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12 August 2019- 11:45pm Moose Factory – Tax Court of Canada finds that arrangements were not structured to give rise to a debt Email this Content After quoting the statement in Sattva that “While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement,” Owen J found that, contrary to the taxpayer’s understanding of the arrangements as reflected in its financial statements, the arrangements at issue had not in fact been structured so as to give rise to a debt owing to the taxpayer by a corporation that subsequently became bankrupt. ... The Queen, 2019 TCC 156 under s. 39(1)(c)(iv) and s. 12(11) – investment contract. ...

24 September 2019- 11:48pm Wise – Tax Court of Canada finds no immediate taxable benefit to a landlord-shareholder from improvements made to the leased building by the tenant-corporation Email this Content An individual leased a building under a 5-year lease with a 5-year renewal option to a corporation (VMS) wholly-owned by her and her son. ... The Queen, 2019 TCC 196 under s. 15(1) and General Concepts – Effective Date. ...

6 October 2019- 9:23pm Clevor Technologies – Tax Court of Canada accepts that using metaheuristics is not SR&ED Email this Content The taxpayer’s systematic process of trying different combinations of coding changes to its software to eliminate problems of integrating that software with that of a third party (Oracle), which had made poorly documented coding changes, was characterized by Russell J as a “trial and error” procedure that was “routine engineering” and not SR&ED. Russell J also accepted the view of the Crown’s expert that a second mooted “SR&ED” effort to enhance the ability of the taxpayer’s software to calculate optimal timelines for concurrently run projects used an established methodology termed "metaheuristics, which in essence search the solution space based on some algorithms and converge to a solution … [and] did not involve experimentation or analyses to resolve scientific or technological unknowns,” so that for this activity as well, the claimed SR&ED credits were denied. ...

11 October 2019- 12:06am D’Anjou – Tax Court of Canada finds that a taxpayer should have been informed by a similar loss in the Court of Quebec Email this Content In connection with finding that the taxpayer had made a misrepresentation attributable to neglect when he had treated the adjusted cost base of a property he had sold as having been increased by alleged expenses such as municipal and school taxes and financing expenses incurred during the holding of the property, Favreau J noted in particular that the same types of ACB adjustments had been denied for the disposition by the taxpayer of another parcel of vacant land by the Court of Quebec in 2008 QCCQ 7197. ... The Queen, 2019 CCI 208 under s. 152(4)(a)(i) and s. 54 – ACB. ...

3 February 2020- 11:18pm Univar – Tax Court of Canada faults the Crown for arguing for adherence to the Tariff of costs Email this Content Univar lost it appeal of a s. 212.1-related GAAR assessment in the Tax Court but succeeded in having that decision reversed by the Federal Court of Appeal. Boyle J awarded costs against the Crown of $300,000, or approximately ½ of Univar’s tax counsel’s fees. ...

10 February 2020- 1:15am White – Tax Court of Canada indicates that you receive nothing when your spouse deposits to your joint account Email this Content The taxpayer’s husband transferred $90K in pay cheques to the joint bank account between him and the taxpayer while he had tax debts, as a director for a defunct company, for unremitted GST and source deductions of that company. ... White … continued to have full access to the funds in the account. Accordingly, he vacated the s. 160 assessment, and found that the s. 325 assessment could only be made in the smaller amount ($34K) of the transfers that had, in turn, been made from their joint account to the taxpayer’s own bank account. ...

13 February 2020- 11:24pm Dreger – Tax Court of Canada finds that a distribution from a deceased father’s fund to his surviving children was a related-person transfer Email this Content The taxpayers were the named beneficiaries of a life income fund held by their late father. ... However, the relationship of father and child is not a statutory relationship; it is a factual relationship. … [T]he Appellants are [still] the children of …[their father]. ...

22 March 2020- 10:43pm Construction PCA – Court of Quebec finds that assessing a late-filing penalty for a s. 85 election does not preclude assessing the election as invalid Email this Content The ARQ issued a penalty assessment for the late filing of the Quebec equivalent of amended s. 85(1) election forms – then, when it learned from CRA that no shares had been issued by the transferee at the time of the drop-down and that such shares were only purportedly issued after the fact upon CRA identifying this deficiency, assessed the transferor taxpayer on the basis that the drop-downs had not occurred on a rollover basis (but without cancelling its separate penalty assessment). ...

28 June 2020- 11:12pm Sanctuary – Court of Quebec finds that the acquisition of a secondary residence just outside Quebec was insufficient to change the taxpayer’s Quebec residence Email this Content The taxpayer, who testified that “he never developed a strong sense of belonging to Quebec” and that “his best friend … lived in Ontario,” purchased a house in Lancaster, Ontario (90 km from Montreal) in late 2012. ...

22 July 2020- 11:22pm Penate – Tax Court of Canada finds that sexual harassment by customers and no evidence of diversion of GST/HST collections established a due diligence defence Email this Content The taxpayer, Ms. ... Campbell J stated that these constituted “exceptional circumstances and facts” which allowed her to conclude that the taxpayer could avail herself of the due diligence defence – so that the appeal was allowed. ...