International Trade, Customs and Commodity Tax

Our Group

The International Trade, Customs and Commodity Tax Practice is part of the National Taxation Group.  We assist domestic and international clients across a broad range of industries with domestic commodity taxes and in cross-border trade, including trade remedy laws (Anti‑dumping/Countervailing), import-export issues, Goods and Services Tax (GST), Harmonized Sales Tax (HST) and Provincial Retail Sales Taxes (PST), and property tax matters.

We also advise on how WTO agreements such as the General Agreement on Tariffs and Trade 1994 (GATT 1994), the General Agreement on Trade in Services (GATS), the Agreement on Trade Related Investment Measures (TRIMS), and the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) impact on our clients’ day-to-day business activities or strategic decision-making as well as on opportunities for investment.

In addition to advising on GST, HST and PST transactional matters, we act as counsel in dispute resolution and appeal cases.

We provide a practical, results-oriented approach to advance planning, dispute resolution and assisting in voluntary disclosures to tax and customs authorities.

Our Clients

Our clients in cross-border trade are multinational and foreign based corporations wanting to do business in Canada or with Canada, including trade in goods and services.  We provide structuring advice and implementation for clients wishing to set up business in Canada or wanting to import goods from or export goods to Canada.  Our clients also include domestic businesses who want to take action against unfairly priced imported goods or who require advice on export issues, including export controls.

We act for domestic and foreign based clients in transactional matters and advice, including manufacturing and service businesses, charities and non profit entities and direct sellers.  In addition, we represent clients facing audits by, disputes with or seizures by the CRA (Canada Revenue Agency) or the CBSA (Canada Border Services Agency).

Our Expertise

International Trade Law

We regularly make representations to, and appear before, Canada’s trade regulation bodies and Tax Courts, including the CRA, CBSA, the Department of Finance, the Canadian International Trade Tribunal (CITT), Tax Court of Canada, Binational Panels established under Chapter 19 of NAFTA, and the Federal Court of Canada.

In addition, we have successfully represented clients seeking amendments to Canada’s trade legislation, including the Special Import Measures Act, Canadian International Trade Tribunal Act, Excise Tax Act and related Regulations.

Representative work includes:

• Anti-Dumping, Countervail (Subsidies) and Safeguards
• Government Procurement — Bid Challenges (Domestic and International)
• Investment Dispute Regulation — Bringing or Defending NAFTA Chapter 11 Claims
• NAFTA/WTO Actions — Dispute Resolution
  • Providing advice to manufacturer or trade associations to assist them in having the Government of Canada bring cases against other countries before the WTO and NAFTA
  • Providing advice to manufacturer or trade associations to assist them in having foreign governments or the Government of Canada remove WTO or NAFTA inconsistent measures
  • Providing advice to the Government of Canada, the governments of foreign countries, or domestic or foreign industries, on the meaning of rulings or recommendations from WTO panels or the Appellate Body or on the manner in which they should be implemented
  • Assisting developing countries in implementing WTO measures or commitments
  • Representing Canadian importers or foreign exporters to lobby the Canadian government to make sure products that they import or export do not end up on a retaliation list when countries do not implement WTO rulings
  • Representing trade, manufacturers or importers associations in making submissions to the Government of Canada on trade negotiations

Recent International Trade Cases:

• Carlisle Construction Materials/Hunter Panels LLC – Polyiso Insulation Board (2010) from the U.S. – CBSA Normal Values, CITT Dumping Inquiry - acted for U.S. Exporters
• SSAB North America / Evraz Inc. NA Canada – Oil Country Tubular Goods (Casing and Tubing) from China 2008/2010 Dumping/Countervailing Duty Case, CITT.
• Evraz Inc. NA Canada – Carbon Steel Plate Dumping Case, CBSA/CITT Steel Plate Dumping Case (2009), Ukraine
• Phillips Fasteners / Starborn Industries (2009) – Fasteners from China and Taiwan, Normal Value re-investigation, CITT Injury Review, Product Exclusion
• Opinions/Advocacy on Buy American Procurement Dispute (Canada/U.S.) – WTA, NAFTA issues regarding American Recovery and Reinvestment Act (U.S. Stimulus Bill); discriminatory “Buy American” procurement policies (2009).

Commodity Taxes

Compliance with commodity tax (GST/HST/PST) is important not only for domestic businesses but it also can have a considerable impact on non-resident entities with no physical presence in Canada. GST, HST, QST and PST can significantly affect funding and business liability decisions in fields outside the typical income tax realm in addition to for profit business entities. This includes entities such as charities, non-profit organizations, municipalities and pension funds.

Representative Work

We advise and represent clients on all commodity tax transaction planning and dispute resolution (appeals) matters including:

• GST (HST, QST) transaction advice and dispute resolution;
• Provincial Retail Sales Tax transaction advice and appeals;
• Excise Tax Act (non GST Parts);
• Excise Duties; and
• Motor Fuels and Tobacco Tax.

Members of the Group have decades of experience and have represented clients in all levels of federal (including the Tax Court of Canada) and provincial courts. We have been involved in most types of transactions, including securitizations and other complex financial service matters. Members possess extensive knowledge of the HST transitional rules and the new Place of Supply rules.  We continue to assist our clients in determining the application and implications of the HST in respect of their business activities.

Representative work includes:

• Transaction advance planning and completion;
• Audit representation; and
• Filing Notices of Objection and Tax Court Litigation (recent tax court cases include real property, financial services, and tax exemptions).

Customs

Our lawyers have extensive experience at handling a variety of customs law matters. We provide legal advice and representation for importers, exporters, customs brokers, freight forwarders, transportation and insurance companies. We advise our clients on customs compliance matters, including tariff classification, preferential access rules of origin, the calculation of value for duty, as well as representing clients in customs seizures and Administrative Monetary Penalties (AMPs).

Representative work includes:

• Import and export controls;
• Customs appeals — origin, classification, value;
• Advance National Customs Rulings;
• Customs seizures;
• NAFTA Rules of Origin, planning / dispute resolution;
• Free Trade Agreements;
• Duties relief and duties deferral;
• Trusted Trader Traveller Programs;
• Marking and labelling of goods; and
• FEMA Anti-Extraterritorial Boycott Measures (Helms Burton / OFAC Cuba Restrictions).

We have handled criminal cases involving alleged customs contraventions including: undervaluation, double-invoicing, misdescription, untrue statements and smuggling. Our experience extends to extradition proceedings respecting alleged contraventions of foreign customs laws. We have experience in negotiating with federal Crown Counsel and the Canada Border Services Agency.

Property Tax/Municipal Assessment

The Property Tax and Municipal Assessment lawyers have expertise in all facets of law relating to real property and tax assessment, including real estate development, leasing, municipal law, and government relations.

The Group is dedicated to ensuring that clients understand the unique and complicated structure that governs the property tax regime. Businesses require a heightened awareness of how this regime operates to effectively assess and manage major fixed expenses. A sound understanding of assessment law, interpretations and methods applied in assessment/municipal taxation can limit and control expenses related to the occupation and ownership of real estate, particularly in the area of property taxes. We represent developers, commercial and industrial landlords and landowners, tenants, property managers and financial institutions in virtually every business sector including retails, technology, construction, charitable and non-profit, health industry, small business and other corporate entities.

We have the depth and expertise to resolve all property tax issues quickly and efficiently. Our lawyers are involved in negotiations with government officials and other regulatory bodies on issues of real property and tax assessment. We regularly review and appeal property assessments, advice and represent landlords and tenants on matters relating to lease interpretation and property tax allocation and review and dispute municipal tax assessments. We provide general counsel to clients on the changes and implications of property tax reform and other related legislative changes.