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Court chides KPMG, CRA for delay in Isle of Man tax dodge case

The Federal Court of Canada has admonished lawyers for accounting firm KPMG and the Canada Revenue Agency over yet another delay in a slow-moving court action that began more than three years ago.

Deal between 2 sides to extend deadlines 'not acceptable,' Federal Court says

Lawyers for KPMG and the Canada Revenue Agency told the Federal Court they had taken an ‘extension’ on a deadline, not understanding they needed permission from the case management judge. (Sean Kilpatrick/Canadian Press)

The Federal Court of Canada has admonished lawyers for KPMG and the Canada Revenue Agency over yet another delay in a slow-moving court action that began more than three years ago.

That's when federal authorities won a judge's order to obtain names of the accounting firm's wealthy clients using its Isle of Man tax dodge.

KPMG had been ordered to provide key documents by May 13. However, when CBC News asked the court for those records, the court realized that the accounting firm failed to meet its deadline — and that lawyers for the CRA went along with it.

No reason was apparently given for the failure to meet the deadline.

Lawyers for both the accounting firm and the CRA told the court that they had taken an "extension" on the deadline, not understanding they needed permission from Mireille Tabib, the case management judge.

A letter from the court to both parties on June 10 quoted the judge as saying the parties needed to move more quickly. 

"The proposed [dates] are not acceptable to the court," the letter told lawyers for the Department of Justice, which is representing the CRA, and law firm Osler, representing KPMG.

In a letter filed in court Tuesday by KPMG lawyer Mahmud Jamal, sent "on behalf of both parties," KPMG and CRA now say they will provide their materials on Oct. 20 and Dec. 1 respectively. The hearing date itself has not changed. It is Jan. 24 to 26, 2017.

The documents, referred to as a "motion record," would have included original materials about the Isle of Man "tax product," affidavits from the central players involved in the scheme, transcripts of examinations for discovery, and other exhibits.

The Isle of Man scheme was uncovered by CRA auditors in 2012, a scheme the agency would later allege was a "sham" that "intended to deceive" authorities. 

Despite those allegations, the agency mysteriously let the case fall dormant after KPMG decided to fight the judge's order. 
Dennis Howlett, executive director of Canadians for Tax Fairness, wonders if the case will ever get to court. ‘If they are agreeing to a further delay, that is not moving the case forward,’ he says. (CBC)

Last year, lawyers for CRA and KPMG admitted they had been having out-of-court discussions. It was later revealed the agency had made a secret amnesty offer to KPMG's wealthy clients, which offered them a "no penalties" deal to pay the back taxes owing and some modest interest.

Details of that confidential offer were leaked to CBC News in a brown envelope. 

Still, a small handful of those KPMG clients refused the offer.  As a result, the CRA was forced to go back to court to try to get the full list of names.

Dennis Howlett, executive director of Canadians for Tax Fairness, says he understands why KPMG would want to delay the case, but he questions why CRA didn't object.

"If they are agreeing to a further delay, that is not moving the case forward," Howlett said. 

Howlett adds this most recent delay makes him wonder if the case will ever get to court.

"Delay tactics are part of the tool kit of tax avoidance," he says.  "But the government is wrong to let them get away with that."
Revenue Minister Diane Lebouthillier said she wants to ‘reassure all Canadians that no one can shirk their obligations’ during question period on June 8. (Parliament of Canada)

In a statement, CRA said the agency "takes all steps available to it to meet its obligations and resolve issues before the court in a timely manner and continues to do so in this matter." 

KPMG responded to CBC News queries by stating that date changes in court proceedings are "pretty routine." 

Prime Minister Justin Trudeau and Revenue Minister Diane Lebouthillier have repeatedly said in the House of Commons that the court case to get the remaining unnamed clients is a priority. Lebouthillier hammered home the point again in question period as recently as June 8.

"The CRA is currently investigating the taxpayers identified in the KPMG schemes," she told the House, reminding MPs the matter is before the courts. "I want to reassure all Canadians that no one can shirk their obligations."

About the Author

Harvey Cashore

The Fifth Estate

Harvey Cashore is an investigative reporter with the CBC's weekly investigative program The Fifth Estate.

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