Words and Phrases - "assessment"
Beggs v. The Queen, 2016 TCC 11 (Informal Procedure)
CRA determined to not grant a waiver of withholding under Reg. 105 from fees to be paid to the appellants in connection with a proposed performance in Canada. The appellants filed Notice of Objection and filed appeals in the Tax Court on the basis that they thereby had been assessed.
After stating (at para. 22) that “if a withholding of tax is not an assessment, a waiver authorizing a Canadian taxpayer to not withhold the 15% on the fees payable to a non-resident is also not an assessment,” Favreau J stated (at paras. 26-7):
The Appellants submitted that CRA made a determination that they were liable to pay tax in Canada and that, this determination was equivalent to an assessment. I do not agree… .[A] waiver is not a determination of the tax liability of a non-resident but it is a decision with regards to giving permission to a Canadian taxpayer or a non-resident payor to not withhold taxes on amounts payable to a non-resident. The tax liability of the non-resident can only be determined by an assessment after a review of his or her tax return.
…[T]he Appellants will always have the opportunity to turn themselves to the Federal Court of Canada in order to force the Minister to change its decision as stated by Justice Bowie in Kravetsky.
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|Tax Topics - Income Tax Regulations - Regulation 105 - Subsection 105(1)||refusal to grant Reg. 105 waiver not an assessment/remedy in FC||66|
Okalta Oils Ltd. v. Minister of National Revenue, 55 DTC 1176,  CTC 271,  S.C.R. 824
The taxpayer was not able to appeal a "nil" reassessment to the Tax Appeal Board. The word "assessment" referred to the actual sum in tax which the taxpayer is liable to pay and there, accordingly, was no assessment to appeal.
Civil Service Co-Operative Credit Society Ltd. v. The Queen, 2001 DTC 790 (TCC)
The taxpayer, along with other credit unions, was required to deposit with the Ontario Share and Deposit Insurance Corporation ("OSDIC") amounts equal to 1% of its capital.
A refund to it of these amounts was included in its income under s. 137.1(10) notwithstanding that the amounts deposited had not become OSDIC's property. Lamarre T.C.J. found (at p. 802) that the deposited sums qualified as an "assessment", i.e., "a sum specifically levied ... by a mutual company ... to pay losses or losses and administrative expenses incurred". Furthermore, the word "allocation" did not imply that OSDIC was required to own the amounts deposited, but instead merely denoted the possibility that a member institution might not be repaid the entire amount initially paid.
Canada v. Anchor Pointe Energy Ltd., 2007 DTC 5379, 2007 FCA 188
The Minister initially reassessed the taxpayer on the assumption that it had purchased seismic data for more than its fair market value, so that a portion of the expenditure did not qualify for deduction as CEE, and confirmed this reassessment on the assumption that the expenditure had not been made for a qualifying purpose so that it did not qualify as CEE.
In finding that the taxpayer had the onus of demolishing the different assumption (added to the Minister's pleadings by amendment) made by the Minister at the confirmation stage, Létourneau J.A. noted that the taxpayer's position (that this onus only applied to assumptions made prior to the filing by the taxpayer of its notice of objection) ignored the likely meaning of "assessment" in the relevant jurisprudence as the product of the process of assessment, reassessment and confirmation.
However, several of the Minister's assumptions contained mixed statements of fact and law, and the trial judge was correct to strike these paragraphs. Létourneau J.A. stated (at para. 26):
The Minister may assume the factual components of a conclusion of mixed fact and law. However, if he wishes to do so, he should extricate the factual components that are being assumed so that the taxpayer is told exactly what factual assumptions it must demolish in order to succeed. It is unsatisfactory that the assumed facts be buried in the conclusion of mixed fact and law.