Tax Court of Canada's perspective on SR&ED eligibility criteria
The Tax Court of Canada recently ruled in favour of Les Abeilles with respect to a SR&ED claim denied by CRA. We thought the decision was worth highlighting, and expect that this ruling will impact how CRA will test SR&ED eligibility going forward.
The case came to trial in July 2013 after CRA rejected the claim on grounds that none of the claimed work met the definition of SR&ED eligibility: the work undertaken was standard practice and/or routine engineering with no technological uncertainty, no technological advancement nor any systematic investigation. CRA also cited a lack of contemporaneous documentation to corroborate the claimed work.
On October 23, 2014, Justice Gaston Jorré allowed an appeal to the Tax Court of Canada (TCC) made by Abeilles Service de Conditionnement Inc. Abeilles is located in the east end of Montreal and is 49% owned by General Electric. The company manufactures electric motors and other component subassemblies such as heating elements, control panels etc. used in household appliances.
The following three rulings by the judge are contrary to the usual stance taken by CRA to reject a claim.
Technological Advancement: The Court ruled that research does not have to lead to technological progress for it to be SR&ED. Work undertaken in the interest of technological progress, even if it fails, can still qualify. Additionally, increasing the productivity and flexibility of a process can constitute technological advancement. In determining whether there has been experimental development, the Court stated that one must consider the project as a whole rather than looking at each individual test or step separately. This ruling contrasts with the approach taken by CRA.
Technological Uncertainty: Criteria of technological uncertainty can be met by the taxpayer not knowing how to achieve some goal that is very specific to its situation. This is a clear distinction from the statement "Technological uncertainties may arise from shortcomings or limitations of the current state of technology that prevent a new or improved capability from being developed. It is the "no shortcomings or limitations of the current state of technology" reasoning that CRA auditors all too frequently cite in their assessments.
Other findings of note with respect to eligibility are as follows:
- Increases in productivity rate and flexibility of the process are acknowledged to constitute a "technological advancement".
- Projects should be assessed as a whole and across multiple years, not "de-constructed" until no eligibility remains.
- A diligent search by the taxpayer that shows a lack of information public domain with respect to how to achieve the outcome sought in the project, is adequate evidence of "technical uncertainty".
- The need to develop a commercially viable (i.e. cost effective solution) can be a factor of technological uncertainty with respect to SR&ED eligibility.
- Adjusting a manufacturing process can constitute "systematic investigation".
- Technological progress in the manufacturing process equates to "advancement".
- The requirement to develop a cost effective solution was a practical factor with respect to the criteria of technological advancement and technological uncertainty.
- While contemporaneous documents are needed to corroborate the occurrence of SR&ED, those documents need not have special content relating to SR&ED; it is sufficient to be able to cross link the work claimed to the timeframe of the claims.
The last part of the ruling would be interest to claimants familiar with the SR&ED audit process. CRA often uses internal staff as expert witnesses in court, including using the same staff members who denied the claim in question. In this case, the Court ruled that the CRA staff member appeared to be guided by CRA guidelines, including certain standards for proving facts which were not appropriate in his role as expert witness. The court found that the Crown's expert (a CRA employee) was not sufficiently impartial after the taxpayer objected that the he was not "independent". The court observed the expert's "confusion" between his duty to uphold the very CRA administrative policies that formed the basis of the original assessment and his role at court which is to "clarify" technical evidence so that the court can make its decision.
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