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29 November 2021- 11:23pm CRA determined that a Singapore corporation was a resident there for Treaty purposes – even though it was subject to tax on a territorial basis- provided its CMC was there Email this Content Generally, a person must be “liable to tax” in a contracting state to be a resident there for treaty purposes. ... Summary of 25 November 2021 CTF Roundtable, Q.4 under Treaties – Income Tax Conventions – Art. 4. ...

24 March 2022- 11:07pm NCL Investments – UK Supreme Court recognizes that employee stock option expenses were as a general matter sustained on income account Email this Content The taxpayers, which were required by the UK Corporation Tax Act 2009 to calculate the “profits of [their] trade … in accordance with generally accepted accounting practice”, were found by the Court to be thereby authorized to deduct the expenses (“Debits”) recognized under IFRS when they granted stock options to employees through an employee benefit trust. In finding that this deduction was not precluded by s. 53 of the same Act, which provided that “[i]n calculating the profits of a trade, no deduction is allowed for items of a capital nature,” Lord Hamblen and Lady Rose accepted the findings below that the taxpayers’ “employees operate in a professional services business whose success depends on the availability of skilled and motivated professionals and the grant of share options to those employees is part of their remuneration package” and that the “Debits were … recurring costs that had a connection with the Appellants’ earning of income ….” ... Summary of Revenue and Customs v NCL Investments Ltd & Anor [2022] UKSC 9 under s. 18(1)(b) – Capital expenditure v. expense- contract modification or grant. ...

11 November 2021- 12:07am Addy – High Court of Australia finds that imposing higher tax on Australian residents who were visa holders than on those who were not, violated a Treaty non-discrimination Article Email this Content The taxpayer, who was a British citizen aged 23, came to Australia on a “working visa” for a 20-month stint, during which period she qualified as an Australian resident. ... Here, that is visa status, a characteristic which depends on nationality – a person not being an Australian national – the very attribute protected by Art 25(1). ... Summary of Addy v Commissioner of Taxation [2021] HCA 34 under Treaties – Income Tax Conventions – Art. 25. ...

4 May 2021- 11:09pm Blue Bridge – Federal Court of Appeal finds that CRA was not responsible for analyzing whether information requested by France could be used contrary to the French Treaty Email this Content Art. 26(1) of the Canada-France Convention provides for exchanges of “such information as is foreseeably relevant … to the administration or enforcement of the domestic laws concerning taxes of every kind … imposed on behalf of the Contracting States, insofar as the taxation thereunder is not contrary to the Convention.” ... She stated: The judge rightly concluded that a requirement for thorough research and analysis of the facts and the law of the requesting State would impede the proper and effective operation of the Convention’s provisions …. ... Canada (National Revenue), 2021 CAF 62 under Treaties – Income Tax Conventions – Art. 27. ...

5 February 2024- 10:58pm Serres Toundra – Court of Quebec finds that a greenhouse operation is farming, not manufacturing or processing Email this Content The Quebec manufacturing and processing credits claimed by Serres Toundra in connection with equipment acquired for use by it in its greenhouse cucumber-growing operation turned on whether such equipment was Class 29 property. ... In finding that the greenhouse operation was farming, so that the exclusion applied, Vaillant JCQ stated: Greenhouse cucumber growing at Serres Toundra requires the same elements as those needed for cultivation in home gardens or farmers' fields: soil, water, light, heat and fertilizers. … [The] food-grade mineral fibre substrate [used] instead of soil … plays the same role as soil …. ... Agence du revenu du Québec, 2023 QCCQ 10441 under s. 248(1) – farming. ...

7 March 2021- 11:10pm Engineering Analysis Centre – Supreme Court of India finds that consideration for software paid by Indian resellers was not royalties for Canadian (and other) Treaty purposes Email this Content The OECD Commentary on the royalty article (Art. 12) states i nter alia that “where a distributor makes payments to acquire and distribute software copies (without the right to reproduce the software),” such payments generally “would be dealt with as business profits in accordance with Article 7” rather than as royalties under Art. 12 – and that this would be so “regardless of whether the copies being distributed are delivered on tangible media or are distributed electronically (without the distributor having the right to reproduce the software).” ... The Commissioner of Income Tax & Anr., Civil Appeal Nos. 8733-8734 of 2018, 2 March 2021(Supreme Court of India) under Treaties – Income Tax Conventions – Art. 12. ...

14 December 2023- 11:29pm Husky Energy – Tax Court of Canada finds that a securities loan between residents of two Treaty countries eliminated access to Treaty benefits on the dividend payments Email this Content Before a Canadian public corporation (“Husky”) paid a dividend on its shares, two significant shareholders of Husky resident in Barbados (the “Barbcos”) transferred their shares under securities lending agreements to companies resident in Luxembourg with which they did not deal at arm’s length (the “Luxcos”). ... The King, 2023 TCC 167 under s. 212(2), Treaties – Income Tax Conventions – Art. 10, s. 245(1) – tax benefit, s. 245(4). ...

4 April 2018- 11:40pm Ahlul-Bayt Centre – Federal Court of Appeal refuses to grant an injunction deferring revocation of charitable registration Email this Content CRA indicated to an Ottawa Islamic school (the “Centre”) that it would revoke the Centre’s charitable registration after 30 days by publishing a notice of intention to revoke (based on serious non-compliance). ... He stated: The evidence that significant numbers of parents would withdraw their children from the school within one or two months is … neither clear nor compelling. … While the Centre asserts that “[t]he loss of tuition revenue and the reduction of the donor base for School related fundraising will make [the Centre] financially incapable of operating the School, leading to its closure,” it has not …provided its current budget or other supporting financial information. … Its financial statements for 2016 also show an excess of revenues over expenditures of $307,242. … Neal Armstrong. ...

Before reversing the decision below that the masters were Class 8(j) tangible capital property, and agreeing with the ARQ that they instead were eligible capital property (now Class 14.1 property), Schrager JA referenced s. 18 of the Copyright Act, which provided that “the maker of a sound recording has a copyright in the sound recording, consisting of the sole right to … [inter alia] reproduce it in any material form,” and then stated (at para. 31): There are intangible rights … as described in section 18 … which were purchased in association with the physical tapes. ... The value is found in what is recorded on the plastic or cellulose and what Respondent can do with it – i.e. make and sell good quality copies …. ... Unidisc Musique Inc., 2021 QCCA 393 under Class 14.1, s. 152(8) and General Concepts – Onus. ...

10 January 2017- 11:47pm Igloo Vikski – Supreme Court of Canada finds that an “includes” definition could reasonably be viewed as being limited by the listed items Email this Content A decision of the Supreme Court dealt with characterizing the precise nature of the hierarchy of Rule 1 of the General Rules for the Interpretation of the Harmonized System (scheduled to the Customs Tariff Act) over Rule 2(b). ... In her dissenting reasons, Côté J pointed out that the approach of the CITT – that resort can only be made to Rule 2(b) if the goods in question (here, goalie gloves) could first be considered to be described in more than one heading – did not work because (for reasons relating the World Harmonized System Explanatory Notes) they fell within neither mooted heading (gloves, mittens or mitts – or other articles of plastics) – whereas this problem did not arise if the two Rules were applied in a somewhat more integrated manner. ... Igloo Vikski Inc., 2016 SCC 38 under Customs Tariff Act- General Rules for the Interpretation of the Harmonized System – Rule 2(b), and Statutory Interpretation – Interpretation/Definition Provisions. ...