90(2) OVERTIME MEAL ALLOWANCES

Starting January 1, 2009 where an employer provides overtime meals or an allowance for overtime meals to its employees, the CRA will not assess a taxable benefit where:

•    the amount of the overtime meal allowance, or the cost of the meal, is reasonable;

•    the employee works two or more hours of overtime right before or right after his/her scheduled hours of work; and

•    the overtime is infrequent and occasional in nature.  (CRA generally considers less than three times a week, or more in special circumstances, as being infrequent and occasional.)

     CRA will generally consider an amount not exceeding $17 as being reasonable. 

90(3) EVENTS AT A GOLF CLUB

In a January 22, 2009 Technical Interpretation, CRA notes that where a business holds a day of golf for all employees and the company pays for the green fees, rental of golf equipment, and food provided to the employees, the Income Tax Act does not allow a deduction in respect of any expenditure for the use of a golf facility.     

However, with respect to the meals, CRA notes that a golf club facility does not include the dining room, reception hall, conference room, lounges or a bar of a golf club so the deduction of expenses incurred to buy food and beverages is not restricted by the golf facility rules.           

Also, assuming that the food was offered to all employees, and it is one of six special events held in the year by the company, the Income Tax Act allows a 100% deduction for the food and beverages, as opposed to the 50% which is normally allowed.          

 

90(4) THE TWO-YEAR LIMIT

In a March 5, 2010 Tax Court of Canada case, CRA assessed Mr. M., as the “de facto director” of the corporation, for the unpaid GST (plus interest and penalties) owed by a company.           

The taxpayer had resigned as a director on January 15, 2004 and the assessment was not issued until more than two years later, June 29, 2006.

Taxpayer Wins!

The Court noted that, even though the Excise Tax Act provides a two-year statute of limitations, a person who is not a director may be considered a “de facto director” if they hold himself/herself out as a director such that a third party relies upon that person’s implicit authority as a director.  In this case, the taxpayer was not a “de facto director” of the company.           

 

90(6) TURNING AGE 71 IN 2010

Taxpayers turning age 71 in 2010 could consider making one year advance contributions to their RRSP.  For example, by making the 2011 contribution in December, 2010 (just before the RRSP is wound-up), this over-contribution may be deducted in January, 2011 if there is sufficient contribution room for 2011.  This would be subject to a 1% penalty for the month of December on the excess contributions over $2,000.  However this penalty is minor compared to the large tax deduction in 2011.           

TAX-FREE SAVINGS ACCOUNT

On October 16, 2009, Finance News Release 2009-099 provided technical amendments to the TFSA rules including a 100% tax on the income under the “advantage” rules, in addition to the existing 1% per month penalty tax on over-contributions.           

GIFT OF ECOLOGICAL PROPERTY

In an October 9, 2009 Technical Interpretation, CRA notes that when a taxpayer makes a gift of land which is ecological property, in addition to being able to claim a donation tax credit (in the case of an individual) or a deduction for gifts (in the case of a corporation), the capital gain, resulting from the disposition of the land is cancelled. 

 

90(7) FULL DEDUCTION FOR FARMING

In a September 25, 2009 Tax Court of Canada case, the taxpayer worked approximately 40 hours per week as a police officer in Ottawa and at least 40 hours per week on his farm.  CRA had restricted the deduction of the $25,379 2004 farm loss against employment income to $8,750.           

The farm was a family operation and his spouse supervised the farm business when the taxpayer was at work as a police officer.  The Court noted that the family has worked extremely hard on the farm operation.           

Taxpayer Wins!

The Court had no problem in concluding that the farm losses were fully deductible against the police officer employment income on the basis that the taxpayer’s chief source of income was a combination of farming and his employment as a police officer.

     HORSE RACING OPERATIONS

In a December 17, 2009 Tax Court of Canada case, the Court allowed the taxpayer a full deduction for horse race operation losses.           

The taxpayer’s position was that the horse operation, in conjunction with his law practice, was his chief source of income. 

 

90(8) In a December 23, 2009 Court of Appeal for Ontario case, the Court found the Agreement between Elizabeth McKee and Reid’s Heritage Homes (RHH) was one of employment, not independent contractor.          

The Court then noted that it is an implied term in an employment situation that the employee is entitled to reasonable notice of termination.           

In this case Mrs. McKee worked exclusively for RHH.  She was also under the control of RHH as to where she was to sell, the promotion methods, what she was to sell, and how much it was to sell for.  With respect to the “tools”, Mrs. McKee performed her sales functions in model homes provided by RHH and RHH supplied her stationery and forms.  Also, Mrs. McKee was financially dependent on RHH and had no expectation that she might earn a profit as distinct from the fixed commissions.  Also, the sales force of which Mrs. McKee was a member was a crucial element of RHH’s business organization.           

Editor’s Comment

It is important to have the terms of the engagement in writing and that the relationship meets the required tests if independent contractor status is to be obtained.           

Also, another downside for the payer is that when a recipient is considered to be an employee, the payer may be subject to penalties for failing to withhold and remit source deductions for income tax, CPP, EI and Workers Compensation.  The payer may also have liability if the worker was to have received other benefits.

 

90(9) PLACE OF SUPPLY RULES

On February 25, 2010, Finance Release 2010-014 introduced new Place of Supply Rules related to where the recipient of a service or an intangible property is located with respect to the GST/HST rules.           

For example, Ontario (13%) and British Columbia (12%) are proposing to introduce HST on July 1, 2010. 

DIRECT SELLING INDUSTRY

On January 13, 2010, CRA introduced GST/HST Info Sheet GI-052 - Direct Selling Industry - The Network Sellers Method for Network Sellers and Sales Representatives.  This 8-page Release reflects proposals from the January 27, 2009 Federal Budget for any fiscal year of a Network Seller that begins on or after January 1, 2010.           

INPUT TAX CREDITS

In a January 28, 2010 Tax Court of Canada case, the issue was whether Comtronic was entitled to Input Tax Credits (ITCs) where the GST Registration Number of the supplier shown on the invoice was not that of the supplier but was a validly issued number belonging to someone else as part of an identity theft operation.           

Taxpayer Loses

The Court noted that under the Excise Tax Act an ITC cannot be claimed unless the claimant has obtained prescribed information including the name of the supplier and the registration number assigned to the supplier.           

CREDIT CARD EXPENSES AND THE REGISTRANT’S USE OF FACTORS FOR CLAIMING INPUT TAX CREDITS

In an April 28, 2010 CRA Release P-184, CRA discussed the use of the Factor Method, instead of the Exact Calculation Method, to compute the eligible Input Tax Credits (ITCs) in relation to credit card reimbursements for expenses incurred by employees.           

ELECTRONIC FILING

On January 4, 2010, CRA proposed mandatory electronic filing requirements for certain GST/HST Registrants beginning July 1, 2010.           

Under the measures, the following groups will be required to file their GST/HST Returns electronically:

•           GST/HST Registrants with greater than $1.5 million in annual taxable supplies (except for charities);

•           Registrants required to recapture Input Tax Credits for the provincial portion of the HST on certain inputs in Ontario or British Columbia; and

•           builders affected by the transitional housing measures announced by Ontario or British Columbia.