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The Perils of Undue Reliance on Competent Authority

In the decision on Teletech Canada Inc. v. Minister of National Revenue 2013 FC 572 dated May 29, 2013, the Tax Court of Canada considered a request by the taxpayer to have the mutual agreement procedure (the "MAP") in the Canada -US tax treaty (the "Treaty") apply to avoid double taxation. The taxpayer asserted a duty of the CRA to act to uphold the provisions of the Treaty by making a downward adjustment to correspond to an upward adjustment done by the US IRS. The company had filed revised financial statements that reduced its profits in Canada, and increased its profits in the US. The CRA rejected the request for a downward adjustment in Canada by correspondence dated November 7, 2006. The CRA decided that it would not submit the request for a downward adjustment by the Canadian taxpayer to the competent authority that deals with the MAP. This position was maintained in response to a second request responded to in 2011. The taxpayer failed to apply for judicial review of either decision within a 30 day deadline for applications for Judicial review under Section 18 of the Federal Court Act. 

It is still very much an open question as to whether a taxpayer has the right to demand the CRA to advocate their position under the competent authority process if they had met the 30 day deadline with a request for judicial review.

The competent authority process involves a negotiation between the two tax authorities with a view to avoiding double taxation.

The lesson from this case is that Canada decides what cases it will accept for competent authority, and how it will advocate the cases. As well, the process involves a non-binding arbitration result. Careful advisors should protect their clients form double taxation by filing a Notice of Objection followed by a Notice of Appeal to protect their legal position in deserving cases which are not accepted for competent authority, or where the competent authority process does not resolve the issues.

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