Subsection 309(1)
Cases
Canadian Imperial Bank of Commerce v. Canada, 2023 FCA 195
In rejecting CIBC’s submission that the Tax Court had erred by determining the substance of the supply made to CIBC by a contractual counterparty (PC Bank) on the basis of “a theory that was not raised by either party,” Webb JA stated (at para. 62):
It was the Tax Court Judge’s role to determine, as a question of fact or mixed fact and law, the substance of the supply made by PC Bank to CIBC and whether, based on the amended definition of financial service, the supply was a financial service. Factual findings (including findings of mixed fact and law) are made by evaluating the evidence presented at the hearing. While each party may have its own theory of what factual findings should be made, the determination of the facts is made by the Tax Court Judge. There is no merit to CIBC’s argument that the Tax Court Judge erred in determining the substance of the supply on a basis not argued by the parties.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - General Concepts - Res Judicata | res judicata (issue estoppel) did not apply where a retroactive amendment brought to the fore in the 2nd appeal of CIBC whether it was receiving a supply of property | 426 |
| Tax Topics - Excise Tax Act - Section 123 - Subsection 123(1) - Financial Service - Paragraph (r.5) | predominant element supplied by a Loblaw banking sub to CIBC was a right to access Loblaw customers | 264 |
| Tax Topics - Income Tax Act - Section 171 - Subsection 171(1) | TCC can make a finding of mixed fact and law different from that argued by either party | 47 |
| Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Property | provision of access to customers was "property" | 96 |
Canadian Imperial Bank of Commerce v. Canada, 2021 FCA 96
After finding that, under an agreement between the appellant (CIBC) and Aeroplan, the supply made by Aeroplan to CIBC was essentially labelled as promotional services rather than the supply of property (the Aeroplan Miles), so that such supply should be classified as the supply of a promotional service, Webb JA went on to state (at paras. 62, 66):
At the hearing of the appeal, CIBC raised an additional ground of appeal. CIBC submitted that the Tax Court Judge erred in finding that the predominant supply was promotional and marketing services because the Crown had not raised this argument before the Tax Court Judge. …
The Tax Court Judge was not bound by any admission that CIBC was paying for Aeroplan Miles in light of the agreement, which was properly tendered as evidence at the Tax Court hearing, and which clearly states that the payments made by CIBC were in consideration of Aeroplan “referring or arranging for Aeroplan Members and other members of the public to make Card Applications”.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Excise Tax Act - Section 123 - Subsection 123(1) - Supply | agreement between bank and Aeroplan labelled the bank as receiving promotional services rather than purchasing Aeroplan Miles (being, mooted gift certificates) | 477 |
| Tax Topics - Excise Tax Act - Section 181.2 | Aeroplan Miles were considered, by the sole Justice addressing the issue, to be gift certificates since no significant conditions to their redemption | 348 |
| Tax Topics - Income Tax Act - Section 171 - Subsection 171(1) | Tax Court not bound by an admission contrary to the interpretation of an agreement reviewed by it | 174 |
| Tax Topics - Other Legislation/Constitution - Federal - Federal Courts Act - Section 27 - Subsection 27(1.3) | fresh argument could not be made by taxpayer at the Court of Appeal level | 190 |