In Devon Canada Corporation v. The Queen the issue is whether the taxpayer (“Devon”) may deduct $20,884,041 paid to cancel issued stock options. After the close of pleadings, the Crown brought a procedural motion relating to the large corporations rules. The Tax Court allowed the motion in part, and struck certain portions of Devon’s Notices of Appeal (2014 TCC 255) (the main tax issue has not yet been heard by the Tax Court).

The content of objections and appeals for large corporations is subject to specific rules in the Income Tax Act (Canada). Under subsection 165(1.11), a large corporation’s Notice of Objection must describe each issue, the specific the relief sought for each issue, and facts and reasons in support of its position. Further, under subsection 169(2.1), the large corporation may appeal to the Tax Court only with respect to the issues and relief sought in the Notice of Objection. The Federal Court of Appeal recently considered these rules in Bakorp Management Ltd. v. The Queen (2014 FCA 104) (see our post on Bakorp here).

In the present case, the Tax Court highlighted some of the themes that have emerged from the case law on this issue:

  1. a taxpayer is not required to describe each issue exactly but is required to describe it reasonably (Potash Corporation of Saskatchewan Inc. v. The Queen, 2003 FCA 471);
  2. the determination of what degree of specificity is required for an issue to have been described reasonably is to be made on a case by case basis (Potash);
  3. a taxpayer may add new facts or reasons on appeal but not new issues (British Columbia Transit v. The Queen, 2006 TCC 437);
  4. if the proposed additional argument would result in the large corporation seeking greater relief than was previously sought, the courts are more likely to consider the argument to be a new issue rather than a reason (Potash; Telus Communications (Edmonton) Inc. v. The Queen, 2005 FCA 159);
  5. if the proposed additional argument would result in the large corporation seeking the same relief that was previously sought, the courts are more likely to consider the argument to be the same issue (British Columbia Transit; Canadian Imperial Bank of Commerce v. The Queen, 2013 TCC 170); and
  6. if the proposed additional argument would result in the large corporation seeking completely different relief than was previously sought, the courts are more likely to consider the argument to be a new issue rather than a reason (Bakorp Management Ltd. v. The Queen, 2014 FCA 104).

Devon raised three arguments in its Notices of Appeal for the deductibility of the payments to cancel stock options. These were summarized by the Tax Court as follows:

(a) Devon’s primary argument is that the payments are deductible as current expenses under subsection 9(1);

(b) In the alternative, Devon argues that the payments are eligible capital expenditures that, once added to cumulative eligible capital, would result in deductions pursuant to paragraph 20(1)(b). It further argues that, due to the fact that there were acquisitions of control of both of the predecessor companies during the taxation periods in which the payments were made, subsection 111(5.2) applies to cause significant additional deductions of cumulative eligible capital; and

(c) In the further alternative, Devon claims that the payments are financing expenses deductible under paragraph 20(1)(e).

The Crown argued that Devon, a large corporation in the years at issue, only referred to section 9 in its Notice of Objection. The other provisions – namely paragraph 20(1)(b) and subsection 111(5.2) and paragraph 20(1)(e) – were mentioned in a supplementary memorandum filed by Devon during the objection process. As such, references to provisions other than section 9 should be struck from Devon’s Notice of Appeal.

The Tax Court held that no mechanism in the Act would permit the supplemental memorandum filed by Devon to amend the original Notice of Objection. However, the Tax Court struck out references to paragraph 20(1)(b) and subsection 111(5.2) but not paragraph 20(1)(e).

The Tax Court held that paragraph 20(1)(e) did not raise a new issue and was merely an alternative reason argued by the taxpayer in favor of deducting the payments to cancel the issued stock options. However, paragraph 20(1)(b) and subsection 111(5.2) raised new issues that were not otherwise raised in the Notice of Objection and would have entitled Devon to a deduction for amounts in its cumulative eligible capital that were unrelated to the payments to cancel the stock options.

Although the taxpayer did not describe the relief sought with respect to paragraph 20(1)(e) in the Notice of Objection and only specified allowing the deduction in full, the Tax Court agreed that if a full deduction is pleaded under subsection 169(2.1) then a partial deduction of the same nature should not necessarily have to be separately pleaded under the large corporation rules.

Both the taxpayer and the Crown have appealed this procedural decision to the Federal Court of Appeal (Court File No. A-389-14).