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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
