Beyond the Grave: Balancing Confidence and Flexibility in Gift Planning

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Balancing Confidence and Flexibility in Gift Planning By:  Adam Aptowitzer One of the unstated pillars of gift planning is to find ways of assuring a donor that his/her wishes will be carried out after death.  Unfortunately, this can be a double-edged sword. While it may help convince a donor to give now the future needs of a charity can be difficult to anticipate. Consequently, it is important to balance flexibility with respect for the donor’s wishes when discussing gift planning arrangements. Typically when donors are…

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Start the Clock – New Case on Suing Tax Advisors

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By: Adam Aptowitzer It is no secret that over the past few years there have been a number of circumstances which have led to lawsuits against tax lawyers and accountants. These have primarily been related to the proliferation of tax shelters but, as always, there are the usual negligence claims resulting from more typical work. One recent Ontario case is instructive in discussing the limitation period relating to such cases. It is common amongst the various provinces that a civil lawsuit cannot be brought after…

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Seduction, Money and Tax New Court Decision: Sensible but Unsettling

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In the still smoldering wreckage of the charitable donation tax shelters a new case has surfaced, which dealt with the involvement of some of the planners. Interestingly the case does not attack the individuals for their role as planners but rather for their own participation in an individualized version of the tax shelter they later peddled to others. And in this interesting reversal of the cobbler’s children phenomenon the individuals donated millions of dollars through the scheme rather than the tens of thousands that seemed…

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Supreme Court Rules Against Director of a Charity

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By:  Adam Aptowitzer As Counsel for Ms. Guindon in her case with the Minister of National Revenue we have kept our readers abreast of developments as the appeal wended its way to the Supreme Court of Canada. On July 31st, 2015 the Supreme Court issued its ruling in the matter thus ending the appeal for Ms. Guindon. The Supreme Court found that Ms. Guindon was indeed civilly liable for her actions related to the issuance of tax receipts by a charity. By way of reminder,…

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Charter Protection Cannot be Taken for Granted

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By: Adam Aptowitzer It is almost trite to say that the Canada Revenue Agency is dedicated to the administration of the income tax system in this country. There are exceptions to this, of course, the most obvious being the regulation of charities. However, a recent amendment to the Income Tax Act giving the CRA new powers may have gone beyond adding ancillary duties and created a secondary mandate for the agency. New subsection 241(9.5) requires the Agency to deliver evidence of certain criminal code offences…

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An Oscar Worthy Performance

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By: Adam Aptowitzer Readers will likely agree that the study and practice of taxation can be both interesting and, at least at times, exciting. It is therefore surprising that there are not more movies featuring tax lawyers and accountants. One would imagine these movies would show a tax litigator with a well-muscled calculator finger fighting off the faceless hordes of CRA auditors to free the unjustly reassessed taxpayer in distress. Yet, despite the self-image of those in private practice as the Luke Skywalkers of the…

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Tax Litigation and the Veil of Secrecy

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There are many lawyers in the country who chafe at the name appropriated by the Department of Justice given the Orwellian connotation that it has a monopoly on its dispensation.  In reality, the DoJ is the law firm for the federal government and thus acts as other law firms, providing advice to all government departments.  That advice is either accepted or ignored by their clients.  But unlike lawyers of the private bar whose paramount duty is to their clients DoJ lawyers must (or at least…

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Considering Costs in Estate Litigation

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A recent judgment from the Ontario Court of Appeal provides a good reminder to factor in the risk of paying costs before deciding whether to litigate a matter. In Sawdon Estate v Watch Tower Bible and Tract Society of Canada et al.[1], the court awarded a type of ‘blended’ costs that are outside the usual rules of estate litigation cost awards. The judgment is also a good object lesson in the types of considerations a judge may take into account when deciding costs. The facts…

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Fighting Back

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By: Adam Aptowitzer One does not need to be a tax lawyer to be familiar with stories of CRA officials using their office and abusing their power to cause problems for their fellow citizens.  Obviously, the vast majority of CRA representatives act in a professional manner but a small number of miscreants can cause such dramatic and catastrophic consequences for otherwise law-abiding citizens that their tales of woe colour the reputation of the entire Agency. And indeed, the power the CRA has over everyday individuals…

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Bolting the Barn Door After It’s Burned to the Ground

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By:  Adam Aptowitzer In a report entitled “Donor Beware”[1] the Tax Ombudsman opined on the CRA’s administrative responsibilities regarding charitable donation tax shelters. Perhaps the most surprising thing about the report is that it is dated March 19th, 2014 after years of legislative implementation of tools for the CRA to crack down on tax shelter promoters, charities, directors of charities and donors connected with such plans. As far as we can tell most offensive tax shelters seem to be shut down albeit leaving several large…

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