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ED KROFT, Q.C. BLAKE, CASSELS & GRAYDON LLP September 19, 2013

TAX EXECUTIVES INSTITUTE PROCEDURAL ISSUES IN TAX APPEALS – SOME RECENT CASES AND STATUTORY PROPOSALS. ED KROFT, Q.C. BLAKE, CASSELS & GRAYDON LLP September 19, 2013. Procedural Issues in Tax Appeals. Waivers Fietz , 2013 FCA 32 (interpretation of blank waivers and context)

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ED KROFT, Q.C. BLAKE, CASSELS & GRAYDON LLP September 19, 2013

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  1. TAX EXECUTIVES INSTITUTEPROCEDURAL ISSUES IN TAX APPEALS – SOME RECENT CASES AND STATUTORY PROPOSALS ED KROFT, Q.C.BLAKE, CASSELS & GRAYDON LLP September 19, 2013 KROFT/SEPTEMBER 2013

  2. Procedural Issues in Tax Appeals • Waivers • Fietz, 2013 FCA 32 (interpretation of blank waivers and context) • Forum – Which is the Correct Court? • Ereiser, 2013 FCA 20 (misconduct of CRA officials – effect on pleadings) KROFT/SEPTEMBER 2013

  3. Procedural Issues in Tax Appeals • Requirements • Soft Moc, 2013 FC 291 (section 231.6) • RBC, 2013 FCA 50 (unnamed persons) • Lordco, 2013 FCA 49 (unnamed persons) KROFT/SEPTEMBER 2013

  4. Procedural Issues in Tax Appeals • New Arguments and 152(9) of the ITA • Terasen, 2012 TCC 408 (by Crown) • Mullen, 2013 FCA 101 (by Taxpayer) • Global Equity, 2012 FCA 272 (by Crown) • GAAR • Birchcliff, 2012 TCC (basis for abuse) • St. Arnaud, 2013 FCA 88 (RRSP strip – GAAR not argued) KROFT/SEPTEMBER 2013

  5. Procedural Issues in Tax Appeals • Judicial Review • Reasonableness Standard in Judicial Review • Abraham, 2012 FCA 266 • Improper Exercise of Statutory Discretion in Assessing • JP Morgan, 2012 FC 651 • Sifto, 2013 FC 214 • Compelling decisions and determinations • SignalGene/Theratechnologies, 2012 FC 1375 • Due dispatch for payment of refunds • Ficek, 2013 FC 502 KROFT/SEPTEMBER 2013

  6. Procedural Issues in Tax Appeals • Onus of Proof • Priftis, 2012 TCC 414 (Crown filed appeal late) • Dalstrom, 2013 FCA 21 (Crown filed appeal late) • Date of Filings • Nacom, 2013 TCC 90 (Taxpayer alleged CRA lost T2) KROFT/SEPTEMBER 2013

  7. Procedural Issues in Tax Appeals • Large Corporation Objection Rules • Bakorp, 2013 TCC 94 (relief differed from objection to appeal – appeal struck out) • Crown Replies • O’Dwyer, 2012 DTC 1215 (assumption of Crown – tax shelter) • Adjournment • Edwards, 2012 FCA 330 (adjournment permitted) KROFT/SEPTEMBER 2013

  8. Procedural Issues in Tax Appeals • Waiver of Objection and Appeal Rights • Noran, 2012 TCC 434 (Taxpayer tried to disavow waiver) • Privilege • Imperial Tobacco, 2013 TCC 135 (waiver, accounting firms, parent-sub transfers) KROFT/SEPTEMBER 2013

  9. Procedural Issues in Tax Appeals • Rule 58 – Stated Case • Devon Canada Corporation, 2013 DTC 1043 (question of law) • 2013 Budget Proposals – Blakes on Tax Controversy • Canada Revenue Agency – Income Tax No. IC00-1R3-Voluntary Disclosure Program KROFT/SEPTEMBER 2013

  10. Procedural Issues in Tax Appeals • Notice of Ways and Means Motion – April 22, 2013 • Requirements • Collection • Tax Court Practice • Monetary limits • Partial disposition of appeal • Determination of common questions KROFT/SEPTEMBER 2013

  11. Questions KROFT/SEPTEMBER 2013

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