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In finding that Maersk’s fees came within Article 9 rather than 13, Sikri J stated: '[P]rofit' from operation of ships under Article…9 … would necessarily include expenses for earning that income and … [the] more so, when it is found that the business cannot be run without these expenses. This Court … has categorically held that use of [a] facility does not amount to technical services, as technical services denote services catering to the special needs of the person using them and not a facility provided to all. ... Moller Maersk, Supreme Court Of India, Civil Appellate Jurisdiction, Civil Appeal No. 2960 of 2017 under Treaties – Art. 8. ...

12 June 2019- 11:46pm Lin – Federal Court rejects a CRA request for an information-request compliance order because it was unclear which entities were covered Email this Content Three individuals whom CRA suspected of not disclosing offshore assets received letters requesting the filing of T1135s and requesting information, which CRA considered to be within its powers to request information under s. 231.1(1). ... Because it is not at all clear whether the Letter was directed to the Respondents individually or their connected entities, the first requirement of section 231.7 … for obtaining a compliance order has not been satisfied …. ...

26 September 2016- 11:31pm Tech Mahindra – Australian Full Federal Court finds that the exception in the Australia-India Treaty for “effectively connected” royalties was not intended to exempt royalties not attributable to the source country PE from source country withholding Email this Content The Indian-resident taxpayer performed technical services for its Australian customers from its offices in India, the fees for which were deemed to be royalties under the Australia-India Treaty- as well as earning fees through an Australian permanent establishment. Art. 12(4) of the Royalty Article of the Australia-India Treaty (similarly to a provision in the Canada-India Treaty) provided that the provisions of Arts. 12(1) and (2) (permitting India and Australia to tax royalties) “shall not apply” if the Indian resident entitled to the royalties carries on business through an Australian PE “and the… services in respect of which the royalties are paid… are effectively connected with such permanent establishment” – in which case “the provisions of Article 7 … shall apply.” ... Summary of Tech Mahindra Limited v Commissioner of Taxation, [2016] FCAFC 130 under Treaties – Art. 12. ...

Leblanc JA agreed, stating: [I]t would be incongruous, to say the least, if provisions purporting to assist a taxpayer caused more harm to a well-meaning taxpayer than to a less well-meaning one …. This cannot be the result that Parliament intended …. Accordingly, he found that the "amount" referred to in ss. 280 and 280.1 on which the interest or late-filing penalty was to be calculated “can only represent, in circumstances such as these, the amount of tax actually owed by the taxpayer” (i.e., the tax as reduced by the taxpayer’s rebate entitlement). ... Villa Ste-Rose Inc., 2021 CAF 35 under ETA s. 280(1), s. 228(6), s. 256.2(3) and Statutory Interpretation – Resolution of Ambiguity. ...

7 March 2022- 10:57pm Airzone – Tax Court of Canada indicates a presumption that a taxpayer satisfying the “how” SR&ED tests will also satisfy the “why” test Email this Content The taxpayer (“Airzone”) provided comprehensive air quality monitoring services to government agencies, international organizations, and businesses. In connection with allowing most of Airzone’s projects, largely in connection with expanding its techniques for testing for airborne compounds, as qualifying as SR&ED, Hogan J made a number of pithy general observations, including: The taxpayer is required to demonstrate satisfaction both of “how factors,” namely “that the work was carried out by way of systematic investigation or search through experiment and analysis of a hypothesis … [and the] results of the work must also be preserved” and also a “why factor,” namely “that the work was carried out to resolve technical uncertainties that could not be solved through standard procedures and methods.” ... “[T]he ‘why factor’ cannot be so strictly applied that only large corporations that employ dedicated research staff can qualify for the SR&ED incentives … [as m]oving the goal post so far afield … would be contrary to the intention of Parliament.” ...

10 July 2022- 11:06pm Procon Mining – Tax Court of Canada finds that shares which were acquired as part of a mining contract business were capital property Email this Content A mining contractor subscribed for shares of junior mining companies as an inducement to be awarded mine development work and as an investment. ... Summary of Procon Mining & Tunnelling Ltd. v. The Queen, 2022 TCC 71 under s. 18(1)(b) – capital loss v. loss. ...

21 January 2018- 11:16pm Murji – Tax Court of Canada finds that the cash portion of a donation made to a charity was reduced by the fees paid by it to the tax shelter promoter Email this Content Taxpayers participated in a purported gifting tax shelter in which, in addition to making cash donations to participating charities, they were to receive a donation of shares from a non-resident philanthropist (later discovered to be fictitious) and then donated those shares (which the evidence indicated were worthless but which were treated by the promoter as having a value of up to 12 times that of the cash donation) to the charity. ... The Queen, 2018 TCC 7 under s. 118.1(1) – total charitable gifts, Reg. 3501(1)(h) and s. 237.1(1) – tax shelter. ...

2 January 2021- 9:43pm La Mancha Group – Federal Court of Australia finds that an absorptive merger of a Dutch into a Lux company rendered the Lux survivor as the “taxpayer” for continuing or launching objections Email this Content A condition precedent to the merger of a Netherlands private limited company (“LMGI”) into its sister company (“LMA”), which was a Luxembourg private limited liability company (with LMA as the survivor) was that the Federal Court of Australia confirm that LMA as legal successor would be able to exercise all objection or appeal rights in relation to current and pending assessments of LMGI’s taxation years by the Australian Commissioner. Before providing such declaration, Davies J stated, based on the expert law testimony: Under European law, Luxembourg law and Dutch law, pursuant to the principle of universal succession … all liabilities of LMGI to tax, including under foreign law (that is, the relevant Australian tax acts), will transfer to LMA by operation of law pursuant to the principle of universal succession upon completion of the merger, as will the rights and obligations of LMGI in respect of such tax liabilities …. ... Moreover, LMA, as the “taxpayer” under s 175A of the Income Tax Assessment Act 1936 (Cth) … will be entitled to object against assessments which have been issued to LMGI, or which are issued to LMA in its place, and will be “the person” entitled to appeal … in relation to objections from those assessments …. ...

17 December 2023- 11:24pm 2437299 Ontario – Tax Court of Canada finds that major renovations that did not largely “gut” the buildings were not “substantial renovations” Email this Content Russell J found that the appellant had not substantially renovated two Ontario properties, so that their sale was not made by it as a “builder” and were not subject to HST under ETA Sched. ... In applying this method, Russell J accepted that: “[F]looring” in the definition must mean “sub-flooring” as distinguished from whatever flooring was installed covering over the sub-flooring. … Putting down a new carpet, or new laminate wood flooring … [is not] sufficiently significant to contribute to whether a building might be said to have been “gutted.” ... The King, 2023 TCC 165 under ETA s. 123(1) – substantial renovation. ...

The corporation then sold this middle lot to an individual purchaser coupled with a covenant that it would demolish this structure – which, however, it did not do until 45 days after closing. ... This would be contrary to the “part thereof” language in section 123(1) …. ... Lucia Pessoa Park, 2018 ONSC 4218 under ETA s. 123(1) – residential complex, s. 194 and s. 224. ...