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6 October 2022- 10:53pm Choptiany – Tax Court of Canada allows the taxpayers’ appeal from (likely- correct) assessments on the basis that they had been repeatedly stonewalled on discovery Email this Content The three taxpayers had appealed the imposition of gross negligence penalties based on what Boyle J characterized as “nonsensical misstatements” regarding them “claiming to be agent for themselves.” ... I find this to have been intentional and deliberate, and that it was undertaken to frustrate these Appellants’ rights to pre-trial discovery on the subject of CRA’s investigation involving them relevant to their appeals. … The Respondent’s egregious history of defaults and non-compliance in these appeals, that there is no alternative available that could reasonably be expected to cause the Respondent to now comply, and that this has caused prejudice to the Appellants, are reason enough to allow these appeals. ...

11 December 2022- 10:44pm Gestion Roy – Tax Court of Canada finds that a company’s payment of the premiums on whole life policies of which it was the beneficiary but not owner triggered ss. 15(1) and 246(1) benefits Email this Content Various whole life policies on the life of a resident individual (Mr. ... Smith J confirmed CRA’s inclusions in Gestion Roy’s income under s. 15(1) of the annual premium amounts paid on Gestion Roy’s policies given that it was the owner of such policies (entitling it to the cash surrender value of the policies at any time), so that it was “enriched” when the premiums were paid by R3D – and indicated that it was irrelevant to this point that, in fact, Gestion Roy never received any distribution on its policies. ...

16 April 2023- 11:05pm Emergis – Federal Court of Appeal respects the separate entity concept in according a s. 20(12) deduction regarding a tower structure Email this Content Emergis financed a U.S. acquisition through a tower structure under which: it made an interest-bearing loan to a subsidiary Canadian partnership (“USGP”); USGP funded such interest payments out of dividends received from a wholly-owned Nova Scotia ULC (“NSULC”); NSULC, in turn, received dividends out of the exempt surplus of a wholly-owned LLC; and the LLC received s. 95(2)(a)-recharacterized interest on the acquisition-financing loan made to the successor by amalgamation to the U.S. acquisitionco of Emergis. ... In reversing the finding below that Emergis could not deduct such tax pursuant to s. 20(12) because such tax could (in accordance with the exception at the end of s. 20(12)) “reasonably be regarded as having been paid by a corporation [Emergis] in respect of income from a share … of a foreign affiliate [the LLC],” Webb JA and Goyette JA indicated: The text of s. 20(12) was” insufficient to displace the general rule that the assets and income of a corporation are not the assets and income of its shareholders”, i.e., s. 20(12) did not provide “that NSULC’s income from its LLC shares should be treated as the income of Emergis, and hence as the income on which Emergis paid the taxes to the US Government”. ...

14 June 2023- 11:28pm Bowker – Federal Court of Appeal states that the DoJ cannot settle a tax case on a basis fundamentally at odds with its view of the facts and law Email this Content The taxpayer had a s. 163(2) penalty vacated in the Tax Court on the basis that her involvement in the false amended return filed by her was completely passive. ... Bowker, 2023 FCA 133 under s. 162(7)(b), s. 220(3.1), Statutory interpretation- noscitur a sociis, General concepts – judicial comity and Rule 147(3)(d). ...

25 September 2023- 11:47pm Fiera – Tax Court of Canada confirms that no particular form of supplier documentation is required for ITC purposes Email this Content Two bakery plants of Fiera were staffed in significant part by temporary workers (“TWs”), who were sourced from third parties (the “Agencies”), which solicited for the TWs and directed them to Fiera and used part of the payments from Fiera on their invoices to pay the TWs in cash without taking or remitting source deductions. ... The King, 2023 TCC 140 under ETA s. 169(1) and Input Tax Credit Information (GST/HST) Regulations, s. 2 – supporting documentation. ...

18 March 2024- 11:31pm 1351231 Ontario – Tax Court of Canada finds that an Airbnb rental property is similar to a motel, lodging house etc. so that, with its short-term rentals, it cannot qualify as a residential complex Email this Content The Appellant used a condo unit for the first nine years after purchase for long-term residential rentals and then listed it on Airbnb and rented it out for succession of short-term rentals (under 60 days and sometimes for only one night) before its sale. ... The King, 2024 TCC 37 under ETA s. 123(1) – residential complex, and s. 206(2). ...

14 April 2024- 10:13pm Lark Investments – Crown’s vague pleading that GAAR applied to convert a CCPC to non-CCPC was struck, but with leave to amend Email this Content A week before realizing a $119 million capital gain, the taxpayer, which until then was wholly-owned by a Canadian-resident individual, issued voting preference shares to his non-resident children (who thereby acquired de jure control), but not to a resident son. ... St-Hilaire J found that the relevant part of the Reply “may prejudice the fair hearing of the appeal and is an abuse of process” and should be struck – but with leave to the Crown to amend its pleadings. ...

30 April 2024- 11:34pm Marine Atlantic – Tax Court substantially increases a cost award to the taxpayer to punish for “improper” and “offensive” conduct of Crown counsel Email this Content The Appellant had complete success at trial regarding the ITC methodology it used for its ferry operation. ... The Crown did not agree to be bound by those findings until the eve of trial – and this delay in following BC Ferries caused the Appellant to incur substantial costs. ...

6 May 2024- 11:19pm TD – Tax Court of Canada finds that Aeroplan Miles are not gift certificates for GST/HST purposes because their attributes are not similar to money Email this Content An affinity program agreement with Aeroplan allowed TD to add Aeroplan Miles rewards to its credit cards. ... The King, 2024 TCC 50 under ETA s. 123(1) – supply, s. 181.2 and s. 306.1(1). ...

3 June 2024- 11:09pm Entrepôt Frigorifique – Tax Court of Canada finds no obligation of a registrant claiming ITCs to perform supplementary due diligence on its suppliers Email this Content The appellant (Frigo) was assessed beyond the normal four-year ETA assessment period to deny input tax credits (ITCs) for GST charged to it by placement agencies though which Frigo had been supplied with temporary workers. ... In rejecting this position, Boyle J stated: I cannot interpret the ETA and the Regulations as imposing an undeclared obligation on every Canadian business purchasing commercial supplies to exercise additional due diligence with respect to each of its duly registered suppliers, which would include, as claims the respondent in this case, the examination of the physical establishment of the new supplier, its agreements with its personnel, its intention to use subcontractors to carry out the supply, and more — all without even being able to know if the duly registered and verified supplier is in arrears in the payment of GST collected, employee withholding taxes or provincial sales tax, or is otherwise not complying with its tax obligations. ...