Global Cash Access (Canada) Inc. v. Minister of National Revenue, (2013) 451 N.R. 358 (FCA)

• Judge: Sharlow, Stratas and Near, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 19, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 451 N.R. 358 (FCA);2013 FCA 269

Global Cash Access Inc. v. MNR (2013), 451 N.R. 358 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2013] N.R. TBEd. NO.013

Global Cash Access (Canada) Inc. (appellant/respondent on cross-appeal) v. Her Majesty The Queen (respondent/appellant on cross-appeal)

(A-288-12; 2013 FCA 269; 2013 CAF 269)

Indexed As: Global Cash Access (Canada) Inc. v. Minister of National Revenue

Federal Court of Appeal

Sharlow, Stratas and Near, JJ.A.

November 19, 2013.

Summary:

The Minister imposed GST on commissions paid by Global to two corporations that operated casinos in Ontario. Global appealed, arguing that the commissions were exempt from GST because they were paid as consideration for "financial service" (Excise Tax Act, s. 123(1)).

The Tax Court of Canada allowed the appeal in part, finding that 75% of the commissions were subject to GST, with the remaining 25% GST exempt. Global appealed. The Minister cross-appealed.

The Federal Court of Appeal allowed the appeal and dismissed the cross-appeal. All of the commissions were exempt from GST under s. 123(1).

Sales and Service Taxes - Topic 5303

Goods and services tax - Exemptions - Financial services - Global, as a "merchant" under deals with Mastercard and Visa credit card associations, provided "Funds Access Services" in two casinos, allowing casino patrons to use their credit cards to obtain cash - Patrons purchased payment instructions (cheques) from Global by using Global's dedicated computer terminals at a kiosk in a public area of the casino or in the casino cashiers area - Patrons then exchanged these cheques with the cashier for cash - Global paid the casino a commission for each completed transaction - The Federal Court of Appeal held that the commissions were GST exempt under s. 123(1) of the Excise Tax Act as consideration for a "financial service" - What the casinos supplied in exchange for consideration (commissions) was access to casino premises for Global's equipment, the clerical services of casino cashiers, and the cash required to pay the patrons - The court stated that "since the three elements are integrally connected and there is a single consideration, there is a single supply" (exemption all or nothing, not allocated) - The court held that "each completed transaction falls within paragraph (g) of the statutory definition of 'financial service' ('the making of any advance, the granting of any credit or the lending of money ...') ... the heart of each transaction is an advance of money by the casinos, disbursed to casino patrons at Global's direction, and repayable by Global. The repayment obligation is performed when the Casino deposits the payment instruments into its bank account and the payments instruments are honoured by Global. The legal obligation of Global to repay the casinos for the amount of cash advanced may arise because the payment instrument is, in law, a 'cheque'".

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 4].

Minister of National Revenue v. Calgary (City) (2010), 403 N.R. 41; 2010 FCA 127, affd. (2012), 429 N.R. 330; 2012 SCC 20, refd to. [para. 4].

MacNeil v. Canada Employment and Insurance Commission (2009), 396 N.R. 157; 2009 FCA 306, refd to. [para. 4].

Statutes Noticed:

Excise Tax Act, R.S.C. 1985, c. E-15, sect. 123(1) [para. 16, Appendix]; sect. 138 [para. 19]; sect. 139 [para. 2]; sect. 165(1) [para. 14].

Counsel:

David Robertson and Dalton Albrecht, for the appellant;

Marilyn Vardy and Annie Pare, for the respondent.

Solicitors of Record:

Couzin Taylor LLP, Toronto, Ontario, for the appellant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal and cross-appeal were heard on September 17, 2013, at Toronto, Ontario, before Sharlow, Stratas and Near, JJ.A., of the Federal Court of Appeal.

On November 19, 2013, Sharlow, J.A., delivered the following judgment for the Court.