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21 December 2021- 11:59pm Wenikajtys Estate – Tax Court of Canada notes that the 36-month GRE rule is anomalous where the estate was precluded from receiving pension income within the 36 months Email this Content The estate of an individual who died in January 2014 was entitled to receive a lump sum from a municipal pension plan. ... The Queen, 2021 CCI 93 under s. 248(1)- graduated rate estate – (a). ...

. – Federal Court of Appeal finds that it lacked jurisdiction to hear an appeal of a Tax Court determination denying access to a non-lawyer Email this Content A corporation in the business of assisting individuals with claims for disability tax credits (DTCs) appealed a Tax Court decision finding that it (through one of its non-lawyer employees) could not be recognized as the representative of individuals in their Tax Court appeal of the CRA denial of their DTCs. ... Canada, 2022 FCA 17 under Federal Courts Act, s. 2(1) – “final judgment”. ...

10 February 2022- 10:53pm Osborne – Federal Court sets aside a CRA decision to not extend a s. 216 return filing deadline, because CRA did not address the taxpayers’ arguments Email this Content Two residents of Bermuda owning a Canadian rental property filed their s. 216 returns nine days after the filing deadline (which was six months after the taxation year end as a result of their having given undertakings under s. 216(4).) ... It may well be the case … that the error in the tax remittances was not made by the CRA or alternatively …that the Applicants could have filed the NR Returns before the filing deadline. ...

27 February 2022- 10:44pm CRA rules on pipeline using a joint Newco of children and estate – and notes that the replacement of an executor resulted in an acquisition of control of subsidiaries Email this Content CRA provided favourable rulings on a post-mortem pipeline transaction, but with the transactions complicated somewhat by the deceased and his surviving spouse having owned shares both of a portfolio company (Investco) and of a real estate subsidiary (Holdco) of Investco – but with the deceased’s shares of Holdco not having an accrued gain on his death. ...

3 March 2022- 11:53pm Iris Technologies – Federal Court of Appeal finds that a Federal Court action to compel CRA to pay a net tax refund was obliterated when CRA then assessed Email this Content Iris appealed a Federal Court order, dismissing its request for mandamus to compel the release of $21.85 million in GST/HST tax refunds pending the conclusion of an on-going audit and assessment. ... In going on to find that Iris’ appeal, in the light of this affidavit, should now be dismissed as moot, he stated: The assessments are determinative of Iris’ net tax liability until the Minister makes a reassessment or the assessment is vacated by the Tax Court …. ...

6 March 2022- 11:17pm Daville Transport – Tax Court of Canada finds that a settlement offer not made on a principled basis should be ignored for cost award purposes Email this Content The taxpayer submitted that it was entitled to “substantial indemnity costs” from the Crown per Rule 147(3.1) (i.e., perhaps 80% of its actual legal costs, as adjusted) on the basis that it had achieved greater success in its tax appeal than reflected in a settlement offer it had made. However, Russell J characterized that offer as an “arbitrary settlement offer,” i.e., as “a ‘let’s split it down the middle’ settlement offer” that thus violated the principle “that the Minister … can only assess tax consistent with his/her view of the underlying facts and law.” ...

13 March 2022- 11:34pm Mingle – Tax Court of Canada indicates that a de facto executor is a legal representative Email this Content Wong J rejected the taxpayer’s submissions that he had renounced his executorship shortly after being appointed and that his subsequent acts in jointly (with his brother) transferring estate property to his daughter were performed qua a trustee de son tort and not as an executor – so that he should not have been assessed under s. 159(3) for unpaid estate taxes given their failure to obtain a clearance certificate. ...

29 March 2022- 10:41pm PwC – Federal Court of Australia finds that privilege applied to communications made or received by a multi-disciplinary partnership for the “dominant purpose” of legal advice Email this Content PwC Australia was a multi-disciplinary partnership. ... Summary of Commissioner of Taxation v PricewaterhouseCoopers, [2022] FCA 278 under s. 232(1) – solicitor-client privilege. ...

17 April 2022- 9:44pm Carter – High Court of Australia finds that trust beneficiaries were taxable on income to which they were entitled at year end notwithstanding their subsequent disclaimer Email this Content The Australian tax legislation, as judicially interpreted, required (somewhat similarly to ITA s. 104(24)) the inclusion in a beneficiary’s income of the beneficiary’s share of the trust’s income for a year if, at the end of the trust year, the beneficiary’s interest in the trust income was both vested in interest and in possession, and the beneficiary had a present legal right to demand and receive payment of the income. The High Court of Australia found that this test was met where, under the terms of the trust, the trust beneficiaries (the children of the settlor) were entitled at the end of the trust’s income year to receive pro rata portions of the trust’s income for that year – even though, subsequently to that year end, they disclaimed all right, title and interest to that income. ...

5 May 2022- 9:30pm Enterprise Rent-A-Car – Ontario Court of Appeal finds that amounts labelled on invoices as “HST” should be treated as having been collected as HST, not RST Email this Content Although both the taxpayer (Enterprise) and the Ontario Minister of Finance agreed that Enterprise (which had been collecting amounts labelled on its invoices for sales of its insurance products as “HST” and remitting those amounts to CRA) should have been collecting RST and not HST on those sales, they also was agreed that the Minister’s assessments of Enterprise could only be sustained under s. 18 of the RSTA, which permits assessments of the “tax collected”. ... Ontario (Finance), 2022 ONCA 327 under ETA s. 225(1) – A(a). ...