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La Cour canadienne de l’impôt conclut qu’une « cotisation supplémentaire » pour pénalité pouvait coexister avec une cotisation ultérieure, et accorde la prorogation demandée.
La Cour canadienne de l’impôt autorise en partie la modification de la Réponse, refuse certaines hypothèses de fait, et accorde 1 000 $ de dépens à l’appelant.
Appels fiscaux accueillis en partie : la Cour réduit certains avantages à l’actionnaire, rejette plusieurs dépenses contestées, et annule les pénalités pour faute lourde.
The Federal Court of Appeal held that the Tax Court erred in its legal interpretation of Reg. 4801 by treating the distribution condition and the minimum beneficiary condition as a single requirement, but on the facts (and correcting that legal error) the Tax Court’s factual findings establish the income funds did not complete a lawful distribution under the offering memorandum exemption and therefore the units were non‑qualified investments when acquired by the RRSP; accordingly the RRSP is taxable under Part I on income from those units; however, because subsection 146(10) requires the acqu…
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The motion to strike was dismissed because paragraphs 50(m) and 50(n) must be read in context with paragraphs 50(a)–(n) and the appellant's own admissions; it was not 'evident and manifest' that the respondent's pleading disclosed no reasonable chance of success, the impugned paragraphs constitute factual allegations supported by surrounding hypotheses and admissions and do not unfairly prejudice the appellant; therefore the issues must proceed to trial; costs awarded to respondent under Tariff B and parties ordered to file joint request to amend schedule within 30 days.
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The Court found the FX trades themselves were real and legally effective contracts but, on the contemporaneous evidence, the taxpayer did not demonstrate an intention to pursue a profit once brokerage fees and expenses were considered; the trading was structured to realize a target loss in 2011 with strong hedging thereafter, so the activity was not a source of income under the ITA and the brokerage fee deduction for 2011 was not allowable. Because there was no source of income, GAAR was unnecessary.
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On the balance of probabilities the Court found the US entities performed little or no marketing for SPE, substantial transfers from SPE to those entities were diverted back to Mr. Plante or his associates rather than spent on bona fide marketing, therefore SPE’s deductions were disallowed under s.18(1)(a); the four Neuman conditions for s.56(2) are satisfied so transferred amounts are includible in Mr. Plante’s income; the minister’s reassessments outside the normal reassessment period were valid under s.152(4) because appellants made misrepresentations/omissions; and penalties under s.163(2…
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The Crown did not prove on a balance of probabilities that the cash delivered by Garda belonged to or was used for the benefit of either appellant; assessments based solely on the amounts delivered, including mirror assessments, and imposition of gross negligence penalties were unsupported by reliable, corroborated evidence and in some instances beyond the permissible reassessment period, therefore the appeals are allowed and the challenged inclusions and penalties must be removed.
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On the balance of probabilities the appellant failed to prove that the payments to the private lender constituted legally payable interest used for income-producing purposes and documentation contradicted her account; therefore the interest deduction and any resulting 2013 non-capital loss (and carryback) were disallowed, the reassessed capital gains and adjusted cost base adjustments were supported by documents and upheld, the 2005–2006 repair invoices could not be claimed in 2013 or added to ACB, and the s.150 late-filing penalty was properly applied.
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The application for an extension of time was dismissed because the applicant failed to comply with mandatory statutory prerequisites: the 2014 objection was filed far beyond the 90-day period and no application under s.166.1 was made to the Minister within the one-year grace period, there were no objections or s.166.1 applications for 2015–2017, and the Court has no jurisdiction under s.166.2 without a valid s.166.1 application; additionally, the applicant did not properly raise or serve a constitutional question and procedural rules apply to Status Indians in private claims.
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