Recent Transfer Pricing Case: Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250By Robert Robillard - 3 November 2014
This blogpost originally appeared on rbrt.ca.
“ In this appeal, the Minister of National Revenue renews her attempt to strike out the application for judicial review brought by JP Morgan Asset Management (Canada) Inc. in the Federal Court. In that application for judicial review, JP Morgan alleges that the Minister departed from an administrative policy when she assessed it for tax under Part XIII of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) for 2002, 2003 and 2004. This, JP Morgan says, was an improper exercise of discretion. The Minister counters that, in reality, JP Morgan is challenging the validity of the assessments, a matter that is within the exclusive jurisdiction of the Tax Court of Canada.  Prothonotary Aalto dismissed the Minister’s motion to strike: 2012 FC 651 (CanLII). In his view, the application raised an independent administrative law ground of review and was properly in the Federal Court. Mandamin J. declined to quash the Prothonotary’s decision, finding no clear error on the part of the Prothonotary: reflex, 2012 FC 1366.  For the reasons below, I would allow the Minister’s appeal, set aside the orders below and strike out JP Morgan’s application.  JP Morgan’s application fails to state a cognizable administrative law claim. Further, in reality it is a challenge to the assessment for which recourse can be obtained only in the Tax Court. Finally, the relief being sought is the setting aside or vacating of the Minister’s assessments, a remedy the Federal Court cannot grant.”
Robert Robillard, CPA, CGA, MBA, M.Sc. Econ.
Transfer Pricing Chief Economist, RBRT Inc.
514-742-8086; robert.robillard “at” rbrt.ca
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