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24 October 2018- 1:24am Laval Technopole – Court of Quebec applies the traditional common law tests of Crown agency to determine whether companies were agents of Canadian municipalities Email this Content Various companies in Quebec whose function it was to promote commercial development, or cultural, sporting or tourist activities, in their respective municipalities, were found to be subject to a higher rate of employer health tax because they were an agent (“organisme mandataire”) of a Canadian municipality. ... Agence du revenu du Québec, 2018 QCCQ 6352 under s. 212(3) – fully exempt interest- (a)(iii). ...

28 October 2018- 9:54pm Laplante – Federal Court of Appeal finds that a purported distribution of QSBCS gains to family trust beneficiaries was a sham Email this Content The taxpayer (Laplante) was the dominant trustee of a family trust (DL Trust) that had realized a capital gain of around $6M on the sale of qualified small business corporation shares. ... Canada, 2018 CAF 193 under General Concepts – Sham. ...

5 November 2018- 10:36pm Akanda – Federal Court of Appeal grants an extension to seek reversal of a default judgment notwithstanding the absence of a reasonable explanation for the delay Email this Content After the taxpayer (Akanda) had missed a lot of deadlines for providing a list of documents and completing discovery examinations, and shortly after its counsel had resigned, its appeals respecting the denial of over $6M and $1.5M in SR&ED and ITC claims, respectively, were dismissed without an appearance by the taxpayer. ... He noted that Akanda had satisfied three of the usual criteria for such an extension (having a continuing intention to pursue the application to set aside the default judgment, having some merit to its application and there being no demonstrated prejudice to the Crown in the three month delay) but not the fourth criterion (having a reasonable explanation for the delay) – but stated: Since the findings with respect to three of the four factors favour Akanda and since the amounts involved are significant, the interests of justice support a finding that the application for an extension of time should be granted. ...

6 December 2018- 11:51pm Hi-Tech – Tax Court of Canada confirms that the required ITC documentary information can be spread among different supporting documents Email this Content Sommerfeldt J dealt with a situation where an audit fee paid in various payments by a GST registrant had problematic documentation. ... Although not needing to land on this issue, he indicated that there may have been undue delay for purposes of the rule in ETA.s 152(1)(b) (effectively deeming consideration to have become due when its invoicing is unduly delayed) even if the audit firm had “issued” the invoice, given that the invoice date was six months after the completion of the audit work – whereas normally invoices were issued much more promptly. ...

4 January 2019- 2:01am Loblaw Financial – Tax Court of Canada finds that the Crown should not receive a costs award Email this Content CRA prevailed in assessing a Loblaw subsidiary for the realization of $473 million of foreign accrual property income between 2001 and 2010 through a wholly-owned Barbados international bank (GBL), but only on the basis that GBL’s business was not conducted principally with arm’s length persons. The taxpayer had made a settlement offer on what C Miller J had described as a principled basis, namely, that CRA would apply GAAR to GBL’s 2006 to 2013 years – but not to the earlier years on the basis that they were not covered by waivers provided. ...

1 February 2019- 2:32am Therrien – Court of Quebec finds that the adult daughter of the taxpayer’s ex-common law partner was the taxpayer’s “child” Email this Content When the handicapped daughter (“V”) of the taxpayer’s ex-common law partner was 22, she started living with the taxpayer. ... The relevant part of the Quebec Taxation Act definition of “child” (which was essentially the same as ITA s. 252(1)(b)) referred to: a person who is wholly dependent on the taxpayer for support and of whom the taxpayer has, or immediately before such person attained the age of 19 years did have, in law or in fact, the custody and control This reference to “custody and control … in law or in fact” might have, but did not, give Massol JCQ difficulty given that V was an adult who was with him purely as a matter of choice. ...

11 February 2019- 12:31am Crean – B.C. Supreme Court rectifies a sale agreement to turn it into a 2-step sale that no longer generated a s. 84.1 dividend Email this Content The executed documents indicated that an individual (Thomas) sold his shares of a corporation to the Newco of his brother (Michael) in consideration for a promissory note of the Newco. ... Summary of Crean v Canada (Attorney General), 2019 BCSC 146 under General Concepts – Rectification. ...

21 February 2019- 12:35am Victoria Power – Federal Court of Australia finds that a calculated reduction in the amount of a rebate required to be paid by a taxpayer was not income to it Email this Content Australian electricity distributors were entitled to require their customers to pay an amount equal to the estimated net economic burden to the distributors of hooking them up to electricity, i.e., where the the present value of the incremental cost exceeded the present value of the incremental revenue. ... In Canada, the relevant distinction to be drawn likely would have been between a s. 9 receipt or (having regard to some similarities with the Consumers' Gas case) a s. 12(1)(x) receipt – keeping in mind that the s. 13(7.4) offset is potentially available only for the latter. ...

4 March 2019- 12:13am Finucane – UK Supreme Court finds that the government was required to demonstrate that it resiled from an undertaking based on genuine policy grounds Email this Content It is unclear to what extent CRA is legally bound to honour rulings given by it. ... And a matter sounding on the question of fairness is whether the alteration in policy frustrates any reliance which the person or group has placed on it. … However, in finding that the government could now resile from its undertaking, he stated: Where political issues overtake a promise or undertaking given by government, and where contemporary considerations impel a different course, provided a bona fide decision is taken on genuine policy grounds not to adhere to the original undertaking, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it. ...

4 March 2019- 12:07am Keurig Canada – Court of Quebec finds that the ARQ did not need the equivalent of ITA s. 152(9) to amend its pleadings with an additional reason for failure of a Quebec bump Email this Content The taxpayer was assessed under the Quebec general anti-avoidance rule respecting its engaging in “Quebec bump” transactions, which used Class 12 property (namely, a coffee roaster) purchased from a supplier for $820 thousand to generate a non-capital loss of $541 MILLION. ... The burden was on the taxpayer to submit accurate tax returns. … It would be contrary to the interests of justice for the ARQ to be precluded from a defence based on the facts, which were erroneously presented by the plaintiff, even though the file is at the stage of an appeal from the notice of assessment. ...