Articles 2023

The Goods and Services Tax (GST) implications on loyalty rewards programs have been a subject of debate in Canada. Recent court rulings have shed light on how GST applies to loyalty programs, particularly those involving royalty points. The Tax Court of Canada (TCC) and Federal Court of Appeal (FCA) have made significant decisions in the cases of Toronto-Dominion Bank v. His Majesty the King and Canadian Imperial Bank of Commerce v. Canada.

In June 2023, the Federal Court of Appeal in Bowker v. Canada provided guidance on the appropriate amount of costs that an unsuccessful party should pay in an appeal to the Tax Court of Canada. This article will review the range of costs awarded by the Tax Court since the decision in Bowker and will briefly review whether two factors in particular correlate to higher costs awards: the litigation conduct of the losing party and the amounts at issue in the appeal.

The Department of Finance Canada (“Finance”) announced the new Canadian Entrepreneur’s Incentive (“CEI”) in its 2024 Federal Budget. In August 2024, Finance announced certain changes and released draft legislation in respect of the CEI. The CEI gives certain owners of eligible businesses access to a reduced capital gains inclusion rate when they sell shares of their business. This article provides a short overview of the proposed CEI and the changes announced in August 2024.

Business owners can now access significant tax benefits when selling a qualifying business to an employee ownership trust pursuant to a transaction that constitutes a qualifying business transfer. Among other benefits, eligible vendors are entitled to receive a shared pool of up to $10 million in capital gains deductions. This article will provide an overview of the eligibility requirements and an outline of the various benefits of EOT Transactions.

The decision in Canada v. Chad, saw Mr. Chad meet the “reasonable efforts” threshold when unsuccessfully obtaining information of non-residents. Consequently, the Court refused to grant a compliance order sought by the Minister. The decision is a study of the Income Tax Act compliance order process and a reminder of the limits of the CRA’s audit powers where taxpayers are unable to obtain the documents requested from others outside of Canada.

The new trust reporting rules, enacted in December 2022, are now in effect, for taxation years ending after December 30, 2023. The new rules will require a greater number of trusts to file both a T3 Trust Income Tax and Information Return and a new Schedule 15. Trustees of a wide variety of trusts, including bare trusts and non-resident trusts, now have the additional onus of determining which trusts (that were previously exempt from filing a T3 Return) are captured by the new rules.

In 3295940 (2024 FCA 42; rev’g 2022 TCC 68) (“3295”), the FCA provides welcome guidance on the court’s application of the General Anti-Avoidance Rule (the “GAAR”) in section 245 of the Income Tax Act (Canada) (the “Act”). 3295 is one of the few GAAR cases that has been decided in favour of the taxpayer after a long string of decisions following the Supreme Court of Canada’s decision in Deans Knight (2023 SCC 16).

Special rules of disposition apply for involuntary dispositions such as expropriations. These rules can lead to a deferral of the recognition of capital gains pending a final resolution of the compensation amount. The expropriated party may wish to consider the value of the potential deferral versus crystallizing capital gains in advance of the proposed increase of the capital gains inclusion rate from one-half (1/2) to two-thirds (2/3) on June 25.

In Glencore Canada Corporation v. The Queen (2024 FCA 3), the Federal Court of Appeal (“FCA”) dismissed the taxpayer’s appeal on whether fees related to a failed bid were received on income or capital account. The FCA held that the fees were included in income as an inducement payment pursuant to paragraph 12(1)(x).

In Madison Pacific Properties Inc. v The King, the Tax Court of Canada found that the GAAR applied to deny the appellant’s deduction of net capital losses, citing the Supreme Court of Canada’s decision in Deans Knight for the first time in a loss-trading case. Two companies had acted in concert to fundamentally transform the appellant and use non-voting shares to access its losses without acquiring de jure control of the appellant contrary to the object, spirit, and purpose of subsection 111(4).