Canada: CRA GAAR committee documents compelled – Superior Plus Corp v the Queen

International Tax Review is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Canada: CRA GAAR committee documents compelled – Superior Plus Corp v the Queen

kroft.jpg

richardson.jpg

Ed Kroft, QC


Casey Richardson-Scott

The Tax Court of Canada recently considered a taxpayer's entitlement to access records and information during the examination for discovery process regarding the Canada Revenue Agency (CRA) decision to apply the general anti-avoidance rule (GAAR). In Superior Plus Corp v the Queen 2015 TCC 132, the taxpayer had appealed an assessment based, in part, on the decision of the CRA to apply the GAAR to a conversion of an income trust to a Canadian corporation. The taxpayer brought a motion to compel the CRA to answer questions that were refused during examination for discovery, to produce un-redacted copies of certain documents, and to produce documents for which production was refused outright, all pertaining to the CRA's decision to apply GAAR in the circumstances and to the underlying policies in the Income Tax Act (Canada) (ITA) that the CRA determined had been abused. The CRA had principally refused to answer the questions and produce the documents at issue on the basis of relevance.

In its decision, the Tax Court of Canada emphasised that the relevance threshold at the discovery stage is low. The court ultimately ordered that a majority of the refused questions be answered, and that a majority of the refused documents be produced in un-redacted form. Specifically, the court ordered that questions regarding the following be answered:

  • Facts, information or knowledge contributing to the Attorney General's position to be taken at trial;

  • Facts, information or knowledge regarding the Department of Finance's considerations as to whether to make a subsequent amendment to the ITA retroactive; and

  • The Attorney General's understanding of the policy regarding loss trading under the ITA, as well as the policy underlying the introduction of the SIFT conversion rules.

The court further ordered that the following types of documents be produced in un-redacted form:

  • GAAR committee meeting notes and minutes;

  • Memoranda to file written by CRA auditors;

  • Emails between CRA officials and auditors regarding the GAAR and loss trading; and

  • Memoranda to the GAAR committee from the Aggressive Tax Planning division of the CRA.

In summary, the Superior Plus Corp. decision appears to permit taxpayers to access GAAR committee communications, meeting minutes, and memoranda. The decision may help to encourage CRA transparency in the discovery process, particularly in matters concerning the GAAR or perhaps even when taxpayers seek such information through Freedom of Information processes.

Ed Kroft, QC (ed.kroft@blakes.com) and Casey Richardson-Scott (casey.richardsonscott@blakes.com), Toronto

Blake, Cassels & Graydon

Tel: +1 416 863 2500/+1 604 631 5200 and 1 416 863 4024

Website: www.blakes.com

more across site & bottom lb ros

More from across our site

But advisers also suggest that the proposals may lead to increased compliance costs and obligations
PwC’s ability to ‘quarantine critical information’ should raise concerns for regulators worldwide, Deborah O’Neill said in her warning letter to the PCAOB
After no party won a majority, it’s important that government formation talks are concluded quickly, one Irish tax partner said
Netherlands to think again on VAT increase; consumption tax levels stable in OECD
Problem solving skills are nothing more than a ‘nice to have’ for clients, according to new ITR+ research and conversations with six global in-house and advisory tax leaders
The US President’s decision comes despite him previously ruling out a pardon for his son
Despite China and India’s hesitation towards pillar two, there’s still enough movement in other countries for clients to start getting ready, James Badenach also tells ITR
The investigations dated back to 2015 and alleged that the companies received huge financial advantages from TP rulings; in other news, Australia is set to adopt a CbCR regime
Taxpayers would have to register controlled commodity transactions and declare information to the Brazilian tax authorities under the proposed regulations
The Senate passed three bills with amendments that will enact the OECD’s 15% minimum corporate tax rate on multinationals
Gift this article