SMALL CONCESSIONS CAN MAKE OR BREAK A TAX APPEAL!

During a tax appeal it is quite common for a tax appellant and the CRA to disclose information and to formally agree on certain facts. For example, at the outset of most tax appeal trials the parties often prepare a document commonly referred to as a “Statement of Agreed Facts” or “Partial Statement of Agreed Facts” that outlines the facts that the parties agree on. 

The Tax Court of Canada (“TCC”) decision in Athabasca University v. The Queen, 2016 TCC 252 (“Athabasca”) is a perfect example of why it is imperative that no concessions or agreement of facts be made without a careful analysis of the potential implications that this could have on the ultimate issues in dispute in the tax appeal.

The tax appellant in Athabasca, Athabasca University (“Athabasca”), specializes in online and distance learning. In the course of its commercial activities, Athabasca purchased printed textbooks from publishers and then mailed them to enrolled students.

Athabasca applied for a rebate for the textbooks under subsection 259.1(2) of the Excise Tax Act (“ETA”) on the basis that it met all conditions required to claim a printed books rebate, namely that the textbooks were not acquired “for the purpose of supply by way of sale”.

The CRA denied Athabasca the printed books rebate because it took the position that Athabasca did not qualify for this rebate because it had acquired the books “for the purpose of supply by way of sale” to satisfy its obligations to students.

Athabasca appealed the CRA’s decision to the TCC.

At the outset of the tax appeal trial, the CRA conceded that Athabasca did not make a separate supply of textbooks, but instead made a "single supply of instructional services" to its students.  Given that this case ultimately turned on whether or not Athabasca was making a single supply or two separate supplies, this seemingly small concession basically handed the tax appeal to Athabasca on a silver platter.

As the TCC correctly alluded to in its decision allowing Athabasca’s tax appeal, the fact that the CRA conceded that there was only a single supply of instructional services meant that it was impossible for the textbooks to have been acquired “for the purpose of supply by way of sale”.

The TCC further noted that even if the CRA was correct that there was a “sale” of the printed textbooks, the CRA’s admission that there was a single supply was fatal to its case because there had to be a “supply by way of sale” – a sale alone was not sufficient. The TCC also determined that the words “for the purpose…” in section 259.1(2) of the ETA meant for the “ultimate purpose”, not the “immediate purpose”.

The Athabasca case should serve as a cautionary tale of the fact that seemingly small concessions can make or break the ultimate issues in dispute in a tax appeal.

This case also illustrates the importance of contacting an experienced tax professional early on in a tax dispute to prevent any unnecessary disclosures or concessions that could seriously hamper the chances of successfully appealing a CRA assessment.

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