP was not supposed to compute its income, does this mean that the adjusted cost base of its units do not reflect the income or loss earned by it (but still reflect the distributions made by it out of those earnings) – or in the post- Green world, is the ACB of interests in an upper-tier partnership now an irrelevancy since the partnership is transparent? ...

15 October 2017- 1:11pm Univar – Federal Court of Appeal finds that using old s. 212.1(4) to extract surplus from a non-resident target’s Canadian sub was not abusive Email this Content A non-resident's acquisition of the shares of a Netherlands public company (Univar NV) indirectly holding the shares of a valuable Canadian sub (Univar Canada) with nominal paid-up capital was structured to effectively step-up the PUC of the shares of Univar Canada to fair market value by using the pre-2016 version of s. 212.1(4). This was accomplished by setting up a sandwich structure immediately after the acquisition, under which a new Canadian ULC, capitalized with notes and high-PUC shares, held the shares of a U.S. corporation holding Univar Canada – so that such U.S. corporation could distribute the shares of Univar Canada (on a Treaty-exempt basis) to its controlling Canadian purchaser (the ULC) without technically being affected by the s. 212.1(1) deemed dividend rule. ... Whether the surplus of the Canadian corporation is removed by completing the alternative transactions described … above or by completing the transactions that were done in this case, the same surplus is removed from Canada. ...

14 November 2017- 12:13am Scott – Tax Court of Canada finds that compensation to former Nortel employees for loss of life insurance was non-taxable Email this Content In connection with the Nortel asset distributions, a Nortel health and welfare trust made lump sum payments in 2011 to various beneficiaries in satisfaction of their entitlement to payments under the trust. ... Although it could easily be considered to be a benefit that arose out of her previous employment, he applied the Savage principle of interpretation that: where, in addition to the general provision in paragraph 6(1)(a), there is “a specific [statutory provision] containing detailed conditions for the inclusion of an amount in income that would not otherwise be income” … the general provision cannot be used “to fill in all the gaps left by” the specific provision [viz. s. 6(4)]. ... The Queen, 2017 TCC 224 under s. 6(1)(a), s. 56(1)(a)(iii), Tax Court Rules, s. 89(1)(a), ITA s. 107.1(a), s. 9- Compensation Payments and General Concepts – Stare Decisis. ...

20 March 2018- 2:04am Brochu – Quebec Superior Court decision suggests that a requirement to provide documents “immediately” is contrary to s. 231.2 Email this Content The Sherbrooke police seized $1.4M in cash and jewels, along with guns, of the plaintiff (“Brochu”), who had “underworld dealings.” ... Furthermore, the impressive quantity of particulars and documents demanded of Brochu rendered it impossible to respond immediately, particularly when taking into account that the Requirements extended to five companies as well as the personal affairs of Brochu over a period of almost 15 years. … [A] requirement certainly cannot be used to disguise a seizure made without judicial authorization. In such circumstances, section 8 of the Charter … was infringed by the ARQ…. ...

9 April 2018- 12:33am Aeronautic Development – Federal Court of Appeal finds that a non-resident exercised de facto control of a mooted CCPC by virtue of being its sole customer under a development agreement (viewed as a “supply contract”) Email this Content A Canadian corporation (ADC), which had issued voting common shares (representing voting control) for a modest amount to three Canadian employees, was found to be subject to the de facto control (as defined in s. 256(5.1)- and before its expansion by s. 256(5.11)) of a U.S. corporation (Seawind) and its controlling shareholder (Mr Silva), so that it did not qualify for refundable SR&ED investment tax credits. Gleason JA noted that McGillivray “determined that operational control is insufficient to constitute de facto control under subsection 256(5.1) … [and] that, instead, there must be some legally-enforceable arrangement or arrangements that give rise to such control.” ... Silva’s ability to make the two companies disregard the terms of the development agreement – as he decided to do when he unilaterally decided that the 5% mark-up [under the development agreement] would not be paid to ADC. ...

4 February 2019- 12:55am Madison Pacific – Federal Court of Appeal indicates that a CRA memo to Finance requesting action on an "abuse" likely would be inadmissible in a GAAR case on that abuse Email this Content Predecessors of the taxpayers had been acquired for their losses in transactions where less than 50% of their voting shares, but more than 90% of their non-voting participating shares, had been acquired. ... However, she stated: [T]he documents in issue are of limited relevance and likely inadmissible at trial as, under the GAAR analysis, the question of the policy in the ITA that the taxpayer is alleged to have avoided is ultimately a question of law. … Thus, while it may well be incumbent on the Minister to set out the disputed policy in the Minister’s pleadings as a matter of fairness … it does not follow that evidence on the policy will be admissible at trial as matters of law are for a court to determine. ...

26 February 2019- 12:46am Escape Trailer – Federal Court of Canada suggests that imposing HST on goods earmarked for immediate export fails to apply s. 142 purposively Email this Content When a B.C. ... …The Officer’s literal interpretation tends to frustrate both a purposive construction of section 142 and the intent of the ETA to tax consumption of goods in Canada … [and] appears to lead to a result which is at odds with the equitable underpinnings of subsection 23(2) of the FAA. ... Canada (Attorney General), 2019 FC 31 under Financial Administration Act, s. 23(2), ETA s. 142(1)(a) and Statutory Interpretation – Ordinary meaning. ...

12 May 2019- 11:41pm Arora Trading – Tax Court of Canada finds that a fake business could not be denied its small business deduction Email this Content Ms. ... CRA assessed both the 2009 and 2010 taxation years of Arora on the basis that it was carrying on a personal services business (PSB) – so that various expenses were denied under s. 18(1)(p) and Arora’s small business deduction claims for both years were denied. ... Although this sounds a bit like a taxpayer succeeding because its business was a sham, this probably is more a matter of CRA not minding the store – it likely should have assessed Econo for the income in question (e.g., denying the management fee deduction under s. 18(1)(a) or 67). ...