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1 June 2018- 12:27am 626468 New Brunswick – Tax Court of Canada finds that safe income was reduced by corporate income taxes that would be computed on that income Email this Content An individual rolled his apartment building into a Newco in consideration for a mortgage assumption and shares with nominal paid-up capital, and then rolled those shares into a new Holdco. Following the realization shortly thereafter by Newco of a taxable capital gain and recapture of depreciation on a sale of the building, Newco increased the adjusted cost base to Holdco of its shares by effecting a series of s. 84(1) dividends (including a capital dividend) – following which the individual sold his shares of Holdco to a third party for a sale price based on the amount of cash sitting in Newco. ...

14 June 2018- 12:02am Toronto-Dominion Bank – Federal Court finds that the deemed trust for unremitted GST defeated the mortgagee’s priority on a voluntary sale of the mortgaged home Email this Content TD Bank made a mortgage loan to an individual who, unbeknownst to it, had unremitted GST collections. ... First Vancouver – it “would have a general chilling effect on commercial transactions.” ...

15 June 2018- 12:22am Motter – Court of Quebec finds that a purported “tenant inducement payment” was a capital expenditure Email this Content An individual in the business of constructing and renting commercial real estate, entered into a lease agreement with Téléglobe respecting a building which he was to construct, that provided Téléglobe with “an initial Improvement Allowance” of $25.00 per square foot (or $2M). ... Agence du revenu du Québec, 2018 QCCQ 3483 under s. 18(1)(b) – improvements v. repairs/running expense. ...

29 June 2018- 12:13am PPP Group – Federal Court of Appeal confirms that automobile replacement “warranty” payments did not qualify for ITCs Email this Content The Court of Appeal has briefly affirmed a decision of Tardif J respecting a Quebec company (“PPP”) which, through car dealers, offered motor vehicle replacement “warranties.” ... The Queen, 2017 TCC 2, briefly aff'd 2018 CAF 123 under ETA s. 175.1, 169(1) and General Concepts – Illegality. ...

2 July 2018- 12:18am Tusk Exploration – FCA finds that Part XII.6 tax (effectively double-taxation) was payable on CEE purportedly renounced on a look-back basis to NAL shareholders Email this Content Tusk Exploration, a Canadian exploration company, unsuccessfully argued that it was not subject to Part XII.6 tax on Canadian exploration expenses that it had purported to renounce under the look-back rule- but which were now admittedly not eligible for look back because the flow-through share investors were non-arm’s length – because the reference in Part XII.6 to CEE that it “purported” to renounce under the rule referred only to expenses which had been validly rather than invalidly renounced under the look-back rule. ...

10 July 2018- 11:35pm Automodular – Supreme Court of Ontario finds that there was no implied term in a settlement agreement for grossing up a settlement amount for ETA s. 182 tax Email this Content Counsel to the parties in an action for wrongful termination by the defendant of an agreement for the long-term supply of parts to it by the plaintiff agreed by exchange of emails on the weekend before the trial that the action would be settled by the payment by the defendant of a $7M sump sum. ... It cannot be said that term the plaintiff seeks was so obvious as to “go without saying” in the eyes of an objective person. … The simple fact of the matter is that the plaintiff stipulated the sum it was prepared to accept and did not seek to allocate it in any way. ...

10 July 2018- 11:35pm BCS Group – C Miller J disagrees with some of his colleagues in finding that a corporation can appear “in person” without counsel Email this Content In Masa Sushi, Graham J found that a corporation could not appear “in person” in a General Procedure matter and had to appear through counsel, so that a Rule purporting to permit a corporation to appear in person with the Court’s consent would be ultra vires. ... C Miller J disagrees, stating: Yes, there is common law jurisprudence to the effect that “in person” can only mean by the presence of a visible person … but there has been no such jurisprudence, until Masa Sushi, from the Tax Court of Canada. ...

23 August 2018- 1:03am Devon – Tax Court of Canada finds that payments made to target’s employees for surrendering their options on target’s acquisition were mostly deductible by it Email this Content Two public-companies made cash payments for the surrender by employees of their options previously granted to them under employee stock option plans, with the surrenders occurring on the closing of their acquisition by other public companies. ... (f) of the definition of eligible capital expenditure for “the cost of … a right to acquire [a share]” did not apply given that “the word ‘cost’ contemplates an acquisition of an asset or other property,” whereas “when a stock option is surrendered to the issuing corporation, the rights represented by that option [instead] are extinguished.” ...

13 September 2018- 11:10pm Laliberté – Tax Court of Canada that the Cirque du Soleil’s bearing most of the $41.8M cost of a space trip for its controlling shareholder gave rise to a shareholder benefit Email this Content The founder and controlling shareholder of Cirque du Soleil was found to have received a taxable benefit under s. 15(1) (or alternatively, under s. 246(1)) equal to approximately 90% of the $41.8 million cost of sending him on a trip to the international space station in September and October 2009, given that the cost was borne by his family holding company and then largely passed through to the top operating company in the Cirque du Soleil group (whose CFO refused to deduct it for corporate income tax purposes). ... For that reason I could conclude that an allocation in the range of 0 to 10% of the cost of the space trip would be a reasonable charge to Cirque du Soleil. … [T]he remaining 90% of the cost of the trip, being $37.6 million, was the amount of the benefit conferred on and enjoyed by M. ...

20 September 2018- 11:21pm Lachance – Federal Court finds that CRA could refuse an extension to a taxpayer confused by a CRA Guide Email this Content The GST/HST Guide on the new housing rebate indicated that an Ontario new housing rebate was available in circumstances where the federal rebate would have been available but for the value of the new home having been over $450,000. ... CRA denied her extension request on the grounds that the Guide disclosure was not inaccurate – and none of the other published grounds for taxpayer relief were met. ...