From H.M. Dolson, “What To Expect in Tax Adjudication”, Canadian Tax Highlights 23:4 (April 2015):
As a whole, a [Tax Court] general procedure taxpayer represented by counsel achieved a meaningful victory in 38.5 percent of the published TCC decisions and tied in a further 7 percent. The low rate of success may seem discouraging, but the success rate increased to 46.32 percent when the 205 group B cases were excluded. This result suggests that in a group A case (whose outcome often turns on a question of law), a general procedure taxpayer represented by competent counsel is on a relatively even footing with the Crown (but the odds slightly favour the Crown because of the litigation advantage that flows from its power to plead assumptions).
“Group A” cases were cases turning primarily on a question of law where the taxpayer was attempting to vindicate a tax benefit derived from a plan prepared by a professional. A “Group B” case was more fact-driven and did not relate to a benefit derived from a plan.
Regarding FCA appeals, Mr Dolson writes:
Of the 147 appeals to the FCA, the taxpayer initiated 112 (76 percent) but prevailed in only 20 (18 percent). In contrast, the Crown prevailed in 17 (47 percent) of Crown-initiated appeals. One appeal ended in an effective tie. When the results are shown as a percentage of all FCA appeals initiated by both the taxpayer and the Crown, the taxpayer prevailed in 26.5 percent of the cases and the Crown prevailed in the remaining 73.5 percent. The result for the taxpayer does not materially improve if the group B cases are excluded: favourable outcomes for the taxpayer rose to only 31.6 percent.
