Tax Law Commons^™

A Comment On Watersheds: Runoff From The Tax Code, Kim Brooks

Articles, Book Chapters, & Popular Press

The role of tax as an instrument of social and economic policy has recently come to the fore in debates about the environment. This paper provides a short comment on a paper authored by Janet Milne that explores the incentive effects of the tax code on watershed protection.

Residence Of Individuals (Canada), Kim Brooks

Articles, Book Chapters, & Popular Press

This short paper reviews the residence of individuals under domestic Canadian tax law and under Canada's tax treaties.

The Potential Of Multilateral Tax Treaties, Kim Brooks

Articles, Book Chapters, & Popular Press

This short chapter canvasses alternative possible approaches governments could adopt if they were serious about better coordinating and possibly harmonizing international tax regimes; explores the potential advantages of using multilateral tax treaties; evaluates the CARICOM multilateral double tax treaty; and concludes by urging the pursuit of multilateral and collective solutions to international tax law design.

Global Distributive Justice: The Potential For A Feminist Analysis Of International Tax Revenue Allocation, Kim Brooks

Articles, Book Chapters, & Popular Press

This article has a modest aim - to engage feminists and progressive international tax scholars in a shared dialogue about the importance of protecting and enhancing the state’s revenue-raising and international revenue distribution roles. To this end, the article reviews some of the feminist and critical race scholarship that might assist international tax scholars and policy makers concerned with issues of international revenue distribution; explains the role of tax treaties in allocating tax revenues between nations; applies a feminist analysis to the problem of this international revenue allocation project; and offers some tentative thoughts about a feminist approach to allocating …

Residence Of Companies Under Tax Treaties And Ec Law (Canada), Kim Brooks

Articles, Book Chapters, & Popular Press

This chapter reviews the development and present Canadian law on the residence of corporations for tax purposes. It highlights a few of the elements of Canada's corporate law regime by way of context; outlines why residence matters to corporations for Canadian tax purposes, traces the history of the Canadian tests for corporate residence, explains how the Canadian Income Tax Act addresses continuances, and reviews the approach to the determination of corporate residence reflected in Canada's tax treaties.

Tax Sparing: A Needed Incentive For Foreign Investment In Low-Income Countries Or An Unnecessary Revenue Sacrifice?, Kim Brooks

Articles, Book Chapters, & Popular Press

Low income countries often offer tax incentives to induce foreign investment, but the effectiveness of these measures may he limited by the domestic tax practices of investors' high income home countries. Most high-income countries provide a tax credit for the amount of tax paid to a foreign jurisdiction on the international profits of resident companies or individuals. Where no tax, or reduced tax, is paid to the foreign jurisdiction because of a tax incentive, the result is that the investor pays the same amount of tax they would have paid in the absence of the tax incentive, but simply pays …

Canada's Evolving Tax Treaty Policy Toward Low-Income Countries, Kim Brooks

Articles, Book Chapters, & Popular Press

Relative to at least some high-income countries, Canada has been willing to negotiate tax treaties that leave greater jurisdiction to tax (ie. more source jurisdiction) to low-income countries in its tax treaties. Nevertheless, Canada's tax treaty policy has not been overwhelmingly generous. This essay takes as its starting point Alex Easson's 1988 paper, The Evolution of Canada's Tax Treaty Policy Since the Royal Commission on Taxation. Focusing on the evolution of Canada's tax treaty policy since 1988, the essay examines three aspects of Canada's tax treaties that might increase the scope for source-based taxation by low-income countries. First, it examines …

International And Ec Tax Aspects Of Groups Of Companies (Canada), Kim Brooks

Articles, Book Chapters, & Popular Press

This short, largely descriptive piece reviews some of the history and reasons as to why the consolidation of corporate groups has not been adopted in the Canadian income tax legislation. Canada is unique becuase it is one of a very limited number of high-income countries with no formal consolidate regime. After a brief review of the history of consolidated reporting in Canada, the piece describes some of the instances where a mutuality of interest between corporations is recognized, the objectives of recognizing a group of corporations in these instances, and the measures of relatedness used to group corporations. Measures that …

Inter-Nation Equity: The Development Of An Important But Underappreciated International Tax Value, Kim Brooks

Articles, Book Chapters, & Popular Press

Modern high-income states have relied on income taxes and redistributive spending to reduce inequality nationally; yet few states have considered how their national tax systems might have important implications for international income flows between high-income and low-income states and how their tax treaties might be used as a mechanism for achieving a fairer distribution of income internationally. Discussions about the possibilities of tax systems as a means of distributing income globally, and of acting in the service of the reduction of global inequality, are nascent, but not new. The foundational, and still leading, contribution to this area of scholarship is …

Tax Treaty Treatment Of Royalty Payments From Low-Income Countries: A Comparison Of Canada And Australia’S Policies, Kim Brooks

Articles, Book Chapters, & Popular Press

The proposal made in this paper is a modest one: that high-income countries should further the cause of reducing global inequality by ensuring that in their tax treaties with low-income countries they do not usurp needed revenues by reducing low-income countries' ability to collect tax on income with a source in the low-income country. This argument is made in the specific context of the taxation of royalty payments, which present one of the most extreme examples of high-income countries unfairly confiscating revenues that appropriately belong to their low-income treaty partners. The Organisation for Economic Co-operation and Development (OECD) model tax …

The Taxation Of Aquaculture In Canada: A Comparison With The Taxation Of Agriculture And Its Policy Implications, Faye Woodman

Articles, Book Chapters, & Popular Press

In Canada, at both the federal and the provincial government levels, the tax rules applicable to agricultural producers under the Income Tax Act and other taxing statutes often apply with relatively few modifications to the aquaculture sector. The agriculture rules differ in significant aspects from those applied to other taxpayers. They also tend to be more generous. Thus, the aquaculture sector operates under regimes of taxation in Canada that may be characterized as preferential, but may also have been developed with the needs and circumstances of agriculture, not aquaculture, in mind. This chapter will examine the rationales underlying the various …

Accountants, Privilege, And The Problem Of Working Papers, Paul Paton

Dalhousie Law Journal

Full and frank disclosure between corporate issuers and their auditors and accounting advisors is critical for maintaining access to the information required for audits and public confidence in the capital markets. While tax authorities in the United States, Australia, New Zealand and the United Kingdom have the power to make broad requests for working papers, in all four jurisdictions, legislation or administrative practice reflects the determination that the best approach for balancing tax and capital markets requirements is for the revenue authorities to seek working papers only in exceptional circumstances. Additionally, limited forms of privilege for accountants have been recognized …

Delimiting The Concept Of Income: The Taxation Of In-Kind Benefits, Kim Brooks

Articles, Book Chapters, & Popular Press

The issue of which in-kind benefits should be taxed and how these benefits should be valued have concerned tax legislators, administrators, and academics since the introduction of the personal income tax system. Building her theoretical analysis on the income concept advanced by Henry Simons and relying on traditional tax policy notions of equity,neutrality, and administrative practicality, the author asserts that employees must be fully taxed on employer-provided in-kind benefits. To this effect, the article offers guidelines for distinguishing between taxable in-kind benefits and non-taxable conditions of employment. The author argues that the correct method of valuation of in-kind benefits is …

The Allocation Of Profits Between Related Entities And The Oppression Remedy: An Analysis Of Ford Motor Co. V. Omers, Kim Brooks, Anita Anand

Articles, Book Chapters, & Popular Press

In Ford Motor Co. v. Ontario Municipal Employees Retirement Board, the Ontario Superior Court of Justice reviewed the transfer pricing arrangements between parent and subsidiaries Ford US and Ford Canada in the context of a going-private transaction. Its review was the key to resolving the two main issues in the case: first, did the transfer-pricing arrangements understate Ford Canada's profits so as to undermine the fair value of Ford Canada's shares? And second, did the transfer-pricing arrangement oppress or unduly disregard the interests of Ford Canada's minority shareholders so as to give rise to the oppression remedy?

In this comment, …

Delimiting The Concept Of Income: The Taxation Of In-Kind Benefits, Kim Brooks

Articles, Book Chapters, & Popular Press

The issue of which in-kind benefits should be taxed and how these benefits should be valued have concerned tax legislators, administrators, and academics since the introduction of the personal income tax system. Building her theoretical analysis on the income concept advanced by Henry Simons and relying on traditional tax policy notions of equity, neutrality, and administrative practicality, the author asserts that employees must be fully taxed on employer-provided in-kind benefits. To this effect, the article offers guidelines for distinguishing between taxable in-kind benefits and non-taxable conditions of employment. The author argues that the correct method of valuation of in-kind benefits …

The Allocation Of Profits Between Related Entities And The Oppression Remedy: An Analysis Of Ford Motor Co. V. Omers, Kim Brooks, Anita Anand

Articles, Book Chapters, & Popular Press

In Ford Motor Co. v. Ontario Municipal Employees Retirement Board, the Ontario Superior Court of Justice reviewed the transfer pricing arrangements between parent and subsidiaries Ford US and Ford Canada in the context of a going-private transaction. Its review was the key to resolving the two main issues in the case: first, did the transfer-pricing arrangements understate Ford Canada's profits so as to undermine the fair value of Ford Canada's shares? And second, did the transfer-pricing arrangement oppress or unduly disregard the interests of Ford Canada's minority shareholders so as to give rise to the oppression remedy? In this comment, …

Learning To Live With An Imperfect Tax: A Defence Of The Corporate Tax, Kim Brooks

Articles, Book Chapters, & Popular Press

Following an introduction, the paper is divided into two parts followed by a conclusion. Part II reviews a number of objectives of the corporate tax, arguing that they should carry more weight as arguments in favour of the corporate tax than they are often attributed. Furthermore, while it is conceded that the corporate tax is a second or even an nth best tax for achieving these objectives, there are simply no administratively feasible or politically acceptable alternatives to it. The arguments reviewed in the paper are as follows. First, by taxing income from capital, the corporate tax increases the comprehensiveness, …

Learning To Live With An Imperfect Tax: A Defence Of The Corporate Tax, Kim Brooks

Articles, Book Chapters, & Popular Press

Following an introduction, the paper is divided into two parts followed by a conclusion. Part II reviews a number of objectives of the corporate tax, arguing that they should carry more weight as arguments in favour of the corporate tax than they are often attributed. Furthermore, while it is conceded that the corporate tax is a second or even an nth best tax for achieving these objectives, there are simply no administratively feasible or politically acceptable alternatives to it. The arguments reviewed in the paper are as follows. First, by taxing income from capital, the corporate tax increases the comprehensiveness, …

Book Review: Tax Stories: An In-Depth Look At Ten Leading Federal Income Tax Cases, Kim Brooks

Articles, Book Chapters, & Popular Press

This piece is a book review of Tax Stories, a book edited by Paul L. Caron. It reviews the contributions of Tax Stories, and provides a summary of each of the book's ten chapters, comparing the American tax cases discussed to the Canadian treatment of the same issues.

Corporate Nonrecognition Provisions: A Comparison Of The U.S. And Canadian Tax Regimes, Catherine Brown, Christine Manolakas

Dalhousie Law Journal

This article compares the rules governing the federal income taxation of corporate reorganizations in Canada with those in the United States, including transfers of property to a corporation, corporate divisions, share-for-share exchanges, amalgamations or mergers, recapitalizations, and corporate dissolutions. The paper outlines the provisions governing a particulartype of corporate transaction, compares the Canadian tax results with those of the United States, comments on any differences between particular tax provisions, and examines the practical implications of these differences. The authors conclude that although there are a number of parallels between the U.S. and Canadian tax systems, fundamental differences exist that change …

Flattening The Claims Of The Flat Taxers, Neil Brooks

Dalhousie Law Journal

The idea that income tax rate brackets should be flattened has gained some support among neoclassical economists, right-wing think-tanks and Canadian politicians. Those propounding the idea argue that flattening the rate structure will simplify the tax system and reduce tax avoidance and evasion. They also argue that it would usher in an era of increased economic prosperity by encouraging talented Canadians to work harder, save and invest more, and remain in Canada. In defending progressive taxation, this article takes issue with each of these claims. It concludes that the fundamental differences between those who support flat taxes and those who …

Women And Children In The Economy: Reflections From The Income Tax System, Faye Woodman

Articles, Book Chapters, & Popular Press

I have been asked to speak on “women and economics” with specific reference to the Canadian tax system. It is my thesis that the economic vulnerabilities of women and children in this nation are reflected and reinforced in the tax system. Further, it is my view that societal attitudes about who should support, and how we should support, children contribute to a complex synergy within the economic/tax system. This has the potential to produce a new underclass of government dependents who are dependent because, paradoxically, they receive so little support. Finally, I end with a plea for a broader commitment …

Taxing Times For Lesbians And Gay Men: Equality At What Cost?, Claire Fl Young

Dalhousie Law Journal

In this article I shall briefly review some of those struggles and the current state of the law. This forms the backdrop to an issue that I view as being of fundamental importance to lesbians and gay men in their fight for equality and which has not received much attention; that is the tax system. I shall focus on two aspects. First, I shall analyse the use of the tax system as a spending programme and a tool by which to subsidise particular activities. In this context I shall examine the federal government's refusal to recognise lesbian and gay relationships, …

Economic Actors In The Work Of Madame Justice Wilson, Maureen Maloney

Dalhousie Law Journal

One cannot discuss corporate or tax law, or indeed any law for that matter, in a value vacuum. How we interpret, analyse and assess factual situations and the legal analysis of them will differ depending upon our individual, and occasionally, collective or societal perspectives. In the economic sphere, a great deal depends upon one's world view of the primary economic actors in our society - corporations; and the main economic laws - the tax laws. At the outset I should state that a major reason for my disagreement with some of Justice Wilson's decisions is due to the fact that, …

Behind Closed Doors: How The Rich Won Control Of Canada's Tax System... And Ended Up Richer, Faye Woodman

Dalhousie Law Journal

Linda McQuaig is not an expert. Therein lies an important strength of her book on the Canadian tax system, Behind Closed Doors: How The Rich Won Control of Canada's Tax System ... And Ended Up Richer. Because she is not an expert she has not relied on an insider's knowledge of technical points and jargon and neither has she gotten caught up in a particular disciplines's specialist concerns. Rather, as a good journalist, she has provided a lucid critique of the tax system which will be of interest to anyone concerned with how the tax system is or how it …

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.

Taxation Of Personal Injury Awards: A Wiry Methuselah, Vern Krishna

Dalhousie Law Journal

The income tax status of damage awards in personal injury actions assumes greater importance as litigation in this area increases and the monetary value of judgments and settlements escalates. If the United States experience has any predictive value for Canadian trends, the statistics are ominous indeed. During the last decade alone, medical malpractice cases, which represent but one segment of personal injury actions, have witnessed an increase in the average quantum of damages from $62,151 to $350,000, while the total payout in New York State went from $1.4 million to $17 million.1 If, as Street had commented, ". . . …

Taxation Of Personal Injury Awards: A Wiry Methuselah, Vern Krishna

Dalhousie Law Journal

The income tax status of damage awards in personal injury actions assumes greater importance as litigation in this area increases and the monetary value of judgments and settlements escalates. If the United States experience has any predictive value for Canadian trends, the statistics are ominous indeed. During the last decade alone, medical malpractice cases, which represent but one segment of personal injury actions, have witnessed an increase in the average quantum of damages from $62,151 to $350,000, while the total payout in New York State went from $1.4 million to $17 million.1 If, as Street had commented, ". . . …

Taxation Of Personal Injury Awards: A Wiry Methuselah, Vern Krishna

Dalhousie Law Journal

The income tax status of damage awards in personal injury actions assumes greater importance as litigation in this area increases and the monetary value of judgments and settlements escalates. If the United States experience has any predictive value for Canadian trends, the statistics are ominous indeed. During the last decade alone, medical malpractice cases, which represent but one segment of personal injury actions, have witnessed an increase in the average quantum of damages from $62,151 to $350,000, while the total payout in New York State went from $1.4 million to $17 million.1 If, as Street had commented, ". . . …

Evolution Of The Canadian Tax Reform, John G. Head

Dalhousie Law Journal

The passage of the Tax Reform Bill in December 1971 marked the end of an extraordinary decade of inquiry and debate on federal tax reform in Canada. Minor (and some major) changes are still being made, and a further instalment of reform is to be expected in the area of sales taxation. The more controversial issues of tax reform in the field of income taxation have, however, been finally settled, at least for the next few years and probably for a much longer period. While business firms, families and the government wrestle with the complexities of the new system, it …