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1 Gwen Benjamin Rob Martini Robin MacKnight WHAT HAPPENED DURING TAX SEASON? May 14, 2008.

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Presentation on theme: "1 Gwen Benjamin Rob Martini Robin MacKnight WHAT HAPPENED DURING TAX SEASON? May 14, 2008."— Presentation transcript:

1 1 Gwen Benjamin Rob Martini Robin MacKnight WHAT HAPPENED DURING TAX SEASON? May 14, 2008

2 2 Technical Interpretation Meaning of “Vested Indefeasibly” January 15, – E5

3 3 Question: Whether property had vested indefeasibly in beneficiary despite the fact trustee had disposed of property before estate fully administered. Answer: Question of fact – depends on whether trustee was acting on behalf of beneficiary at time of property disposal.

4 4 Comfort Letters April 2, 2008 to Investment Counsel Association of Canada and Pension Investment Association of Canada – proposed amendments to be recommended to Bill C-10 re registered pension plans, etc.

5 5 Recent Cases of Interest Davis v. the Queen 2008 TCC 31-capital gain or employee benefit? Binder v. Saffron Rouge Inc DTC 6112 (Ont. Superior Court of Justice) – rectification application – no common mistake

6 6 More Recent Cases The Queen v. MacKay 2008 FCA 105 – GAAR Tolhoek v. the Queen 2008 FCA 128 – limited recourse debt and tax shelters Fenwick v. the Queen 2008 TCC 243 – litigation expenses in shareholder dispute Gestion Leon Gagnon Inc. v the Queen – English translation dated January 18, 2008 – shareholder benefit on issue of high-low shares

7 7 More Cases Cascades Inc. v. the Queen 2007 CCI 730, English translation dated January 22, 2008 – stop loss rules QL Hotel Service Limited v. Minister of Finance – March 25, 2008 – RST exemption on intercorporate rollover The Queen v. Taylor – 2008 NSCA 5 – award of costs against “Crown” Lavie v. the Queen – 2006 CCI 655, English translation dated February 19, 2008 – Minister’s presumptions for assessment

8 8 MacKay FCA overturns TCC decision that allowed taxpayer appeal Real estate transaction similar to OSFC Bank transferred mortgage into LP – preserved original cost of mortgage After sale of LP interests to investors, partnership wrote down inventory value to FMV to create loss

9 9 MacKay TCC – looked to primary purpose of the overall series of transactions – to acquire, redevelop and hold shopping centre Good news for taxpayers – seemed to affirm The Duke FCA – have commentators over-reacted? Will the decision be appealed to SCC?

10 10 Tolhoek Continuing saga of the Trafalgar software partnerships First issue was whether the the debt assumed by taxpayer was a “limited recourse amount” under Second issue – reassessed within time? Taxpayer lost at TCC and FCA Sloppy execution and implementation?

11 11 Tolhoek Circular flow of funds among related parties No “bona fide” arrangements to pay interest or repay debt Taxpayer could not demonstrate that interest was paid within 60 days of year end Second issue – since debt could become LRA if 60 day period was ever missed, MNR had until debt was repaid to make the determination – therefore not statute barred

12 12 Fenwick Family feud – sisters causing corporation to bring derivative action against brother for appropriation of corporate opportunity and excessive remuneration Brother claimed deduction for legal fees TCC disallowed

13 13 Gestion Leon Gagnon Husband and wife owned Opco Opco received a bonus in the course of its business which it reported as income Individual shareholders wanted to creditor proof this bonus without current tax Opco capital amended to create High-Low shares GLG created to subscribe for them in 2000

14 14 Gestion Leon Gagnon In 2001 shares were redeemed and GLG reported deemed dividend income CRA reassessed 2001 imputing shareholder benefit under 15(1) on basis issuance of share constituted a benefit “I find it hard to fathom the true reasons that led the Minister’s auditors to assess under ss. 15(1)”

15 15 Cascades Complicated series of transactions to increase shareholder value of public corporation Three way merger was last step in series Taxpayer realized a capital loss on sale of shares to an intermediate company that was party to the merger CRA denied loss under 40(3.3), (3.4) and (3.5)

16 16 Cascades Taxpayer said conditions for application of stop loss rules in 40(3.5)(c) did not apply, so (3.3) and (3.4) did not apply Since shares which would be the subject of the stop loss rules ceased to exist, condition not met = so taxpayer won Good discussion of 61 day bright line test

17 17 QL Hotel Service Intercorporate exemption under ss. 13(3) of Regulation 1013 – where transferor “wholly owns” the purchasing corporation Transferor caused incorporation of purchaser corporation No shares issued to incorporator on organization of purchaser corporation

18 18 QL Hotel Services Assets transferred to purchaser were intangibles and TPP Intangibles transferred first for common share TPP transferred next for special shares Taxpayer sought rectification order to separate directors resolutions to clarify

19 19 QL Hotel Services Taxpayer argued that incorporator should be considered owner – rejected Court agreed that two step sale resulted in taxpayer “wholly owning” purchaser at time TPP was transferred Moral – be careful in drafting and issue a common share on organization

20 20 Taylor Egregious conduct of CRA auditors (“bordering on gross negligence” and “willful blindness”) led criminal court trial judge to order costs against “the Crown” All charges ultimately dropped on eve of trial NSCA overturned trial judge order – CRA, like RCMP, is not “the Crown” So what remedy is left for aggrieved taxpayers?

21 21 Lavie CRA assessed taxpayer for unreported income from cocaine sales CRA presumptions based on hearsay and circumstantial evidence Taxpayer not charged with any offences – although others were charged based on the same information CRA had CRA presumptions based on unreliable evidence and rejected Same issues arise in net worth assessments


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