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13 March 2017- 12:30am OPTrust – Ontario Superior Court finds that Ontario LTT applied to contingent deferred purchase price which, in fact, never became payable Email this Content The Ontario Land Transfer Tax Act definition of “value of the consideration” includes not only the “the amount expressed in money of any consideration given or to be given for the conveyance” but also “the value expressed in money of any liability assumed or undertaken by the transferee” and of “any benefit of whatsoever kind conferred by the transferee on any person as part of the arrangement relating to the conveyance.” ... In rejecting this claim, Gans J quoted with approval a statement of the Federal Court of Appeal in Daishowa-Marubeni that: … if the parties to an agreement attribute a value to a future liability, then the Minister is entitled to add this amount to the vendor's proceeds of disposition- whether or not the liability assumed by the purchaser is contingent or absolute. ...

8 August 2017- 12:48am Mark Anthony – Tax Court of Canada chooses the significantly, rather than hugely, absurd interpretation permitted by the text of an excise exemption Email this Content Mark Anthony’s Canadian production of alcoholic beverages included cider which was fermented from Canadian apples but had some concentrate from non-Canadian apples that had been added after fermentation. ... Graham J found that the text of the quoted test required that, at the time of testing, all the ingredients in the cider or other wine must be agricultural or plant product grown in Canada – so that if the time of testing is the packaging, the previous addition of even economically-trivial additives-such as preservatives, colouring, carbonation or water- which were not plant products, would scupper the exemption. ...

19 October 2017- 1:00am 9199-3899 Québec – Quebec Court of Appeal finds that using the investment allowance to generate a capital tax savings abused its purpose of merely avoiding double taxation Email this Content In order to reduce Quebec capital tax, a Quebec company lent $350M on a non-interest-bearing basis to its parent on January 27, 2005, and claimed this amount as an investment allowance in computing its capital tax liability at its January 31, 2005 year end. ... This sounds like the MLI, Art. 6 statement that Treaties are intended “to eliminate double taxation … without creating opportunities for non-taxation.” ...

25 October 2017- 12:17am Hutchinson – English Court of Appeal finds that the UK Revenue could change its published policy respecting taxpayers whose only reliance had been to claim unlooked-for losses Email this Content HMRC initially published guidance respecting a recent Court of Appeal decision which suggested to the taxpayer that transactions which he had already reported in his returns had generated additional (unlooked for) losses. ... In allowing HMRC’s appeal, Arden LJ stated: [T]he respondent has to show conspicuous unfairness. … I consider that this is not shown…. ...

5 November 2017- 11:41pm Boettger – Quebec Court of Appeal confirms that a trust with an Alberta trustee, who was a mere “implementer” of the Quebec settlor’s wishes, was resident in Quebec Email this Content An Alberta trust was found by the Court of Quebec below to be resident in Quebec. ... However, this was not important: If the Judge decided that the residence of the trust was in Quebec, this was not by reason of the underlying tax motivation for its establishment, but because the established facts demonstrated that the control of its actual activities and that the management of its affairs rested practically (in reality) in the hands of its settlor, and not in those of the trustee who, in fact, acted only as the implementer ["exécutant"]. … The tax motivation is a fact. ...

6 December 2017- 11:09pm Filiatrault – Tax Court of Canada finds that there is a due diligence defence to the imposition of interest under the ETA Email this Content Smith J found that an individual, who received a permit from the Quebec Order of Psychologists which had the effect of permitting him to practise psychotherapy, was also practising psychology in light of a statement in the Professional Code of Quebec that “psychotherapy is psychological treatment.” ... II, s. 1 – “practitioner,” s. 280(1). ...

12 December 2017- 12:14am The Rulings Directorate has a services standard of providing an ATR within about 4 ¼ months, excluding delays for taxpayer information Email this Content Some points made by Costa Dimitrakopoulos (the new Director General) and Lori Carruthers on the Directorate's ATR service include: The Directorate’s services standard is for 85% of Advance Tax Ruling requests to be resolved within 90 business days of receipt of all essential information (or, it would appear from other remarks, within 90 business days of receipt of the request, but excluding the days that the ball is in the representative’s court to provide missing information). The Directorate met its service standard in 2015-16 (at 87%), but fell short this last year (at 78%). (90 business days equates to about 4 ¼ months.) ...

. – Federal Court finds that CRA failed to consider whether late T1135s were filed “voluntarily” for earlier years notwithstanding subsequent years being under review Email this Content A taxpayer had a history of filing its T2 returns late and had been subject to various CRA demands to file them. ... However, he was unwilling to make the same inference with respect to the earlier years, and there was no evidence that CRA had thought adequately about the proposition that it was perhaps unlikely that in assessing the later returns it would not have focussed on the absence of T1135s for the earlier years – and, in fact, the CRA officer appeared to not realize that those earlier years had already been assessed or, at any rate, was indifferent to that fact. ...

25 April 2018- 11:59pm Van Steenis – Tax Court of Canada finds that “return of capital” distributions by a mutual fund reduced the unitholder’s deductible interest Email this Content Graham J agreed with CRA’s position (in e.g., 2003-000082) that returns of capital received by a unitholder in a REIT or other mutual fund trust give rise to a change in the current use of the funds under the still-outstanding loan of the unitholder that had funded the units’ purchase. ... Graham J considered that it truly accorded with the scheme of the Act to characterize trust distributions in excess of the s. 104(13) income distributions as being returns of the unitholder’s capital, stating: Subparagraph 53(2)(h)(i.1) reduces the unitholder’s adjusted cost base in the fund by the amount of capital distributed to him or her. … The fact that distributions of capital are not treated as income until they exceed the amount of a unitholder’s investment clearly indicates that Parliament viewed distributions of capital as being returns of the unitholder’s own investment. ...

12 June 2018- 1:18am Wolf – Tax Court of Canada finds that revenues earned by an individual through an LLC could be included in determining what were his business revenues for services-PE purposes Email this Content A U.S. engineer provided services to Bombardier in Canada over a 188-day period (straddling the 2011 and 2012 years). ... His reasoning appears to be that the LLC’s revenues (from U.S. manufacturing and licensing of a patent generated by the taxpayer) all arose from the same expertise and design work of the taxpayer respecting aircraft fuel lines as were also being exploited in the 2011/12 work for Bombardier – and that the LLC was merely a passive vehicle for divvying up the profits generated from this enterprise engaged in by the taxpayer in conjunction with a third party. ...