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Taxation

SERVICES TAX

Imposition of GST on lawyers’ fees did not infringe Charter rights

Determination of question of whether or not imposition of GST on lawyers’ fees for criminal defence services infringed rights of registrants’ clients under s. 10(b) of Canadian Charter of Rights and Freedoms on appeal by registrant from assessment and imposition of interest and penalty under Excise Tax Act (Can.). Registrant law corporation failed to collect and remit GST on legal services it provided. It was determined that imposition of GST on lawyers’ fees did not infringe client’s Charter rights. It could not be said that s. 165(1) of Act had specific purpose of taxing legal services in defence of state-sponsored prosecution. Parliament did not single out those particular services for different treatment under provision and registrant failed to show that s. 165(1) of Act had invalid purpose. Registrant did not provide any reasonably imaginable circumstances or hypotheticals that would demonstrate breach of s. 10 (b) rights. Right to counsel under s. 10(b) of Charter was not ongoing right throughout preparation and hearing stages, but was limited to time surrounding arrest or detention. Constitutionality of GST on criminal defence services was not question of law alone, and it was not apparent on its face that tax would impede access to counsel.
Stanley J. Tessmer Law Corp. v. R. (Jan. 28, 2013, T.C.C. [General Procedure], B. Paris J., File No. 2007-3627(GST)G, 2007-3628(GST)G, 2007-3629(GST)G, 2007-3630(GST)G, 2007-3631(GST)G) 224 A.C.W.S. (3d) 508.

GOODS AND SERVICES TAX

Appellant did not have reasonable expectation of profit from commercial rental

Appellant wrote for local newspaper. Respondent denied appellant’s writing column was business. Appellant claimed losses of $33,165 in 2006 and $3,708 in 2007. Appellant rented tools and equipment. Appellant was disallowed maintenance and repair expenses with respect to rental property. Appellant appealed reassessment of goods and services tax (“GST”) by which Minister determined commercial portion of appellant’s property rental activity and tool rental activity were not commercial activities within meaning of s. 123(1) of Excise Tax Act (Can.). Appellant consolidated income and expenses from all appellant’s activities. Appeal was allowed in part. Appellant wrote for local newspaper as part of appellant’s political activities. Appellant did not make profit from columns appellant wrote for local newspaper. Appellant did not prove connection between legal fees claimed by appellant for lawsuit and columns written by appellant from specified date on. Appellant did not intend tool rental to be stand-alone business. Tool rental was incidental to operation of rental property. Incidental tool rental revenues should have been included in rental property revenues as part of rental property operation. No adjustment was made because it was not shown with certainty how much revenue was actually earned. Appellant’s commercial rental did not constitute commercial activity as defined under s. 123(1) of Act. Appellant did not have reasonable expectation of profit from commercial rental. Roof repair was to be allowed as current expense rather than on made on capital account.
Palangio v. Canada (Oct. 24, 2012, T.C.C., Paris J., File No. 2011-2064(IT)I; 2011-2065(GST)I) 223 A.C.W.S. (3d) 262.

Taxation

INCOME TAX

Appellant failed to treat tax compliance obligations as priority

Appeal by taxpayer from late filing penalties. Appellant land development company filed 2003 tax return, due April 30, 2004, in November 2004 declaring no net income and no tax payable. Appellant filed amended return for 2003 in November 2008 declaring income of $292,232 and tax payable of $28,659. Appellant filed 2006 tax return, due April 30, 2007, in August 2009. Appellant assessed late filing penalties of $3,152 for 2003 and $216,479 for 2006. Appellant also assessed late GST filing penalties for various periods. Appellant’s sole shareholder testified 2003 return not filed in timely manner because loss anticipated and appellant had unused non-capital losses from previous years to offset any income. Witness erred in anticipating loss as result of failure to consider “soft expenses” not deductible from income. Witness testified 2006 return also not filed in timely manner because of anticipated loss, but could not explain how income underestimated by $5.8 million. Witness provided similar explanation for failure to file returns and remit GST in timely manner. Appeal dismissed. Issue whether appellant exercised requisite level of due diligence in relation to filing various returns within time required. In circumstances, proof of due diligence required proof of reasonable mistake of fact. Taxpayer could avoid late filing penalties if able to establish, on balance of probabilities, reasonable grounds to believe no tax owing. Witness’s evidence fell short of establishing reasonable grounds on both subjective and objective tests. Court satisfied appellant had simply failed to treat tax compliance obligations as priority.
830480 Alberta Inc. v. Canada (Dec. 3, 2012, T.C.C., Hogan J., File No. 2010-3252(IT)G; 2012-115(GST)I) 221 A.C.W.S. (3d) 757.

Goods And Services Tax

Taxpayer’s lifestyle appeared to contradict claims of modest income Appeal by taxpayer from assessment by Minister under Income Tax Act (Can.), for 2000 to 2002 taxation years, and under Excise Tax Act (Can.), for 1998 to 2002 taxation years for unpaid GST. Taxpayer operated automobile brokerage, traded in shares of Internet business, and temporarily rented his home. Minister added income from business and rental income, and treating sale of shares as capital gain. Appeal allowed in part. Shares of Internet business may have been dealt with in manner contrary to securities commission rules. Gains from disposition of shares were capital in nature, and reassessment to make them part of ordinary income would be out of time. Payments made to internet business were not expenses but loans, and were not deductible. Loans did not have contingent obligation for repayment. Minister properly assessed revenue from automobile brokerage in 2000 and 2001 taxation years based on initial returns, and minister’s assumptions were not demolished. Home was used for car business purposes, and deduction was granted of 20 per cent of home expenses when premises were not leases. Deduction of 10 per cent suggested by minister was too low. No reliable evidence regarding use of home to meet business clients. Deposit analysis of 2002 taxation year showed deposits into bank of more than $500,000 and reported income from car business of $29,324. Certain expenses for automotive brokerage in 2002 were conceded by minister. All deposits were not likely from sale of cars, as some amounts were in American dollars and car sales were Canadian. Income from automobile brokerage reduced by $170,000. Taxpayer was not required to prove source of income to disprove minister’s assumptions. Taxpayer’s lifestyle appeared to contradict claims of modest income. Payment to law firm was not shown to be business related deduction of legal expenses. Rental income which was not reported in returns but not included in assessments could be reassessed, as taxpayer made misrepresentation regarding rental income. Deposit in amount of $10,000 could not be added to rental business as issue was not raised in pleadings. No adjustment made to GST collectible in 1998 and 1999, amount in other taxation years to be adjusted to reflect new findings regarding income tax owing. Minister did not show sufficient evidence to warrant penalties. Last v. Canada (Oct. 9, 2012, T.C.C., Woods J., File No. 2006-2525(IT)G; 2006-2902(GST)I) 220 A.C.W.S. (3d) 650.

Social Welfare

INCOME TAX

By buying tickets each week, amounts claimed did not qualify for public transit tax credit

Appeal by taxpayer from reassessment by Minister under Income Tax Act (Can.), for 2009 taxation year. Taxpayer lived in Whitby Ontario and commuted to work in downtown Toronto each day by taking train. Taxpayer purchased tickets which were valid for ten rides for $64.25 to $66.75. Taxpayer claimed those amounts under public transit tax credit as provided in s. 118.02(2) of Act. Appeal dismissed. Tickets that were purchased by taxpayer were paper tickets, not an “eligible electronic payment card” or an “eligible public transit pass” as required by Act. By buying tickets each week, amounts claimed did not qualify for public transit tax credit.
Taino v. Canada (July 25, 2012, T.C.C., Webb J., File No. 2011-3106(IT)I) 218 A.C.W.S. (3d) 228 (6 pp.).

Social Welfare

CANADA PENSION PLAN

It was employees who primarily benefited from distribution of beer tickets

Appeal by employer from reassessment by Minister regarding Canada Pension Plan remittances. Employer was beer manufacturer who regularly provided employees with tickets entitling them to free cases of beer from manufacturing premises. Minister reassessed employer on basis that free beer was taxable benefit to employees such that its retail value had to be included for purposes of employer’s Canada Pension Plan remittances. Appeal dismissed. Value of beer would be subject to employee contribution and employer remittance if it was taxable benefit under s. 6(1)(a) of Income Tax Act (Can.). To fall into common law exception, free beer must have been provided primarily for benefit of employer and any personal enjoyment by employee must have been merely incidental to employer’s business purposes. Employer undoubtedly derived some benefit from both quality control and marketing perspective from its staff beer policy encouraging employees to report any problems with quality and to share free beer with non-employees. Employees had no legal obligation to cash in ticket, sample product, share it with others or report any quality control problems, and employer received few quality reports and did not even monitor employees’ use of tickets. Employer did not rebut Minister’s assumption that it was employees who primarily benefited from distribution of beer tickets, and employer who received incidental benefit. It was established law that employee benefits should be valued at fair market value, which in this case was retail value of beer rather than cost to employer of manufacturing it.
Steam Whistle Brewing Inc. v. M.N.R. (June 26, 2012, T.C.C., Pizzitelli J., File No. 2011-4037(CPP); 2011-4039(EI)) 218 A.C.W.S. (3d) 216 (15 pp.).

Taxation

INCOME TAX

Unanswered questions not irrelevant, abusive or designed to embarrass or harass party

Motion by Crown for order compelling taxpayer to provide written responses to examinations for discovery queries conducted by written questions. Appeal related to determination under s. 55(2) of Income Tax Act (Can.), as to whether transaction or series of transactions was entered into for purposes of reducing amount of capital gain in taxpayer’s hands. Motion granted. On basis of pled assumptions, series of transactions were not patently unrelated nor prima facie lacking in nexus to application and operation of s. 55(2). Based upon principles established in 2004 case, it was clear that unanswered questions on face of pleadings were not patently irrelevant nor were they abusive or designed to embarrass or harass party or to delay case. Order was made that taxpayer be compelled to provide answers to unanswered questions and such responses be delivered within 30 days from date of issuance of decision and order.
D & D Livestock Ltd. v. Canada (June 12, 2012, T.C.C., Bocock J., File No. 2011-137(IT)G) 217 A.C.W.S. (3d) 722 (9 pp.).
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