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29 June 2022- 11:31pm Grewal – Federal Court of Appeal confirms that a voluntary disclosure which included loans did not stop CRA from later applying s. 163(2) for failure to include them in income Email this Content A voluntary disclosure included a description of various loans, but did not volunteer that they gave rise to taxable benefits. ... The appellant’s submissions, if accepted, would restrict the Minister’s ability to assess penalties in these circumstances. … Neal Armstrong. ...

10 July 2022- 11:05pm Carvest Properties – Federal Court of Appeal confirms that the relevant valuation unit in an apartment building for ETA s. 191(1) self-assessment purposes was each rental unit Email this Content The company (“Carvest”) constructed a 137-unit building in London, Ontario, for purposes of renting the units. ... [C]onsistent with Nash … the first step is to identify the property to be valued [i.e., each “condo” unit]. ...

11 July 2022- 11:17pm Soulliere – Federal Court of Appeal finds that an incorporating director’s resignation was invalidated because he was not replaced Email this Content The taxpayer was named as the sole incorporating director of an Ontario corporation, and a few weeks later he submitted a written resignation as director without any replacement director having been appointed, as required by s. 119(2) of the OBCA, so that such resignation was invalid. ... In rejecting this submission, Gleason JA stated, inter alia: On its plain meaning, a deeming provision does not constitute an “election” or “appointment” …. ...

17 July 2022- 10:45pm Hunt – Tax Court of Canada finds that the advantage tax is a tax, not a penalty Email this Content S. 207.05 imposes the 100% advantage tax on the controlling individual of a registered plan, and s. 207.06 authorizes the Minister to waive such tax having regard to listed criteria. ... However, he went on to find that the provisions did not impose a penalty given inter alia that the “tax” was labelled as such and given that although “a tax may have characteristics so clearly coercive and disproportionate that one concludes it is a penalty … this case does not meet that standard.” ...

26 July 2022- 11:52pm Iris Technologies – Federal Court of Appeal finds that seeking review of an improper exercise of CRA discretion in assessing represented a futile collateral attack on those assessments Email this Content Rennie JA struck out a Federal Court application of Iris Technologies Inc., which sought a declaration that Iris was denied procedural fairness in the audit and assessment process, that the resulting assessments were made without an evidentiary foundation and that they were issued for the improper purpose of depriving the Federal Court of jurisdiction to hear its administrative law grievances. ... Issuing a declaration that does not quash or vacate the assessments would serve little or no purpose … Neal Armstrong. ...

8 August 2022- 11:49pm Chan – Tax Court of Canada finds that there is a due diligence defence under s. 162(7) where the taxpayer reasonably believed that he was not the foreign property’s beneficial owner Email this Content The taxpayer was assessed a penalty under s. 162(7)(a) for failure to file T1135 forms regarding a bank account with the Bank of China (BofC), which he had assisted his father (Joseph) to open up in his name, as well as a gross negligence penalty under s. 162(10)(a). ... Accordingly, even in the case of the lower threshold for a penalty under s. 162(7)(a), “the defence of due diligence has been established – that is, the appellant reasonably believed in a mistaken set of facts that if true would have made his act or omission to act innocent.” ...

1 September 2022- 11:27pm Ristorante a Mano – Federal Court of Appeal finds that net tips on restaurant credit card sales distributed to the servers were pensionable wages and insurable earnings for CPP/EI purposes Email this Content The appellant, which operated a restaurant, paid “due-backs” to its servers representing the tips on sales processed on credit and debit cards (“electronic tips”) minus deductions made by it as a processing charge and amounts to be paid to kitchen staff, and further deductions based on the amount of cash sales collected by the servers. ... Canada (National Revenue), 2022 FCA 151 under General Concepts – Payment and Receipt and s. 6(1)(a). ...

23 October 2022- 10:30pm CAE – Federal Court of Appeal confirms that an unconditionally repayable loan with below-market yield was government assistance Email this Content CAE, which was engaged in manufacturing flight simulator systems, incurred over $700 million in R&D expenditures on further developing such systems, as to which it received “contributions” over a five-year period of $250 million from Industry Canada. ... Canada, 2022 CAF 178 under s. 127(9) – government assistance. ...

6 December 2022- 11:06pm Carasco – Federal Court indicates that CRA relief under s. 152(4.2) must accord with the applicable substantive provisions Email this Content A taxpayer sought the deduction, in a relief application made pursuant to s. 152(4.2), of $195,000 in legal expense incurred by her in otherwise statute-barred years in connection with a human-rights action. ... Where the facts and the law demonstrate liability for tax, the Minister must issue an assessment” (JP Morgan …). ...

22 January 2023- 10:57pm Gagné Estate – Federal Court of Appeal rejects arguments that a defective appointment of the taxpayer as a director meant that he was not liable for corporate remittance failures Email this Content The deceased (Gagné) was assessed less than two years after the registry under the Act respecting the Legal Publicity of Enterprises (Quebec) (the “ALPE”) showed him as ceasing to be the director of his majority-owned corporation. A few days before the hearing of the appeal by his estate, its notice of appeal was amended to allege inter alia that Gagné had never been a director (given that the proper corporate procedures had not been followed for his appointment, including his consenting to such appointment. and there being an absence of any resolution appointing him) – an argument never made by Gagné. ...