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30 January 2023- 11:00pm D'Auteuil – Tax Court of Canada finds that poker, which the taxpayer successfully engaged in on a full-time basis using skill and risk-minimization techniques, was a source of income Email this Content The taxpayer was assessed for unreported net earnings from his activities as an online poker player participating in games of the type “Texas Hold’em without limit” for his 2008 to 2011 taxation years (including net earnings of $1.4 million and $1.9 million for 2010 and 2011), and also was allowed the deduction of a net loss for 2012. ... The King, 2023 CCI 3 under s. 3(a) – business source. ...

4 April 2023- 11:08pm 3792391 Canada – Tax Court of Canada confirms that s. “215(6) is devoid of any requirement that the payer have knowledge that the payee is a non-resident” Email this Content The taxpayer was assessed under s. 215(6) for failure to withhold and remit Part XIII tax on rents paid by it in its 2011 to 2016 taxation years to its ultimate lessor, Ms. ... Regarding the penalty imposed under s. 227(8), she agreed that a due diligence defence was available, but stated: The Appellant has not proven that it has exercised reasonable care to ensure compliance with its obligations. … Counsel submitted that the Appellant was justified in not taking steps to ensure compliance because it had no reason to believe that Sebastiana Trimarchi was a non-resident. ...

13 April 2023- 10:50pm Davis Dentistry – Federal Court of Appeal finds that the single-supply doctrine should not be applied to orthodontic supplies Email this Content Davis Dentistry had claimed input tax credits (ITCs) on the basis that a portion of its supplies to each orthodontic patient was of a zero-rated supply of the orthodontic appliance, and that only the balance of what was supplied was an exempt healthcare service, whereas CRA had disallowed its ITC claims on the basis that under the single-supply doctrine, as enunciated in O.A. ... Indicators of such intent included: In the case of a supply of orthodontic appliances and orthodontic services, which are typically supplied together, the fact that one has zero-rated status and the other has exempt status strongly suggests that this was intentional and that a supply of an orthodontic appliance is intended to be zero-rated even when accompanied by orthodontic services. … It is highly unlikely that Parliament would explicitly provide that any supply of an orthodontic appliance is zero-rated if the intention is that the supply is restricted to the wholesale level. ...

15 May 2023- 11:39pm Simonetta – Tax Court of Canada finds that the need for builder-required particulars for the HST new housing rebate fell away if obtaining them was not feasible Email this Content Ms. ... Sommerfeldt J found on the evidence (even though the vendors were not parties to the case) that the vendors had never occupied the home as a residence and had sold the home as an adventure in the nature of trade – so that they were builders, and the sale was subject to HST. ...

4 June 2023- 10:45pm Garg Investments – Tax Court of Canada finds that the recipients of a supply were the agents named in the purchase agreement, not the beneficial purchaser Email this Content A claimant of the new residential rental property rebate (NRRPR) is required under ETA s. 256.2(3)(a) to be the “recipient” of the supply of the property meaning, generally, that it is liable for the consideration for the supply under the purchase agreement. ... McPhee J noted that Cheema (dealing with the new housing rebate under s. 254) made a similar finding, and stated: Similar to section 254, subsection 256.2(3)(a) does not distinguish between beneficial and legal ownership, so it is of no consequence that the three related individuals acquired the Subject Properties as bare trustees of the Appellant. … Similar to the Cheema decision, it is the relationship between the purchaser and the seller that is relevant to the entitlement to the NRRPR rebate, not the relationship between the co-purchasers. ...

5 June 2023- 11:13pm University of New Brunswick – Tax Court of Canada finds that a post-doctoral fellow was not an employee of the University Email this Content Bocock J indicated that whether annual awards made to a post-doctoral fellow (PDF) of the University were employee remuneration for CPP and EI purposes turned on a determination of their “dominant purpose,” namely, “whether on balance the payments were made on account of monetary assistance to enhance the PDF’s education and research skills or paid as income in consideration of various services provided by the PDF to the University.” Bocock J concluded that the “annual award was paid with the dominant characteristic of furtherance of the education and learning of … the PDF,” so that the PDF was not an employee. ...

25 July 2023- 11:19pm Zeifmans – Federal Court, in not granting an information disclosure order under s. 231.7, effectively reversed an earlier decision where the Court had been misled Email this Content Zeifmans, 2021 FC 363, aff’d 2022 FCA 160 concerned the application of the Zeifmans accounting firm for judicial review of a CRA issuance of a requirement letter pursuant to s. 231.2(1) respecting three named individual clients of the firm and all “entities owned, operated, controlled or otherwise connected to [such] individuals” (the “Unnamed Persons.”) The submission of Zeifmans- that judicial authorization should have been obtained pursuant to s. 231.2(3) given that the requirement extended to the Unnamed Persons – was rejected essentially because there was “no evidence in the record that the Unnamed Persons [we]re a current investigation target.” ...

1 August 2023- 11:33pm Canafric – Tax Court of Canada finds that developing new pie recipes was SR&ED Email this Content Canafric specialized in developing frozen pies for grocery chains and restaurants. ... Canafric averaged around six projects a year in which it would elaborate a recipe designed to meet such requirements, test the recipe and send the sample product to a “taste panel” – and evaluate the reasons for any failure. ...

2 August 2023- 11:19pm Fransen – Tax Court of Canada finds that failure to review a return in the presence of red flags was wilful blindness, not just gross negligence Email this Content The taxpayer, an employed construction engineer, claimed a fictitious net business loss of $333,418 for his 2009 taxation year with the assistance of Financial Arbitrators and DSC Lifestyles (“DSC”), thereby purportedly generating a full refund of that year’s source deductions and further refunds from carrybacks to his three previous years. ... This amounts to wilful blindness …. She briefly found in the alternative that he had been grossly negligent. ...

21 August 2023- 11:11pm Gaudreau – Tax Court of Canada requires the production by a vendor of the tax-planning memo of the purchaser’s accountant Email this Content The taxpayer was assessed under s. 84(2) regarding his sale of his interest in an insurance company that was structured as a hybrid sale transaction. ... The King, 2023 CCI 115 under Rule 82(1) and General Concepts – Solicitor-client privilege. ...