Our Approach

Advice, planning & dispute resolution on all aspects of taxation affecting First Nations under the Income Tax Act, Excise Tax Act, Excise Act and provincial legislation, including objections and appeals, responding to audits and requirements, income, HST/PST, tobacco and fuel taxes, and representation before the Tax Court, Federal Court, Federal Court of Appeal and Supreme Court of Canada. First Nation tax exemptions, taxation by-laws and joint venture structures to maximize tax efficiency.

We work collaboratively with First Nations and Chartered Professional Accountants to maximize tax efficiencies, minimize tax risks, and resolve tax controversies for Indigenous peoples.

The firm’s senior barrister Gordon S. Campbell leads its tax dispute practice with extensive experience in tax matters at the Tax Court of Canada, Federal Court of Appeal, and Supreme Court of Canada, having served as a Federal Crown Revenue Prosecutor and legal counsel to the Canada Revenue Agency.

The firm’s senior solicitor Dustin Seguin leads its tax planning practice on tax-efficient governance and business structures, from share and asset purchases to mergers and acquisitions, and restructuring advice to support economic growth and sustainable business development for Indigenous communities and organizations.

How We Help with Tax Law

We provide litigation and negotiation for First Nations on all aspects of tax disputes involving the Income Tax Act, Excise Tax Act (HST/GST), Excise Act and provincial tax legislation, including Indigenous and international tax law issues. We offer creative, engaging and resolute problem-solving with government agencies. 

We offer First Nations timely and effective tax law services, including dealing with:

• Advice on government and business planning structures to maximize Indian Act s. 87 tax protections and efficiencies;

• Provincial tax disputes, including Tobacco, Sales and Fuel taxes;

• Voluntary Disclosure Applications;

• Tax investigations response: Information Demands, Search & Seizure, & Inquiries;

• Unfiled Returns, Income and Alleged Tax Debts;

• Advocacy before the courts involving tax hearings, appeals and judicial reviews, including Tax Court of Canada, Federal Court, Federal Court of Appeal, Supreme Court of Canada and provincial courts.

We’re Tax Results Focused - We Tenaciously Defend First Nations Against Federal and Provincial Tax Assessments

The mere 204 words in Section 87 of the Indian Act, RSC 1985. c. I-5 causes so much controversy over its correct legal interpretation:

Property exempt from taxation

87 (1) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83 and section 5 of the First Nations Fiscal Management Act, the following property is exempt from taxation:

(a) the interest of an Indian or a band in reserve lands or surrendered lands; and

(b) the personal property of an Indian or a band situated on a reserve.

(2) No Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property mentioned in paragraph (1)(a) or (b) or is otherwise subject to taxation in respect of any such property.

(3) No succession duty, inheritance tax or estate duty is payable on the death of any Indian in respect of any property mentioned in paragraphs (1)(a) or (b) or the succession thereto if the property passes to an Indian, nor shall any such property be taken into account in determining the duty payable under the Dominion Succession Duty Act, chapter 89 of the Revised Statutes of Canada, 1952, or the tax payable under the Estate Tax Act, chapter E-9 of the Revised Statutes of Canada, 1970, on or in respect of other property passing to an Indian.

While some understandably but erroneously believe s. 87 to stand for a complete exemption from all taxation for all First Nations and their members, and for that exemption to be a constitutionally entrenched right, s. 87 is unfortunately just another piece of legislation enacted by the Parliament of Canada, which is why First Nations need to fight so hard to defend their tax exemptions that can be constantly eroded by Crown action.

We can be instrumental in aiding First Nations with that fight against tax exemption erosion, including working with Chartered Professional Accounts in challenging federal and provincial tax assessments and reassessments through objections and appeals and defending in provincial and superior courts allegations involvingFailure to File Returns, Failure to Remit Required Amounts, Failure to Respond to a Demand or Provide Information or Tax Evasion.

How We Proactively Deal with Enforcement Actions & Voluntary Disclosures 

We collaborate with First Nations and accountants in being proactive when faced with enforcement actions by the Canada Revenue Agency. The serving of information requirements, execution of search warrants, and holding of inquiries are all highly intrusive measures available to the CRA that need to be guarded against to the greatest degree possible. But in our experience, they are never measures of first result for the CRA, but rather of last resort.

Because we've worked closely with the inside of all levels of the Canada Revenue Agency, up to the level of the Deputy Minister, we understand CRA culture. As well as provincial tax authority culture. They can be reasoned with. But you must be proactive and utilize the right approach. 

1. Protecting Information Through Solicitor-Client Privilege

Solicitor-client privilege can at times have magical qualities in the tax world in protecting from the CRA and provincial tax authorities information created for the giving or seeking of legal advice, as well as communications between solicitor and client in the course of that advice. Both the Income Tax Act and the Criminal Code, as well as the Common Law, explicitly recognize the sanctity of solicitor-client privilege. The CRA can't force your lawyer to talk. However, the same is not true with your accountant, or even yourself!

Even though they perhaps should benefit from professional privilege, accountants (and even doctors) are only subject to duties of confidentiality, and are not legally insulated from the government prying information from them about their clients. All their work product could be seized by the government, and they could even be forced to personally answer questions about their clients. But this result can be avoided if a lawyer has retained them for a client to work under the lawyer's direction as an expert for the preparation of legal advice or litigation. 

A tax lawyer might retain your existing accountants on your behalf, or might suggest a new accounting firm to assist solely with a CRA enforcement matter. The reason new accountants might be needed is that your existing accountants' work-product that was created by them for you prior to your tax lawyer's involvement is not suddenly completely cloaked with privilege just because a lawyer has become involved. Thus, there could be later disputes over what constitutes new privileged information versus old unprivileged information. 

2. Engaging with the CRA

Once you've protected as much information as possible, it's time to reach out to the CRA as part of a carefully crafted engagement strategy to negotiate. As much as you might prefer a strategy of complete lack of engagement with the CRA, the reality is that the CRA will always have greater resources than any First Nation, and that it will be much easier to convince a court to side with a First Nation if that First Nation has taken a reasonable engagement approach with the CRA, including providing the CRA with ample factual and legal justification for its tax exemption position.    

HOW WE HELP AT THE TAX COURT OF CANADA

Only lawyers are permitted to represent others in Tax Court. All appeals of federal tax objection results proceed to the Tax Court of Canada. The tax appeal process is more like a civil trial than an appeal, as there are rules for producing affidavits of documents, oral discoveries of witnesses, and an in-person trial where live witnesses are called to testify before a judge. But like an appeal, there can be tight timelines for filing a Notice of Appeal that can't be missed. 

We find our combination of trial experience (we estimate we've run over 200 trials), combined with our appeal experience (no, we haven't done anything close to 500 appeals, but it's still a lot) leads to the best results in Tax Court, given both the factual and legal nature of the process, which requires a mastery of both facts and law. 

1. We Maximize Tax Court Appeal Prospects of Success

Approximately 1 in 4 appeals to the Tax Court of Canada succeed in some respect, but this figure includes the many appeals where appellants are self-represented. Thus, prospects of success with a lawyer should be higher, although it's sometimes difficult to precisely predict the odds of success. We will give you our frank and detailed opinion, based on decades of experience, on whether investing resources in a tax appeal may be worth it. 

Sometimes a cost-benefit analysis is required, weighing prospects of success against the amount of tax in dispute. As legal fees tend not to significantly rise as the amount of tax in dispute increases, very large amounts of disputed tax may be easier to justify taking to the Tax Court. 

Often cases in Tax Court can be settled short of going to trial, given the fresh look the Department of Justice will give to each file, thus expending fees through to the end of a contested trial may not be necessary, but each case is unique and predicting prospects of early settlement is usually not possible until after a Notice of Appeal has been filed and Department of Justice counsel has been appointed.

2. We Take a Tax Court Appeal Team Approach

We often partner with trusted Certified Professional Accountants (CPA) in our tax appeals practice, with the accountants acting as expert witnesses justifying why a First Nation is entitled to what they are claiming. Lawyer-accountant collaboration means that all of the accountant's work product may be able to be cloaked with solicitor-client privilege, and thus be immune from compulsion and seizure by the CRA. While accountants by themselves take their client duty of confidentiality very seriously, the law has unfortunately not bestowed upon them or other professionals the sanctity of solicitor-client privilege.

HOW WE HELP AT THE FEDERAL COURT OF APPEAL

1. We Apply Our Appeal Experience to Federal Court of Appeal Tax Cases

Appeals of unsatisfactory results from the Tax Court of Canada proceed to the Federal Court of Appeal. It's important to note that there is a “right” of appeal. You don't need "leave" to appeal. And you're not stuck attempting to bring a judicial review because of a lack of a viable appeal route. 

But don't mistake the Federal Court of Appeal stage as just another kick at the Tax Court can. A shift in strategy is needed to focus almost exclusively on law rather than facts, and specifically on the legal errors the Tax Court of Canada made in its judgment so as to justify the Federal Court of Appeal in interfering with that judgment. Appellate deference to trial courts means that the Federal Court of Appeal will only intervene if it can be convinced the Tax Court really got it seriously wrong, in such a major way so as to affect the end result, and perhaps even to have amounted to a miscarriage of justice. 

2. We Maximize Federal Court of Appeal Prospects of Success

Instead of the one judge deciding a case at the first level of the Tax Court, with the Federal Court of Appeal you'll have three judges sitting on the panel. Therefore, different results from the first-level Tax Court hearing are definitely possible, since you're more likely to get an "average" take on the law from three learned jurists, than from one who could have outlying views or simply misconstrue the facts. 

We find it's easier to provide advance assessments of your prospects of success prior to you filing a Notice of Appeal at the Federal Court of Appeal than is the case with the Tax Court, because before proceeding to the Federal Court of Appeal you'll have a carefully reasoned written Tax Court trial decision to study for error. While we find it's rare that we can't find some objectionable angle on which to base on appeal, clearly some errors are more egregious than others, so we'll be able to give you a frank assessment of your likely success rate. However, as with the Tax Court, where very large amounts of tax are in dispute, an appeal may be more justifiable from a cost-benefit legal fees perspective. 

The Federal Court of Appeal might decide a case outright, or might send it back to the TCC for total or partial rehearing based on its directions.                                                                 

HOW WE HELP WITH TAX MATTERS BEFORE PROVINCIAL COURTS

Provincial Courts of Justice and Superior Courts deal with civil and criminal tax disputes initiated by a provincial government, and with criminal tax allegations initiated by the Canada Revenue Agency (the Tax Court and Federal Court don't deal with criminal law). Defending either civil or criminal tax allegations is a highly specialized area, where you need someone with experience dealing with provincial and federal tax authorities, as well as explaining tax law to judges (other than those on the Tax Court) who may have very limited experience with tax. 

THE TAX LAW PRACTICE GROUP

The firm's Senior Barrister Gordon S. Campbell leads the firm's Tax Law dispute resolution practice. His experience includes:

• successfully litigated tax law cases (Income Tax Act, Excise Tax Act and Excise Act) up to the level of Supreme Court of Canada, including at Tax Court of Canada, Federal Court of Canada, Federal Court of Appeal, Ontario Court of Justice, Ontario Superior Court of Justice, Ontario Court of Appeal and La Cour du Québec;

• served as lead Negotiator in multilateral negotiations for First Nations involving taxation agreements;

• served as legal counsel and adviser to the Canada Revenue Agency.

The firm’s Senior Solicitor Dustin Seguin leads the firm’s Tax Law planning practice.