1

FRASER VALLEY CHARTERED ACCOUNTANTS ASSOCIATION

SETTLING TAX DISPUTES

ED KROFT, Q.C.
BLAKE, CASSELS & GRAYDON LLP
Nov...
2

Settling Tax Cases
Clients always want to know about prospects of settling
tax controversies
Settlement is an art – the...
3

Settling Tax Cases
Tax statutes do not fully outline the
methodology of how to settle disputes – they
refer to procedur...
4

Settling Tax Cases
There are many “tools” that may assist with facilitating a
settlement
First and foremost, the key to...
5

Settling Tax Cases
To get to this place, realism is required and the
timetable may be longer than one of the parties mi...
6

Settling Tax Cases

What Might Be Considered A “Win”?
Some Elements
What is a “win” for the taxpayer? What is a “win” f...
7

Settling Tax Cases

What Might Be Considered A “Win”?
Some Elements
What is at stake for the tax authority? The same th...
8

Settling Tax Cases

What Might Be Considered A “Win”?
Some Elements
Court proceedings or not? (time, money) – Both
side...
9

Settling Tax Cases

What Might Be Considered A “Win”?
Some Elements
Costly process or not and the need to hire people?
...
10

Settling Tax Cases

What Might Be Considered A “Win”?
Some Elements
Certainty for future years or not? (principle, som...
11

Settling Tax Cases

What Might Be Considered A “Win”?
Some Elements
Are amounts owing to tax authorities creditable
el...
12

Settling Tax Cases

What Might Be Considered A “Win”?
Some Elements
Overall: Formulation of a “maximum amount you can ...
13

Settling Tax Cases
“Maximizing” and “winning” therefore are not always
about just money
How can you “maximize” a settl...
14

Settling Tax Cases

Settlement Factors
The following is a checklist of factors which play a role
within the settlement...
15

Settling Tax Cases

Settlement Factors
3. The expected benefits of winning (present and
future)
•
•

50872094

The cha...
16

Settling Tax Cases

Settlement Factors
4. The personality, approach, bias and experience of
persons acting for the Cro...
17

Settling Tax Cases
Settlement Factors

6. The personality, approach, bias and
experience of judges
7. The need to meet...
18

Settling Tax Cases

Settlement Factors
9. Nature and tone of the communications between
the tax authority and the taxp...
19

Settling Tax Cases

Settlement Factors
12.The prospect of accountability
–
–

by the taxpayer (to shareholders, to len...
20

Settling Tax Cases

Settlement Factors
14.Possible CRA mistakes (missing statutebarred deadlines)
15.The effluxion of ...
21

Settlement Strategies

Legal Basis for Settlement
The necessity for a legal basis of settlement: can you
compromise?
C...
22

Settlement Strategies

Legal Basis for Settlement
Jurisprudence
–
–
–
–
–
–
–
–
–

Cohen, Smerchanski, Galway, Enterac...
23

Settling Tax Cases

“Maximizing”
Based on the previous list of factors and the particular
“maximization” in the circum...
24

Settling Tax Cases

“Maximizing”
Stick within risk tolerance and expectation
Determine when to settle
Identify who has...
25

Settling Tax Cases

Tools in the Settlement Toolbox
Commitment to “win”
Preparation
Good relationships with tax author...
26

Settling Tax Cases

Tools in the Settlement Toolbox
Ability to secure witnesses including those who
are no longer in o...
27

Settling Tax Cases

Tools in the Settlement Toolbox
Knowledge of court process and proper forum
for dispute
– Tax Cour...
28

Settling Tax Cases

Tools in the Settlement Toolbox
Knowledge of tax authority administrative practice and
personnel
–...
29

Settling Tax Cases

Tools in the Settlement Toolbox
Knowledge of remedies available to facilitate
the settlement
– Adm...
30

Settling Tax Cases
What are the possible effects of the settlement?
– Certainty for past
– Reduction of tax, interest,...
31

Settling Tax Cases
When can you settle?
– Anytime (audit, appeal, court)
– At the Tax Court level
• After pleadings
• ...
32

Settling Tax Cases
How do you settle?
– “Without Prejudice” written offers
• Indefinite or limited?
• Non-disclosure?
...
33

Settling Tax Cases
How do you settle?
– Waiver of objection/appeal rights – tough to reverse (Noran
West, 2012 TCC)
– ...
34

Questions

50872094

KROFT/NOVEMBER 2013
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Ed Kroft, Q.C. - Settling Tax Disputes - November 7, 2013

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Presentation by Ed Kroft, Q.C. - Settling Tax Disputes for the Fraser Valley CA Association Conference Day Nov 7, 2013

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Ed Kroft, Q.C. - Settling Tax Disputes - November 7, 2013

  1. 1. 1 FRASER VALLEY CHARTERED ACCOUNTANTS ASSOCIATION SETTLING TAX DISPUTES ED KROFT, Q.C. BLAKE, CASSELS & GRAYDON LLP November 7, 2013 50872094
  2. 2. 2 Settling Tax Cases Clients always want to know about prospects of settling tax controversies Settlement is an art – there is no one formula for success Many factors affect the methodology, content and timing of a settlement and the strategy associated with it 50872094 KROFT/NOVEMBER 2013
  3. 3. 3 Settling Tax Cases Tax statutes do not fully outline the methodology of how to settle disputes – they refer to procedural rules relating to the powers of the Minister to reassess and waivers of objection and appeal rights (ITA 169(3), 164(4.1), 165(1.2), 165(3), 165(5), 165(1.2), 169(2.2), 152(4.2), 152(4.3), 220(3.1)) Parties only rely on these rules to effect a resolution of a dispute 50872094 KROFT/NOVEMBER 2013
  4. 4. 4 Settling Tax Cases There are many “tools” that may assist with facilitating a settlement First and foremost, the key to crafting and obtaining a successful settlement requires clarity regarding what a “win” is for each party to the controversy 50872094 KROFT/NOVEMBER 2013
  5. 5. 5 Settling Tax Cases To get to this place, realism is required and the timetable may be longer than one of the parties might expect – so patience is critical to success “Maximizing” a settlement will differ in every case. “Win” will look different to different people 50872094 KROFT/NOVEMBER 2013
  6. 6. 6 Settling Tax Cases What Might Be Considered A “Win”? Some Elements What is a “win” for the taxpayer? What is a “win” for the tax authority? What is at stake for the taxpayer? Money, principle, time, political capital, someone’s job, certainty, public scrutiny? 50872094 KROFT/NOVEMBER 2013
  7. 7. 7 Settling Tax Cases What Might Be Considered A “Win”? Some Elements What is at stake for the tax authority? The same things Money: Nothing owing or some amount? (Both sides) 50872094 KROFT/NOVEMBER 2013
  8. 8. 8 Settling Tax Cases What Might Be Considered A “Win”? Some Elements Court proceedings or not? (time, money) – Both sides Lengthy process or not? (time, someone’s job) – Both sides Availability of personnel to work on the tax controversy? (time, political capital) – Both sides 50872094 KROFT/NOVEMBER 2013
  9. 9. 9 Settling Tax Cases What Might Be Considered A “Win”? Some Elements Costly process or not and the need to hire people? (money) – Both sides Reputational risk or not? (someone’s job, money) – Both sides 50872094 KROFT/NOVEMBER 2013
  10. 10. 10 Settling Tax Cases What Might Be Considered A “Win”? Some Elements Certainty for future years or not? (principle, someone’s job) – Both sides Consistency with published practices/precedent (principle) – Tax authorities 50872094 KROFT/NOVEMBER 2013
  11. 11. 11 Settling Tax Cases What Might Be Considered A “Win”? Some Elements Are amounts owing to tax authorities creditable elsewhere? Has full provision been made on financial statements? (Does “winning” really matter?) – Taxpayer (Bonus allocations) 50872094 KROFT/NOVEMBER 2013
  12. 12. 12 Settling Tax Cases What Might Be Considered A “Win”? Some Elements Overall: Formulation of a “maximum amount you can live with” will help to determine the strategy and the tools needed to obtain the result – This analysis is done consciously or unconsciously, rationally or irrationally, by both sides. The answer is fluid and can change at different times because the relative importance of the elements will change. 50872094 KROFT/NOVEMBER 2013
  13. 13. 13 Settling Tax Cases “Maximizing” and “winning” therefore are not always about just money How can you “maximize” a settlement? – Understand what factors and issues affect your settlement prospects – Understand that factual, legal, practical and strategic factors lead to or prevent settlement 50872094 KROFT/NOVEMBER 2013
  14. 14. 14 Settling Tax Cases Settlement Factors The following is a checklist of factors which play a role within the settlement process: 1. Costs of litigation/dispute resolution (professional costs and opportunity costs) 2. Stress and distraction of litigation/dispute resolution (loss of time) 50872094 KROFT/NOVEMBER 2013
  15. 15. 15 Settling Tax Cases Settlement Factors 3. The expected benefits of winning (present and future) • • 50872094 The chances/magnitude of winning (based on an analysis of the facts, evidence, law, and business issues) The personality, approach, bias and experience of persons acting for/on behalf of the taxpayer KROFT/NOVEMBER 2013
  16. 16. 16 Settling Tax Cases Settlement Factors 4. The personality, approach, bias and experience of persons acting for the Crown: • CRA (audit, appeals, designated appeals) Department of Justice lawyers 5. The nature of the dispute • • • • • 50872094 Technical (legal interpretation) Factual Judgmental (e.g. quantum, valuation) Is it an “all or nothing” type of issue? Does the matter lend itself to a compromise? (e.g. valuation, expenses) KROFT/NOVEMBER 2013
  17. 17. 17 Settling Tax Cases Settlement Factors 6. The personality, approach, bias and experience of judges 7. The need to meet deadlines By the taxpayer (to provide information/documents, limitation periods, procedural limitations) By CRA (limitation periods, internal constraints, procedural limitations) 8. Publicity of the dispute and reputational risk 50872094 KROFT/NOVEMBER 2013
  18. 18. 18 Settling Tax Cases Settlement Factors 9. Nature and tone of the communications between the tax authority and the taxpayer (meetings, telephone calls, written responses) 10.Personal/corporate profile of the taxpayer (education, sophistication, experience, wealth) 11.The necessity of technical compliance with applicable tax legislation 50872094 KROFT/NOVEMBER 2013
  19. 19. 19 Settling Tax Cases Settlement Factors 12.The prospect of accountability – – by the taxpayer (to shareholders, to lenders, to competitors, to the public) by the tax authority (internally, to the Auditor-General, to the public) 13.Possible taxpayer mistakes (lack of courtesy/respect, inconsistent stories, lack of interest, absence of proof/evidence, noncompliance with procedural or substantive requirements) 50872094 KROFT/NOVEMBER 2013
  20. 20. 20 Settling Tax Cases Settlement Factors 14.Possible CRA mistakes (missing statutebarred deadlines) 15.The effluxion of time and the age of the dispute (battle fatigue, maturing perspectives) 16.The need for a “principled” or legal settlement 50872094 KROFT/NOVEMBER 2013
  21. 21. 21 Settlement Strategies Legal Basis for Settlement The necessity for a legal basis of settlement: can you compromise? Can a Taxpayer or CRA repudiate a settlement? 50872094 KROFT/NOVEMBER 2013
  22. 22. 22 Settlement Strategies Legal Basis for Settlement Jurisprudence – – – – – – – – – Cohen, Smerchanski, Galway, Enterac, Garber 1390758 Ontario Huppe CIBC World Markets Potash Corporation Hine McKenzie Transalta Softsim 50872094 KROFT/NOVEMBER 2013
  23. 23. 23 Settling Tax Cases “Maximizing” Based on the previous list of factors and the particular “maximization” in the circumstances, how can you “maximize” a settlement? Understand your adversary and their position Establish and maintain credibility and integrity with your adversary – trust creates the environment for a deal or it has to be mediated by a judge or foreign government Understand and anticipate what implications a settlement will have 50872094 KROFT/NOVEMBER 2013
  24. 24. 24 Settling Tax Cases “Maximizing” Stick within risk tolerance and expectation Determine when to settle Identify who has the authority to settle Be creative and assume nothing is impossible Be prepared to litigate 50872094 KROFT/NOVEMBER 2013
  25. 25. 25 Settling Tax Cases Tools in the Settlement Toolbox Commitment to “win” Preparation Good relationships with tax authorities - trust Effective documentation retention and recovery Ability to listen well and other “soft” skills – it’s a “people” process and not a robotic one Knowledge of your case and the facts 50872094 KROFT/NOVEMBER 2013
  26. 26. 26 Settling Tax Cases Tools in the Settlement Toolbox Ability to secure witnesses including those who are no longer in organizations Knowledge of the prevailing law and sensitivity to movements in judicial trends Knowledge of how to create a “legal” and “principled” settlement 50872094 KROFT/NOVEMBER 2013
  27. 27. 27 Settling Tax Cases Tools in the Settlement Toolbox Knowledge of court process and proper forum for dispute – Tax Court (settlement conference, case management, costs, motions) – Federal Court (judicial review of ministerial action including challenge to compellability of documents) – Provincial Court/Superior Court (privilege, rectification, provincial assessment) 50872094 KROFT/NOVEMBER 2013
  28. 28. 28 Settling Tax Cases Tools in the Settlement Toolbox Knowledge of tax authority administrative practice and personnel – Taxpayer relief provisions – Real time audits – Structure of the tax authority and its mechanics 50872094 KROFT/NOVEMBER 2013
  29. 29. 29 Settling Tax Cases Tools in the Settlement Toolbox Knowledge of remedies available to facilitate the settlement – Administrative (waiver of interest and penalties) – Judicial (tax court hearing/motion) – Statutory (court, remission order) Patience – when should a settlement be rejected? Knowing when to hold or fold 50872094 KROFT/NOVEMBER 2013
  30. 30. 30 Settling Tax Cases What are the possible effects of the settlement? – Certainty for past – Reduction of tax, interest, penalties – Elimination of reputational risk, cost savings, better deployment of corporate resources 50872094 KROFT/NOVEMBER 2013
  31. 31. 31 Settling Tax Cases When can you settle? – Anytime (audit, appeal, court) – At the Tax Court level • After pleadings • After Discovery process • Settlement Conference • Pre-trial Conference • Just before Trial 50872094 KROFT/NOVEMBER 2013
  32. 32. 32 Settling Tax Cases How do you settle? – “Without Prejudice” written offers • Indefinite or limited? • Non-disclosure? • Costs? Do you need a “compromise” position to get enhanced costs or can you get such costs in an “all or nothing” situation? (Blackburn Radio 2013) • Trial balloons? – Oral communications – are they useful? 50872094 KROFT/NOVEMBER 2013
  33. 33. 33 Settling Tax Cases How do you settle? – Waiver of objection/appeal rights – tough to reverse (Noran West, 2012 TCC) – Within the Tax Court process • Consent to Judgment (public) • Subsection 169(3) of the ITA • Minutes of Settlement (not public) 50872094 KROFT/NOVEMBER 2013
  34. 34. 34 Questions 50872094 KROFT/NOVEMBER 2013
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