Rémillard v. Canada (National Revenue)

Rémillard v. Canada (National Revenue)
Court (s) Database
Federal Court Decisions
Date
2022-03-16
Neutral citation
2022 FC 338
File numbers
T-1244-19
Decision Content
Date: 20220407
Docket: T-1244-19
Citation: 2022 FC 338
[ENGLISH TRANSLATION]
Ottawa, Ontario, April 7, 2022
PRESENT: The Honourable Associate Chief Justice Gagné
BETWEEN:
LUCIEN RÉMILLARD
Applicant
and
MINISTER OF NATIONAL REVENUE
Respondent
PUBLIC JUDGMENT AND REASONS
(redacted to reflect the orders of the Federal Court of Appeal
in dockets A-292-20 and A-186-21)
(Confidential Judgment and Reasons issued March 16, 2022)
I. Overview 2
II. Background 3
A. Confidentiality and in camera session 3
B. Impugned tax conventions 4
C. The tax audit 7
III. Impugned decisions – the IERs 15
A. The American IER 16
(1) Provided information 16
(2) Required information 19
B. The Swiss IER 20
(1) Provided information 20
(2) Required information 21
C. The Barbadian IER 22
(1) Provided information 22
(2) Required information 23
IV. Issues and standard of review 25
V. Analysis 27
A. Was the Agency transparent and did it act in good faith in its IERs? 27
(1) In his affidavit and in cross-examination 29
(2) Regarding LR and LR’s representatives 33
(3) In the foreign requests 36
(4) Conclusion regarding this issue 38
B. Are the information and documents required of the foreign authorities “foreseeably relevant” for the Agency’s audit? 39
C. Did the respondent exhaust reasonable domestic means to obtain the information and documents required before turning to the foreign authorities? 50
VI. Conclusion 54
I.
Overview
[1] Lucien Rémillard is a businessman who made his fortune in waste management in Quebec. He founded and directed the company RCI Environnement Inc. until he retired in 2013. He then informed the Canadian tax authorities of his intention to emigrate to Barbados in November 2013 and to become a non-resident of Canada for tax purposes.
[2] In November 2015, the Canada Revenue Agency [the Agency or the CRA] advised him that he had been selected for a tax audit under the Related Party Initiative, the main goal of this audit being to determine his tax residency.
[3] The audit began in April 2016 and continued to the end of 2018. It initially covered the 2013–14 taxation years but was eventually expanded to also include 2015, 2016 and 2017.
[4] The Agency was not satisfied with the information it received from Mr. Rémillard during its internal audit and therefore decided to contact the tax authorities in the US (January 2019), Switzerland (May 2019) and Barbados (June 2019) to obtain the information it was seeking, under the bilateral tax treaties binding Canada and these countries.
[5] Mr. Rémillard is now asking the Court to intervene and to set aside these three information exchange requests [IERs], or otherwise order the Agency to withdraw them. He has leveled a number of criticisms against the Agency, including the fact that it did not exhaust its internal resources, provided incorrect or incomplete information to the foreign authorities and essentially went on a “fishing expedition” for the purpose of obtaining information about all of his income instead of his residence; in other words, the applicant is arguing that the requested information was not foreseeably relevant.
II. Background
A. Confidentiality and in camera session
[6] The parties filed a common 19-volume, 3,674-page evidentiary record. At filing, the applicant requested a confidentiality order for some of the documents and information in the common evidence. During the hearing of that motion, Justice Peter Pamel, case management judge, confirmed that the Minister had consented to the confidentiality of much of this information (such as the social insurance number, identity of minor children, bank account numbers, and medical information) and that he solely had to rule on the confidentiality of the applicant’s financial information and information about third-parties not involved in the dispute. In an order issued on June 21, 2021 (Rémillard v Canada (National Revenue), 2021 FC 644), Justice Pamel dismissed this motion, suspending the effect of his order for 30 days to allow the applicant to appeal.
[7] It is of note that the applicant had previously sought to obtain the confidentiality of the Agency’s certified record, a motion that Justice Pamel also dismissed in an order dated November 17, 2020 (Rémillard v Canada (National Revenue), 2020 FC 1061). That decision was the subject of a first appeal in docket A-292-20. The Federal Court of Appeal heard the appeal on December 13, 2021, and has reserved judgment.
[8] The applicant is also appealing the decision regarding the common evidentiary record in docket A-186-21. On July 14, 2021, Justice Denis Pelletier of the Federal Court of Appeal stayed the execution of Justice Pamel’s decision and ordered that the common evidentiary record remain confidential for 30 days following the judgment to be rendered on appeal. The case is still not ready and no hearing date has been scheduled.
[9] The entire evidentiary record is therefore covered by this confidentiality order. Under the circumstances, the Court has no option but to conduct the hearing of the application in camera, in order to avoid radio silence. It also has no choice but to first issue a confidential version of these reasons, to allow the parties to make submissions regarding the excerpts that, in their opinion, should be redacted in a public version.
B. Impugned tax conventions
[10] Canada is a member country of the Organisation for Economic Co-operation and Development [OECD] and is a party to several international agreements that allow for the exchange of tax information with several countries including the United States, Switzerland and Barbados. These three bilateral conventions are based on the OECD Model Tax Convention on Income and on Capital 2017: OECD Publishing, 2019 [the Model Convention], which provides the following at article 26:
The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed on behalf of the Contracting States, or of their political subdivisions or local authorities, insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Articles 1 and 2.
Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to the taxes referred to in paragraph 1, or the oversight of the above. Such persons and authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. Notwithstanding the foregoing, information received by a Contracting State may be used for other purposes when such information may be used for such other purposes under the laws of both States and the competent authority of the supplying State authorises such use.
In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation:
a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information the disclosure of which would be contrary to public policy (ordre public).
If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.
In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, or other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.
[11] The conventions in question before me are the Convention between Canada and the United States of America with Respect to Taxes on Income and on Capital, signed on September 26, 1980, as amended by the Protocols signed on June 14, 1983, March 28, 1984, March 17, 1995, and July 29, 1997 [the American Convention], the Convention between Canada and Switzerland for the Avoidance of Double Taxation with Respect to Taxes on Income and Capital, signed on May 5, 1997, and amended by the Protocol signed on October 22, 2010 [the Swiss Convention], and the Agreement Between Canada and Barbados for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital, signed on January 22, 1980, and amended by the Protocol signed on November 8, 2011 [the Barbadian Convention] [together, the Applicable Conventions]. They all contain clause 26 from the Model Convention.
[12] In Canada, the Minister (or authorized representative) is the designated “competent authority” for the application of these conventions. The various duties of the competent authority are carried out by Agency officials working in information exchange services [Competent Authority].
C. The tax audit
[13] The tax audit was assigned to a New Brunswick Tax Services Office team led by auditor Denis Robichaud. It began in April 2016, when the initial questionnaire was sent out. There was no response to this questionnaire, and the applicant indicated he did not receive it.
[14] The General Audit Plan completed in June 2016, entitled Le groupe de Lucien Rémillard [The Lucien Rémillard Group], 2013–17, began as follows:
[TRANSLATION]
Scope of the audit
The audit shall be done on the entities primarily related to Lucien Rémillard. Lucien Rémillard’s residency status is the main issue in the audit as well as the tax plan implemented for his emigration to Barbados.
[15] The plan is several pages long and provides, in addition to a list of the preliminary audit steps, the risk factors identified by the workload development team. It describes the known ties between the applicant and various companies and trusts, notes the fact that he donated his residence to one of his sons and uses the address of his financial advisor or of a short-term luxury rental residence in Barbados, and enumerates his various entries into Canada since his emigration date.
[16] Following a first contact with counsel Charles C. Gagnon, the applicant’s authorized representative, in August 2016, the Agency sent a first request sheet for additional information [request T-997-1] under subsection 231.1(1) of the Income Tax Act, RSC 1985, c 1 (5th Supp) [ITA]. In general, the applicant was questioned about certain assets that were disposed of when he emigrated, other assets that were transferred, bank accounts held abroad, the description of his principal residence, and his visits to Canada in 2013 and 2014. He was asked to provide an organization chart of the entities related to him for 2013 and 2014 and documentation regarding his tax plan.
[17] Mr. Gagnon responded to request T-997-1 in early October 2016 and sent a USB key with the requested documents to the auditor, Mr. Robichaud. The applicant submits that he answered all the questions except with regard to an insurance policy for works of art; Mr. Robichaud assessed the rate of satisfactory responses at 90%. It is of note that the common evidentiary record does not contain the documents that are on the USB key but only a list of these documents created by Mr. Robichaud in response to an undertaking he made when cross-examined (Vol 17, p 3221).
[18] At any rate, a second request sheet for information [request T-997-2] was sent to the applicant in November 2016. He was asked if the three trusts and the company mentioned therein had been dissolved and, if so, to provide a reconciliation of the distributions of the funds and of the liquidating dividend in the case of the company.
[19] Mr. Gagnon responded to request T-997-2 in a letter dated November 25, 2016. It seems that some information was missing, this information being requested again in one or more subsequent requests.
[20] In March 2017, the Agency sent its third request sheet for information [request T-997-3]. The applicant was asked to provide evidence regarding his status as a resident of Barbados and the fact that he was taxed on his worldwide income in that country. He was also asked to provide the cost of his investments for 2013 and 2014; the places he stayed at during his visits to Canada in 2014; the date and duration of his stays at his residence in |||| |||| , Florida, Barbados or other countries throughout 2014; some information about the trust that holds the residence in ||||||||||||||; the identities of any other foreign entities related to him; and lastly, his relationship with a woman who lives in Canada and who might be his spouse.
[21] Mr. Gagnon responded to request T-997-3 in a letter dated April 13, 2017. From this letter, we learn, among other things, that the applicant is a non-domiciled resident of Barbados, that during his stays in Canada, he stays at his sons’ principal or secondary residences and that he |||||||||||||||||||| |||||||||||||||||||| in request T-997-3, but ||||||||||||||||||||||||||||||||||||||||||. This letter was also accompanied by a USB key, which is not available to the Court. A list of the documents on the key can be found in the common evidentiary record (Vol 17, p 3232).
[22] It was at this time that the parties’ positions regarding the relevance of the requested information began to diverge. The applicant refused to provide any information about the cost of his investments, the geographic link or where they were made. In his opinion, this information had no bearing on his tax residence and would merely help the Agency to determine his net value. It was therefore only relevant if his non-resident status were being challenged.
[23] In May 2017, the Agency sent its fourth request sheet for information [request T-997-4]. It contained another request to provide the applicant’s movements for 2013 (January to November). The Agency enquired about the company related to the applicant which had guaranteed the seller’s obligations to the buyer of RCI and wanted further details on the funding of the trust owning the |||||||||||||| residence, the relationship between the applicant’s investment company and a previously identified trust, the relationship between the applicant and six other entities and the specifics of the reimbursement of a promissory note between the applicant and one of his sons. The applicant was also asked to explain what a non-domiciled resident of Barbados is and to provide details about certain reimbursements of advances made by his sons after November 2013 to companies controlled by the applicant prior to November 2013.
[24] In a June 2017 letter, Mr. Gagnon provided a complete response to the information requested in request T-997-4.
[25] Between June 2017 and June 2018, the Agency made a number of verifications with internal sources and with the Agency’s Knowledge Research Centre. There is virtually no evidence about the information requested and obtained from these sources, but the following is how Mr. Robichaud explained the Agency’s efforts:
[translation]
We sent several requests for information to public registries, because from May…June 2017 and, let’s say, the following year, so June, July 2018, we were really on a mission to gather as much information as we could from public Canadian sources to see if we could make an exchange request… well, not exchange, but a request to foreign authorities.
(Common evidentiary record, Vol 12, p 2316, l 17, to p 2317, l 2)
[26] And later:
[translation]
Yeah, that’s it, my understanding was that we thought information held outside Canada, in a country with which we exchange information pursuant to a treaty or a TIA or I don’t know the word in French, but it’s an information exchange agreement or it’s with a country with which we have a current tax convention.
So, when there’s information in those countries, we can think about getting documents or information, asking questions, if we’ve taken certain steps beforehand.
For us, what was explained, because it is a long process, it was…if we can do as much as possible to obtain information without asking foreign authorities, we’ll do it, but in this context, the… knowing that, several times, the responses were always the same, namely we would ask questions about residency, we wanted facts, we wanted explanations, and the responses we got were, “we don’t want to give you the answer to your question before you say he is a resident.” So we kept on realizing that we didn’t think we would get the answers we were looking for and that this information, for the most part, was maybe outside Canada.
(Common evidentiary record, Vol 12, p 2354, l 8, to p 2354, l 14).
[27] In August 2017, Mr. Robichaud contacted a representative of the Related Party Initiative. He was informed of an ongoing project with the OECD Joint International Taskforce on Shared Intelligence and Collaboration (JITSIC) working group, whose goal it is to identify taxpayers who claim to have emigrated to avoid paying taxes in Canada. He was told that there were other audits in progress raising such issues and asked to be kept abreast of developments in those audits.
[28] In November 2017 the Agency began to seriously discuss foreign requests. The applicant’s file was found to be particularly relevant because of his ties with three different countries. The Agency also thought it would be best to go through the JITSIC since countries are more inclined to cooperate in an information exchange than when approached unilaterally. The Agency therefore collected sufficient information to go through the JITSIC.
[29] In December 2017, Mr. Robichaud, one of his coworkers and a representative from KPMG had a discussion with Mr. Gagnon. Mr. Robichaud advised Mr. Gagnon of his intention to submit an American request, which drew criticism. Mr. Gagnon felt that things were dragging on and that the Agency had sufficient information to rule on the issue of residence; he also questioned the fact that this option was brought up more than 15 months after the audit had begun. Mr. Gagnon noted that the Agency would have to conclude that the applicant was a Canadian resident before he would disclose the requested information about the applicant’s investments.
[30] In mid-March 2018, the audit team sent a first draft of the American IER to the Competent Authority. The request was considered to have been made through the JITSIC. During the discussions held in the following months between the audit team and the Competent Authority, it was concluded that the information requested in the American IER could not exceed the audit period. Thus, the period was expanded to cover 2015, 2016 and 2017.
[31] Certain questions were withdrawn from the draft IER and included in a fifth request sheet for information [request T-997-5] to be sent to the applicant, who was then informed of the new audit period. Mr. Robichaud gave the following explanation for the decision to send this request:
[translation]
We asked several questions several times through T997, numbers 1 to 4, we obtained information that is in the public domain from Canadian sources that could help us establish the…to complete our verification of the residence status.
We use third-party information sources in Canada to obtain information. We did that. Knowing that we already had negative answers to certain questions that we felt were relevant, that we weren’t going to get the answers, we still felt it was appropriate to send a last request in July 2018, T997, number 5, addressed to Lucien Rémillard, which, in our opinion, established the questions that, if not answered, would be the subject of a request to foreign authorities.
And that, it was their…we could call it our version of saying this was the last chance to answer the question before we initiated the procedure with…and sent requests to the foreign authorities
(Common evidentiary record, Vol 12, p 2355, l 15,to p 2356, l 13).
[32] Request T-997-5, sent in July 2018, covers 27 different subjects. Some aim to obtain information already addressed in prior requests but for new audit years, others, more details about information already provided. It seems that the applicant answered these questions in a satisfactory manner. However, for the same reasons Mr. Gagnon had expressed on various occasions, he refused to answer the questions regarding investments after 2013 (points 12, 15, 21, 22, 23, 25 and 26 of request T-997-5), namely:
[translation]
12. Transactions that seem related to the purchase of residential and/or commercial buildings | ; transfers | | of a | to a ||;
15. Organizational chart of the entities related to the applicant as of December 31 for each of the additional years covered by the audit (including any trusts of which he or an entity he controls is the beneficiary);
21. Financial information regarding the company | | | for the entire period in question (the Agency noted that it already had the financial records for 2013 and 2014);
22. Financial information regarding the company | | for the entire period in question (the Agency noted that it already had the bank statements for January 2013 to April 2017);
23. Financial information regarding the company | | | for the entire period in question (the Agency noted that it already had the bank statements for January 2013 to April 2017);
25. Financial and other information regarding the trust | for January 2013 to December 2014;
26. Financial and other information regarding the trust | |.
[33] Three days after he received the applicant’s response to request T-997-5, Mr. Robichaud sent the Competent Authority a new version of the American IER, which had not changed in terms of the information requested from the US partner but included a few additions regarding the information provided.
[34] On October 10, 2018, during a telephone conversation between Mr. Robichaud and Mr. Gagnon, Mr. Robichaud indicated that he was in agreement with completing the analysis of the applicant’s residence before being provided the financial information listed at paragraphs 12(c) to (g), 15, 21, 22, 23, 25 and 25 of request T-997-5. He was informed that in the meantime, the applicant would continue to compile the additional information, but that this would only be provided if the Agency concluded that he was a Canadian resident for tax purposes. While the applicant argued extensively that he had always refused to provide this information because of this agreement, the respondent, for a long time, denied that there even was an agreement. It was only during an intense cross-examination that the respondent had to face the facts and admit that this agreement existed. That said, while it is true that Mr. Robichaud accepted Mr. Gagnon’s position, he did not do so until this October 10, 2018, conversation. This is therefore not the reason Mr. Gagnon refused to provide this information since April 2017 (response to request T‑997-3).
[35] Moreover, the issue involving the scope of this agreement and its effect on the legality of the IERs remains intact and will be addressed further on.
[36] In December 2018, the audit team requested the assistance of the Competent Authority in preparing the Barbadian IER. The American IER was sent to the competent American authority on January 3, 2019. In April 2018, the audit team requested the assistance of the Competent authority in preparing the Swiss IER, which was sent to the competent Swiss authority on May 29, 2019. Lastly, the Barbadian IER was sent to the competent Barbadian authority on June 21, 2019.
III. Impugned decisions – the IERs
A. The American IER
[37] The subject of the transmittal letter for this request is JITSIC Specific Request for Information Canada – United Stated (sic) Tax Convention, and it identifies the applicant as the subject of a tax audit for 2013 to 2017. It confirms that the request complies with domestic law and that the required information could be obtained were it available in Canada. Lastly, it confirms that the Agency had exhausted all viable avenues for obtaining this information itself.
(1) Provided information
[38] The American IER is a 12-page document, enclosing some 20 exhibits that are not part of the common evidentiary record. It provides the addresses of the residence in Quebec, which he had donated to his son, and of the known residences in the United States and Barbados, and the mailing address used by the applicant ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[39] With regard to the parties related to the applicant |||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| is mentioned first. Other than her address in Quebec, the IER states that according to Exhibit A, she also lives in the residence of ||||||||||||||.
[40] Then, the IER lists several |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||, with brief descriptions of the known links to the applicant.
[41] The section on the entities likely to hold the sought information names the Internal Revenue Service [IRS], two financial institutions, a marine surveyor and an insurer.
[42] The “Nexus” (reason for request) section states that the Income Tax Act [ITA] requires Canadian residents to declare their worldwide income and all of their assets, regardless of where they are. The Agency confirms that it was advised of the applicant’s decision to emigrate to Barbados in November 2013, but that it has reason to believe that he is actually a Canadian or American resident. It therefore requires this information to determine the applicant’s tax residency and liability for the period in question.
[43] The “Background” section explains that the audit is being performed under the Related Party Initiative and was now part of the JITSIC Residency Project. It provides a summary description of the program, aimed at identifying related entities, analyzing transactions between related entities and taxpayers, and determining the residency of foreign trusts.
[44] The Agency then provides a list of the various ties the applicant has with Canada, the United States and Barbados, concluding that he could be a resident of any of these countries, as he split his time fairly equally between them. According to the Agency, using the JITSIC platform makes it possible to share the information needed to determine his true tax residency.
[45] With regard to the applicant’s ties to Canada, the Agency states that the applicant was born in Canada and spent his entire career in Canada until retiring from his company in 2013. His children, grandchildren, sisters, nieces and nephews live there. He is |||||||||||||||||||||||||||||||||| |||||||||||| ||||||||||||||||||||||||||||||||||, although he denies ||||||||||||||||||||||||||||||||||||||||||||||.
[46] Prior to his departure from Canada, he donated his residence worth over |||| to one of his sons, and when he is in Canada, he resides in his sons’ principal or secondary residences. He is the beneficiary of a Canadian trust that holds the common shares of a Canadian investment company. The applicant has allegedly received |||||||||||||||||||||||||||||||||||||||||||||||||||||||||| since 2013.
[47] As for the applicant’s ties with the United States, there is obviously the residence |||||||||||||||||||| of which he has been the beneficiary since 2012 through a Barbadian trust. According to LexisNexis, he resides there |||||||||||||||||||||||||||||||| ||||||||||||||.
[48] The Agency provides the address of |||||||||||||||||||||||||||||||| located at ||||||||||||||||||||||, which the applicant allegedly acquired in 2017, and indicates that he had |||||||||||||||||||||||||||||||| inspected through a company headquartered in Florida. In 2012, he allegedly sold |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||| of the Barbadian trust which owned the residence |||||||||||||| and of which the applicant is the beneficiary. This loan was used as security for a loan |||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||.
[49] Lastly, the Agency informs its counterpart that since 2014, the applicant has spent close to one third of his time in the United States.
[50] Regarding the applicant’s ties to Barbados, the Agency begins by mentioning the declaration the applicant made in his 2013 tax return, to the effect that he was emigrating there. The Agency mentions the Villa owned by a trust of which the applicant is a beneficiary and indicates that he had spent around one-third of his time there during the audit period. As for the financial information concerning the related entities, the Agency informs the Americans that the applicant had refused to provide any information for later than 2013.
(2) Required information
[51] The first series of questions is addressed to the IRS and asks whether the applicant is known to the IRS, whether he is considered to be a US resident and whether he reported his income during the audit period. The Agency asks the IRS to provide a credit report for the United States, to indicate whether the applicant appears as a director of any US corporations or holds any interests in any US real estate or companies (other than those identified in the request) if it does not consider him to be a resident.
[52] Regarding the real estate identified in the request, the Agency wants to know what the applicant’s relationships with the companies through which this real estate was acquired are. It also requests a list of any real or personal property registered to the residential address of ||||||||||||||.
[53] Then, the Agency asks the US authorities to provide it with the information held by ||||||||||||||||||||||||||||||||||||||, identified during its audit, including the client profile, the numbers of the accounts of which the applicant is a beneficiary or authorized signatory, account statements, and the details of all $10,000-plus transactions. Lastly, it asks for copies of all the insurance policies issued by US insurers in the name of the applicant or that of a related entity.
[54] The IER concludes with a list of enclosed exhibits, A to T, and, although these exhibits are in the Agency’s certified record, they are not part of the common evidentiary record.
B. The Swiss IER
[55] The subject of the transmittal letter for this request is JITSIC Specific Request for Information Canada – Switzerland Income Tax Convention, and it identifies the applicant as the subject of a tax audit for 2013 to 2017. It confirms that the request complies with domestic law and that the required information could be obtained were it available in Canada. Lastly, it confirms that the Agency has exhausted all viable avenues for obtaining this information itself.
(1) Provided information
[56] The Swiss IER is comprised of three pages and a single attachment, identified as an electronic funds transfer document. This exhibit is not part of the common evidentiary record, although it is included in the Agency’s certified record.
[57] The IER identifies the applicant and provides his known addresses in Canada (contrary to the two other requests, the Canadian address is not identified as being the applicant’s last known address in Canada), in the United States and Barbados, as well as his mailing address |||||||||||| | ||||||||||||||. It lists the entities related to the applicant and identifies |||||||||||||||||| as being in possession of the sought information.
[58] The “Nexus” (reason for request) section states that the request is being made in relation to a tax audit for 2013 to 2017 and aims to determine the applicant’s tax liability to Canada.
[59] The “Background” section explains that the audit is being performed under the High Net Worth Individuals and Related Party Initiative, a program that aims to analyze transactions with related foreign entities and determine the tax residency of foreign trusts. It states that the Agency’s data on electronic funds transfers contains certain funds transfers ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||, via ||| ||||||||||||||||||, identified in the request. The Agency indicates that the applicant refused to provide this information for the period in question on the ground that he was no longer a Canadian resident. It states, however, that considering the applicant’s family ties in Canada and the number of visits and the duration of these visits since 2013, it has reason to believe that he could still be a Canadian resident. The requested bank information is required to determine the applicant’s tax liability to Canada and to identify other related entities or foreign assets.
(2) Required information
[60] The Agency is asking the Swiss tax authorities to ask the identified |||||||||||||||||| for documentation regarding the client profile, the numbers of the accounts of which the applicant is a beneficiary or authorized signatory, the applicant’s or any other related entity’s account statements and the details of all $10,000-plus transactions.
C. The Barbadian IER
[61] The subject of the transmittal letter for this request is Specific Request for Information Canada – Barbados Tax Convention, and it identifies the applicant as the subject of a tax audit for 2013 to 2017. It confirms that the request complies with domestic law and that the required information could be obtained were it available in Canada. Lastly, it confirms that the Agency has exhausted all viable avenues for obtaining this information itself.
(1) Provided information
[62] The Barbadian IER is comprised of 17 pages and a list of 27 enclosed exhibits, A to AA. The exhibits themselves are not part of the common evidentiary record although they are included in the Agency’s certified record.
[63] It identifies the applicant and provides his known addresses in Canada (last known address), the United States and Barbados, as well as his mailing address ||||||||||||||||||||||||||||||||||||. It indicates that |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| which, according to the document submitted as Exhibit A, ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. Lastly, it lists the known entities related to the applicant.
[64] The “Nexus” (reason for request) section states that the ITA requires Canadian residents to declare their worldwide income, any foreign assets they may have and their income from these assets. It states that the applicant declared in his 2013 income tax return that he was emigrating to Barbados on November 15, 2013, and that the Agency requires the information to determine the applicant’s tax liability to Canada for the period in question.
[65] The “Background” section explains that this audit is being performed under the High Net Worth Individuals and Related Party Initiative, and lists the various ties the applicant has with Canada, the United States and Barbados (essentially the same information as in the American request).
[66] The section mentions prior information exchanges between Canada and Barbados, regarding |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||, and also |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||.
(2) Required information
[67] The Agency notes that the requested information will be used to determine the applicant’s tax liability to Canada during the period in question.
[68] The first section is addressed to the Barbados Revenue Authority [BRA]. The BRA is asked whether the applicant is known to it, whether the applicant is considered to be a tax resident of Barbados, whether he reported his income during the audit period and whether he has been the subject of a tax audit. The Agency asks the BRA to provide a credit report for the applicant in Barbados, insomuch as that information is available, if it does not consider him to be a resident.
[69] The Agency states that according to information from KPMG, the applicant is a non-domiciled resident of Barbados for 2013 to 2017. It therefore ask the BRA to (i) provide any information received from the applicant or his representatives regarding his tax residency for this same period; (ii) confirm whether the applicant had obtained a residency visa or permit; (iii) confirm the information received by the Agency to the effect that the amount of |||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||; and (iv) confirm whether the income the applicant earns as president of a corporation deemed to be a resident in Canada is taxable in Barbados, whether the applicant reports other employment income and whether he has a work permit in Barbados.
[70] In the “Real Property and Corporate Information” section, the Agency states that this information is required to establish the applicant’s ties to Barbados. It asks whether the applicant holds property other than that identified, whether he is related to entities other than those identified or whether he is the director of any such entities. Lastly, the Agency presents a series of queries about the residence the appli