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Addy – Federal Court of Australia, Full Court finds that the imposition of flat tax on UK working-holiday visa holders did not contravene the Treaty non-discrimination Article

10 August 2020- 11:10pm Addy – Federal Court of Australia, Full Court finds that the imposition of flat tax on UK working-holiday visa holders did not contravene the 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 was found by the Court to be a deemed Australian resident (based on her satisfying a 183-day presence test). ... In finding that this 15% tax did not contravene Art. 25, the majority of the Full Court found that “Art 25 is offended where the discrimination against the foreign national occurs solely by reason of having a different nationality,” whereas here, “it was not the taxpayer’s nationality that caused her to be taxed in accordance with Pt. ...

Church of Atheism of Central Canada – Federal Court of Appeal finds that refusal to register a Church of Atheism did not contravene the Charter

11 December 2019- 12:57am Church of Atheism of Central Canada – Federal Court of Appeal finds that refusal to register a Church of Atheism did not contravene the Charter Email this Content The Church of Atheism of Central Canada, whose application for charitable registration had been denied, unsuccessfully submitted that the common law test governing the advancement of religion as a head of charity was invalid as contrary to ss. 2, 15, and 27 of the Charter. ...

Deegan – Federal Court finds that Canada’s FATCA-related legislation does not contravene the Charter

24 July 2019- 12:55am Deegan – Federal Court finds that Canada’s FATCA-related legislation does not contravene the Charter Email this Content Mactavish J rejected the position of two American citizens, who had had no significant connection with the U.S. since early childhood, that the information-reporting requirements in ITA Part XVIII resulted in the unreasonable seizure of financial information belonging to U.S. persons in Canada, contrary to s. 8 of the Charter. ...

CRA finds that CECRA loans do not disqualify a s. 149(1)(o.2)(ii) corporation nor lead to deregistration of an RPP

CRA states: Participating in the CECRA with respect to commercial property held by a pension real estate corporation will not contravene the borrowing restriction in clause 149(1)(o.2)(ii)(C). Although participating in the CECRA by an RPP will contravene the narrower borrowing restriction in paragraph 8502(i), the CRA will exercise its discretion to not revoke the registration of an RPP for failure to comply with this condition. ...

CRA indicates that the transfer of DSU rights to a corporation would cause the plan to cease to qualify, perhaps retroactively

(l) exclusion from the salary deferral arrangement definition after such a transfer, so that the FMV of the DSUs would be included in computing the employee's income in the year of the transfer (to the extent that such value had not already been included), CRA stated: A transfer to another person would contravene the preamble to paragraph 6801(d), which requires that the agreement be between the corporation and the employee and that it be that employee who may receive amounts under the arrangement. Furthermore … the transfer of the employee's rights in the DSU Plan could indirectly allow the individual to access the value of the individual's rights before one of the times specifically identified in paragraph 6801(d)(i) … which would also contravene the requirements of paragraph 6801(d). ...

Raposo – Tax Court of Canada finds that a partnership with an illegal business was void

In rejecting this position, Paris J referred to Article 1417 of the Civil Code (“A contract is absolutely null where the condition of formation sanctioned by its nullity is necessary for the protection of the general interest”), and stated that under the jurisprudence “a purpose which is contrary to the public order and which contravenes a penal provision, in the current case, of the Criminal Code, engages the absolute nullity of the contract” (here, an alleged partnership contract). ...

CRA recognizes the binding nature of audit settlement agreements

CRA recognizes the Galway principle, stating: Auditors cannot contravene provisions of the ITA or ETA in negotiating and finalizing an audit agreement. ...

Fowler v. HMRC Commissioners - First-Tier Tribunal finds that “treatment is the meaning:” employment income deemed by U.K. domestic legislation to be from carrying on a “trade” was therefore deemed by Art. 3(2) to be “business profits” for Treaty purposes

Brannan J also stated: If a Contracting State changes its domestic law after the conclusion of a double tax treaty in such a way as to reallocate income from one article to another...that could contravene the requirements of good faith imposed by Article 31(1) of the Vienna Convention.... ...

B.C. Investment Management – Supreme Court of Canada indicates that a statutory trust is not necessarily a trust

In finding that such assessments would contravene s. 125 of the Constitution Act, 1867 but for the effect of Intergovernmental Agreements between B.C. and the federal government, Karakatsanis J focused on the ownership interest of BCI (the provincial Crown agent) in the portfolio assets: In this case, the ETA places the burden of the tax on the Portfolio assets to which BCI holds legal title. ...

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