61(3)

DAMAGES

In a September 11, 2002 Tax Court case, the taxpayer received from Ontario Hydro $488,000 for general damages and $388,000 for pre-judgement interest, both of which were found to be non-taxable.  The Court noted that the general damages (tort damages) were in respect of the wrong done to Dr. A - not in the ultimate loss of his job - but in the stripping of his responsibilities as a nuclear researcher.  The breach was in the shift from a responsible researcher to an employee without responsibilities.  To be taxable, there must be some closer tie between the damages and the loss of employment.  Also, the pre-judgement interest has the character of damages, and not a separate “interest” income item.

Taxpayers that are in legal disputes with employers should consider this judgement to determine the fine line between taxable receipts for damages “in respect of loss of employment” and non-taxable receipts for general damages.

TRUCKING

A class-action lawsuit is proceeding on behalf of truckers, bus drivers and other people who have been using CCRA’s simplified method of claiming meal allowances of $11 per meal to a maximum of $33 at one-half or $16.50 per day.  This is being compared to government workers who received non-taxable allowances of $62.00 per day for their “meal allowance”.

Over 1,500 people have sent in their application fee of $100 by the deadline of November 30, 2002.

See website www.summerlandlawoffice.com/classaction.html for a five-page discussion.

61(4)

SHARE SALE BY EMPLOYEES

In a November 1, 2002 Technical Interpretation, CCRA confirmed that an arm’s length employee can sell their shares of the employer corporation to a new corporation established by the employer so that the employee receives “capital gain” treatment (which could be tax-free under certain conditions) while the employer is still buying with pre-personal tax dollars.

61(5)

SCIENTIFIC RESEARCH AND EXPERIMENTAL DEVELOPMENT (SR&ED)

On October 10, 2002, CCRA introduced Interpretation Bulletin IT-151R5 which explains SR&ED which, provides a 35% refundable investment tax credit to Canadian-controlled private corporations, and a 20% investment tax credit to others.

It was noted in the March 30, 2002 issue of the Financial Post that a study indicates that only 40% of eligible corporations have claimed their SR&ED.  This may be because of the old prejudice that it is hard to obtain a credit.  However, the study notes that the process is now streamlined and easier than in the past.  Often, CCRA’s SR&ED employees will actually help with the application.

It was also noted that 12% of eligible companies did not even know that SR&ED credits existed.

Editor’s Comment

Remember, this is a valuable credit and provinces - with the possible exception of Alberta and P.E.I. - also provide SR&ED credits.

INTEREST EXPENSE - DEBT CONVERSION - O.K.

In an October 9, 2002 Technical Interpretation, CCRA reviewed a situation where an individual owns an investment portfolio with a market value of $200,000 and has a mortgage of $100,000 on his personal residence.  The individual will sell $100,000 of his investments and use the proceeds to pay off the mortgage.  The individual would then re-borrow the $100,000 and acquire the same or other interests thereby converting non-deductible interest to deductible interest.

Caution:  Professional help may be needed because of the importance of the documentation, the possible tax implications on the sale of the portfolio, and the various fees that may apply.

61(6)

PERSONAL SERVICE BUSINESS (PSB)

In a September 13, 2002 Tax Court case, the taxpayer was employed as the accountant and chief financial officer of Clearly Canadian Beverage Corporation (CCBC).  However, he also provided other services to CCBC through his corporation (S&C).  CCRA took the position that the income received by S&C was PSB income and, therefore, taxed at top rates, rather than the very beneficial small business deduction rate.

Good News!

The Court found that the income was not PSB income and noted that:

1.     The consulting fees paid to S&C were for out-of-the-ordinary duties that normally consultants would be hired to perform.

2.     The employment activities of Mr. Ross did not involve these activities.

3.     S&C rented the necessary business tools from CCBC.

4.     S&C incurred operating costs which created a risk of loss.

Editor’s Comments

In three cases where CCRA has assessed PSB status against corporations providing services to CCBC, we now have two winners, Criterion (the President provided extraordinary services to CCBC), and S&C (the chief financial officer provided extraordinary services to CCBC).  The loser was the lawyer who provided services to CCBC through his company which were essentially the same services as he was required to provide as the employed legal council of CCBC.

61(7)

DETAXERS - NAILED AGAIN

The author of the book “The 10 Secrets Revenue Canada Doesn’t Want You to Know” pleaded guilty in Saskatoon Provincial Court to charges pertaining to unfiled 1997, 1998 and 1999 tax years.  The Court ordered him to file the returns as well as fining him $12,000.  The Court noted that,  “Responsible citizenship requires that each of us contribute to the government programs instituted by Parliament”.

61(9)

FARM LOSSES

In a September 17, 2002 Tax Court case, the Court awarded costs of $25,000 against CCRA, in favour of the taxpayer.

The issue in the Federal Court was whether this was a proper awarding of costs.  The Court agreed that it was and noted that the restriction to the farm losses against Mr. F should never have occurred.  Mr. F was clearly a full-time farmer who had to rely on other sources of income to finance the farm - as opposed to the “gentleman” farmer that Section 31 is designed to restrict.  The $25,000 is a reasonable amount as this was likely lower than the legal costs incurred.

The Court noted that the farm depression, which is general public knowledge and surely known to the Government of Canada, should have been considered before this assessment was issued.

MORE GOOD NEWS

In an October 17, 2002 Federal Court of Appeal case, the Federal Court overturned the Tax Court and permitted Mrs. K a full farm loss from her interest in the farming partnership with her husband, rather than the “restricted farm loss”.

The Court noted that the taxpayer and her husband, who both had farming backgrounds, operated a farm near Swift Current, Saskatchewan as a farming partnership.  Mr. K worked full-time on the farm while Mrs. K held employment off the farm as well as working on the farm.

61(10)

ELECTRONIC COMMERCE

In July, 2002, CCRA released a Technical Information Bulletin on the topic of GST/HST and Electronic Commerce (B-090).  The Bulletin includes many examples of the application of GST to Internet sales.  This is important because it determines whether the sale is subject to the 7% GST.

61(11)

MARRIAGE BREAKDOWN -LEGAL FEES

CCRA notes that they will now consider legal costs incurred to obtain spousal support under the Divorce Act or under the applicable provincial legislation in a separation agreement to be deductible because it is incurred to enforce a pre-existing right to support.  CCRA also accepts that legal costs of seeking to obtain child support, an increase in child support or make child support non-taxable under the Guidelines are also deductible.

These changes will be effective for future assessments and reassessments and will not apply retroactively (unless a Notice of Objection was filed and is still outstanding, or can still be filed).

T4 SLIPS - GUIDE RC4120

CCRA’s new 37-page Guide RC4120(Rev-02) addresses the filing of the T4 Slip and the Summary Form and notes that:

1.     In February, 2003 CCRA will start accepting cancellations and amendments in electronic format for information slips.

2.     T4 Electronic Filing is an option which allows you to create, save, print, and transmit your electronic T4 information.

3.     Construction businesses have to report amounts paid or credited to construction subcontractors on a T5018, Summary of Contract Payments, Information Return.  The amounts can be filed on either a calendar or fiscal-year basis within six months from the end of the reporting period.

WITHHOLDINGS

A non-resident is taxable in Canada on Canadian-source income, subject to an override by a relevant Tax Treaty.

The withholding provisions of the Income Tax Act enable CCRA to collect the tax from the Canadian payor, who is considered to be CCRA’s agent and is liable for tax, interest and penalties if he/she fails to withhold and remit.

In a recent case, the taxpayers were required to withhold on payments for services rendered in Canada even though the recipient had no Canadian permanent establishment.  Penalties were also successfully applied against the Canadian payor.