Tax & Trade Blog

As we have blogged about a fewtimes in the past, corporate tax debts are unlike other forms of liability and can pose special challenges for directors and shareholders of corporations that have unmet tax obligations.  This can lead to dreaded director’s liability and third-party assessments, which allow the CRA to effectively “pierce the veil” and go after individuals or other businesses that would otherwise be protected by the screen of limited corporate liability.

A recent decision at the Tax Court of Canada considered this issue, serving as a reminder to businesses and their owners that these debts are not so easily ignored.

As discussed here and here, Canada has one of the most protectionist agricultural product sectors in the world. Indeed, we have import restrictions and incredibly high tariffs on many basic groceries like cheese, eggs and poultry – all leading to fuel inflation in Canada today, and continuing disputes with countries like the US and New Zealand over our protectionist approach.

This affects consumer and commercial importers of these products, with our current government enforcing import restrictions through tariff rate quotas (“TRQs”).

On July 20, 2023, the Canada Border Services Agency (“CBSA”) released a notice that it made a preliminary determination of dumping and subsidy in respect of certain wind towers originating in, or exported from, the People’s Republic of China – resulting in the application of provisional duties on imports of those Subject Goods!

Further to CBSA’s determination, on July 21, 2023, the Canadian International Trade Tribunal (“CITT”) released a notice that it is initiating its final inquiry to determine whether the dumping and subsidizing of the Subject Goods has caused, or is threatening to cause, injury to the Canadian domestic industry.

Anyone wishing to participate in the CITT inquiry and hearing must file a Notice by August 4, 2023.

On July 5, 2023, the Canadian International Trade Tribunal (“CITT”) issed a preliminary determination of injury in respect of certain wind towers from China. The wind towers investigative process now moves back to CBSA, which will make a preliminary determination of its own by August 5, 2023 regarding dumping or subsidy – which can then result in the imposition of provisional duties!

On April 21, 2023, the Canada Border Services Agency (“CBSA”) released a notice that it was initiating investigations under the Special Import Measures Act into the alleged dumping and subsidizing of certain wind towers from China. The investigation was initiated following a complaint by Marmen Inc. and Marmen Énergie Inc., from Trois-Rivières, Québec.

When you are a boutique Canadian law firm practising in a niche area like Indirect Tax, Customs and International Trade, AND you get multiple inquiries from multiple clients with the same problem, you KNOW something is up!

We have been getting a lot of recent inquiries about machinery being seized or held up at the Canadian border on the basis that it is “tobacco manufacturing equipment”.

As a boutique Canadian law firm practising in a niche area (we focus on Indirect Tax, Customs and International Trade matters) we often get inquiries from small businesses and even travellers seeking to appeal various tax assessments, customs infractions, seizures and the like.

The most basic question we are asked is “how can I appeal this?”.

Another question that we are often asked is what the CRA means by the term “carousel scheme”.  It is a great question, because the CRA does not define its position on that phrase anywhere, other than in private assessment documents that it sometimes provides to GST registered persons on the wrong end of the CRA’s Notices of Assessment powers.

According to the CRA, and in its simplest form:

We are often asked about “accommodation invoices”, and what the CRA is talking about when speaking about these types of invoices.

This is predominantly a term that is used in the GST context but is not defined anywhere in the Excise Tax Act (i.e., the GST legislation) or relatively speaking anywhere in any published CRA administrative document.

But CRA does disclose what it means by “Accommodation Invoices” when it comes time to assess wary taxpayers:

On June 2, 2023, Canada Border Services Agency (“CBSA”) released a notice that it was starting a scope proceeding in respect of carbon steel fasteners originating in or exported from China or Taiwan. The proceeding was initiated by a potential importer, and will confirm whether CAMO Edge Screws are subject to the existing Canadian International Trade Tribunal (“CITT”) anti-dumping Order. The final decision and Statement of Reasons should be available by September 29, 2023.

A common misconception when it comes to oil and gas trading with Canada is that, for GST/HST purposes, there will never be any obligations on foreign sellers selling on a DAP basis.* This is not true, and there can indeed by GST/HST collection and remittance obligations on US and international sellers, if certain conditions are met.

To understand why these misconceptions exist, one needs a deeper appreciation of the Canadian GST/HST legislation, found in Part IX of the Excise Tax Act(“ETA”), and also to get deep into the mindset of the Canada Revenue Agency (“CRA”), which administers the ETA and enforces GST/HST compliance.

On May 27, 2023, the Canada Border Services Agency (“CBSA”) released long-anticipated draft amendments to the Value for Duty Regulations under the Customs Act.

The proposed changes may have major implications for how most goods are imported to Canada are valued and change how the terms “sold for export to Canada” and “purchaser in Canada” are defined – two bedrock definitions under the “Transaction Value” method.

These changes will likely have significant financial consequences for many importers, and for non-resident importers (“NRIs”) specifically!

The Consultation Period on these draft regulations closes June 26, 2023.

As we blogged about here, here and here, CRA continues to audit telecommunications businesses for possible sham and carousel transactions (i.e., GST fraud).

The alleged fraudulent activities come in many forms, and one auditing efforts seems focussed on suppliers and/or recipients connected to the Iris Technologies Inc. case, winding its way through the Tax Court of Canada (“Iris Technologies”).

Iris Technologies has been in the CRA’s gunsights for a number of years now, and allegedly involved in the fraudulent sale of long distance minutes to individuals and companies in Canada and abroad. CRA’s current focus appears to be on the allegedly fraudulent nature of these sales, seemingly taking the position that if Iris Technologies’ purchases and sales were sham transactions, then so too must be the suppliers and recipients transactions on the other side of Iris Technologies (i.e., those suppliers selling minutes to Iris, and those recipients purchasing minutes from Iris) – many (all?) of whom the CRA may be alleging are part of the same carousel schemes.

Further to our recent blogs here and here, Canada has announced even more measures to isolate Russia on the world stage.

Specifically, Canada joined other G7 nations to impose new Russian sanctions, announced in connection with the G7 Leaders’ Summit today in Hiroshima.

In short, over 70 new sanctions were announced, focussing on people viewed as “supporting Russia’s illegal military action and complicit in human rights violations”.  According to the Prime Minister’s Office, the sanctions target “17 individuals and 18 entities linked to Russian companies that provide military technology and know-how to Russia’s armed forces, family members of listed persons, and members of the Kremlin elite.”

On May 15, 2023, the Canadian International Trade Tribunal (“CITT”) issued a notice that it was beginning an Expiry Review in respect of dry wheat-based pasta originating in or exported from the Republic of Turkey (“Turkey”). 

Anyone wanting to participate in the expiry review must file a Notice of Participation with the CITT by May 30, 2023!

On April 26, 2023, the Canadian Border Services Agency (“CBSA”) issued a notice concluding its re-investigation in respect of corrosion-resistant steel sheet (“COR”) originating in or exported from China, Taiwan, India, or South Korea, and updating normal values and export prices. Normal values previously in place expired as of April 26, 2023!

Three (3) producers/exporters in China, three (3) in Taiwan, and two (2) in South Korea fully co-operated with CBSA and were assigned normal values (and export prices, as applicable) as part of the re-investigation. All other producers and exporters will be subject to the following rates of ADDs:

• China:................. 53.3%
• Taiwan:.............. 32.2%
• India:.................. 40.0%
• South Korea:...... 40.0%

On May 4, 2023, the Canadian Border Services Agency (“CBSA”) issued a notice that it will be conducting a re-investigation in respect of carbon steel welded pipe originating in or exported from Taiwan, India, Oman, South Korea, Thailand, and the UAE (the “Listed Countries”). CBSA has issued a Request for Information (“RFI”) to both importers and exporters, and responses are due June 5, 2023 and June 12, 2023, respectively!

Normal values established during the re-investigation will be effective as of the end date of the re-investigation, and all normal values currently in place will expire on that date.

Exporters of Subject Goods from the Listed Countries should consider cooperating with CBSA, as the potential anti-dumping duties (“ADDs”) for goods without normal values range from 29.6% for goods from Taiwan, to 54.2% for goods from the other Listed Countries. Exports from India are also subject to a countervailing duty (“CVD”) of 23,872 rupees per metric ton!

We frequently act for Clients whose goods or vehicles have been seized by Canada Border Services Agency (“CBSA”).   More often that one would think, these seizures involve goods or conveyances (e.g., tractor-trailers, utility vehicles, transport trailers) that are owned by a person other than the importer (e.g., lease goods, borrowed goods, goods subject to a PPSA security).

Where this happens, the true owner is a third party to the seizure but must often take specific steps to protect its legal interest in the seized property.   If nothing is done, the owner can often find the goods subject to forfeit and sold or disposed of by CBSA!

One of the most difficult aspects of dealing with anti-dumping measures can be figuring out whether goods are caught by an active measure or not. Because appeals in this area are pay-to-play, getting these issues right up front is extremely important!

Luckily, the Special Import Measures Act (“SIMA”) provides a formal process – called a “scope proceeding” – which will determine whether a good is caught by an Order (as well as Findings or Undertakings)!

While the technical aspects of a scope proceeding are complicated, based on historical jurisprudence in this area, many Clients prefer the certainty of a scope proceeding than simply importing on speculation – especially where the potential costs of CBSA taking a different view are measured in one, two and three times of goods sold!

On April 21, 2023, the Canada Border Services Agency (“CBSA”) released a notice that it was initiating investigations under the Special Import Measures Act into the alleged dumping and subsidizing of certain wind towers from China. The investigation was initiated following a complaint by Marmen Inc. and Marmen Énergie Inc., from Trois-Rivières, Québec.

According to the posted Investigation Schedule, responses to Importer and Exporter questionnaires are due May 12, 2023 and May 29, 2023 respectively! These dates are unlikely to change or be extended.  The CITT also recently announced its parallel process, with notices of participation due May 4, 2022!