BP Canada Energy Company v. Canada (National Revenue)

BP Canada Energy Company v. Canada (National Revenue)
Court (s) Database
Federal Court of Appeal Decisions
Date
2017-03-30
Neutral citation
2017 FCA 61
File numbers
A-385-15
Notes
A correction was made on 6 October 2017
Reported Decision
Decision Content
Date: 20170330
Docket: A-385-15
Citation: 2017 FCA 61
CORAM:
NOËL C.J.
STRATAS J.A.
BOIVIN J.A.
BETWEEN:
BP CANADA ENERGY COMPANY
Appellant
and
MINISTER OF NATIONAL REVENUE
Respondent
and
CHARTERED PROFESSIONAL ACCOUNTANTS OF CANADA
Intervener
Heard at Toronto, Ontario, on February 21, 2017.
Judgment delivered at Ottawa, Ontario, on March 30, 2017.
REASONS FOR JUDGMENT BY:
NOËL C.J.
CONCURRED IN BY:
STRATAS J.A.
BOIVIN J.A.
Date: 20170330
Docket: A-385-15
Citation: 2017 FCA 61
CORAM:
NOËL C.J.
STRATAS J.A.
BOIVIN J.A.
BETWEEN:
BP CANADA ENERGY COMPANY
Appellant
and
MINISTER OF NATIONAL REVENUE
Respondent
and
CHARTERED PROFESSIONAL ACCOUNTANTS OF CANADA
Intervener
REASONS FOR JUDGMENT
NOËL C.J.
[1] This is an appeal brought by BP Canada Energy Company (BP Canada or the appellant) from an order of the Federal Court (2015 FC 714) wherein Campbell J. (the Federal Court judge) allowed an application filed by the Minister of National Revenue (the Minister) pursuant to subsection 231.7(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the Act) compelling the production of internal accounting documents, generally referred to as tax accrual working papers (TAWPs). The order was issued for the purpose of assisting the Minister in conducting ongoing audits of BP Canada.
[2] The information contained in TAWPs is highly sensitive as these papers typically reveal uncertain tax positions taken by public corporations in filing their tax returns, opinions as to the likely outcome in the event of a challenge by the Minister, and related reserves established to ensure sound and fair financial reporting. BP Canada maintains that the Federal Court judge failed to take into account the exceptional nature of this information in ordering its production and committed a variety of related errors.
[3] The Chartered Professional Accountants of Canada as intervener (CPA Canada or the intervener) contends that formal requests for the production of TAWPs cannot be routine and uncontrolled, and that the obligation to produce TAWPs should not undercut the public interest role of its members in certifying financial statements. CPA Canada takes no position on the outcome of the appeal.
[4] For the reasons which follow, I am of the view that the documents ordered to be produced, given the purpose for which they were sought, are beyond the reach of the Minister, and that the Federal Court judge committed a number of legal and factual errors in ordering their production. Therefore, I propose that the appeal be allowed.
[5] The statutory provisions relevant to the analysis are set out in the appendix to these reasons.
BACKGROUND [6] BP Canada is a Canadian subsidiary of BP plc, a U.K. company active principally in the oil and gas industry (Appeal Book, vol. IV, p. 443, para. 20). Being a publicly-traded company, BP plc is required to prepare consolidated financial statements in accordance with Generally Accepted Accounting Principles (GAAP) (Appeal Book, vol. IV, p. 440, para. 5). In the process leading to the issuance of these financial statements, the appellant internally created papers under the heading “BP Canada Tax Reserve” (Tax Reserve Papers). They reflect, among other things, the uncertain tax positions adopted by BP Canada in filing its tax returns, also referred to as “soft spots”, as well as the corresponding analyses behind the contingent tax reserves (Appeal Book, vol. IV, p. 440, para. 6).
[7] The events which led to the issuance of the formal request for the production of BP Canada’s Tax Reserve Papers need to be reviewed in some detail as they determine the outcome of this appeal.
[8] In the course of the audit of BP Canada’s 2005 taxation year, the audit manager and her group (collectively “the auditor”) identified an issue relating to refund interest paid by the Minister to the appellant. The auditor reviewed two accounts maintained by BP Canada in which this payment could have been recorded (Appeal Book, vol. II, p. 53, para. 13). Being unable to trace the refunded interest to either account, the auditor issued Query 2005-8 (Appeal Book, vol. IV, p. 593).
[9] The audit eventually revealed that BP Canada reported the refund interest payment in 2007, when it should have been included for the 2005 taxation year (Appeal Book, vol. IV, p. 444, para. 23). During the process leading to this adjustment, the auditor became interested in several accounting entries in one of two accounts, namely the “Interest Expense Taxes Payable – Disputed Accruals” account (Appeal Book, vol. IV, p. 445, paras. 27-28 and Appeal Book, vol. II, p. 54, para. 15). In order to verify the source of those accounting entries, Query 2005-10 was issued requesting the disclosure of the “original supporting working papers” for this account (Appeal Book, vol. II, p. 98 and Appeal Book, vol. III, p. 250, lines 9-18). The “original supporting working papers” for this account were BP Canada’s Tax Reserve Papers.
[10] The appellant initially refused to comply with Query 2005-10. The reason for this refusal was that, first, disclosure of its Tax Reserve Papers would not only provide the Minister with a roadmap to its uncertain tax positions, but the Minister would also gain access to the analyses behind those positions (Appeal Book, vol. IV, p. 446, para. 31). Second, the appellant took the position that the issue raised in that query had already been addressed (Appeal Book, vol. IV, pp. 444-445, paras. 24-26).
[11] During a meeting on May 4, 2010, the auditor advised that the query was not to be read as requesting details concerning BP Canada’s uncertain tax positions (Appeal Book, vol. IV, p. 446, para. 32 and p. 447, para. 34). In response, BP Canada offered to produce a redacted version of its Tax Reserve Papers showing all amounts, but without revealing the uncertain tax positions or the underlying analyses. This would show the auditor that the accounting entries of interest were not linked to a taxable source (Appeal Book, vol. IV, p. 446, para. 32). The auditor agreed to this subject to the right to insist on the full disclosure of the Tax Reserve Papers if the redacted version did not provide a satisfactory answer (Appeal Book, vol. IV, p. 446, para. 33).
[12] A copy of BP Canada’s redacted Tax Reserve Papers was provided to the auditor on May 13, 2010 (Appeal Book, vol. IV, p. 447, para. 35). The redacted Tax Reserve Papers did address the concern about the accounting entries, but they gave rise to another concern: the taxes that were proposed to be assessed were materially lower than the reserves set out in BP Canada’s Tax Reserve Papers. This flagged a significant tax revenue loss. On June 17, 2010, the auditor made a formal request for the unredacted version, insisting that the uncertain tax positions be shown (Appeal Book, vol. IV, p. 448, para. 37).
[13] Numerous exchanges followed. Both parties firmly maintained their respective positions (Appeal Book, vol. IV, pp. 449-452, paras. 41-53). On October 1, 2010, the auditor received information establishing that contrary to what the numbers indicated, the amounts associated with the uncertain tax positions in BP Canada’s Tax Reserve Papers were significantly lower than the projected assessment (Appeal Book, vol. IV, p. 451, paras. 49-50). This however did not resolve the matter as the auditor took the position that these papers had to be produced whether the concern surrounding these amounts was justified or not (Appeal Book, vol. III, p. 348, lines 9-13).
[14] On October 15, 2010, the appellant confirmed that it was not going to produce the unredacted version of its Tax Reserve Papers, and the auditor responded by announcing that a compliance order would eventually be sought (Appeal Book, vol. IV, p. 452, para. 53).
[15] The 2006 and 2007 audits were then undertaken with similar requests being issued for the full and complete disclosure of “all original working papers of the current income tax liability […], including but not limited to the Reserve for Adverse Taxes” (Appeal Book, vol. IV, pp. 452-453, paras. 55 and 57). The appellant again opposed these requests and submitted redacted versions.
[16] On May 8, 2012, the Minister brought an application before the Federal Court under subsection 231.7(1) of the Act seeking an order “for the production of [BP Canada’s] working papers requested by the Minister of National Revenue in Query 2005-10.1, Query 2006-16 and Query 2007-6” (Appeal Book, vol. II, pp. 46-49).
[17] By this time, the Minister had already reassessed the 2005 and 2006 taxation years. Thus, BP Canada’s working papers were no longer sought for the purpose of auditing those years (Appeal Book, vol. II, p. 61, para. 45). The stated purpose for obtaining the Tax Reserve Papers was to audit the 2007 and subsequent taxation years (Ibidem).
[18] Before the Federal Court judge issued his decision, the 2007 taxation year was reassessed with the result that only the subsequent taxation years remained under audit. In this respect, the parties informed the Court during the hearing of the appeal that the Minister has since issued requests for the production of BP Canada’s Tax Reserve Papers in an unredacted form for the 2008, 2009 and 2010 taxation years. The parties are agreed that BP Canada’s obligation to comply with these outstanding requests turns on the outcome of this appeal.
FEDERAL COURT DECISION [19] The Minister took the position before the Federal Court judge, and before us, that the documents being sought are those “that list [BP Canada’s] uncertain tax positions” (Minister’s Memorandum, para. 8). The documents so described were referred to by the parties in the proceeding below as the “Issues Lists”. The Federal Court judge adopted this language throughout his reasons, but the order that he issued makes no reference to it.
[20] In allowing the application, the Federal Court judge addressed two issues: whether the Issues Lists come within the scope of subsection 231.1(1) of the Act; and if so, whether he should exercise his discretion not to compel the disclosure of this information.
[21] Before addressing these issues, the Federal Court judge provided a summary of the Minister’s policy with respect to accessing TAWPs. It is useful to reproduce the 2004 and 2010 extracts which he quoted (Reasons, paras. 11-12, without emphasis):
2004
It is not the policy or practice of the Department routinely to request audit files from accountants for inspection. Normally, any such request would result only when the auditor’s files form part of the taxpayer’s records and a proper examination could not be carried out without access to those files.
[…]
It is not the policy of the CCRA to request a general access to accountant’s working papers for the purpose of scrutinizing them in the course of conducting an audit.
2010
CRA Officials are authorized to request and receive any documents needed to conduct a proper inspection, audit or examination, subject to solicitor-client or litigation privilege.
[…]
“any document” includes accountants’ and auditors’ working papers that relate to a taxpayer’s books and records and that may be relevant to the administration or enforcement of the ITA, ETA, and other relevant legislation. Accountants’ and auditors’ working papers include working papers created by or for an independent auditor or accountant in connection with an audit or review engagement, advice papers, and tax accrual working papers (including those that relate to reserves for current, future, potential or contingent tax liabilities).
[…]
Although not routinely required, officials may request tax accrual working papers.
[22] Addressing first the issue of the compellability of the Issues Lists, the Federal Court judge summarily rejected the arguments put to him by the appellant. In response to BP Canada’s assertion that the Minister did not need the Issues Lists in order to perform the audit, the Federal Court judge acknowledged that this “might very well be true, except for the fact that the Minister wants them, not only to expedite the audit process, but also for use in its continuing and future [audits]” (Reasons, para. 23). According to the Federal Court judge, only the Minister can determine what is required in order to advance the audit process (Ibidem).
[23] The Federal Court judge also dismissed the contention that forcing the disclosure of the Issues Lists would cause the appellant to self-audit rather than to self-assess. He pointed out that the Minister was not asking for anything to be prepared, but rather sought disclosure of already-prepared documents (Reasons, para. 24).
[24] The Federal Court judge further rejected the contention that the Issues Lists were not compellable because they were not required to be kept under the Act. In his words, the Issues Lists “are relevant to the payment of tax under the Act because they are an important tax record in BP Canada’s possession” (Reasons, para. 25).
[25] According to the Federal Court judge, the Issues Lists come within the scope of subsection 231.1(1) of the Act, as they relate to the determination of taxable income. In his view, the Minister’s purpose of taxation accountability is related to the enforcement of the Act as stated in Tower v. MNR, 2003 FCA 307, [2004] 1 F.C.R. 183 [Tower]. Moreover, the Issues Lists “relate to information in BP Canada’s records” and they “relate to an amount payable by BP Canada under the Act” (Reasons, para. 26). He added that although the “[TAWPs] contain subjective analyses of tax risk, together with factual information upon which tax reporting is founded, […] they are relevant to BP Canada’s intention in creating the reserves” (Ibidem).
[26] The Federal Court judge also dismissed the public policy concerns hovering over independent auditors if TAWPs are held to be compellable. In his words (Reasons, para. 29):
By bringing the present Application, the Minister is adhering to, and implementing the policy that, without restriction, [TAWPs] are compellable under the Act. In the circumstances of the present case, and in view of the conclusion just expressed agreeing with the Minister’s position, if concerns arise within the industry, of which BP Canada is a part, it is for the Minister to address the concerns. The Minister is taken to know the ramifications of a successful outcome on the legal issue in the present Application. The public and industry interest is within the Minister’s purview, and not the Court’s.
[27] The Federal Court judge went on to dismiss BP Canada’s contention that if the Issues Lists are compellable, the Court should decline to exercise its discretion in favour of the Minister. In so doing, the Federal Court judge rejected the contention that the auditor was on a fishing expedition because the purpose underlying the request for disclosure had changed over time. According to him, the auditor’s intention “was specifically to obtain a clear roadmap to be used for current and future audits” (Reasons, para. 38).
[28] The Federal Court judge further rejected the contention that the auditor acted in bad faith or with “an underlying pernicious intention to mislead” (Reasons, para. 35). In his view, while this argument raised “an unresolved serious triable issue on a balance of probabilities” (Reasons, para. 39), it rested on speculation on the part of the appellant. In his view, the behaviour of the auditor could be explained by a bona fide exercise of the powers granted under the Act (Reasons, paras. 40-44).
[29] Lastly, the Federal Court judge rejected the appellant’s argument that it was unfairly singled out by the Minister. According to him, the question was “fairness to whom?” (Reasons, para. 47). If the Minister does not discover uncertain tax positions within the limitation period, Canadian taxpayers lose. In his view, it was only fair and just that these issues be identified in good time and resolved by the courts (Ibidem).
[30] The Federal Court judge went on to order BP Canada to produce the “working papers requested by the Minister of National Revenue in Query 2005-10.1, Query 2006-16, and Query 2007-6” pursuant to subsection 231.7(1) of the Act (Order of the Federal Court).
POSITION OF THE PARTIES - The appellant [31] The appellant submits that subsection 231.1(1) of the Act is a “fact-finding tool” available to the Minister only for the purpose of establishing a relevant fact (BP Canada’s Memorandum, para. 46). A “relevant fact” in turn is understood to mean a fact that will establish a taxpayer’s taxable income or tax liability (BP Canada’s Memorandum, para. 46). While the word “fact” is nowhere to be found in subsection 231.1(1), the appellant maintains that the word “information”, which is used in the subsection, has to be interpreted to mean a fact that is relevant to taxable income or tax liability. This interpretation is rooted in the wording of a companion provision, subsection 230(1), which requires taxpayers to keep books and records containing “information as will enable the taxes payable under this Act or the taxes or other amounts that should have deducted, withheld or collected to be determined” (BP Canada’s Memorandum, para. 55).
[32] Such an interpretation would strike the appropriate balance with, on the one side, the Minister’s obligation to administer the Act, and on the other, the appellant’s reasonable expectation of privacy over the Issues Lists (BP Canada’s Memorandum, paras. 59 and 65 citing R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, 68 D.L.R. (4th) 568).
[33] Since the Minister neither alleges nor establishes that the Issues Lists constitute relevant facts, but is rather seeking them to establish a roadmap for the audit, the appellant argues that the appeal should be allowed on this basis alone (BP Canada’s Memorandum, para. 47).
[34] In the alternative, the appellant maintains that the Federal Court judge erred in not exercising his discretion against the Minister (BP Canada’s Memorandum, para. 73). If allowed to stand, the order would bestow upon the Minister an “unqualified right” to require taxpayers to disclose any issues identified in preparing their tax returns (BP Canada’s Memorandum, para. 75(a)). Such a right would be available even in the absence of a reasonable basis for considering that the information sought is relevant in determining whether the tax return under audit is correct (BP Canada’s Memorandum, para. 75(b)).
[35] The appellant submits that giving paragraph 231.1(1)(a) a scope as wide as the Minister contends must be avoided. It notes that Parliament has declined to grant the Minister such wide powers (BP Canada’s Memorandum, para. 76(a)); the efficacy of such auditing powers would be nil if companies were to assert solicitor-client privilege over TAWPs (BP Canada’s Memorandum, para. 76(b)); and there is no harm in applying a restrictive interpretation to subsection 231.1(1) of the Act and requiring the Minister to prove that the Issues Lists are relevant facts (BP Canada’s Memorandum, para. 76(c)).
[36] Additionally, the appellant warns the Court against relying on American jurisprudence, in particular United States v. Textron Inc., 577 F.3d 21, 26-30 (1st Cir. 2009) [Textron]. The appellant submits that in the U.S., access to TAWPs is governed by specific regulations. In Canada, legislation has not been enacted which would control access to TAWPs (BP Canada’s Memorandum, para. 77).
[37] The appellant further asserts that it was unreasonable for the Minister to seek disclosure of the Issues Lists in contravention with published policy and for “an improper and unauthorized purpose” (BP Canada’s Memorandum, para. 78). Short of exceptional circumstances, the Minister should not be allowed to obtain the Issues Lists and the Federal Court judge should have exercised his discretion against the issuance of the order (BP Canada’s Memorandum, para. 84).
- The intervener [38] CPA Canada highlights the professional, ethical and practical concerns raised by routine and uncontrolled requests for TAWPs (Intervener’s Memorandum, para. 4). Professional accountants have a direct role in ensuring a degree of confidence in publicly-traded corporations’ financial statements through independent auditing. Because they act in the public interest, they are subject to professional and ethical obligations, such as an obligation of integrity, a duty of care, and a duty of objectivity (Intervener’s Memorandum, para. 18). In keeping with those obligations, professional accountants have to review TAWPs prepared by the corporations which they audit (Intervener’s Memorandum, para. 22) in addition to preparing their own TAWPs (Intervener’s Memorandum, para. 23).
[39] CPA Canada thus fears that the order, if allowed to stand, will cause corporations to “hesitate to voluntarily and fully disclose their tax risks” (Intervener’s Memorandum, para. 33). Moreover, routine access by the Minister to subjective opinions on tax risks may “discourage corporations from preparing such analysis in order to protect it from disclosure” (Intervener’s Memorandum, para. 38).
[40] CPA Canada invites the Court to interpret subsection 231.1(1) of the Act in light of “the global context of rules of professional ethics and financial reporting” (Intervener’s Memorandum, para. 44). This means that only objective information would be subject to production, such as the “disclosure of all transactions that could have a material impact on the corporation’s tax liability, without identifying the degree of tax risk that any of those transactions may have” (Intervener’s Memorandum, para. 53).
- The Minister [41] The Minister supports the conclusion reached by the Federal Court judge and relies essentially on the reasons that he gave. According to the Minister, the Issues Lists fall squarely within broad auditing powers.
[42] The Minister adds that the purpose behind the request for disclosure of the Issues Lists is a “tax compliance audit” that relates to the administration or enforcement of the Act within the meaning of subsection 231.1(1) (Minister’s Memorandum, para. 21). Disclosure of the appellant’s uncertain tax positions “with which the Minister may disagree and which, in [BP Canada’s] opinion, the Minister may challenge successfully” furthers efficiency: the Minister will be able to focus resources on problem areas (Minister’s Memorandum, paras. 20 and 27, citing BP Canada’s Memorandum, para. 18).
[43] The Minister maintains that the ability to properly administer the Act requires broad powers to obtain information and the empowerment to make use of all available risk assessment techniques (Minister’s Memorandum, paras. 28-30).
[44] Furthermore, the Minister maintains that the Federal Court judge made no palpable and overriding errors of fact. According to the Minister, the Federal Court judge properly rejected any suggestion that the auditor acted dishonestly or for an improper purpose. Nor could it be said that the Federal Court judge misunderstood the nature and purpose of TAWPs (Minister’s Memorandum, paras. 32-37).
[45] While the Minister agrees that the Federal Court judge retains discretion not to compel disclosure under subsection 231.7(1) of the Act, it remains the case that this Court should follow in the footsteps of the Federal Court judge and American courts in rejecting the appellant’s position. First, it was open to the Federal Court judge to find that neither bad faith, dishonesty, nor unfairness arose from the auditor’s conduct (Minister’s Memorandum, paras. 45-47). As to U.S. jurisprudence, the Minister refers specifically to Textron and United States v. Arthur Young & Co, 465 U.S. 805 (1984) [Arthur Young] where arguments of the kind advanced by CPA Canada were rejected (Minister’s Memorandum, paras. 48-50).
[46] The Minister disagrees with the appellant’s view that Parliament has not put its mind to this issue. The present wording of subsection 231.1(1) is as broad as can be. Parliament has given the Minister the necessary powers to compel TAWPs (Minister’s Memorandum, para. 51).
ANALYSIS - The documents in issue [47] Before turning to the decision under appeal, it is useful to consider the information contained in TAWPs generally, and in BP Canada’s Tax Reserve Papers specifically.
[48] The expression “tax accrual working papers” generally refers to papers created by or for independent auditors in order to assist in the process leading to the certification of financial statements in accordance with GAAP. In Canada, the obligation to issue financial statements that are certified by independent auditors is imposed under provincial securities legislation (Appeal Book, vol. IV, p. 440, para. 5). TAWPs can be created internally or by the independent auditors but in both cases, their purpose is to identify uncertain tax positions and provide for reserves which will allow the independent auditors to certify that the financial statements fairly and accurately reflect the financial situation of the corporation under audit.
[49] Given the reason for which they are prepared, TAWPs typically identify tax positions capable of being challenged successfully by the Minister, an opinion as to the likely outcome in the event that they are, and a reserve intended to neutralize the financial distortion which would result. To the extent that an uncertain tax position endures from one year to the next, the reserve associated with the position is re-evaluated each year.
[50] BP Canada’s Tax Reserve Papers were prepared internally for use by the independent auditors in accordance with the applicable accounting standards. Although partially redacted, these papers identify the issues that are considered capable of being challenged successfully by the Minister under the heading “issue” or “income tax issue” (item #1); the underlying analyses leading to the selection of the issues identified as uncertain (item #2); the “tax at risk” being a quantification of the amounts by which BP Canada’s liability for tax and related interest could increase if the Minister was to reassess these issues and prevail on appeal (item #3); and the reserve reflecting the total of these contingent liabilities for the year (item #4) (Appeal Book, vol. IV, pp. 440-441, paras. 5-7 and p. 447, paras. 31-32).
[51] BP Canada’s Tax Reserve Papers insofar as they reflect the “tax at risk” amounts and the annual reserve – items #3 and #4 – were provided to the Minister, but the uncertain tax positions and the underlying analyses – items #1 and #2 – were redacted.
- The scope of the order [52] There was uncertainty about whether the order under appeal only compels the production of BP Canada’s uncertain tax positions or whether the underlying analyses are also to be produced.
[53] On this point, the reasons given by the Federal Court Judge when read with the order that he gave cause confusion. The Federal Court judge identifies the question before him as whether the Minister is entitled to compel BP Canada to disclose the “Issues Lists” (Reasons, para. 8) and concludes that BP Canada must “disclose the Issues Lists” (Reasons, para. 48). The analysis that takes place in between is conducted throughout by reference to the Issues Lists. However, the order that he gave makes no reference to the Issues Lists. Rather, it compels the production of “the working papers requested by the Minister” in the queries, which begs the question as to precisely what was requested by these queries (Order of the Federal Court).
[54] Given this, the appellant expressed concerns that the order could be read as compelling the production of both the uncertain tax positions and the underlying analyses. According to the appellant, this result would be inadvertent as the Minister was only seeking access to its uncertain tax positions (BP Canada’s Memorandum, paras. 85-87).
[55] The Minister took issue with that view up to the time of the hearing before us (Minister’s Memorandum, para. 58). At the hearing, counsel conceded that the order would go beyond the relief sought if it was read as compelling the production of the underlying analyses. As a result, the reasons which follow only address the compellability of those parts of BP Canada’s Tax Reserve Papers which reflect its uncertain tax positions.
- Standard of review [56] The construction that the Federal Court judge gave to subsection 231.1(1) of the Act in granting the order under appeal gives rise to a question of law to be assessed on a standard of correctness whereas his application of this provision to the documents in issue gives rise to a mixed question of fact and law, with respect to which he is entitled to deference in the absence of an extricable question of law (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 8 and 36).
- The construction of subsection 231.1(1) of the Act [57] As in all such cases, the words of subsection 231.1(1) must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21).
[58] I agree with the Federal Court judge that subsection 231.1(1) could not have been drafted in broader terms. Based on the plain language of subsection 231.1(1), a document which “relates or may relate to the information that is or should be in the books or records of the taxpayer or to any amount payable under [the] Act” is accessible under that provision.
[59] The introductory words of subsection 231.1(1) specify that in order to invoke this broad wording, the Minister must be acting for a purpose relating to the administration or enforcement of the Act. In the context of paragraph 231.1(1)(a), that purpose is verifying compliance with the Act. In the present case, the Minister has made clear that the purpose is to seek access to BP Canada’s uncertain tax positions. The Minister wants to use these positions as a roadmap in order to facilitate audits conducted under the Act. Based on a literal reading of the introductory words, this looks like an authorized purpose.
[60] Once it is shown that the Minister is acting for an authorized purpose, one of three demonstrations must be made in order to trigger the application of paragraph 231.1(1)(a). Either the document or the part thereof being sought: (1) is part of, or is in, the “books and records of the taxpayer”; (2) “relates or may relate to the information that is or should be in the books or records of the taxpayer”; or (3) “relates or may relate [...] to any amount payable by the taxpayer under [the] Act.”
[61] On a plain reading, the parts of BP Canada’s Tax Reserve Papers which reflect its uncertain tax positions can be shown to meet the second and third tests. Although the uncertain tax positions were not recorded by reason of any obligation arising under the Act, it remains that they “relate or may relate” to information that is in the books or records of BP Canada, if only because they were quantified on the basis of information that can be found in those books or records. As well, the reference to “any document that relates or may relate” to information that can be found in the books or records kept under the Act necessarily comprises documents other than those that are required to be kept under the Act.
[62] As to the third test, the simple fact that access to BP Canada’s uncertain tax positions may allow taxable amounts to be identified provides a connection with the amounts payable by BP Canada under the Act.
[63] The appellant proposes a different reading. It submits that subsection 231.1(1) must be read with subsection 230(1) which deals with the obligation to keep books and records. When so read, the word “information” in paragraph 231.1(1)(a) necessarily means “facts”, and these can only be objective facts that are relevant in determining a taxpayer’s liability under the Act. Specifically, “subjective opinions as to which of its interpretative conclusions the Minister may dispute […] are not facts that are relevant in determining [BP Canada’s] taxable income or its tax liability” (BP Canada’s Memorandum, para. 69(b)).
[64] There are problems with the reading proposed by the appellant. Paragraph 231.1(1)(a) provides access to facts as the appellant contends, but also to information. The word “information” as it appears in paragraph 231.1(1)(a) is unqualified. As was stated by this Court with respect to the use of the same word in section 231.2, “information” includes knowledge (Tower, at para. 20) and knowledge can be both objective and subjective. In any event, this debate seems futile as it is a fact, and an objective one at that, that BP Canada views the positions identified in its Tax Reserve Papers as uncertain.
[65] Beyond this, the appellant’s argument does not address the second test set out in paragraph 231.1(1)(a) which, as explained, permits access to the parts of BP Canada’s Tax Reserve Papers that reveal its uncertain tax positions because these documents relate to information that is or should be in its books and records (see paragraph 62 above). As to the third test, the key words are “relates or may relate to […] any amounts payable […]” not “relevant to the determination of any amounts payable […]” as the appellant would have it. As noted, this necessarily extends to documents reflecting information that can assist in identifying amounts payable under the Act.
[66] This language, read on its own, gives the Minister access to any documented information that can assist in carrying out auditing functions. BP Canada’s uncertain tax positions can certainly be viewed as coming within this description. This, however, does not settle the debate.
[67] The issue in this case is not whether the information revealed by BP Canada’s Tax Reserve Papers could be accessible under the Act. After all, everyone is agreed that it is, if required, in order to respond to a specific inquiry made in the context of an audit. The disclosure of the redacted version of BP Canada’s Tax Reserve Papers in response to the query made about the accounting entries attests to this (see paragraphs 11 and 12 above). The real issue is whether subsection 231.1(1) allows general and unrestricted access to this information, if this is indeed what was sought and authorized in this case.
- What was sought and authorized? [68] CPA Canada has intervened because of its belief that the decision under appeal does authorize general and unrestricted access to BP Canada’s Tax Reserve Papers. The appellant shares that view insisting that the concerns advanced by the auditor in order to justify the need to access these papers were all addressed during the course of the audit.
[69] The Federal Court judge did not discuss the circumstances which led the Minister to bring the application before him. These must be reviewed in order to understand what his decision stands for.
[70] The record reveals that the auditor began the 2005 audit by conducting a review of various issues identified by using conventional auditing techniques. A series of inquiries led to a request for the “original supporting working papers” for specified entries in a particular account under review. The source documents to be produced in response to this query were BP Canada’s Tax Reserve Papers (see paragraph 9 above).
[71] BP Canada agreed to give the auditor a redacted version of its Tax Reserve Papers which showed the “tax at risk” amounts associated with its uncertain tax positions. This satisfied the auditor’s initial concern. However, the “tax at risk” amounts were such that the issue “evolved into something bigger” (Appeal Book, vol. III, p. 300, lines 4-10). The auditor observed that the “tax at risk” amounts were “materially bigger” than those which were proposed to be added to BP Canada’s income for the year (Appeal Book, vol. II, p. 57, para. 28 and Appeal Book, vol. III, p. 283, lines 19-27). As a result, a decision was made to seek the disclosure of the uncertain tax positions which gave rise to the “tax at risk” amounts for 2005 (Appeal Book, vol. III, p. 282, lines 3-9 and p. 283, lines 2-6). The redacted Tax Reserve Papers provided for 2006 and 2007 reflect “tax at risk” amounts that exceed those disclosed for 2005 (Appeal Book, vol. V, pp. 774, 779, and 786).
[72] I am not at liberty to identify the “tax at risk” amounts, because this information is protected by a publication ban issued by the Federal Court, which is binding on this Court (Rule 152(3) of the Federal Courts Rules, S.O.R./98-106). It suffices to say that the gap between these amounts and those proposed to be assessed is such that one can understand why the auditor, after coming upon this information, would have felt justified to insist on the production of BP Canada’s uncertain tax positions.
[73] However, as it turned out, this became a non-issue as BP Canada was able to demonstrate that the situation was the opposite of what it appeared to be, i.e., BP Canada’s “tax at risk” amounts were actually much smaller than the amounts underlying the auditor’s risk assessment (Appeal Book, vol. V, p. 748).
[74] The record further reveals that when apprised of this demonstration, the auditor commended BP Canada for making it available, but took the position that BP Canada’s Tax Reserve Papers had to be produced whether or not the “tax at risk” amounts were a cause for concern (Appeal Book, vol. II, pp. 167-176). Therefore, the auditor insisted on compliance in order to complete the 2005 audit. Similar requests were made for the 2006 and 2007 taxation years. The auditor made it clear that these requests were made in order to make the conduct of the audits for those years more cost efficient and confirmed that similar requests would be made for future years (Appeal Book, vol. III, p. 307, lines 10-14). As noted, requests have since been issued for 2008, 2009 and 2010.
[75] During the hearing, counsel for the Minister insisted that the auditor did not start out asking for production of the TAWPs. Rather, the auditor raised legitimate questions which led to the production of BP Canada’s Tax Reserve Papers showing the “tax at risk” amounts. This in turn led to other questions which culminated with a formal request for the production of those parts of BP Canada’s Tax Reserve Papers which identified its uncertain tax positions.
[76] That is a fair depiction of what transpired so far as it goes. However, as explained, the auditor continued to insist on compliance with the request after all these legitimate concerns had been addressed. Focusing on the last concern – i.e. the magnitude of the disparity between BP Canada’s “tax at risk” amounts and those identified in the auditor’s risk assessment – I agree that the auditor did not verify the analysis prepared by BP Canada in response, given the stated belief that BP Canada’s uncertain tax positions had to be produced regardless of what this analysis showed. However, the fact that BP Canada’s analysis effectively puts this concern to rest cannot be questioned as the analysis is part of the record (Appeal Book, vol. V, p. 748) and the Minister has not seen fit to challenge it nor the conclusion which BP Canada draws from it (Appeal Book, vol. V, p. 751).
[77] Counsel for the Minister further argued that the uncertain tax positions identified by BP Canada’s Tax Reserve Papers should be viewed as aggressive positions which called for further inquiry because they were all “risked at 100%” (Appeal Book, vol. IV, pp. 671 and 673). However, as explained during the hearing, there is no correlation between this percentage and the soundness of the pos