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

US partner Matthew Chen was named as potentially the first overseas PwC staffer implicated in the tax leaks scandal, in a dramatic week for the ‘big four’ firm
PwC alleged it has suffered identifiable loss and damage arising out of a former partner's unauthorised use of confidential information; in other news, Forvis Mazars unveiled its next UK CEO
Luxembourg saw the highest increase in tax-to-GDP ratio out of OECD countries in 2023, according to the organisation’s new Revenue Statistics report
Ryan’s VAT practice leader for Europe tells ITR about promoting kindness, playing the violincello and why tax being boring is a ‘ridiculous’ idea
Technology is on the way to relieve tax advisers tired by onerous pillar two preparations, says Russell Gammon of Tax Systems
A high number of granted APAs demonstrates the Italian tax authorities' commitment to resolving TP issues proactively, experts say
Malta risks ceding tax revenues to jurisdictions that adopt the global minimum tax sooner, the IMF said
The UK and what has been dubbed its ‘second empire’ have been found to be responsible for 26% of all countries’ tax losses by the Tax Justice Network
Ireland offers more than just its competitive corporate tax environment but a reduction in the US rate under a Trump administration could affect the country, experts tell ITR
The ‘big four’ firm was originally prohibited from tendering for government work until December 1 due to its tax leaks scandal, but ongoing investigations into the matter have seen the date extended
Gift this article