Articles 2023

Rectification is an equitable remedy that can be used to correct a written agreement that does not reflect the common intention of the parties. The availability of rectification was significantly curtailed by the Supreme Court of Canada’s decision in Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56. The article discusses cases that followed and their effect.

Federal Court confirms CRA can control its own processes in relation to penalty and interest relief at the objection stage.

Expert witnesses play an important, and often decisive, role in litigation. Tax disputes are no different, as experts regularly testify on matters such as those involving asset valuations, transfer pricing or scientific research and experimental development. It is a truism that the first obligation of the expert is to the court to which the expert is called to assist and not to the party calling the expert.

The tax status of a particular supply usually relies on its categorization within the bracket of supplies, either taxable, zero-rated or exempt, under the Excise Tax Act. In the case of transactions involving various similar elements, the fundamental issue becomes determining whether it is a single supply or a multiple supply. As transactions in the modern world consist of multiple layers, the distinction is crucial and, more often, complicated.

A recent decision by the Tax Court of Canada highlights the importance of tenants verifying the residency status of their landlords and complying with any obligations to withhold tax under Part XIII of the Income Tax Act.

The implementation of changes to the Mandatory Disclosure Rules as proposed in the 2021 federal budget continues to be a multi-year process. The proposed changes include broadening the scope of the existing reportable transaction rules, enacting notifiable transaction rules and enacting uncertain tax treatment rules. Recently, the government renewed its commitment to implementing the proposed rules, but their coming into force has mixed timing.

Effective January 1, 2022, the City of Toronto has begun to levy an annual 1% property-value-based tax on vacant residential properties (the Vacant Home Tax or “VHT”). VHT was codified in the new Chapter 778 of Part 2 (General By-Laws) of the Municipal Code, which Part already contained, inter alia, the City’s property tax and land transfer tax provisions. 

Applicable to contractual obligations arising or assumed as of January 1, 2023, pursuant to the Federal Prohibition on the Purchase of Residential Property by Non-Canadians Act, (the “Federal foreign buyer ban”) non-Canadian citizens, non-permanent residents, and others deemed to be “non-Canadian” have been barred from purchasing residential property across Canada for two years.

Subsection 168(1) states that GST/HST tax is generally payable on the earlier of when the consideration for the supply is paid and when it becomes due, the latter of which generally falls on the invoice date. However, in CFI Funding Trust v. The Queen, the Tax Court of Canada held that an invoice issued by the supplier is not necessary to claim an input tax credit and to satisfy requirements of the Excise Tax Act (Canada) and the Input Tax Credit Information (GST/HST) Regulations.

The general anti-avoidance rule in section 245 of the Income Tax Act is essentially an interpretive rule. In Canada Trustco, the Supreme Court adopted a single, unified approach to the misuse or abuse analysis, which rejected “abuse of the Act read as a whole” as a separate test. In the recent GAAR Consultation paper, the Finance expressed concern over the unified approach and considered codifying the “scheme” approach in Copthorne to give more weight to “abuse of the Act read as whole.”