A Short Update on the Dow Chemical Canada Case: Downward Transfer Pricing Adjustments

Canada’s Federal Court of Appeal has reversed the decision of the Tax Court of Canada in the Dow Chemical Canada case, finding that the Tax Court lacked jurisdiction to judicially review and remediate the exercise by the tax authorities of their discretion in administering the tax law. The Tax Court, faced with the tax authorities’ unwillingness to provide a downward transfer pricing adjustment in one of two affected taxation years, had reasoned that making judgments about how the law applies is intrinsic to assessing income and accordingly within the jurisdictional competence of that Court to adjudicate substantive tax questions. The Federal Court of Appeal disagreed, basing its decision on a strict construction of the empowering statutes for each Court, drawing attention to decisions that taxpayers and their advisories must make in light of the separate jurisdictional competencies of the Tax Court and the Federal Court of Canada.