Taxation - Admiralty Law

These summaries of recent Fisheries law cases are prepared by Brad Caldwell of Caldwell & Co., 404-815 Hornby Street, Vancouver, B.C., V6Z 2E6. Telephone (604) 689-8894, E-mail: brad@marine-law.ca CV: Link.

Readers are urged to consult CanLii for updates to the cases digested on this site.

Aboriginal Rights - Income primarily from herring roe-on-kelp and herring roe fishery not exempt - Taxation

Pilfold Estate v. v. R, 2014 FCA 97

In Aboriginal Rights/Defences, Fish Cases, Taxation on August 28, 2013 (Updated August 28, 2013)

This case involved an exemption claimed by a roe-on-kelp and herring roe fisher who was a status Indian from the Musqueam First Nation. After applying the connecting factors test, the court did not allow the exemption that company minute books were kept on the reserve. Some of these factors included: "The fishing boat and fishing equipment were kept off reserve. …

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Sale of Licence to Government Licence Retirement Program treated as sale of capital property - Taxation

Canada v. Hache, 2011 FCA 104

In Fish Cases, Taxation on August 20, 2012 (Updated August 20, 2012)

This case involved a snow crab and groundfish fisher who entered into an agreement with the Government of Canada in 2001 under the Fisheries Access Program ("FAP") to surrender his fishing licences and related gear for $3,050,000 dollars. The purpose of the FAP was to allow aboriginal groups to take part in the commercial fishery. At the time that the …

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Exemption under s. 87 of the Indian Act when aboriginal crew members fishing under communal fishing licence owned by Band - for Company located on reserve. - on boat owned by Band - Taxation

McDonald v. R, 2011 TCC 437

In Fish Cases, Taxation on August 20, 2012 (Updated August 20, 2012)

Editor’s note: This case, along with three similar cases (Bastien, Dube and Robertson, 2010 TCC 552) were under appeal at the time of posting (30 November 2011).

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Aboriginal Rights and Defences Income earned by status Indians taking place partly on reserve (preparation - delivery to co-op operating from reserve) and partly off reserve (catching nearby and sales) held to be exempt under s. 87 of the Indian Act. Long history of fishing near reserve also important - mooring boats - Taxation

Canada v. Robertson, 2012 FCA 94

In Aboriginal Rights/Defences, Fish Cases, Taxation on August 20, 2012 (Updated August 20, 2012)

Application for leave to the Supreme Court of Canada was dismissed on 20 March 2012 2012 CanLII 64752 (SCC)

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Deductibility of Licence Costs as Expenses - Taxation

F.A.S. Seafood Producers Ltd. v. Canada, 1998 CanLII 344

In Fish Cases, Taxation on July 16, 2012 (Updated July 16, 2012)

This case involved a Company which purchased both a category "C" vessel based licence and a category "ZN" personal licence in 1992 for $150,000 dollars. The purchaser claimed the cost of purchasing the licences as an expense when filing its 1992 income tax return. Revenue Canada disallowed this deduction. The issue of the case was whether the cost of acquisition …

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Qualification for Scientific Research and Experimental Development credits - Taxation

Blue Wave Seafoods Inc. v. Canada, 2006 FCA 81

In Fish Cases, Taxation on July 16, 2012 (Updated July 16, 2012)

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Taxation - Treatment of Funds received from Sale of Licence to Government Licence Retirement Program

Winsor v. Canada, 2007 TCC 692

In Fish Cases, Taxation on July 16, 2012 (Updated July 16, 2012)

This case involved the Atlantic Groundfish Retirement Program, (the "AGLRP") under which the Federal Government purchased fishing licences for the purpose of reducing the number of persons participating in the ground fish fishery. The Appellant was a fish harvester who sold his fishing licences to the AGLRP and agreed to permanently leave the commercial fishery for a total payment of …

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Aboriginal Rights and Defences - Fishing Income - Fishing Income of Aboriginal Fisher - Taxation

Ballantyne v. R., 2009 TCC 325

In Aboriginal Rights/Defences, Fish Cases, Taxation on July 16, 2012 (Updated July 16, 2012)

This case involved an aboriginal fisher who fished off reserve, but delivered his fish to and on reserve fishing co-operative that acted as agent for off reserve fish marketing company. The Tax Court ruled that the fishing income was not exempt from taxation.

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Judicial Review/Crown Liability - Misfeasance - Negligent Audit - Taxation - transfer Pricing by Fish Processors

Canus v. Canada Customs, 2005 NSSC 283

In Fish Cases, Judicial Review/Crown Liability, Taxation on July 12, 2012 (Updated July 12, 2012)

This case involved an audit by Canada Customs and Revenue Agency of a Canadian Fish Processor that sold fish to its U.S. parent company. As a result of this audit, the company was re-assessed tax in the amount of $1,031345 for improper transfer pricing. As a result of this re-assessment the Fish Processor was limited in the amount of credit …

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