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3 October 2017- 12:22am Lewski – Full Federal Court of Australia finds that a trust income declaration that was subject to a tax contingency did not result in an income inclusion to the beneficiary Email this Content On June 30, 2006, the trustee of an Australian trust declared a distribution to the taxpayer of all its income for the year then ended and at the same time made a further resolution that in the event the Australian taxation authority denied a deduction to the trust, the trust income for that year was instead to be deemed to have been distributed on the same 2006 date to an alternate beneficiary. ... Summaries of Lewski v Commissioner of Taxation, [2017] FCAFC 145 under s. 104(24), s. 248(8)(b) and s. 18(1)(a) – incurring of expense. ...

23 October 2017- 12:25am Ahmad – Tax Court of Canada finds that CRA was required to determine, when assessing, whether the taxpayer had an unclaimed GST/HST rebate Email this Content CRA correctly assessed an individual (Ahmad) so as to deny the new housing HST rebate (because, due to a change in plans, the first use of the new home was its rental to a third party), and advised him that he might consider applying for the New Residential Rental Property Rebate (NRRPR). Ahmad instead appealed the denial of the new housing rebate, and did not apply for the NRRPR until the two-year deadline for doing so (under ETA s. 256.2(7)(a)) had passed – and also failed to file a Notice of Objection to the CRA assessment denying his NRRPR claim. ...

26 October 2017- 1:29am E-Funds – Supreme Court of India indicates that the provision of ancillary services rather than direct customer services does not engage a services PE Email this Content Two American companies ran and serviced ATM networks in North America and also provided automated fraud prevention services. 40% of the worldwide staff of the group were employed by an indirect Indian subsidiary, which operated a call centre as well as providing software troubleshooting and testing services. ... Nariman J applied Formula One to state that “it is clear that there must exist a fixed place of business in India, which is at the disposal of the US companies, through which they carry on their own business” – and as that was not the case, they had no Indian PE based on a fixed place of business. ...

8 November 2017- 11:51pm Pomeroy’s Masonry – Federal Court finds that CRA failed to consider the taxpayer’s need to apply an income tax credit to pay HST arrears Email this Content The taxpayer was arbitrarily assessed under s. 152(7), with these income tax assessments being collected (including through garnishments). The taxpayer ultimately filed the missing returns, which showed large refunds owing to it – except that the three-year time limit for claiming refunds under s. 164(1) had passed. ...

17 November 2017- 12:15am Meberatu – Tax Court of Canada finds that an employee could deduct cell phone expenses Email this Content A personal support worker claimed around $900 a year in cell phone expenses as a deduction from her employment income on the basis that she was required by her employer to be able both to notify clients when she was going to be late and to report to her employer. ... This case is intriguing not only because the taxpayer fared quite well (if in fact her expenditure was mostly for personal use) notwithstanding having lost, turfed or suppressed her records, but also because of the finding that there can be a cell phone deduction from employment income – perhaps under s. 8(1)(i)(iii) (“the cost of supplies that were consumed directly in the performance of the duties”)? ...

3 January 2018- 8:17am Harvest Operations – Alberta Court of Appeal states that it cannot use its general equitable jurisdiction to do an end run around the narrow (post-Fairmont) rectification doctrine Email this Content Dario J followed the maverick approach to tax rectification of Graymar rather than the more generous Juliar approach. ... Attorney General of Canada, 2017 ABCA 393 under General Concepts – Rectification. ...

12 January 2018- 12:14am Gervais – Federal Court of Appeal confirms that a basis averaging scheme to transfer half of a capital gain to the taxpayer’s wife was an abusive circumvention of the attribution rules Email this Content The taxpayer’s wife (Mrs. ... Gervais’ return, Noël CJ stated that the above result was: contrary to the object, spirit and purpose of subsections 73(1) and 74.2(1), the purpose of which is to ensure that a gain (or loss) deferred by reason of a rollover between spouses or common-law partners be attributed back to the transferor. … Because the rollover provided for in subsection 73(1) deferred this accrued gain [of $1M] in its entirety, the whole of the gain realized on the sale to [the third party] had to be attributed back to Mr. ...

17 January 2018- 12:41am 6305521 Canada – Court of Quebec finds that an incorporated repairman reporting to a foreman was not carrying on a personal services business Email this Content An individual was the sole shareholder and employee of a corporation. ... ARQ, 2017 QCCQ 14869 under s. 125(7) – personal services business. ...

19 January 2018- 12:07am North Shore – Federal Court of Appeal finds that previously-collected HST is not “credited” by the supplier to the purchaser under ETA s. 232 unless the sum is put at the purchaser's disposal Email this Content A supplier (Menova) received substantial down payments respecting its sale of solar array projects, and then became insolvent before earning more than a fraction of the down payments. ... [As] Menova did not put funds at the disposal of North Shore when it issued the credit memos … section 232 does not apply to the transactions at issue as HST was not credited to North Shore. ...

ClearFlow – Ontario Superior Court finds that a “discount fee” was interest Email this Content A typical loan made by the lender (ClearFlow) to the borrower bore base interest rate of 12% p.a. compounded monthly, an administration fee that was charged when the Loan was initially advanced, and each time it renewed (of, say, 1.81% of the loan balance), and a “discount fee” of 0.003% per day of the outstanding principal. ... However, the discount fee was interest – as to which he stated his acceptance of the conclusion in Sherway Centre that “an amount paid as compensation for the use of money for a stipulated period can be said to accrue day-to-day.” ...