Tax Court of Canada


Tax

Income tax

Administration and enforcement

Fact that taxpayer’s appeals involved lots of money did not make them significant to public

Taxpayer bank brought motion for leave to call seven expert witnesses at trial of its appeals from assessments. Motion dismissed. Factors under s. 145(5) of Federal Court Rules (General Procedure) imposed high threshold on party seeking to call additional expert witnesses. Fact that taxpayer’s appeals involved lots of money did not make them significant to public. Issues surrounding application of transfer pricing rules to settlement payments and relevance of accounting treatment to deductibility of expenditures within corporate group were not of broad application and need to resolve them was not particularly pressing. Expert evidence would be important in complex and technical areas of accounting and transfer pricing issues, but that alone could not support presumption that more than five expert witnesses would be needed. Taxpayer’s proposed seven experts included four transfer pricing experts, where norm with transfer pricing cases was to call one or two such experts and there was nothing to indicate that taxpayer’s appeals differed so significantly from norm as to require so many more experts. Proportionality factor strongly favoured taxpayer as expense of calling proposed witnesses paled in relation to amounts of about $3,000,000,000 at issue. Concerns about duplication of expert witness testimony could be considered under s. 145(5) of Rules, as barring such considerations would defeat purpose of s. 145(4) of Rules to limit number of experts that could be called, and taxpayer did not establish that experts’ evidence would not be duplicative. While more experts might be needed because traditional transaction-based transfer pricing methods could not be applied given unusual subject of transfer pricing inquiry, disparity with Minister’s one transfer pricing expert suggested that taxpayer was attempting to win through numbers. Taxpayer’s delay in bringing motion would not be considered due to Minister’s failure to argue for such consideration, but it would otherwise have been given very significant weight. Only factor that supported taxpayer’s motion was that additional costs associated with extra witnesses paled in relation to amount in dispute, and mere fact that there was lot of money at stake was insufficient to allow motion.

Canadian Imperial Bank of Commerce v. The Queen (2018), 2018 CarswellNat 7853, 2018 TCC 248, David E. Graham J. (T.C.C. [General Procedure]).

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