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30 September 2025- 11:39pm Husky Energy – Federal Court of Appeal finds that a securities loan between residents of two Treaty countries did not change the beneficial ownership of the transferred shares 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 agreements styled as securities lending agreements to related companies resident in Luxembourg (the “Luxcos”). ... The Tax Court’s finding was consistent with the 2003 OECD Commentaries, which indicated that a company is not normally the beneficial owner of dividends if, though the formal owner, it only has “very narrow powers … in relation to the income concerned”. ... Husky Energy Inc., 2025 FCA 176 under Treaties – Income Tax Conventions – Art. 10 and s. 212(2). ...

25 September 2020- 12:07am Godcharles – Court of Quebec finds that a sale of goodwill occurred between parties acting in concert given the role of a dominant player Email this Content A retirement home was co-owned by eight individuals and operated by a corporation of which they were the shareholders. ... Agence du revenu du Québec, 2020 QCCQ 2219 under s. 251(1)(c) and General Concepts – fair market value – real estate. ...

Matco then identified a mutual fund management company which wanted to effect a public offering of shares of the taxpayer and use the proceeds (of $100M) for a new bond trading business to be carried on in the taxpayer – a transaction which then proceeded. ... In finding that the transactions (which he described, at para. 6, as “narrowly circumventing the text of s. 111(5)”) did not accord with the rationale of s. 111(5), so that the use of the tax attributes had been properly denied under s. 245(2), Rowe J stated: [T]he appellant was gutted of any vestiges from its prior corporate “life” and became an empty vessel with Tax Attributes. … Moreover, the shareholder base of the taxpayer underwent a fundamental shift throughout the transactions …. Matco achieved the functional equivalent of … an acquisition of [de jure] control through the Investment Agreement, while circumventing s. 111(5), because it used separate transactions to dismember the rights and benefits that would normally flow from being a controlling shareholder. ...

3 July 2018- 12:51am MacDonald – Federal Court of Appeal effectively affirms George Weston, and finds that the existence of a hedge does not turn on intention Email this Content An individual with a significant long-term holding in common shares of a public company (BNS) entered into a cash-settled forward which had the effect of establishing a short position against a portion of his BNS shareholding. ... He was aware of the hedging effect which the Forward Contract would have on the BNS shares …. ... MacD onald, 2018 FCA 128 under s. 9 – capital gain v. income – futures/forwards/hedges. ...

15 July 2021- 11:58pm 1455257 Ontario – Federal Court of Appeal notes that CRA cannot arbitrarily reject an s. 152(4)(b)(i) extension request and that s. 160 extends to post-transfer interest Email this Content The validity of a s. 160 assessment of the taxpayer turned in part on whether the affiliate from which the taxpayer had received a transfer of property in 2003 should be regarded as having had its taxable income for 2000 reduced by a portion of its non-capital loss for 2002 that the affiliate had not claimed because the taxpayer and the affiliate had not found out about that additional loss until 2011, when the taxpayer made an ATIP request following the s. 160 assessment of it. ... Noël C.J. also agreed with the Tax Court’s rejection of the taxpayer’s submission that given that the word “pour” used in the French version of s. 160(1)(e)(ii) was narrower than “in respect of” used in the English version, s. 160 did not extend to interest that had accrued on the tax payable subsequent to the 2003 transfer date, stating (at paras. 46-47): The phrase “in respect of” is broad and all encompassing … and the word “pour” in the French text can have a similarly broad meaning. … It can be seen that both texts can be read so as to capture interest that accrues on the transferor’s liability from the year of the transfer onwards. This aligns with the purpose of subsection 160(1) which is to allow for the collection of “the total of all amounts” that the transferor is liable to pay under the Act without any distinction as to the makeup of these amounts … and without any time limitation. … Neal Armstrong. ...

31 May 2019- 1:05am Connolly – Federal Court of Appeal finds that the CRA internal guidelines on waiving the RRSP over-contribution tax were inherently unreasonable Email this Content S. 204.1(4) provides that the tax imposed on RRSP contributions may be waived by the Minister if she is satisfied that the over-contribution “arose as a consequence of reasonable error, and reasonable steps are being taken to eliminate the excess.” ... Gleason JA found that these guidelines were unreasonable, stating: The delegate’s interpretation of subsection 204.1(4) of the ITA (as well as the interpretation set out in the internal CRA guideline, on which the delegate relied) thwarts the subsection’s remedial purpose as it virtually extinguishes the Minister’s discretion …. Nearly every error a taxpayer might make in over-contributing to his or her RRSP (other than a simple arithmetical error) will be caused by a misunderstanding of the applicable limits – an error of law. … Similarly, the fact that the error might have been made by a third party advisor or as a result of erroneous advice given by such advisor does not automatically mean that the error cannot be reasonable. … [Furthermore] the requirements to take reasonable steps to withdraw an RRSP over-contribution cannot be equated with immediacy or with the two-month timeframe mentioned in CRA’s internal “Guidelines for waiving tax – 19(23)7.23”. ...

14 November 2018- 12:34am Morrison – Tax Court of Canada finds that the taxpayers had the burden of disproving the Minister’s assumptions about their gift tax shelter about which they knew virtually nothing Email this Content The taxpayer, who participated in a charitable gifting program that generated receipts well in excess of the amount contributed by him, had no familiarity with how the program “worked.” ... In such circumstances, it is not unfair to the Appellants to allow the Minister to assume what went on behind the curtain. … By participating in the Programs without further inquiry, the Appellants accepted the risk that the facts behind the curtain were not what they expected them to be. ... The Queen, 2018 TCC 220 under General Concepts – Onus and s. 118.1(1) – total charitable gifts. ...

27 May 2021- 11:09pm Friedman – Federal Court of Appeal suggests that Jarvis also applies to allegations that CRA information requirements violate the Charter right not to self-incriminate Email this Content The Friedmans, a married couple, who had each received Requests for Information under s. 231.1(1) (“RFIs”) that were addressed to them personally, appealed the Federal Court decision granting a compliance order against them under s. 231.7(1). ... In rejecting the second submission, Pelletier JA stated that any failure to follow “judicial comity,” i.e., the expectation “that judges will consider the decisions of their colleagues carefully and, if they choose to differ, will explain why … is not a basis for appellate intervention.” ... Canada (National Revenue) 2021 FCA 101 under General Concepts – Judicial Comity and Charter – s. 13. ...

Before confirming the decision below to dismiss the application, LeBlanc JA set the stage by stating that “[t]he true intentions of the parties, as they emerge from extrinsic materials when it comes to Article 25 (namely to promote the exchange of information to the maximum extent possible with a view, notably, of preventing tax evasion and avoidance), are reflected … in the actual language of that provision, coupled with that of the Interpretative Protocol.” He then found that “it was reasonably open to the CRA … to proceed with the … RFIs at the time it did in view of the fact that [the taxpayers] had, to that point, denied, on more than one occasion, having any such [foreign] assets, revenues or activities in the taxation years at issue.” Regarding the taxpayers’ submission that the specific listing in the Protocol, of types of information that could be requested, established a “ceiling” for such requests, LeBlanc JA stated that “paragraph 2(b) of the Interpretative Protocol establishes a threshold, not an upper limit” and that “on a reasonableness analysis … there is no issue with the fact that the CRA provided the Swiss Authorities with more information—essentially background information—than what was minimally required by paragraph 2(b) of the Interpretative Protocol.” ...

10 May 2024- 12:09am DAC – Tax Court of Canada finds no abuse in avoiding CCPC status by continuing to BVI Email this Content With a view to its imminent disposition of the shares of a subsidiary, the taxpayer continued to the British Virgin Islands, with the result that it ceased to be a Canadian-controlled private corporation (CCPC) and became a private corporation that was not a CCPC (its central management and control remained in Canada). ... In finding no abuse of s. 123.3, D’Arcy stated: Parliament has chosen, for policy reasons, to have different sets of rules for different corporations. … Prior to being continued in the British Virgin Islands, the Appellant was on one side of the dividing line [a CCPC] and, after it was continued, it was on the other side of the dividing line [a non-CCPC]. … [T]he Appellant’s choice to be taxed as a non-CCPC did not abuse section 123.3 since Parliament only intended it to apply to a corporation’s investment income that is taxed under the regime for CCPCs. ... The King, 2024 TCC 63 under s. 245(4), s. 123.3, s. 123.4(1) – full rate taxable income – (b)(iii) and s. 250(5.1). ...