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The Queen, 2020 TCC 44-- summary under Subsection 58(1) Summary Under Tax Topics- Other Legislation/Constitution- Federal- Tax Court of Canada Rules (General Procedure)- Section 58- Subsection 58(1) refusal of request for Rule 58 determination that reporting gains as on capital rather than income account was not a “misrepresentation” The Minister reassessed most of the taxation years for 2005 to 2014 taxation years, with only the 2012 to 2014 taxation years being within the normal reassessment period. ... In dismissing the motion, she stated (at paras. 24-25, 28): I cannot agree with the Appellant’s proposition … that a question of income versus capital necessarily amounts to a difference in opinion… [T]he factual circumstances of the appeal will determine whether the issue of income versus capital is purely a difference of opinion or not. … The question of whether a misrepresentation under subparagraph 152(4)(a)(i) contemplates fact only or mixed-law-and-fact, should properly remain with the trier of fact to determine in conjunction with the related substantive issues. …. In the present case, documents have not yet been exchanged nor have discoveries been conducted. … While the mechanics of the transactions may not be in dispute, the factual circumstances have yet to be determined for the purposes of confirming or rebutting the Minister’s assumptions. ...

However, on September 25, 2015, CRA sent a letter to the plaintiff indicating that her 2005 to 2014 taxation years were under audit regarding a failure to declare foreign property. ... She agreed (at para. 40) that it would have been “inequitable and unreasonable” for a voluntary disclosure to have been rejected as being non-voluntary if made one minute after communication of an audit, but noted that this was not the situation under review, stating (at para. 42, TaxInterpretations translation): Plaintiff's decision to begin identifying the scope of potential disclosure is not the end of the story. … Intentions can change, as can the scope of the proposed disclosure. … The potential scope of the Disclosure could not be determined without further investigation by Plaintiff and her counsel. … I agree with the Respondent that there is an important distinction between the date information is actually disclosed under the VDP and the date the taxpayer makes the decision to investigate the making of a disclosure. ... Gagnon or the VDP to accept his request for disclosure. … His requests sought to complete the record. ...

Commissioners for Her Majesty's Revenue and Customs, [2015] BTC 32, [2015] EWCA Civ 1036-- summary under Purpose Summary Under Tax Topics- Statutory Interpretation- Purpose purposive approach entails checking whether overall effect of transaction answers the statutory description Lewison LJ stated (at paras. 20, 50): The parties were largely content to rely on the discussion in Barclays Mercantile Business Finance Ltd v Mawson [2004] UKHL 51, [2005] 1 AC 684 …. ...

The Queen, 2008 TCC 185 (Informal Procedure)-- summary under Subparagraph (a)(iii) Summary Under Tax Topics- Excise Tax Act- Section 256.2- Subsection 256.2(1)- Qualifying Residential Unit- Paragraph (a)- Subparagraph (a)(iii) purchaser was required only to satisfy reasonable expectation rather than actual use test The appellant took possession in December 2004 of a newly-constructed condo unit and closed its acquistion on March 1, 2005 (when condominium registration was also received). Due to a change in plans, he did not move into the unit and leased it to CIBC World Markets ("CIBC") for a lease term of 11 months ending on December 28, 2005. ... (a)(iii) refers to the time that the unit is acquired (in this case, March 1, 2005) (para. 29); at that time, the appellant reasonably expected that the tenant's occupancy would continue for several years under a lease renewal (para. 31); and "no unit will be able to satisfy the actual use test at the relevant time...unless the actual use is a very short period of time" (para. 24) so that, generally, as was the case here, only the expected rather than acual use test should be applied (para. 32). ...

Canada (Attorney General), 2018 FC 53-- summary under Subsection 220(3.1) Summary Under Tax Topics- Income Tax Act- Section 220- Subsection 220(3.1) CRA failed to consider whether late T1135s were filed “voluntarily” for earlier years notwithstanding subsequent years being under review On March 17, 2015, the taxpayer, which was a Canadian corporation that had held land in Ghana at all relevant times, submitted T1135 returns for its 2005 to 2013 years under the voluntary disclosure program (VDP). ... However, the taxpayer’s 2005 to 2010 T2 returns had been filed and assessed. ... Ahmed J found (at para 26) that, respecting the 2011-2013 T2 returns, “the enforcement action taken by the CRA would likely have uncovered its obligation to file T1135 returns. … I believe it was reasonable for the Minister’s Delegate to conclude that a CRA agent would seek to follow up with the Applicant regarding its obviously missing T1135 return.” ...

") – earned management fees and rental fees from W.L. In 2003, the taxpayer lent $3.5 million to an arm's length supplier of specially prepared boards ("Interact") secured by patents held by Interact's principal ("Cable"). Following the bankruptcy of Interact and Cable earlier in 2005, the trustee in bankruptcy for Cable released the patents to the taxpayer "subject to ultimate accounting for the proceeds of disposition"- by which the trustee apparently meant to address the unlikely event that the taxpayer could sell the patents for more than the amount it was owed by Interact. ... The taxpayer had obtained the incidents of title when the trustee released the patents in 2005: the taxpayer possessed the physical patent documents, the trustee confirmed to the patent agent that the taxpayer would henceforth be instructing the patent agent and did not thereafter interfere with the taxpayer's use and enjoyment, the taxpayer assumed the costs of ownership and defended the patent ownership rights against the claims of Cable's common law spouse (who claimed a constructive trust in her favour). ...

") – earned management fees and rental fees from W.L. In 2003, the taxpayer lent $3.5 million to an arm's length supplier of specially prepared boards ("Interact") secured by patents held by Interact's principal ("Cable"). Following the bankruptcy of Interact and Cable earlier in 2005, the trustee in bankruptcy for Cable released the patents to the taxpayer "subject to ultimate accounting for the proceeds of disposition"- by which the trustee apparently meant to address the unlikely event that the taxpayer could sell the patents for more than the amount it was owed by Interact. ... The taxpayer had obtained the incidents of title when the trustee released the patents in 2005: the taxpayer possessed the physical patent documents, the trustee confirmed to the patent agent that the taxpayer would henceforth be instructing the patent agent and did not thereafter interfere with the taxpayer's use and enjoyment, the taxpayer assumed the costs of ownership and defended the patent ownership rights against the claims of Cable's common law spouse (who claimed a constructive trust in her favour). ...

In 2005 (after the second such residence sale), he and his spouse acquired a vacant lot in Sherbrooke, Québec, and built a house to live in with their children. ... Aubé JCQ found (at paras 69.1, 69.5, 69.6, 70, 71, and 72, Tax Interpretations translation): … [T]he whole family was involved in the project. … The profit realized on the sale was used to reimburse the lines of credit. ...

. … Subsection 323(1) of the ETA is an exemption from the common law and applies only to directors. ... However, …the legislator … limited the application of subsection 323(6) to the office of director. ... The Queen, 2005 TCC 772) the following statement from CRA Directive RCD-95-12: Caution should be exercised prior to assessing an alleged "de facto" director. ...

The Queen, 2017 TCC 165 (Informal Procedure)-- summary under Subsection 162(1) Summary Under Tax Topics- Income Tax Act- Section 162- Subsection 162(1) no penalty where reasonable error of fact The taxpayer made contributions to his RRSP for the years 1995 to 2005 (except 1998). In preparing his 1995 and 1999 returns, he reported his contributions, but failed to deduct them – but thought that he had. ... After confirming the taxpayer’s Part X.1 tax liability and after quoting (at para. 26) a statement in Corporation de l’École Polytechnique v The Queen, 2004 FCA 127 that a due diligence defence is established if “the person believed on reasonable grounds in a non-existent state of facts which, if it had existed, would have made his or her act or omission innocent,” Sommerfeldt J went on to find that the s. 162(1) penalties should be cancelled, stating (at paras 11, and 27): … I am of the view that his failure to deduct the contributed amounts, which was unbeknown to him, was due to innocent and reasonable inadvertence. ...