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22 May 2019- 11:26pm CRA indicates that it generally denies a s. 113(1) deduction where Canco has failed to prepare surplus accounts – which failure also will preclude a late-filed Reg. 5901(2)(b) election Email this Content Canco does not prepare detailed calculations of its various surplus and underlying tax balances in respect of a wholly-owned subsidiary (FA) from which it received a dividend, and claims a full s. 113(1) deduction for that dividend (without knowing how much is a deduction under s. 113(1)(a) rather than, say, s. 113(1)(d).) ... An assessment is of a particular dollar amount of tax, and it does not matter what route was reached to get to that figure – see, e.g., Consumers’ Gas. Furthermore (to draw an analogy with surplus account records), expense deductions may be accepted in circumstances falling well short of full supporting documentation – see, e.g., Staltari, Weinberger, Samra, Savoidakis, Sidhu.) ...

14 August 2019- 1:00am SLFI Group – Federal Court of Appeal finds that the Invesco group successfully reduced their HST-taxable management fees by having a third party take over the funding of broker commissions Email this Content A non-resident bank (Citibank) agreed to fund the payment of the upfront brokerage commissions that were payable on the issuance of units in the Invesco/Trimark funds (the “Funds”) in consideration for receiving an assignment of a portion of the amounts that otherwise would have been earned by the Invesco manager as management fees. ... She stated: [T]he character of the supply is determined by its dominant element, which … is in the nature of a financing service provided by third party financial institutions. ... Canada, 2019 FCA 217 under ETA s. 123(1) financial service – para. (l), para. ...

8 September 2019- 11:43pm Teitelbaum – Quebec Court of Appeal finds that an RCA balance (viewed as a “right or thing”) was “transferred” on death notwithstanding its subsequent distribution Email this Content ITA 70(3) requires “rights or things” of a deceased taxpayer to be recognized in the taxpayer’s terminal return unless the executors elect to include those amounts in a separate return. ... The Taxpayer could not be the heir of the deceased other than by what she received on the date of his death. … In sum, I am of the view that the debt claim bequeathed to the Taxpayer was transferred to her on … the date of death of Mr. ...

16 September 2019- 11:47pm Development Securities – U.K. Upper Tribunal finds that the for-hire directors of a Jersey sub exercised central management and control there Email this Content A U.K. tax avoidance scheme, entailed Jersey subsidiaries acquiring assets from their UK parent (DS Plc) or its U.K. subsidiaries at prices corresponding to the assets’ historical cost plus an inflation-indexation adjustment and then, after the Jersey-resident directors had resigned, selling those assets back to the DS group at their much lower fair market value, thereby triggering a tax loss that could be used in the DS group. ... Before reversing the finding below that the Jersey subsidiaries were not resident in Jersey prior to the resignations, the Tribunal stated: The mere fact that a 100% owned subsidiary carries out the purpose for which it was set up, in accordance with the intentions, desires and even instructions of its parent does not mean that central management and control vests in the parent. … Where a parent company merely “influences” the subsidiary, CMC remains with the board of the subsidiary. It is only where the parent company “controls” the subsidiary, i.e. by taking the decisions which should properly be taken by the subsidiary’s board of directors, that CMC vests in the parent. … [W]hatever the position as regards Mr Lanes (who may have been prepared to carry out the transactions no matter what), the Jersey directors (i) knew exactly what they were being asked to decide; (ii) did so understanding their duties; and (iii) complied with those duties. ...

8 October 2019- 11:32pm Paletta – Tax Court of Canada denies a film marketing partnership loss on the basis that an alleged option was a sham Email this Content A taxpayer used U.S.$82M that had largely been indirectly financed by Twentieth Century Fox to fund, as partner, prints and advertising expenses (“P&A expenses”) respecting a film that Fox allegedly had sold to the partnership for US$128.3M, but with Fox having an alleged option to repurchase the film. ... In denying the claimed losses, Hogan J stated: [T]he Appellants invested in the … Partnerships solely to avail themselves of the tax savings that the promoters led them to believe they could expect and that they felt secure in the knowledge that Fox had agreed to reacquire the films prior to their commercial release. ... The Queen, 2019 TCC 205 under General Concepts – Sham and Reg. 231(6). ...

18 May 2020- 11:14pm Drolet – Quebec Court of Appeal finds that a written conveyance by a tax debtor to his spouse was not fleshed out as a written separation agreement by virtue of a subsequent retroactive divorce judgment Email this Content After a rift and the taxpayer’s husband moving out, he conveyed a ½ co-ownership interest in the family home to the taxpayer for nominal stated consideration but on the understanding that she would not be seeking support from him. The family home then was sold, and she received ½ of the net proceeds. ...

26 July 2020- 11:52pm 1455257 Ontario – Tax Court of Canada suggests that a CRA policy to adjust loss carrybacks, to a reassessed year, beyond the s. 152(6) period, has no statutory authority Email this Content The validity of a s. 160 assessment of the taxpayer turned on whether the affiliate from which the taxpayer had received a transfer of property in 2003 should be regarded as having had its taxable income for 2000 reduced by a portion of its non-capital loss for 2002 that the affiliate had not claimed because the taxpayer and the affiliate had not found out about that additional loss until 2011, when the taxpayer made an ATIP request following the s. 160 assessment of it. ... In dismissing the taxpayer’s appeal, St-Hilaire J stated: …[T]he Court is left with legislation that does not satisfactorily address the circumstances and an administrative policy that seemingly seeks to address the lacunae but for which there is no legislative authority. … Neal Armstrong. ... The Queen, 2020 TCC 64 under s. 152(6), s. 160(1)(e)(ii) and General Concepts – Onus. ...

28 July 2020- 11:41pm Building Products – Federal Court confirms CRA’s refusal to grant more than partial interest relief for failure of CRA to point out an ability to apply NCLs Email this Content When the taxpayer was assessed to deny SR&ED deductions or credits for its 2009 taxation year, the CRA auditor failed to follow the requirement in the Audit Manual to obtain a written response from the taxpayer as to whether the taxpayer wished to apply available non-capital losses (NCLs) to offset the assessed taxable income and eliminate the tax and interest. ... Unlike 1455257 Ontario, Shore J did not suggest that there was no statutory authority for the CRA policy in the Manual – a policy which is broadly consistent with the right to claim discretionary reserves from reassessed income (see the Trial decision referenced in Abed Estate) and make late designations (Nassau Walnut, Lussier – also narrowly construing s. 152(6)). ...

7 January 2021- 12:08am Pomeroy – Federal Court of Appeal allows the Crown to adduce fresh evidence after a TCC motion even with something of a failure to have introduced this before the TCC Email this Content The Tax Court dismissed the Crown’s motion to amend its reply to the taxpayer’s notice of appeal to add an allegation that a loan in issue was a sham, on the grounds that such addition would be unfair as the taxpayer’s principal (Mr Pomeroy) had now died. ... Regarding the failure to satisfy this test, Locke JA noted that the Crown did not become aware of the relevance of the additional evidence until six days before the hearing of the Tax Court motion, at which point there was no established procedure for introducing such evidence – but nonetheless found that he was “not convinced that the appellant could not have sought, and possibly obtained, leave to put the evidence before the Tax Court.” In nonetheless allowing the new evidence, he stated: … I am conscious that the motion before the Tax Court was an interlocutory matter, and the respondent’s opportunity to adduce this evidence was limited because of the absence of a clear procedural mechanism for doing so. ...

18 April 2021- 11:30pm Nonis – Tax Court of Canada finds that a U.S. resident avoided Canadian tax on employment income from a Canadian employer when he ceased performing active duties Email this Content The taxpayer, Mr. ... Nonis continued to be an employee after his “termination” (albeit, with virtually non-existent duties), Bocock applied the principle that, under “paragraph 4(1)(b) of the Act, if a taxpayer works partly in Canada and partly in another country in the same taxation year, the taxpayer’s taxable Canadian income for the year is the amount earned while working physically in Canada” – so that Mr. ... Bocock found that s. 115(2)(c.1)(i) essentially dealt with signing bonuses received by non-residents regarding pending Canadian employment, and that s. 115(2)(c.1)(ii), which refers to “remuneration … for services to be performed in Canada” was there to prevent avoidance “where a signing bonus is represented as something else.” ...