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ConocoPhillips: FCA Confirms Tax Court’s Jurisdiction to Determine Questions of Timing and the Validity of a Notice of Objection

In ConocoPhillips Canada Resources Corp. v. The Queen (2014 FCA 297), the Federal Court of Appeal overturned a Federal Court decision (2013 FC 1192) and dismissed an application for judicial review by the taxpayer finding that the Federal Court lacked jurisdiction in this case.

ConocoPhillips had commenced an application for judicial review as a result of a dispute between the CRA about whether a Notice of Reassessment had been validly sent to the taxpayer.  The CRA alleged that it mailed a Notice of Reassessment on November 7, 2008. ConocoPhillips alleged that it never received the Notice of Reassessment and that it first learned of the reassessment on April 14, 2010.

Accordingly, when ConocoPhillips filed a Notice of Objection on June 7, 2010, the CRA advised that it would not consider the objection on the grounds that it was not filed within 90 days of the alleged mailing date (i.e., November 7, 2008) and that no request for an extension of time was made within the year following the alleged mailing date of the reassessment.

The Federal Court considered the question of jurisdiction and found that it had jurisdiction because the Court was not being asked to consider the validity of the reassessment (which can only be determined by the Tax Court of Canada) but rather, was only being asked to review the CRA’s decision not to consider the objection.

Based on the standard of reasonableness, the Federal Court found in favour of ConocoPhillips on the basis that the CRA had not sufficiently engaged the evidence to appropriately render an opinion whether or not the reassessment was mailed on the alleged date. The Court set aside that decision.

The Crown appealed to the Federal Court of Appeal on the basis that the Federal Court lacked jurisdiction on this issue.  The Federal Court of Appeal allowed the appeal.

Section 18.5 of the Federal Courts Act provides that judicial review in the Federal Court is not available where, inter alia, an appeal is permitted on the issue before the Tax Court of Canada.  In the present case, the Federal Court of Appeal stated that, pursuant to subsection 169(1)(b) of the Income Tax Act (Canada), ConocoPhillips could have appealed to the Tax Court after 90 days had elapsed following the date its objection was initially filed and the Tax Court would have been the correct forum to determine if, or when, the Notice of Reassessment was mailed and when the time for filing a Notice of Objection expired.

The Federal Court of Appeal clarified that the Minister’s obligation to consider a Notice of Objection is triggered regardless of whether a Notice of Objection may have been filed within the required time-frame. Further, the Minister’s decision on this issue is not an impediment to filing an appeal to the Tax Court pursuant to paragraph 169(1)(b) of the Income Tax Act (Canada). Accordingly, judicial review of this issue was not available in the Federal Court.

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ConocoPhillips: FCA Confirms Tax Court’s Jurisdiction to Determine Questions of Timing and the Validity of a Notice of Objection

McKesson: Taxpayer Files Supplementary Factum

As expected, the taxpayer has filed a Supplementary Memorandum of Fact and Law in its transfer pricing appeal in the Federal Court of Appeal.

Earlier, the Federal Court of Appeal allowed the taxpayer’s motion to add a new ground of appeal and to file a supplementary factum.

(See our previous posts on the McKesson transfer pricing appeal here and here.)

The taxpayer’s Supplementary Memorandum of Fact and Law is substantially identical to the draft factum that it had filed with its motion materials. The original draft factum was 30-pages, whereas the taxpayer’s filed Supplementary Memorandum of Fact and Law has been, on the instructions of the Court of Appeal, reduced to 20-pages. In its Order on the motion, the Court stated,

[24] Unnecessarily lengthy, diffuse submissions are like an unpacked, fluffy snowball. Throw it, and the target hardly feels it. On the other hand, short, highly focused submissions are like a snowball packed tightly into an iceball. Throw it, and the target really feels it. Shorter written submissions are better advocacy and, thus, are much more helpful to the Court.

In its supplementary factum, the taxpayer has stated:

  • The trial judge’s recusal reasons compromise the appearance or reality of a fair process such that a new trial is necessary;
  • A trial judge has no right or duty to intervene in the conduct of an appeal;
  • The trial judge in this case “put himself into the appellate arena in a direct and sustained manner”;
  • The recusal reasons raise “serious concerns” and would cause “any reasonable observer to doubt the impartiality” of the trial judge;
  • The recusal reasons “stack the deck” against the taxpayer;
  • An intervention by the trial judge interferes with the autonomy of the parties to frame the issues before the Court of Appeal on their own terms;
  • This interference is a deliberate attempt to meddle in the case on its merits;
  • The trial judge has suggested to the Court of Appeal that it must choose between allowing the taxpayer’s appeal and upholding the trial judge’s honesty and integrity;
  • A reasonable person would conclude the trial judge harbours some animus against the taxpayer that pre-dates the trial judge’s reading of the taxpayer’s factum in the Court of Appeal;
  • The trial judge was not detached and even-handed in how he dealt with this case;
  • A litigant in the taxpayer’s position could not reasonably believe it had received a “fair shake” from a process that produced “such an extraordinary intervention” in the appeal by the trial judge; and
  • The trial judge’s conduct calls into question the fairness of the entire process and must be remedied by a new trial before a different judge.

The Crown’s responding memorandum has not yet been filed.

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McKesson: Taxpayer Files Supplementary Factum

Lau: BC SC Corrects Articles of Incorporation After $17.3 Million Reassessment

Many tax rectification cases address situations in which certain transaction documents contain errors that do not accord with the parties’ intent to minimize or avoid taxes. However, there are several cases in which the courts are asked to correct errors in a company’s constating documents – errors that lead to unintended and adverse tax results for the company or its shareholders.

In Lau v. A.G. (Canada) (2014 BCSC 2384), the British Columbia Supreme Court considered whether a mistake in the drafting of a company’s Articles of Incorporation could be corrected under BC corporate law and/or the doctrine of rectification.

0777020 B.C. Ltd. was incorporated in 2006. The Articles of the company stated, among other things, that the Class E preferred shares could be issued (i) as a stock dividend, or (ii) in exchange for property. The directors of the company could establish the redemption amount of the Class E shares, but the Articles stated that this power of the directors existed only in respect of the issuance of the shares for property (i.e., no redemption amount could be determined where such Class E shares were issued as a stock dividend).

In 2008, the company issued 100 Class E shares as a stock dividend. The directors determined the redemption value to be $17,635,000. There were several subsequent transfers of these Class E shares among the individual shareholders and companies in the corporate group, and certain pre-existing liabilities were cancelled as a result of the Class E share transfers.

Subsequently, the CRA alleged the Class E shares had never been validly issued because no power to determine a redemption value existed in the company’s Articles. The CRA reassessed an individual shareholder to include $17.3 million in his income for 2008.

The individual shareholder objected and eventually appealed to the Tax Court. In the meantime, the company brought proceedings in the British Columbia provincial court to correct certain errors in the corporate documents, including the provision in the Articles addressing the directors’ power to determine the redemption value of the Class E shares. There were several proceedings that addressed the various errors:

  • May 21, 2013 – Taxpayers initiate first proceeding to correct various corporate documents
  • September 17, 2013 – Court grants requested relief in first proceeding
  • December 4, 2013 – Taxpayers initiate second proceeding to correct various corporate documents and Articles
  • April 10, 2014 – Taxpayer amends second proceeding to remove requested relief in respect of Articles
  • April 30, 2014 – Court grants requested relief in second proceeding
  • May 2, 2014 – Taxpayers initiate third proceeding to correct provision in Articles addressing Class E share redemption value

In the third proceeding, the taxpayers had revived the relief originally requested in the second proceeding in respect of the Articles. However, they adduced and relied on more extensive evidence concerning the drafting error. In response, the CRA argued that (i) the issue was barred by cause of action estoppel, (ii) the BC Court should decline jurisdiction, and (iii) rectification should not be granted.

On the first two issues, the BC Court held that (i) cause of action estoppel did not apply to prevent the taxpayers from seeking rectification of the Articles, and (ii) the BC provincial courts have exclusive jurisdiction to consider the requested relief (i.e., under the British Columbia Business Corporation Act or the doctrine of rectification) and it was not appropriate to decline jurisdiction in favour of the Tax Court of Canada.

On the third issue, the BC Court noted that the taxpayers had sought relief based on ss. 229 and 230 of the BC BCA and the court’s equitable jurisdiction. The BC Court held that the evidence of the individual shareholders and their counsel clearly established that the parties intended for the company’s directors to have the power to determine the redemption price of the Class E shares when issued as a stock dividend and in exchange for property. The absence of language in the Articles in respect of this power was a result of an error by the company’s solicitor.

The BC Court stated that ss. 229 and 230 of the BC BCA provide a court with the ability to correct any corporate mistake. Further, the BC Court was satisfied that the taxpayers had proven they had a common intention to empower the directors to determine the redemption amount and that the company’s Articles did not reflect this true intention.

The BC Court ordered that the Articles were corrected nunc pro tunc from 2006 to include language that established the proper powers of the directors.

On a sub-issue, the BC Court considered whether the CRA should have been named as a party in the third proceeding (the taxpayers had named the CRA as a party in the first two proceedings, but had refused to name the CRA as a party in the third).

The BC Court noted that there did not appear to be any consensus or consistent approach on this issue. The BC Court stated that the CRA need not be named as a party in every BC BCA or rectification proceeding. In the appropriate circumstances, the CRA may apply to be named as a party, and a court may exercise its discretion to join the CRA as a party. In this case, it was appropriate that the CRA be named as a party.

In light of the mixed success on the application, the BC Court did not award costs to either party.

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Lau: BC SC Corrects Articles of Incorporation After $17.3 Million Reassessment

Fairmont: Ont SCJ Unwinds Share Redemption and Substitutes Loan Arrangement

The common law doctrine of rectification operates to correct mistakes in transactions that produce (or may produce) unintended and adverse tax results. This was established in the landmark case of Juliar et. al. v A.G. (Canada) (50 O.R. 3d 728) (Ont. C.A.) (Dentons was counsel to the successful taxpayers).

In Fairmont Hotels Inc. et al. v A.G. (Canada) (2014 ONSC 7302) the Ontario Superior Court of Justice has provided another example of the manner in which rectification can be used to unwind certain impugned steps in a transaction and substitute the proper steps that accord with the parties’ intention to avoid tax.

Legacy Hotels REIT owned a collection of hotels, which were purchased from Fairmont in or around 1997. Fairmont continued to manage these hotels. In 2002 and 2003, Fairmont was involved in the financing of Legacy’s purchase of two hotels in Washington and Seattle. Through the use of several reciprocal loans between Legacy, Fairmont and several subsidiary companies, Legacy purchased the Washington hotel for $67 million USD and the Seattle hotel for $19 million USD. Fairmont hedged its loans to eliminate or reduce its foreign exchange tax exposure in Canada.

In 2006, Fairmont was acquired by two companies and its shares ceased to be publicly traded. This acquisition of control could have frustrated the parties’ intention that no entity would realize a foreign exchange gain or loss in connection with the reciprocal loan arrangements. A tax and accounting plan was created that would have allowed the companies to complete the acquisition and continue the full hedge of the foreign exchange exposure. However, this plan was modified before implementation with the result that certain foreign exchange exposure was not hedged.

In 2007, Legacy asked Fairmont to terminate the reciprocal loan arrangements on an urgent basis so that the Washington and Seattle hotels could be sold. A Fairmont officer mistakenly believed that the original 2006 plan had been implemented (i.e., the plan that continued the full hedge of the foreign exchange exposure) and agreed to the unwinding of the loans (which involved the redemption of certain preferred shares of the subsidiaries involved in the loan arrangements). Subsequently, the CRA reviewed the transactions and reassessed Fairmont on the basis that the 2007 share redemptions triggered a foreign exchange gain.

Fairmont brought an application to rectify the 2007 share redemptions and to substitute a loan arrangement. Fairmont argued that its intent from 2002 was to have the original reciprocal loan arrangements unwound on a tax-neutral basis. In response, the Crown argued that Fairmont had never intended the proposed substituted loan arrangement and thus was engaged in retroactive tax planning.

Fairmont relied on the Ontario Court of Appeal decision in Juliar for the principle that the exact method to achieve a common intention to avoid tax is not required at the time of the transaction. In response, the Crown argued that the Alberta Court of Queens’ Bench in Graymar Equipment (2008) Inc. v A.G. (Canada) (2014 ABQB 154) had been critical of Juliar and had stated that rectification is granted to restore a transaction to its original purpose and not to avoid an unintended effect.

However, in the present case, the Ontario Superior Court of Justice stated that, unlike the Alberta court, Ontario courts “do not have the luxury of ignoring” the Ontario Court of Appeal’s decision in Juliar. Further, the Ontario court stated that the Alberta court had not accurately described what happened in Juliar, and that another recent Alberta decision had in fact followed the reasoning in Juliar.

In the present case, the Ontario Court held that Fairmont’s intention from 2002 was to carry out the reciprocal loan arrangements on a tax- and accounting-neutral basis so that any foreign exchange gain would be offset by a corresponding foreign exchange loss. This intention remained unchanged when Fairmont was sold in 2006 and when the reciprocal loans were unwound in 2007. A mistake had caused the unintended tax assessments.

The Court also stated that this was not a situation in which the taxpayer was engaging in retroactive tax planning after a CRA audit. The parties intended to unwind the loans on a tax-free basis.

The Court allowed the application and rectified the corporate resolutions as requested. The Court awarded $30,000 of costs to the Applicants.

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Fairmont: Ont SCJ Unwinds Share Redemption and Substitutes Loan Arrangement

McKesson: FCA Allows Taxpayer’s Motion

The Federal Court of Appeal has allowed the taxpayer’s motion to amend its Notice of Appeal to add a new ground of appeal and to file a Supplementary Memorandum of Fact and Law.

(See our previous posts on the McKesson transfer pricing appeal here and here.)

The Court of Appeal stated that the lower court’s recusal reasons “depart from the norm”, and were a “new, material development ” in the appeal and “have become part of the real issues at stake”. The Court stated that it was neither clear cut nor obvious that the new ground raised by the taxpayer would fail. Further, there were no reasons to refuse the entry of the new ground into the appeal.

The Court of Appeal also ordered that a Supplementary Appeal Book be filed, which shall contain the Tax Court’s recusal reasons and the Court of Appeal’s Order on the motion.

Finally, the Court of Appeal allowed the taxpayer to file a Supplementary Memorandum of Fact and Law, and the Crown to file a responding memorandum. Interestingly, the Court of Appeal limited the length of the memorandum to no more than 20 pages. The Court of Appeal stated,

[22] In the circumstances, 20 pages is generous. Parties normally make all of their written submissions for all grounds of appeal in less than the 30 page limit in Rule 70. And many of those appeals are more complex than this one. However, in this case, the new ground is somewhat novel and the circumstances are somewhat unusual, so I am prepared to grant the appellant some leeway.

[23] The difference between what the appellants propose in page length and what I am willing to grant is nine pages. Some might wonder, “What’s the big deal about nine pages?”

[24] Unnecessarily lengthy, diffuse submissions are like an unpacked, fluffy snowball. Throw it, and the target hardly feels it. On the other hand, short, highly focused submissions are like a snowball packed tightly into an iceball. Throw it, and the target really feels it. Shorter written submissions are better advocacy and, thus, are much more helpful to the Court.

[25] Structures that lead to repetition, over-elaboration of arguments, block quotations, and rhetorical flourishes make submissions diffuse. Simple but strategic structures, arguments presented only once and compactly, tight writing that arranges clinical details in a persuasive way, and short snippets from authorities only where necessary make submissions highly focused. The former dissipates the force of the argument; the latter concentrates it.

[26] If the parties can make their submissions on the new ground in fewer than 20 pages, so much the better.

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No date has been set for the hearing of the full appeal.

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McKesson: FCA Allows Taxpayer’s Motion

FCA Dismisses Lord Black’s Tax Appeal

Earlier this year, in Black v. HMQ (2014 TCC 12), Lord Conrad Black unsuccessfully argued in the Tax Court of Canada that, due to his U.K. residency status, he should not be subject to Canadian tax on certain income and taxable benefits (see our previous post here).

In the case, the Tax Court held that a liberal and purposive approach must be adopted when interpreting tax treaties (i.e.Canada-United Kingdom Income Tax Convention). Applying this approach, the Tax Court held that Lord Black could be deemed a U.K. resident for the purposes of the Canada-UK Treaty and also a Canadian resident for the purposes of the Income Tax Act (Canada) (the “Act“).

Further, the Tax Court held that Article 27(2) of the Canada-UK Treaty applied to enable the CRA to assess a Canadian resident’s non-Canadian office and employment income. Consequently, the Tax Court held that Lord Black was liable for tax on the income and benefits in question.

Both parties had agreed that subsection 250(5) of the Act, the tie-breaker rule which deals with the deemed non-residency of a Canadian where the individual is deemed to be a resident in another country by virtue of a tax treaty, did not apply. At the time the subsection came into force in 1999, the provision was not applicable to a Canadian resident individual who was (i) a resident of two countries and (ii) deemed resident of one of those countries under a tax treaty. Had subsection 250(5) applied, Lord Black would not be a resident of Canada for the purposes of the Act.

On appeal, the Federal Court of Appeal considered the following issues:

(a) whether the Tax Court correctly determined that Lord Black could be deemed both a U.K. resident under the Canada-UK Treaty and a Canadian resident for the purposes of the Act; and

(b) whether the Tax Court correctly determined that Article 27(2) of the Canada-UK Treaty applied.

The Court of Appeal dismissed the taxpayer’s appeal and affirmed the Tax Court’s decision on both issues (2014 FCA 275).

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FCA Dismisses Lord Black’s Tax Appeal

Update: TCC and FCA Appointments

Tax Court of Canada

Associate Chief Justice Eugene Rossiter has been appointed as the next Chief Justice of the Tax Court of Canada. Justice Rossiter replaces current Chief Justice Gerald Rip, who has elected to become a Supernumerary Judge of the Tax Court.

Federal Court of Appeal

C. Michael Ryer has been appointed as a Judge of the Federal Court of Appeal. Justice Ryer served as Judge of the Court of Appeal from 2006 to 2009, after which he became counsel to Deloitte Tax Law LLP in Calgary. Justice Ryer replaces Justice Karen Sharlow, who retired from the Court in September 2014.

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Update: TCC and FCA Appointments

CRA: Financial Tools for Canadian Startup Companies

On November 26, 2014, the Canadian Government partnered with Startup Canada to convene Startup Canada Day on the Hill.

Minister of National Revenue Kerry-Lynne Findlay spoke at the event and highlighted the strategies the CRA has implemented to assist startup companies across the country.

Startups have bright, innovative founder teams, but many lack the financial expertise, time, and money required to maintain adequate financial records. This may seem insignificant in the short-term, but this will become increasingly important when attracting investors and in dealing with the CRA.

Minister Findlay stated that, with this reality in mind, the CRA has worked toward reducing the red tape associated with starting and running a business in Canada. In November 2012, 52 small business owners and 91 small business service representatives and bookkeepers participated in meetings across the country to identify issues stemming from federal rules and regulations.

How is the CRA helping Startups?

  1. Through the operation of a secure online self-service portal, available 24/7 through which many different kinds of transactions can be completed, including managing banking information and filing tax returns replacing the need to keep track of copious amounts of paper;
  2. Through the development of the Small Business Checklist which includes user-friendly and detailed information on starting, maintaining and winding up a business;
  3. Through the Business Tax Reminders App, created in consultation with small and medium-sized business owners, which allows businesses to create reminders for when their various financial payments are due; and
  4. Through the Liaison Officer Initiative which provides in – person support to businesses at key stages in their growth cycle in an effort to avoid common tax pitfalls, among other things, that would cost them in the future.

Minister Findlay stated that, in the CRA’s view, these tools provide a solid starting point for tax compliance so company founders can focus on what’s most important to them – making their business grow.

As part of the Government’s commitment to consult with businesses every two years, the CRA recently completed another red tape reduction consultation process in November. Results should be available in the Spring 2015.

A version of this post was originally published on Dentons’ Tech Startup Centre blog

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CRA: Financial Tools for Canadian Startup Companies

Legge: Improper Pleading Fatal to Crown’s Case

What must the Crown plead and how must she plead it?

This question became an issue in the Tax Court’s recent decision in Legge v. The Queen (2014 TCC 360), in which the Tax Court allowed a taxpayer’s appeal due to the Crown’s failure to properly plead its case in the Reply.

In Legge, the taxpayer received pension and business income in 2006 and 2007. On November 27, 2008, the taxpayer filed income tax returns for 2006 and 2007. In these returns, the taxpayer reported business losses from self-employment, and thus pensionable earnings was reported as nil.

Subsequently, on November 12, 2012, the taxpayer filed T1 adjustment requests for 2006 and 2007 and changed the business losses to business income. The taxpayer reported self-employed pensionable earnings of $5,524 and $5,116 in 2006 and 2007, respectively.

Under the Canada Pension Plan, a person must make CPP contributions on the amount of his/her self-employed earnings (which include income from a business and certain other amounts). Under section 30 of the Canada Pension Plan, a taxpayer who must make a contribution in respect of self-employed earnings must file a return with certain information. Importantly, subsection 30(5) states as follows:

(5) The amount of any contribution required by this Act to be made by a person for a year in respect of their self-employed earnings for the year is deemed to be zero where

(a) the return of those earnings required by this section to be filed with the Minister is not filed with the Minister before the day that is four years after the day on or before which the return is required by subsection (1) to be filed; and

(b) the Minister does not assess the contribution before the end of those four years.

 In Legge, the Crown argued that subsection 30(5) applied in this case because the taxpayer had failed to file a return of self-employed earnings within four years of the filing due date. Rather, the taxpayer reported losses rather than earnings.

The Tax Court rejected this argument on the basis that subsection 30(5) applies only if there is a failure to file and the CRA had not assessed contributions within the four-year period. The Tax Court noted that, in the present case, the assessment requirement was not mentioned in the Reply and was not mentioned by Crown counsel at the hearing. Since there was no assumption as to what assessments (if any) were made, the Crown had the burden to adduce evidence that the requirement in paragraph 30(5)(b) had been satisfied. The Crown had not adduced evidence on this point.

The Tax Court noted that this result was “in a sense a windfall” to the taxpayer, but “the Crown is well aware of the requirement to properly plead its case and to establish the facts supporting its position, either by evidence or by assumptions.”

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Legge: Improper Pleading Fatal to Crown’s Case

Guindon: SCC Hears Arguments in Penalty Case

The Supreme Court of Canada heard oral arguments today in the case of Guindon v. The Queen (Docket No. 35519). At issue in the case is the nature of the third-party penalty in section 163.2 of the Income Tax Act.

See our previous post on the case here.

The taxpayer’s factum is available here, and the Crown’s factum is here. In written submissions, the taxpayer argued:

    1. Section 163.2 is an offence provision that attracts the protections of section 11 of the Charter, and
    2. No notice of constitutional question was required.

In response, the Crown argued:

    1. The taxpayer’s failure to file a notice of constitutional question is fatal to the appeal, and
    2. Section 163.2 is not an offence provision.

The seven-member panel was chaired by Justice Rosalie Abella. (Absent were Chief Justice Beverley McLachlin and recently appointed Justice Suzanne Côté.)

Taxpayer’s Arguments

The Appellant first addressed the question of whether notice of a constitutional question was required under section 19.2 of the Tax Court of Canada Act. The Appellant argued that it was not advancing the position that section 163.2 was invalid or inapplicable or inoperable, and thus no notice was required. Further, if notice was required, it had been provided in respect of the Supreme Court proceeding.

This brought a series of pointed questions from Justices Abella and Moldaver, who asked whether the effect of the Appellant’s interpretation would be to “throw out” the third-party penalty regime in section 163.2 because it would become subject to criminal procedural requirements. Further, the Court was unconvinced that providing the notice in respect of the Supreme Court hearing cured the failure to provide the notice in the Tax Court.

In respect of the Wigglesworth test, the Appellant argued that section 163.2 is directed at any person, and therefore it is intended to promote public order rather than to regulate a private sphere of conduct. Further, section 163.2 has a true penal consequence in that the penalty imposed under this section is identical to the penalty that could be imposed under section 239 for criminal tax evasion.

Justice Rothstein asked several questions about how section 163.2 differs from the other penalty provisions in the Act and whether a finding that section 163.2 was an offense would require Parliament to redraft the provision to include language similar to that found in section 239. On this point, Justice Abella returned to the issue of whether the Appellant was in fact seeking to have section 163.2 declared inoperable.

Crown’s Arguments

The Crown’s submissions were generally received with less judicial intervention from the Court.  The Crown began its submissions with a discussion of the issue of notice of constitutional question.  When asked whether the failure to give notice can be cured in subsequent proceedings, counsel for the Crown conceded that it could in certain cases, but that by the time the dispute comes before the Supreme Court, the matter should be fully argued and the evidentiary record should be complete.

The Crown argued that, in this case, the Federal Court of Appeal could have done one of three things, each of which would have been acceptable: (1) it could have said that notice of constitutional question is required, adjourned the proceedings to remedy the failure, and heard arguments on the substantive issue; (2) it could have returned the matter back to the Tax Court to have the notice served and arguments re-heard so that the evidentiary record could be completed at trial; or (3) it could have done what it did in this case, and held that failure to give notice prevented the court from considering whether section 163.2 implicates the Charter. On this point, Crown counsel argued that the Supreme Court should not sanction a practice that makes it better to ask for forgiveness on appeal rather than asking for permission in the Tax Court.

Regarding the substantive issue, Crown counsel argued that since the penalty is computed mathematically, and with specific reference to the amount of tax credits that the individual taxpayers claimed under the Income Tax Act, then the penalty in section 163.2 is a non-discretionary penalty that bears none of the principles of sentencing (e.g., blameworthiness, retribution, denunciation, reparation, etc.).

Crown counsel discussed the facts of the case to show the link between the penalty amount and the underlying income tax at issue.  Interestingly, Crown counsel distinguished this penalty (i.e., the “tax preparer” penalty) from the “tax advisor” penalty in section 163.2, on the basis that the tax advisor penalty takes into account “gross entitlements”, which this particular penalty does not (therefore, it remains to be seen in a future case whether the “tax advisor” penalty in section 163.2 could be treated differently).  In response to questions from Justices Abella and Rothstein, Crown counsel stated that this penalty is not an “outlier”, as counsel for the Appellant suggested, and that the type of stigma attached to this penalty is a different kind of stigma than the one attached to criminal sanctions.

Finally, regarding the issue of quantum, Crown counsel argued that the amount of the penalty was irrelevant to the analysis.  Justices Abella and Rothstein asked whether the analysis would change if the amount was sufficiently enormous.  Crown counsel argued that the analysis turns on whether the penalty is penal in nature, and if the answer is no, then only in extreme cases would the actual amount cause a penalty to be penal.

*     *     *

Following brief submissions made by the intervener, the Court reserved its decision.

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Guindon: SCC Hears Arguments in Penalty Case