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17 December 2024- 11:22pm GFL Environmental – BC Court of Appeal finds that assumptions: should be struck where there is insufficient evidence of their making; but they can contain statements of law Email this Content The taxpayer (GFL), for a monthly charge, provided portable toilets, cleaned them and disposed of the waste. ... He also stated: I endorse the principle … in Preston that tax assumptions containing statements of mixed fact and law will not be invalidated simply on that basis if the factual underpinnings are clearly stated, there is no dispute about the legal principles and no prejudice results. ... GFL Environmental Inc., 2024 BCCA 379 under PSTA (BC), s. 1(1) – related service, and General Concepts – Onus. ...

30 April 2020- 12:48am CRA states that a PSB can deduct the “cost” of car loan interest under s. 18(1)(p)(ii) to the extent of the benefit conferred on the individual qua employee rather than shareholder – but not CCA Email this Content Under s. 18(1)(p)(ii), a corporation carrying on a personal services business is entitled to deduct “the cost to the corporation of any benefit … provided to an incorporated employee … that would, if the income of the corporation were from a business other than a [PSB] be deductible in computing its income.” ... CRA went on to indicate that no CCA could be claimed by the corporation (stating that “a capital cost allowance amount is not the cost of a benefit”) – except that if the corporation had a sales business, CCA could generally be deducted under s. 18(1)(p)(iii) to the same extent as CCA claims could have been made under s. 8(1)(j)(ii) if the marketing activity had been carried on by the individual as a sales employee. ...

16 July 2018- 10:57pm Rocco Gagliese Productions – Tax Court of Canada finds that royalties generated by a CCPC from writing TV-episode music were active business income Email this Content A company which earned royalties from the daily activities of its sole shareholder and employee in writing and producing music for TV episodes was found to be earning income from an active business and not earning income from a specified investment business. ... The Queen, 2018 TCC 136 under s. 125(7) – specified investment business, and s. 129(4) – income or loss- para. ...

7 February 2020- 12:11am Tudora – Tax Court of Canada references the principle of judicial comity in following a previous Tax Court decision on the same donation program Email this Content After already finding against a taxpayer who had participated in a donation program that had previously been found by Pizzitelli J in Mariano to not work, MacPhee J indicated that this conclusion was confirmed by the principle of judicial comity, which he described as follows: [U]nder the principles of stare decisis, judges of one Court are not bound by decisions of members of their own Court, but in accordance with the principles of judicial comity, judges should follow the decisions of their colleagues unless there is a cogent reason to depart from a prior decision. ... The Queen, 2020 TCC 11 under s. 118.1(1) – total charitable gifts and General Concepts – Judicial Comity. ...

In essence, it means ownership for the benefit of the person in question …. ... There was no evidence to suggest that Houmet could have used the funds received for any other purpose [other than to pay for the assignment to it], or that it could benefit from them in any other manner. … Further, Houmet's involvement was entirely ephemeral …. ... Summary of Hargreaves Property Holdings Ltd v Revenue And Customs [2024] EWCA Civ 365 under General Concepts – Ownership. ...

3 January 2018- 11:38pm Cussens – European Court of Justice describes leases that were entered into in order to trigger a taxable supply at a favourable level of VAT as having “no commercial reality” Email this Content Halifax plc v Customs and Excise Commissioners [2006] EUECJ C-255/02, [2006] STC 919, established the European VAT tax avoidance doctrine that: [I]n the sphere of VAT, an abusive practice can be found to exist only if, first, the transactions concerned, notwithstanding formal application of the conditions laid down by the relevant provisions of the Sixth Directive and the national legislation transposing it, result in the accrual of a tax advantage the grant of which would be contrary to the purpose of those provisions. ... In commenting on what might be found to be the purpose of the leases, the Court stated: …[T]he leases … had no commercial reality and were entered into … with the aim of reducing the VAT liability on the sales of immovable property … which they envisaged carrying out subsequently. ... Summary of Cussens & Ors v Brosnan, Case C‑251/16, [2017] BVC 61 (European Court of Justice, 4 th Chamber) under ETA s. 274(4). ...

31 December 2019- 12:03am Friedman – Federal Court does not follow its interpretation in Lin that a requirement letter insufficiently specified who was covered Email this Content The Friedmans, a married couple, who had not filed T1135 returns, each received Requests for Information under s. 231.1(1) (“RFIs”) that were addressed to them personally, and stated inter alia: Your personal income tax returns and any other related or associated entities have been selected for audit …. [Y]ou may have offshore holdings that you have failed to disclose …. In order to expedite and facilitate our audit, we will require a clear understanding of all entities with which you had a connection or affiliation during the taxation years noted above. … Please send us back the attached questionnaire fully completed within 30 days …. ...

The presumption that a reasonableness review should be applied can be rebutted where there is a statutory appeal mechanism in place (thereby entailing application of a standard of correctness to questions of law) – however, the Court made it clear that this did not include provisions, such as ss. 18 to 18.2, 18.4 and 28 of the Federal Courts Act – so that this aspect does not appear to apply to reviews of CRA decisions (other than assessments). ... Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment” …. ... Rather than confirming a meaningful presumption of deference for administrative decision-makers … the majority’s reasons strip away deference from hundreds of administrative actors subject to statutory rights of appeal; rather than following the consistent path of this Court’s jurisprudence in understanding legislative intent as being the intention to leave legal questions within their mandate to specialized decision-makers with expertise, the majority removes expertise from the equation entirely and reformulates legislative intent as an overriding intention to provide — or not provide — appeal routes; and rather than clarifying the role of reasons and how to review them, the majority revives the kind of search for errors that dominated the pre- C.U.P.E. era. ...

29 July 2021- 11:05pm Canada North – Supreme Court of Canada finds that a CCAA court can order a super-charge that has priority over a s. 227(4.1) deemed trust Email this Content The Crown challenged an order of the Alberta judge in CCAA proceedings regarding the Canada North group of companies that “priming charges” pursuant to s. 11 of the CCAA for counsel fees, costs of the monitor and financing charges of an interim lender would rank in priority to all other security interests and charges, arguing that this priority was contrary to s. 227(4.1). ... She also stated: [C]ourts should still recognize the distinct nature of Her Majesty’s interest and ensure that they grant a charge with priority over the deemed trust only when necessary. … In the concurring reasons of Karakatsanis J (writing for herself and another Justice), she agreed that s. 227(4.1) does not satisfy the requirements for a trust, and seemed to emphasize the importance of giving breadth to the discretion of a CCAA judge under s. 11 of the CCAA in order to “further the remedial objectives of the CCAA ” and given that at the end of the day the final CCAA order should provide for payment of the source deduction amounts. ... Canada North Group Inc., 2021 SCC 30 under s. 224(4.1), General Concepts – Ownership, Statutory Interpretation – Interpretive/Definition Provisions and Interpretation Act, s. 8.1. ...

11 March 2024- 10:47pm Singapore Telecom – Federal Court of Australia, Full Court finds that an independent enterprise would have agreed to allow cross-border interest to be capitalized, but not to make it contingent on cash flow Email this Content The taxpayer (“STAI”)- a wholly-owned Australian subsidiary of a Singapore public company- purchased in June 2002 all the shares of an Australian telecommunications company from a Singapore sister company (“SAI”). ... It rejected the contention of STAI that the amount of interest actually paid over the 10 year period was equal to or less than that which might be expected to have been paid between independent parties in similar circumstances over the same period, as the transfer-pricing standard was required to be met on a tax year by tax year basis – and the Commissioner had the discretion to adjust the interest for earlier years upwards. ... Summary of Singapore Telecom Australia Investments Pty Ltd v Commissioner of Taxation [2024] FCAFC 29 under Treaties – Income Tax Conventions – Art. 9. ...