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1 October 2020- 11:35pm McNeeley – Tax Court of Canada finds that a substantial distribution from an EBP to the founding shareholder was made to him qua employee, and was taxable Email this Content A distribution to an employee under an employee benefit trust (EBP) is taxable under s. 6(1)(g) rather than being subject to the usual trust distribution rules in s. 107. ... The Queen, 2020 TCC 90 under s. 248(1) – EBP and Reg. 4800.1. ...

8 October 2020- 11:46pm 2078970 Ontario – Federal Court of Appeal indicates that an s. 152(1.4) determination’s validity awaits a factual Tax Court determination of the partnership’s existence Email this Content CRA determined that two limited partnerships did not exist because their partners were not carrying on business in common with a view to profit, and issued notices of determination to the partnerships under s. 152(1.4) determining that losses reported by the purported partnerships for the three years commencing in 2006 were, for this reason, nil. The following question was posed under Rule 58: Where the Minister has at all times concluded that no partnership existed, can the Minister issue a valid Notice of Determination in respect of that purported partnership under subsection 152(1.4) …. ...

12 November 2020- 10:49pm 3295036 Canada – Quebec Court of Appeal finds that the use, in sales years later, of ACB that was stepped up in a “Quebec shuffle,” occurred as part of the same series Email this Content In October 1996, a Quebec-taxpayer company (“329”) acquired public company shares from its parent, on two separate days, in “Quebec shuffle” transactions. ... In this regard, the Court of Appeal stated: [T]he transactions at issue … were not known at the time the tax planning was implemented, but were undoubtedly the type of transactions contemplated in order to benefit from the tax advantage resulting from the "Quebec shuffle". ...

22 November 2020- 11:02pm Keybrand Foods – Federal Court of Appeal finds that a transaction with a financially subordinate company was a non-arm’s length transaction Email this Content The taxpayer (“Keybrand”) and its wholly-owning parent (“BWS”) were guarantors of loans made to a start-up company (“Vidabode”) by GE Capital. ... Webb JA confirmed that Keybrand did not generate an allowable business investment loss on its subsequent disposition (under s. 50(1)(b)(iii)) of its shares of Vidabode, on the basis that the share subscription transaction was one between persons not dealing at arm’s length – so that s. 69(1)(a) deemed the cost of those shares to Keybrand to be their nil fair market value. ...

20 December 2020- 10:47pm 3412229 Canada – Federal Court confirms various exemptions from Access to Information claimed by CRA Email this Content The applicants, who were awarded damages in Ludmer regarding CRA’s conduct of its audit of their investments in an off-shore company and who had been denied full access to 8,041 out of 38,090 pages of documents that had been identified as covered by their requests under s. 6 of the Access to Information Act (“ATIA”), sought judicial review under s. 41 of the ATIA of CRA’s decision to exempt various of such documents from disclosure. ... The prohibition in ATIA s. 16(1)(b) of disclosure of “information relating to investigative techniques or plans for specific lawful investigations” applied to preclude disclosure of “audit techniques used by the CRA to identify or guide its auditors in applying s. 94.1 … or a risk assessment tool used to evaluate and manage the risks of an ongoing audit.” ...

28 December 2020- 11:04pm Dow Chemical – Tax Court of Canada finds that it has jurisdiction to review whether a CRA denial of a downward s. 247(10) adjustment was “correct in fact and law” Email this Content In reassessing the taxpayer under s. 247(2), the Minister did not allow a requested “downward” adjustment under s. 247(10) (to increase the interest expense on a loan from a Swiss affiliate by $3.26 million) because of a limitation period in the Canada-Switzerland Tax Treaty. ... Monaghan J stated: … The Tax Court will address all challenges to the correctness of the assessment made after the transfer pricing provisions have been applied, including whether the conditions for their application are met, the amount of any adjustments, the liability for penalties and whether the Minister exercised her discretion properly. ...

19 April 2021- 10:58pm Tiessen Interior Design – Tax Court of Canada applies s. 256(2.1) to prevent a professional firm from multiplying the small business deduction Email this Content An incorporated firm of architects and interior designers restructured. ... Most of the reasons advanced by the Appellants for reorganizing were not convincing as main reasons. … They constitute benefits that the Principals enjoyed, to varying degrees, as a result of the Reorganization, but I have no doubt reduction of taxes was one of the main reasons for it. ...

2 May 2021- 11:11pm Zeifmans LLP – Federal Court finds that an RFI issued to an accounting firm re named clients could extend to unnamed offshore entities if the latter were not being audited Email this Content An accounting firm (Zeifmans) unsuccessfully argued that the Minister should have sought prior judicial authorization under s. 231.2(3) of a requirement to provide information (RFI) issued in the course of a CRA audit of three related resident individuals (the “Named Persons”) who were Zeifman clients. ... The information is required to verify the compliance of the taxpayer being audited and no application for judicial authorization is required …. ...

1 June 2021- 1:15am Carvest Properties – Tax Court of Canada finds that condo registration of a rental apartment building meant that the rental units were HST self-supplied based on comparable condo sales Email this Content In order to reduce its municipal tax bill, a company in the business of renting self-constructed apartment buildings, registered each of the 137 units in a 12-storey apartment building in London, Ontario (that was ready for occupancy at the end of 2008) as condominium units, even though it rented the units out, rather than making condo unit sales. ... The Queen, 2021 TCC 21 under ETA s. 191(1) and General Concepts – Estoppel. ...

23 July 2021- 12:19am Athletes 4 Athletes – Federal Court of Appeal finds that the required nationwide objective for a Canadian amateur athletic association could be met out of a local office funding athletes directly Email this Content The Minister rejected the application of the appellant (“A4A”) for registration as a registered Canadian amateur athletic association (CAAA) on the basis that (1) A4A was not intending to promote amateur athletics in Canada directly, but instead was intending to financially support athletes who could not otherwise afford to train and pay for their daily living expenses, and (2) A4A was intending to have, at least initially, a presence only in Vancouver and lacked the budget to operate programs on a national level, so that it would not satisfy the test (in para. ... Canada (National Revenue) 2021 FCA 145 under s. 149.1(1) – CAAA- (d) and s. 149.1(22). ...