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. – Court of Quebec finds that an unsigned layperson’s agreement qualified as a written separation agreement Email this Content Dortélus J found that a separation agreement drafted by the taxpayer’s husband in mangled English and which she did not sign nonetheless qualified as a “written separation agreement” for purposes of the Quebec equivalent of s. 160(4) given that she agreed with its basic terms and he thereafter complied with their agreement that he would transfer a ½ interest in some real estate to her in satisfaction of her claims for support. ...

6 September 2018- 11:06pm Catlos – Tax Court of Canada finds that a s. 8(1)(b) deduction was unavailable respecting a defence to shareholders’ claims of unjust enrichment including excessive salaries Email this Content Russell J was prepared to accept a dictum in Fenwick that the deduction under s. 8(1)(b) for establishing a right to receive remuneration extended to an employer seeking a return of remuneration paid, but found that s. 8(1)(b) did not extend to legal fees incurred in defending against claims made against individuals who were officers and shareholders of a private company for allegations of unjust enrichment and breach of fiduciary obligations to the other shareholders – notwithstanding that success of such claims likely would have required them to “disgorge” their allegedly excess remuneration. ...

10 September 2018- 11:27pm 5551928 Manitoba – B.C. Supreme Court rectifies the amount of an erroneously calculated capital dividend Email this Content A private company made the common mistake of declaring a capital dividend in an amount that assumed an addition to its capital dividend account for a disposition of eligible capital property, even though such addition would not occur until year end. ... Summary of Re 5551928 Manitoba Ltd., 2018 BCSC 1482 under General Concepts – Rectification. ...

18 September 2018- 11:46pm Hokhold – Federal Court of Appeal finds that a bad debt claim requires the specific identification of which “debt” claims went bad Email this Content Partly as a delayed consequence of CRA’s seizure of computers and dental equipment of a dental practice and the misplacing of records when his practice subsequently was closed, the dentist was only able to collect a portion of the revenues that he had included in his 2005 to 2008 returns. ... In agreeing with this finding, and before going on to dismiss the appeal, Boivin JA stated: [I]n order to have a “liquidated money demand, recoverable by action” one must know the identity of the debtor and the amount owed …. ...

19 September 2018- 11:46pm Kwan – Tax Court of Canada rejects a contention that child care expense cannot have an educational aspect Email this Content The taxpayer (whose wife also worked full time) successfully made child care expense claims for the costs of after-school programs (e.g., chess programs, math tutoring classes and Chinese language classes) for his 10 and 12-year old children, who finished school at 3:00 pm. ... The Queen, 2018 TCC 184 under s. 63(3) – child care expense. ...

25 September 2018- 11:55pm CBS – Tax Court of Canada finds that CRA could repudiate a settlement based on factual inaccuracy only where that agreed fact had “no bearing to reality” Email this Content The Justice Department entered into a settlement agreement with the taxpayer in which it agreed to permit the taxpayer to carryforward an agreed portion of a $23.4M non-capital loss – and then promptly sought to repudiate the agreement on the basis that CRA had discovered that the non-capital loss in question did not exist, so that implementing the settlement would be contrary to law, which Galway and CIBC said was bad. ...

22 February 2019- 12:03am Concept Danat – Tax Court of Canada states that an SR&ED claim cannot be based on estimated hours worked Email this Content The taxpayer based its reported expenditures on three alleged SR&ED projects on its estimate that its employees spent 10.2% of their time on the SR&ED activities. ... …[A]n exact register of the hours worked must be provided in order to make an SR&ED claim …. ...

3 April 2019- 6:51pm Grondin – Court of Quebec confirms that the Quebec equivalent of s. 13(21.1)(b) applies irrespective of an intention to dispose of the underlying land Email this Content The uninsured barn of a pig farmer burned down. Lafrenière JCQ confirmed the application by the ARQ of the Quebec equivalent (in Art. 93.3) of s. 13(21.1)(b) to reduce what otherwise would have been that taxpayer’s terminal loss by one-half, stating: [T]he exception provided in Articles 93.1 to 93.3 … applies without regard to whether the disposition is voluntary or involuntary, and also applies independently of whether or not there was a wish to dispose of the underlying land. ...

11 April 2019- 12:28am CRL Engineering – Tax Court of Canada finds that development of custom software qualified as SR&ED Email this Content An engineering firm engaged in a project to develop its web‑based system using algorithms and GPS data to provide accurate real‑time data for predicting the arrival time of public transit buses. In the course of finding that the firm satisfied the five-factor test in Northwest Hydraulic as to what was SR&ED, Smith J noted that the hypothesis that was tested was whether “autonomous distributed computing systems based on general purposes computing units [can] be effectively deployed in order to provide accurate real‑time status information … in a real world transit system,” and stated: There is necessarily a fine line between a “technological advancement” or “incremental improvements” to existing materials, devices, products or processes. ...

6 May 2019- 11:59pm Van Steenis – Federal Court of Appeal affirms that “return of capital” distributions by a mutual fund reduced the unitholder’s deductible interest Email this Content The taxpayer borrowed $300,000 to purchase units of a mutual fund trust in 2007. ... In dismissing the taxpayer’s appeal, Laskin JA stated: We are not persuaded that the requirement to trace the borrowed money to a current eligible use applies only where there has been a disposition, in whole or in part, of the original investment. … The focus of [s. 20(1)(c)] is the current use of the borrowed money, not on the current ownership status of the property initially acquired with it. ...