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29 August 2023- 11:13pm Xu – Tax Court of Canada finds that an informal letter attaching documents and containing only a brief request for adjustment qualified as an objection Email this Content The taxpayers were assessed to deny the new residential rental unit rebate. ... In finding that the taxpayers’ submission qualified as an objection sufficient for the purposes of ETA s. 301(1.1), Bocock J stated: The form [of the submission] was not usual, but there is no prescribed form. … The submission, dated two weeks after the notice of reassessment, while not perfectly detailed, was sufficient to initiate the objection process responsive to an audit and conclusions already in active dispute. ...

13 June 2024- 10:59pm Canadian Western Trust – Federal Court of Appeal confirms that a TFSA trading in qualified investments was taxable on the profits Email this Content A self-directed TFSA was conceded by it to be carrying on a business of trading in qualified investments. ... In rejecting this submission, and before dismissing the appeal, Biringer JA stated: We agree with the Tax Court that the appellant’s reading is unsupported by the text, context, and purpose of subsection 146.2(6), and would amount to a re-drafting of the provision …. ...

9 March 2025- 11:17pm 1351231 Ontario – Federal Court of Appeal confirms that conversion of the use of a condo from long-term rental to an Airbnb property caused its subsequent sale to be taxable Email this Content The Appellant used a condo unit for the first nine years after purchase for long-term residential rentals and then listed it on Airbnb and rented it out for succession of short-term rentals (under 60 days and sometimes for only one night) before its sale. ... Canada, 2025 FCA 53 under ETA s. 123(1) – residential complex. ...

25 March 2025- 11:17pm IWK Health – Tax Court of Canada finds that employers could not claim HST on the reimbursed health care expenses of their employees Email this Content Some Nova Scotia hospitals reimbursed (through a health care plan administrator) their employees for the employees’ costs including HST of acupuncture, massage therapy, naturopathy, or homeopathy services. ... Accordingly, these services did not satisfy the s. 175 test of being “for consumption or use … in relation to activities” of the hospitals. ...

25 April 2025- 3:26am CRA indicates that the "duties … of a temporary nature" condition in s. 6(6)(a)(i) is tested on a site-by-site basis Email this Content After being asked inter alia whether the "duties … of a temporary nature" condition in s. 6(6)(a)(i) is satisfied where an employee is assigned successively to two projects in the same region or city, CRA indicated “that the place where an employee performs work of a temporary nature (i.e., a special work site) is a particular place of work and not a general geographical area such as a city.” ...

5 February 2018- 12:43am Oxford Properties – Federal Court of Appeal finds that using the s. 88(1)(d) bump on newly-formed rental property LPs to avoid indirect recapture income under s. 100(1) was abusive Email this Content When Oxford Properties was sold to an OMERS subsidiary, the purchaser first negotiated that Oxford would drop various properties down into LPs on a s. 97(2) rollover basis, with those partnership interests subsequently being bumped under s. 88(1)(d) (which, in 2001, did not prohibit bumping interests in partnerships holding appreciated buildings). ... Given this, the inevitable conclusion is that the object, spirit and purpose of subsection 100(1) was frustrated by the result achieved in this case as the latent recapture in the depreciable property … will forever go unpaid. Most interestingly, he found that the same broad brush that was applied in determining that the transactions were abusive insofar as they avoided recognition in taxable hands of recapture should also be applied to determine that GAAR should be applied only to recognize a taxable capital gain (effectively under s. 100(1)) equal to that recapture (of $116M) and not a taxable capital gain equal to the accrued capital gain on the buildings of $21M and the accrued capital gain on the land of $11M – i.e., “the Crown cannot have it both ways” and be able to apply s. 100(1) in a technical manner once, on broader grounds, it had been found to be abused. ...

1 March 2018- 11:16pm Cheema – Federal Court of Appeal indicates that a reference to a purchaser included a bare trustee Email this Content In order to satisfy lender requirements, the individual taxpayer persuaded a friend (Dr. ... Stratas JA was not bothered that the new home did not yet exist at the time of signing the purchase agreement, stating that “Deeming provisions create legal fictions … for example, the supply of a home that is not yet constructed.” ... Cheema, 2018 FCA 45 under ETA s. 254(2)(b), s. 133 and Statutory Interpretation – Ordinary Meaning, Ease of Administration. ...

24 September 2018- 12:09am Atlantic Packaging – Tax Court of Canada finds that s. 54.2 did not apply to the drop-down of under 68% of the assets of a business division to a Newco for Newco shares Email this Content The taxpayer, a paper products manufacturer, engaged in a hybrid transaction in which it sold some of the assets of its “Tissue Division” directly to a third-party purchaser (“Cascades”) and rolled the balance of them down to a Newco under s. 85(1) for Newco shares and sold the Newco shares to Cascades. ... Graham J found that "the test in section 54.2 is intended to be a somewhat flexible test but … there is no reason not to consider the fair market value of the assets when applying the test.” From the FMV perspective, the transferred assets represented about 68% of the assets of the Tissue Division – and perhaps significantly less, given that some of the Tissue Division assets had not been valued. ...

21 July 2019- 10:54pm Raposo – Federal Court of Appeal finds that the voidness under the Civil Code of a partnership with an unlawful business applied for GST purposes Email this Content The taxpayer and the three other members of the “Raposo clan” were involved in the sale of cocaine in the Gatineau area. ... He noted that not respecting the void character under the Civil Code of a partnership contract for carrying out an illegal activity would have the “absurd consequence” that, on the one hand, the taxpayer would be held liable for the entirely of the uncollected GST of the unlawful activity, whereas, on the other hand, “given the illegality of those activities, the taxpayer would not have any recourse … to reclaiming, from the co-debtors, their respective portion of the total debt before a civil court.” ... Raposo, 2019 CAF 208 under General Concepts – Illegality, Statutory Interpretation- Interpretation Act, s. 8.1 and ITA s. 96. ...

30 July 2020- 12:25am 984274 Alberta – Federal Court of Appeal finds that nil assessment was an “assessment” giving rise to an s. 164(3.1) overpayment Email this Content The taxpayer (“984”) reported a capital gain on its 2003 sale of land on the basis that it had acquired it from its parent (Henro) on a rollover basis. ... Finally, it did not matter that no reassessment had been issued to bring the 2003 tax payable back from zero, as per the 2010 nil assessment, to the amount initially assessed, given that inter alia “ Markevich makes it clear that an excessive refund can be assessed even if the power to issue a reassessment for the year pursuant to subsection 152(4) has expired” (para. 77). ... Summaries of Canada v. 984274 Alberta Inc., 2020 FCA 125 under s. 164(1), s. 160.1(1), s. 152(4) and General Concepts – Stare Decisis. ...