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The two upper units (9092 and 9094, each representing 23% of the triplex), had been rented out by him to third parties until 2007, but he took the position that thereafter they represented personal use property of the taxpayer – although, for 14 months, he rented out one of the units to a friend at his stated cost of $400 per month- and, with the stated objective of improving the salability of the triplex, in 2011 he announced that 9094 was available for rent and leased it shortly before the sale of the triplex. ... Each must not be a distinct and autonomous unit; each must instead complement the other and lose to some extent its separate identity for the benefit of the whole. … [N]o transformation or modification of much significance was made to the Triplex in order for the three units to be linked in some manner to each other. … The units preserved their distinct character…. ...

However, Mobile and the ARQ subsequently signed a protocol reaffirming the points in contention for all the reassessed years – and subsequently to that, the notice of appeal was amended to reference the second notice of reassessment (no. 1386). ... He further stated (at para. 34): [F]rom the receipt of the notice of reassessment, the taxpayer had 90 days to object to it, not in order to contest something new … but to reiterate his contesting of the subject of the notice no. 1144, being the assessment already under appeal. In finding that, in light inter alia of the signed protocol, Mobile should be considered to have objected to the second reassessment (no. 1380), Cameron JCQ stated (at para. 44): The Minister … not only had acknowledged receipt of the written statement of the intention of the taxpayer to object to the assessment in force in 2012, but he agreed with the opposing party and with the Court to bring the debate to an early hearing on its subject matter. ...

Boyle J concluded (at para 40): … I am satisfied that the appropriate contribution from the Respondent to Univar’s legal fees in this appeal is $300,000. ... In recognition of some inherent duplication and inefficiencies …, I am not allowing anything for the other two associates who each had recorded less than 5% of the total time. ... These, in addition to (a), (b) and (e) considerations, all favour a higher award of costs on this costs motion. … ...

Thus, Rule 317, as modified by Rule 350, merely required CRA to produce the documents which were in the hands of the decision-maker when the decision was made – and not to provide other requested documents (e.g., the constating documents of all registered CAAAs at the time of the decision). However, the affidavit of the CRA decision maker stated that “all relevant materials upon which the CRA relied … have been produced” (para. 27). ... At a minimum, it does not foreclose the possibility that irrelevant material of this kind was before the Minister when the decision was made. … [G]iven the grounds of appeal and the purpose of rules 317 and 318, the Minister should be required to produce any material apart from that already disclosed that was before her when the decision was made, with the exception of properly redacted information. ...

Canada, 2020 FCA 90-- summary under Paragraph 149(1)(d.5) Summary Under Tax Topics- Income Tax Act- Section 149- Subsection 149(1)- Paragraph 149(1)(d.5) LPIC was not exempt under s. 149(1)(d.5) because its owner, the Law Society, did not provide municipal-type services The Tax Court found that the appellant (“LPIC”) did not qualify under s. 149(1)(d.5) as being owned as to more than 90% by a “municipal or public body performing a function of government in Canada” because its parent, the Law Society of Upper Canada, although a “public body,” did not satisfy the test of “performing a function of government ”- it performed various functions in the course of regulating the legal profession, but not in the course of governing people located in Ontario. In dismissing LPIC’s appeal, Mactavish JA noted: “If the scope of the phrase ‘public body performing a function of government in Canada’ … were as broad as LawPRO says it is, it would not have been necessary for Parliament to have included the words ‘a municipal or’ in the phrase ‘a municipal or public body performing a function of government in Canada’. “ (para. 52) “The marginal note that accompanies paragraph 149(1)(c) refers to the provision as relating to ‘[m]unicipal authorities’, suggesting that in using the phrase ‘a municipality in Canada, or a municipal or public body performing a function of government in Canada’, Parliament intended to exempt municipalities and ‘municipal-type’ authorities.” ...

In rejecting this submission, Webb JA stated that, under a textual approach (para. 43): … [S]ubparagraph [247(2)(b)(i)] raises the issue of whether the transaction or series of transactions would have been entered into between persons dealing with each other at arm's length (an objective test based on hypothetical persons) not whether the particular taxpayer would have entered into the transaction or series of transactions in issue with an arm's length party (a subjective test). … Furthermore (para. 46): If the Crown's interpretation is correct, then whenever a corporation in Canada wants to carry on business in a foreign country through a foreign subsidiary, the condition in subparagraph 247(2)(b)(i) of the Act would be satisfied. ... In his conclusions, Webb JA stated (at para. 81): …[T]he rules in paragraph 247(2)(b) and (d) … do not allow the Minister to simply reallocate all of the profit of a foreign subsidiary to its Canadian parent company on the basis that the Canadian corporation would not have entered any transactions with its foreign subsidiary if they had been dealing with each other at arm's length. ...

However, it was precluded by statute from going back more than three years with its refund claims – but there was no such time limitation where a repayment of VAT was claimed based on there being “a decrease in consideration for a supply.” Before rejecting the taxpayer’s argument that its change in calculating the consideration for its supplies involved a “decrease in consideration,” so that it could go back more than three years, Lord Legatt stated (at para. 30) that it was “clear that there can be only one correct method of calculating the taxable element of fees charged to customers for playing cash bingo and … this was the session by session method and not the game by game method.” ... In this regard, he stated (at para. 39): I recognise that the fact that a single composite price is charged is not decisive and there may be cases in which it better reflects commercial reality to regard customers who pay a single price as intending to purchase two or more distinct services …. ...

After noting (at para. 38) that “increasing the adjusted cost base of the partnership interest by both the fair market value of the transferred properties and the elected amount gives rise to an absurd result,” Noël CJ stated (at para. 48): The Tax Court judge [found] … that the transfers, including the first, occurred after the partnership had been created. Specifically, the appellant’s partnership interest had already been acquired when the shopping centres were transferred, thereby eliminating any possibility that, in addition to the subsection 97(2) adjustment, the partnership interest could be increased under section 54 by the “cost”, i.e. the fair market value, of the transferred property …. ... As well, the Tax Court judge correctly held that the Act tracks the partnership interest as a whole rather than as individual units in “subdivision C dealing with capital gains and capital losses or in subdivision J dealing with partnerships” …. ...

Canada (Attorney General), 2020 FC 1014, aff'd 2021 FCA 189-- summary under Subsection 141.02(18) Summary Under Tax Topics- Excise Tax Act- Section 141.02- Subsection 141.02(18) Minister's rejection of bank's proposed methodology based on perceived distortions, was reasonable The Minister rejected (under s. 141.02(20)) the request of the registrant (the “Bank”) for approval of an “output method formula” ITC allocation method (“OMF”) on the basis inter alia that “the Bank’s OMF did not result in a reasonable approximation of the inputs it used to provide zero-rated financial services to non-residents of Canada” (para. 33) and, in particular, had three primary concerns: The Bank’s allocation of the Bank’s Treasury group’s interest expense and revenue amounts to the Bank’s three customer-facing operating groups permitted the Bank to recover a portion of the GST costs of those groups even though the operations of those groups were substantially confined to the provision of financial services to making Canadian exempt supplies – and, in particular, that approach violated the “first order supply rule” that “a business cannot recover GST incurred on inputs acquired to make exempt supplies, even when those exempt supplies enable the business to make other taxable supplies.” ... Before finding that the Minister’s decision to reject was reasonable (which relevantly was all that was required), Walker J stated (at para. 107): I have considered the Bank’s … argument that the Minister must approve a proposed methodology if it is fair and reasonable. I do not agree. … I find that subsection 145.01(5) has been superseded by the specific QI regime in section 141.02. ...

In confirming the Tax Court’s dismissal of the taxpayer’s motion to compel answers to these and other questions, Locke JA first indicated (at para. 22) that it was “tempting to … [consider] that documents must be publicly available in order to be relevant to statutory interpretation,” but then also noted (at para. 30) that Upper Churchill [1984] 1 S.C.R. 297) “leave[s] room for cases where extrinsic evidence will not be relevant, but it also limits the issues to which such evidence might be relevant.” ... In this regard, he agreed (at para. 19) with the Tax Court’s view that “that earlier drafts of a final position paper do not have to be disclosed, and … that even where relevance is established, the Court has a residual discretion to refuse document production.” ... That document is hence similar to the “earlier drafts of a final position paper” which do not have to be disclosed …. ...