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- Title
The Jurisdiction of the Tax Court: A Tax Practitioner's Guide to the Jurisdictional Galaxy of Constitutional Challenges.
- Authors
Jacyk, David
- Abstract
One of the remaining live issues relating to the Tax Court of Canada's exclusive jurisdiction concerns constitutional challenges of taxing provisions, particularly charging provisions. While it is clear that the Tax Court can consider the constitutionality of a charging provision brought into play within an assessment, the extent of the court's exclusive jurisdiction to rule on the constitutionality of such a provision, to the exclusion of other superior courts, is less clear. This issue was addressed in the decision in Canada v. Domtar Inc. While the context in that case was the charging provision of the Softwood Lumber Products Export Charge Act, 2006, the decision has a broad impact on any federal tax appeals that are subject to the Tax Court's exclusive jurisdiction under section 12 of the Tax Court of Canada Act. This article uses the Domtar decision as a starting point to explore the possibility of constitutional challenges of taxing legislation in courts other than the Tax Court. In so doing, it considers the impact of recent decisions of the Supreme Court of Canada relating to competing jurisdictional schemes outside the tax context, some of which specifically address the "residual" jurisdiction of superior courts to hear constitutional claims. The article attempts to reconcile the notion of the Tax Court's exclusive jurisdiction over tax appeals with the traditional authority of the Federal Court and the provincial superior courts to adjudicate constitutional claims. It concludes that the issue of the constitutionality of a charging provision must generally be resolved by the Tax Court to the exclusion of these other superior courts, and that any residual jurisdiction of provincial superior courts over such a question ought to be, at best, very narrowly construed.
- Subjects
CANADA; ACTION &; defense cases; CANADA. Tax Court; CANADA. Federal Court; JURISDICTION (Administrative law); TAX protests &; appeals; LEGAL claims
- Publication
Canadian Tax Journal / Revue Fiscale Canadienne, 2012, Vol 60, Issue 1, p55
- ISSN
0008-5111
- Publication type
Article