*** This information is presented for informational purposes only and do not constitute legal advice. You should retain legal counsel if you require legal advice regarding your individual tax situation. *** 

Allegro Wireless Canada Inc. v. The Queen (2021)

 Key Lessons / Points

• Providing an expert in the field of SR&ED conducted can be crucial for projects to be seen as SR&ED versus routine engineering or standard practice.
• Expert witnesses are expected to provide documentation and summaries of their opinions as well as analysis in their expert report. The extent to which the factual foundation for the opinion is proven by admissible evidence will affect the weight it will be given.
  • In this case, the Appellant’s expert witness was more knowledgeable and asked more questions to form their conclusions than the Respondent’s expert witness which made them more credible in the eyes of the judge.
• If a CRA Research and Technology Advisor (RTA) provides guidance many assume that the project will be accepted as filed. In this case the RTA provided assistance in setting up tracking software but the project was not accepted as filed.
• Maintaining a well-organized and complete collection of documentation is imperative for the success of SR&ED applications.
  • The last of the five questions used to determine the eligibility of work for SR&ED Investment Tax Credits pertains to the collection of documentation regarding hypothesis development and testing, and the results thereof.
  • Documentation regarding expenditures and time spent on SR&ED is also imperative for SR&ED applications.  For more information see SR&ED Salary and Wages Policy as well as Materials for SR&ED Policy.
• Ensure any funds received are correctly classified and – as required – properly reported in SR&ED claims, including government assistance and contract payments.
  • If you have received funding that can be defined as government assistance, then this should be deducted from the SR&ED amount.
  • If the amount has been prorated based on the amount of SR&ED eligible work, documentation to support the calculation should be available.
  • For more information please see Assistance and Contract Payments Policy

Fiscal Years in Question 

2010, 2011

Court Heard In 

Tax Court of Canada (Toronto, ON)

Dates Heard 

May 6, 7, and 8, 2019;  September 21, 22, and 23, 2020; and written arguments received on October 8, 21 and 28, 2020

Neutral Citation 

2021 TCC 27

Docket 

2014-1690(IT)G, 2014-1691(IT)G

Amount Under Dispute 

$279,420; $215,567

Decision 

[249] For the foregoing reasons, the appeals are allowed with costs and the reassessments are referred back to the Minister for reconsideration and reassessment on the basis that the Appellant incurred qualifying SR&ED expenditures of $449,878 and $508,351 in the 2010 and 2011 taxation years, respectively, and is entitled to corresponding ITCs of $157,457 and $177,923 for the 2010 and 2011 taxation years, respectively.

Summary 

Allegro Wireless, the Appellant, is a software development company. In 2010 and 2011 they submitted SR&ED investment tax credit (ITC) claims. In the 2010 tax year, Allegro claimed SR&ED expenditures of $798,342 and corresponding ITCs of $279,420 in respect of three projects. The CRA disallowed $697,723 of the amount claimed as SR&ED and $244,208 of the corresponding ITCs in respect of two projects. In the 2011 tax year, Allegro claimed SR&ED expenditures of $615,906 and corresponding ITCs of $215,567. The CRA disallowed $463,401 of the amount claimed as SR&ED and $162,190 of the corresponding ITCs. Allegro developed software that tied various other software systems together, the source code was often not available and system uncertainty was present. Allegro used Jira X to track their work and SR&ED eligible work. In the 2010 tax year, the CRA accepted Project 3 as filed and in the 2011 tax year, the CRA accepted Project 2 as filed. The CRA split the projects up based on their technological objectives. Five projects filed by the Appellant turned into seven technological advancement/technological obstacles evaluated for eligibility by the CRA. It is unclear as to why the CRA evaluated each technological advancement separately as opposed to the project as a whole. The Appellant’s CRA scientific research and technology advisor, Mr. Wong, assisted in setting up the tracking software for the project.

First, the Respondent questioned the report presented by the expert witness for the Appellant, Dr. Penn. The judge cited White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, and their use of a two-step test to determine the admissibility of an expert witness. The judge held a voir dire to determine the admissibility of Dr. Penn’s expert opinion evidence. The judge ruled that Dr. Penn was a qualified witness who had the requisite special knowledge and experience relating to the specific subject matter on which he was being offered. The Respondent did not question the credentials of Dr. Penn but rather his reference of Mr. Wong’s, the Appellant’s CRA scientific research and technology advisor, technical review of the Appellant’s projects. The judge ruled that Dr. Penn’s comments stood on their own apart from Mr. Wong’s and it was necessary to reference Mr. Wong’s reports to draw his conclusions. The Respondent also was concerned about Dr. Penn’s phone interviews with employees of the Appellants. While there are no transcripts of these conversations, Dr. Penn produced handwritten notes for each interview. The judge ruled, “the factual foundation for Doctor Penn’s testimony was proven by the admissible evidence before the Court.”

While the two expert witnesses provided by the Respondent were deemed to be qualified in their fields by the judge, the factual foundation of their reports was ruled to be based on insufficient information. The judge ruled neither “had a sufficient understanding of the Appellant’s business, products or procedures that would allow them to give opinions that would help the Court.” The judge also stated:

After reading Doctor Ali’s and Doctor Keshav’s reports and hearing their oral testimony, I have concluded that neither had the required understanding of the Appellant’s business. In my view, this represents a fatal flaw in their reports. They did not have the necessary factual foundation that would allow them to provide to the Court informed opinions on the projects in question.

The expert witnesses of the Respondent were not aware of the software (FogBugz and Jira X) used to track the SR&ED eligible work including hypotheses, work performed, and documentation. The Respondent’s expert witnesses did not inquire about additional information aside from the T661 when making their conclusions and reports.

The judge used the five questions of eligibility from Northwest Hydraulic and CW Agencies to determine if the projects in question constituted SR&ED. Additionally, the judge used the opinion of the Appellant’s expert witness to confirm his rulings. The judge ruled, “With respect to projects TA1/TO1 of 2010 Project 1, TA1/TO1 of 2010 Project 2 and TA1/TO1 of 2011 Project 1, I agree with the Appellant and Doctor Penn that the work done by the Appellant was experimental development.” The judge also stated that the technological uncertainties would not exist today because of the advancements made over the last ten years but they did exist in 2010 and 2011. The judge also ruled:

On the basis of the evidence before me, particularly Mr. Rupel’s description of the research the Appellant performed and Doctor Penn’s expert opinion, I have concluded that the work undertaken by the Appellant with respect to projects TA1/TO1 of 2010 Project 1, TA1/TO1 of 2010 Project 2 and TA1/TO1 of 2011 Project 1 related to the development or improvement of its product and involved attempting to resolve a technological risk or uncertainty that could not be resolved by routine engineering or standard procedure.

The judge also ruled that while part of 2010 Project 2 (TA3/TO3) may not be SR&ED on its own, it supported the other overall objective of the project. 2010 Project 2 was ruled to be SR&ED.  Additionally, the judge ruled:

On the basis of the evidence just discussed, I have concluded that when the Appellant conducted the projects at issue, it formulated hypotheses specifically aimed at reducing the identified technological uncertainty, followed appropriate procedures on testing, including the formulation, testing, and modification of hypotheses, and maintained a detailed record of the hypotheses tested and results achieved as the work progressed.

For these reasons, the work performed by the Appellant on the projects identified by the CRA as TA1/TO1 of 2010 Project 1, TA1/TO1 of 2010 Project 2, TA3/TO3 of 2010 Project 1 and TA1/TO1 of 2011 Project 1 constitutes SR&ED for purposes of the Income Tax Act.

After determining that the work conducted was SR&ED eligible, the judge then examined the SR&ED eligible expenditures and investment tax credits (ITCs). Despite repeated requests, neither party submitted information on these items. For the 2010 taxation year, the Appellant filed $587,005 of eligible SR&ED expenditures comprising of $25,000 in contractor costs and $562,005 in salary and wages. The CRA only allowed $171,979 in salary costs. The Appellant did not provide any documentation or support for the contractor costs and the judge ruled these to be ineligible per the Assistance and Contracts Payments Policy. The judge allowed $425,911 in salary and wages for 2010 for TA1/TO1 of 2010 Project 1, TA1/TO1 of 2010 Project 2 and TA3/TO3 of 2010 Project 2. For the 2011 taxation year, the Appellant filed $418,890 in salary and wages but the CRA allowed $120,635. The judge ruled that $355,891 was eligible salary and wages. The prescribed proxy amount was adjusted based on the new salary base. 

The judge also examined the government funding claimed and assessed for the taxation years. The first type of government assistance received was an IRAP grant for each taxation year. The Appellant deducted $65,261 in the 2010 taxation year and $6,829 in the 2011 taxation year in respect of the IRAP Grant. No evidence was provided to account for how the Appellant came to these calculations. For the 2010 taxation year, the CRA calculated how many hours each employee worked on SR&ED eligible projects and which projects received IRAP grants to calculate how much of the IRAP grant should be deducted. The CRA deducted 131,054 in respect of the projects it accepted as SR&ED. In the 2011 taxation year, the CRA deducted the entire IRAP Grant of $131,054 when determining the Appellants SR&ED eligible expenditures but it deducted the entire $171,979 of salary and wages it had deemed eligible when calculating the corresponding ITC. The judge ruled that the CRA incorrectly calculated the IRAP expenditures in the 2011 taxation year and the same number is used to determine which part of the IRAP grant was in respect of SR&ED, $131,054, should have been used in both sections. The judge stated, “When a taxpayer is calculating its ITC, this paragraph requires the taxpayer to deduct the amount of government assistance received. It is required to deduct the government assistance if it can reasonably be considered to be in respect of SR&ED.” The judge determined that for the projects that the Court has found to be SR&ED results in an IRAP Grant of $202,889 in the 2010 taxation year and $22,386 for the 2011 taxation year. The second part of government assistance was the Ontario Innovation Tax Credit (OITC). This is a provincial tax credit and is based on eligible salaries and wages, contract expenditures, PPA, and government assistance like the federal SR&ED ITC.

Based on the judges ruling the qualifying SR&ED expenditures for the 2010 taxation year were $449,878 and  SR&ED ITCs for the 2010 taxation were $157,457; for the 2011 taxation year the qualifying SR&ED expenditures were $508,351 and SR&ED ITCs were $177,923. The appeals were allowed with costs and the reassessments were referred back to the Minister for reassessment.

Key Excerpts 

[3] Specifically, when computing its income tax liability for the 2010 Taxation Year, the Appellant claimed SR&ED expenditures of $798,342 and corresponding investment tax credits (“ITCs”) of $279,420 in respect of three projects. The Minister of National Revenue (the “Minister”) disallowed $697,723 of the amount claimed as SR&ED and $244,208 of the corresponding ITCs in respect of two projects.

[4] In computing its income for the 2011 Taxation Year, the Appellant claimed SR&ED expenditures of $615,906 and corresponding ITCs of $215,567. The Minister disallowed $463,401 of the amount claimed as SR&ED and $162,190 of the corresponding ITCs.

[5] During the six days of hearings, the Appellant called three fact witnesses, Mr. Wesley Rupel, Mr. Khalid Eidoo, and Mr. Russell Roberts, and one expert witness, Doctor Gerald Penn. The Respondent called one fact witness, Ms. Cathy Sporich, and two expert witnesses, Doctor Shrinavensen Keshav and Doctor Shirook Ali.

[47] With respect to determining when the work preformed with respect to quirks constituted SR&ED, the Appellant, with the help of its Canada Revenue Agency (“CRA”) SR&ED technical advisor, Mr. Paul Wong, had set up a system in the bugs/quirks tracking software (particularly Jira X). This system allowed the Appellant to keep track of the problems it identified as quirks, the things that were not working the way the Appellant expected them to work. When the Appellant’s developers were attempting to find a solution to a quirk, they would place information in the bug tracking software with respect to the work they were performing in an attempt to fix the identified quirk.

[48] The Appellant also stored information with respect to specific projects in the source code control system. The Jira X bug tracking software provided a reference for information in the source code control system. The source code control system would contain a similar reference to the Jira X bugs/quirks software. They were cross-referenced.

[49] The Appellant would ultimately review the bug tracking software and the source code control system to determine what quirks had been identified, the testing the Appellant’s developers carried out in an attempt to fix the quirk and the ultimate resolution of the issue. After conducting this review, it would determine whether the work constituted SR&ED.

[50] During the relevant years, the Appellant filed claims in respect of SR&ED performed on five separate projects. It identified technological objectives for each of the five projects. The Appellant worked on three of the projects in its 2010 Taxation Year and two of the projects in its 2011 Taxation Year.

[51] The Minister accepted the Appellant’s claim for SR&ED in respect of the second project carried out in 2011. As a result, the Appellant only filed appeals in respect of the three projects carried out in 2010 and the remaining project carried out in 2011.

[53] TA/TO stands for technological advancement/technological obstacle. Mr. Eidoo testified that the actual claims made by the Appellant did not delineate between different TAs or TOs. The Appellant filed claims in respect of the three SR&ED projects. The delineation between TA1/TO1, TA2/TO2, and TA3/TO3 was done by the CRA. Basically, the CRA converted the three projects into seven projects.

[54] 2010 Project 3 is no longer before the Court. The CRA accepted that the portion of the project it identified as TA1/TO1 was a valid SR&ED claim. The Appellant conceded, during the hearing, that the remaining portion of its SR&ED claim with respect to 2010 Project 3 did not constitute SR&ED.

[65] At the time Doctor Penn was presented to the Court, the Respondent stated that she had numerous concerns with respect to the admissibility of Doctor Penn’s expert report. The Court held a voir dire to determine the admissibility of Doctor Penn’s expert opinion evidence. Doctor Penn testified during the voir dire.

[66] At the end of the voir dire, I accepted Doctor Penn’s report and qualified Doctor Penn as an expert witness to provide the Court with his opinion on whether the Appellant’s work during the 2010 and 2011 on the relevant projects constituted research and/or experimental development according to the standards of a researcher in information technology. I informed the parties that I would provide my reasons for accepting Doctor Penn’s report in my written reasons for judgment.

[67] The test for admissibility of expert opinion evidence is a two-step test as set out by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (“Inman”). Inman confirms and clarifies the common law principles previously described by the Supreme Court of Canada in R. v. Mohan, [1994] 2 SCR 9 (“Mohan”).

[68] The first step of the test requires the party putting the proposed expert forward to establish that the evidence satisfies the following four threshold requirements (the so-called Mohan factors):

– Relevance;

– Necessity in assisting the trier of fact;

– The absence of any exclusionary rule; and

– A properly qualified expert.

[69] The second step requires the trial judge to conduct a cost-benefit analysis to determine if otherwise admissible expert evidence should be excluded because its probative value is overborne by its prejudicial effect. This requires the trial judge to consider such things as consumption of time, prejudice and the risk of causing confusion.

[70] At the commencement of the voir dire, the Respondent’s counsel stated that she had concerns with Doctor Penn’s qualifications and concerns with respect to Doctor Penn’s expert report. She noted that her concerns with the report were related to relevance and necessity.

[71] I have no difficulty qualifying Doctor Penn as a properly qualified expert. He had the requisite special knowledge and experience relating to the specific subject matter on which he was being offered. He acquired this peculiar knowledge through study and experience.

[80] I also find that the benefits of his testimony outweigh any potential costs. In fact, I do not see any significant costs.

[81] Doctor Penn’s report identifies the issues he was retained to address, notes what documents and discussions he relied on, provides a summary of his opinion and then for each of the projects provides an analysis of how he reached his conclusions. That is exactly what the Court expects to find in an expert report.

[82] The Respondent’s main concern with Doctor Penn’s report is his numerous references to a technical review of the Appellant’s projects authored by the Appellant’s CRA scientific research and technology advisor, Mr. Paul Wong. As discussed previously, Mr. Wong had helped the Appellant develop the system in its bugs/quirks tracking software to document the quirks found by the Appellant.

[83] Mr. Wong’s report is the report in which the CRA splits the Appellant’s five projects into twelve separate projects. Mr. Wong’s report is one of the 284 electronically encoded document files reviewed by Doctor Penn.

[84] When providing his expert opinion on the Appellant’s projects, Doctor Penn references Mr. Wong’s conclusions with respect to whether each of the 12 projects identified by Mr. Wong qualifies as SR&ED and states whether he agrees or disagrees with Mr. Wong. Doctor Penn refers to Mr. Wong’s conclusions in the course of providing his expert opinion on each project.

[85] Doctor Penn provides his expert opinion on pages 2 to 16 of his report. On pages 17 to 24 of his report, under the title Exhibit C, Doctor Penn provides his views on certain documents that Mr. Wong provided to the Appellant in response to an undertaking given during Mr. Wong’s discovery. I have ignored this portion of Doctor Penn’s report. It does not form part of his expert opinion with respect to whether the work performed by the Appellant constitutes research and/or experimental development. My understanding is that the Appellant requested the comments on these pages in the hope that they could be used to settle the appeal. However, no settlement discussions occurred.

[86] The Respondent’s counsel argued that Doctor Penn’s written opinion is “so dependent” on its rebuttal of Mr. Wong’s report that it is impossible to extricate the stand-alone opinions with respect to whether the projects qualify as SR&ED. In the Respondent’s view, to do so would be prejudicial to the Respondent.

[87] I do not accept the Respondent’s argument. Doctor Penn’s report is very clear and concise. I have no difficulty differentiating his comments with respect to Mr. Wong’s report from his own conclusions with respect to whether the Appellant’s work on individual projects constituted research and/or experimental development. In fact, it is not clear to me how Doctor Penn could have provided his opinion without referring to Mr. Wong’s report. He was required to inform the Court of the information he referred to when forming his opinion. It was the CRA, not the Appellant, that divided the Appellant’s five projects into twelve projects. Doctor Penn would need to understand why the CRA subdivided the Appellant’s five projects into twelve projects before providing his opinion.

[88] Certainly the Respondent’s expert witness, Doctor Ali, felt that it was important to review Mr. Wong’s report since it is listed in her report as one of the primary references she used when preparing her expert report (Mr. Wong’s report is filed as Exhibit A-8).

[89] The Respondent’s second concern related to Doctor Penn’s telephone interviews with Mr. Rupel and Mr. Wayne Hammerschlag, an employee of the Appellant. In his report, Doctor Penn referred to the interviews when informing the Court of the basis on which he formed his opinion.

[90] During cross-examination, counsel for the Respondent asked Doctor Penn if there was a transcript of these interviews. As one would expect, there is no transcript. However, Doctor Penn stated that he had notes summarizing the interviews. At the request of counsel for the Respondent and before the end of counsel for the Respondent’s cross-examination of Doctor Penn during the voir dire, Doctor Penn produced the notes. The notes (Exhibit A-38) are two pages in length, are in point form and provide a brief summary of Mr. Rupel’s answers to eight questions asked by Doctor Penn and Mr. Hammerschlag’s answers to eight questions asked by Doctor Penn.

[91] The notes are inadmissible as hearsay in proof of any facts asserted in the notes. However, they are admissible as evidence of the basis upon which Doctor Penn formed his opinion.

[92] Doctor Penn testified that he asked the questions in order to clarify certain issues he identified when reviewing the 284 electronic documents. The issues related to the Appellant’s business and procedures.

[93] Counsel for the Respondent argued that I should not accept Doctor Penn’s expert report since a transcript of the interviews was not provided to the Respondent or the Court. As a result, the basis for Doctor Penn’s opinions that were reliant on the interviews could not be tested.

[94] The fact that an expert’s opinion is based in whole or in part on information that is not proven before the Court does not render the opinion inadmissible. It is an issue of weight. The extent to which the factual foundation for the opinion is proven by admissible evidence will affect the weight it will be given.

[95] Doctor Penn’s interviews of Mr. Rupel and Mr. Hammerschlag allowed Doctor Penn to clarify certain questions he had with respect to the Appellant’s business and procedures. Mr. Rupel provided the Court with extensive evidence on both the Appellant’s business and its procedures. I find that all of Doctor Penn’s references to the Appellant’s business in his expert report and during his in-chief testimony and cross-examination are consistent with Mr. Rupel’s testimony. In other words, the factual foundation for Doctor Penn’s testimony was proven by the admissible evidence before the Court.

[96] I qualified Doctor Ali and Doctor Keshav as expert witnesses in the fields in which they provided their opinions.

[97] Counsel for the Appellant raised the concern that Doctor Ali’s and Doctor Keshav’s expert reports were based upon very limited factual information. He argued that Doctor Ali and Doctor Keshav were not provided with the key documents they required in order to make an informed opinion.

[98] I informed counsel that I could not address issues relating to the factual foundation of Doctor Ali’s and Doctor Keshav’s reports until I had reviewed the reports in detail and until I had an informed understanding of the factual basis for their opinions. Further, I informed counsel that his concerns went to the weight I would give the reports, something I could not decide until I had read the reports in detail and heard from Doctor Ali and Doctor Keshav.

[99] After reading each of the export reports and hearing from the two experts, I agree with counsel for the Appellant that the factual foundation for each of the reports is based upon insufficient information. Specifically, neither of the two experts called by the Respondent had a sufficient understanding of the Appellant’s business, products or procedures that would allow them to give opinions that would help the Court.

[100] Both Mr. Rupel and Doctor Penn testified that the difficult technological environment that the Appellant was attempting to operate in caused the various technological issues encountered by the Appellant.

[104] After reading Doctor Ali’s and Doctor Keshav’s reports and hearing their oral testimony, I have concluded that neither had the required understanding of the Appellant’s business. In my view, this represents a fatal flaw in their reports. They did not have the necessary factual foundation that would allow them to provide to the Court informed opinions on the projects in question.

[106] It is clear from his testimony that Doctor Keshav relied primarily on the Appellant’s Form T661. It is also clear from his testimony, particularly his answers during cross-examination, that Doctor Keshav had very limited knowledge of the Appellant’s business. He was not aware of the nature of the Appellant’s business, its clients, the nature of the various devices used in the Appellant’s business and the source code control system and software that the Appellant used to document its research.

[107] For example, Doctor Keshav was not aware that the Appellant was developing software that would be compatible with multiple hand-helds. He also was not aware of the issues faced by the Appellant because of the limited documentation provided by the manufacturers.

[108] It is not clear to me how Doctor Keshav could provide his opinion without understanding the Appellant’s business, the technological issues that arose as the Appellant tried to develop products to meet its clients’ needs, the systems the Appellant used to track these technological issues and the steps it took to address these issues.

[109] Doctor Keshav concluded at certain points in his report that the Appellant did not attempt to formally present and validate a hypothesis. The problem I have with him making this conclusion is that he admitted that he was not aware of the FogBugz and Jira X software (the bugs/quirks tracking software) that the Appellant used to document the work it performed (including the making of hypotheses) on the so-called quirks it encountered.

[110] The software was a key part of the system the Appellant had developed to make and document its hypotheses as it tried to deal with the technical issues it encountered. For example, the Appellant’s identification of a project as qualifying SR&ED was based primarily on the documentation of its work contained in the Jira X software (which contained the documentation of hypotheses made by the Appellant). Yet, Doctor Keshav was not even aware of the existence of the software, the very software that the Appellant used to identify the projects it carried out in a particular year in order to determine if the work performed on the projects constituted SR&ED.

[116] Doctor Ali noted that experimenting involves not only testing and analyzing but also exploring the relationship between tests, explaining the results as they relate to the hypothesis, drawing conclusions, proposing a new hypothesis or conducting additional tests. One of the concerns Doctor Ali raised in her report is that it was unclear to her whether the Appellant conducted this analysis.

[117] Mr. Rupel testified that the Appellant documented this analysis in its source code control system and bugs/quirks tracking software. Doctor Ali noted on cross-examination that she was not informed of the system the Appellant used to document the technical issues it encountered and how it dealt with such issues. This included the Appellant’s use of the bugs/quirks tracking software.

[118] I find the fact that she was not aware of the Jira X and FogBugz software surprising since she notes in her expert report that one of the documents she relied on was entitled “Samples of Contemporaneous Information”, which the Respondent filed as Exhibit R-66. This two-page document notes that one of the sources used by the Appellant to identify the tasks performed within each SR&ED project was information collected through analysis of the Jira X and FogBugz records.

[119] Doctor Ali stated that she was concerned about the information she was provided but did not ask for additional information. She did not communicate with anyone. She took the information provided by her client, the CRA, and provided her opinion based on this information.

[120] The Appellant was attempting to develop a new product (its platform) that would work seamlessly with a multitude of devices using different operating systems and operating on various client operating systems. Neither Doctor Ali nor Doctor Keshav was aware of this difficult environment. As a result of this weak factual foundation, especially when compared to Doctor Penn’s factual foundation for his opinion, I have given no weight to the expert reports of Doctor Ali and Doctor Keshav. The only expert report that I have placed any reliance on is the expert report of Doctor Penn.

[137] Experimenting was required because the Appellant faced a number of obstacles. If the speed was too slow, the printer would fall asleep, if it was too fast, the problem would be made worse. In addition, the Appellant had to contend with the fact that the printers do not have a constant printing speed. It also had to develop software that would work for different types of documents for a variety of different types of printers and different types of hand-helds. As mentioned previously, it had to do all of this without access to the software that actually operated the printers and the hand-helds, the so-called black boxes. The Appellant tracked the work it performed in its source code control system and its Jira X quirk software.

[138] Doctor Penn concluded that the work performed by the Appellant with respect to TA1/TO1 of 2010 Project 1 was experimental development and applied research.

[139] He noted that the issue the Appellant faced was largely a result of the lack of standards and the incompatibility problems that were prevalent in 2010 and 2011. He noted that the Appellant had to conduct a systematic investigation of the range of available options from different Bluetooth stack providers as well as different mobile device platforms in order to determine what was possible.

B. TA1/TO1 of 2010 Project 2
[142] As discussed previously, the CRA split the 2010 Project 2 into three components. Mr. Rupel explained to the Court a number of general terms/concepts that applied to the entire 2010 Project 2.

[164] Doctor Penn noted that in 2010 and 2011 the UDP came with restrictions on the number of concurrent devices that could be connected at any one time to a mobile network. He understood that the Appellant was experimenting with the TCP because it allowed more devices to be connected. However, the Appellant was faced with the issue of slower transmission speeds. He concluded that the Appellant’s work on this project constituted experimental development given the experimental nature of the approach the Appellant needed to take with the different devices to determine what the then available ecology could support.

[193] With respect to projects TA1/TO1 of 2010 Project 1, TA1/TO1 of 2010 Project 2 and TA1/TO1 of 2011 Project 1, I agree with the Appellant and Doctor Penn that the work done by the Appellant was experimental development.

[194] The Appellant’s core product was its platform (software), which it built to account for the difficult environment in which it operated. The Appellant was attempting to develop a new product (its platform) that would work seamlessly with a multitude of devices that used different operating software and ran on the various operating systems of the Appellant’s clients. It was a product that had not previously existed.

[195] The Appellant’s success depended on its ability to satisfy its clients’ needs in an environment characterized by numerous wireless devices with numerous underlying software systems that the Appellant could not access, the so-called black boxes. The Appellant also had to design a platform that would interact with the numerous servers of its clients. Its product had to work regardless of the manufacturer of the hand-held device used by the client and/or the operating software used by the hand-held device.

[196] This environment was further complicated by the state of the wireless technology and underlying software at the point in time the Appellant carried out the experimentation. Mr. Rupel and Doctor Penn both noted that many of the issues the Appellant faced would not exist today because of the technological advancements that have been made over the last ten years. However, they existed at the time the Appellant carried out the projects.

[197] Working in that environment, the Appellant needed a product that worked better than products offered by its competitors. This required the Appellant to be constantly working to improve its product. It did this by constantly developing software to improve the operation of the various hand-held devices that its clients used on the Appellant’s platform.

[201] On the basis of the evidence before me, particularly Mr. Rupel’s description of the research the Appellant performed and Doctor Penn’s expert opinion, I have concluded that the work undertaken by the Appellant with respect to projects TA1/TO1 of 2010 Project 1, TA1/TO1 of 2010 Project 2 and TA1/TO1 of 2011 Project 1 related to the development or improvement of its product and involved attempting to resolve a technological risk or uncertainty that could not be resolved by routine engineering or standard procedure.

[202] The three projects required the Appellant to conduct tests and experiments, in a difficult environment, to find new solutions that would allow all of the software components to execute in the manner the Appellant required in order for it to develop and improve a product that would meet the needs of its clients. Those solutions could not be found by routine engineering. It was work that the Appellant undertook for the purpose of achieving technological advancements that would allow the Appellant to create a new and/or better product. This product was a platform that would work with multiple devices in the environment described by Mr. Rupel.

[203] With respect to project TA3/TO3 of 2010 Project 2, as discussed previously, Doctor Penn concluded that if one considered the work related to what the CRA described as TA3/TO3 by itself, the work did not constitute experimental development or research. However, he questioned whether it made sense to split 2010 Project 2 into three parts. Doctor Penn believed that TA3/TO3 supported the other parts of 2010 Project 2, which he believed constituted experimental development or research. I have found that TA1/TO1 of 2010 Project 2 was experimental development and the Minister accepted that TA2/TO2 of 2010 Project 2 was SR&ED.

[204] I accept Doctor Penn’s conclusion that the part of 2010 Project 2 identified by the CRA as TA3/TO3 supported the other portions of 2010 Project 2 in such a way that it contributed to the overall aims of an experimental development project. In other words, I accept that the Appellant’s work on this part of 2010 Project 2 was experimental development.

[205] My conclusion with respect to the four projects is consistent with the fact that the CRA found that the four projects were the same or similar to projects in respect of which the Appellant received grants from the National Research Council of Canada (the “NRC”) pursuant to its Industrial Research Assistance Program (the “IRAP”). The grants the Appellant received were to conduct research that would lead to better products.

[206] The Appellant had numerous systems in place to record the various hypotheses it made when conducting its research. In particular, it recorded its research in its source code control system and its Jira X quirk tracking system. For a specific experimental project, including the projects at issue, these systems recorded the hypothesis made by the Appellant at the beginning of the project, the testing of the hypothesis and any changes made to the hypothesis as the work progressed. This was a system the Appellant developed with the assistance of Mr. Wong, its CRA technical advisor.

[207] It was only after reviewing the source code control system and the Jira X software tracking system to determine the work it preformed that the Appellant made the decision on whether it should claim the project on its tax return as SR&ED.

[208] On the basis of the evidence just discussed, I have concluded that when the Appellant conducted the projects at issue, it formulated hypotheses specifically aimed at reducing the identified technological uncertainty, followed appropriate procedures on testing, including the formulation, testing, and modification of hypotheses, and maintained a detailed record of the hypotheses tested and results achieved as the work progressed.

[209] For these reasons, the work performed by the Appellant on the projects identified by the CRA as TA1/TO1 of 2010 Project 1, TA1/TO1 of 2010 Project 2, TA3/TO3 of 2010 Project 1 and TA1/TO1 of 2011 Project 1 constitutes SR&ED for purposes of the Income Tax Act.

[210] Having found that the Appellant’s work on the four projects discussed above constitutes SR&ED, I must now determine the total amount of SR&ED expenditures the Appellant incurred during the relevant period and the amount of corresponding ITCs it is entitled to claim.

[221] I will first address the total SR&ED expenditures for the 2010 Taxation Year.

[222] In its tax filing the Appellant claimed $587,005 of allowable SR&ED expenditures comprised of salary and wages of $562,005 and a payment to a contractor of $25,000. [19] When assessing the Appellant, the Minister assumed that the work performed by the subcontractor did not constitute SR&ED. The Appellant has not argued that the Minister’s assumption was wrong or provided the Court with any evidence to support a $25,000 payment to a contractor.

[223] The Minister allowed the Appellant SR&ED expenditures of $171,979 comprised entirely of salary and wages. Using the numbers provided by the Respondent in Exhibit R-9, I have increased the $171,979 by the salary and wages the Appellant incurred in respect of the TA1/TO1 of 2010 Project 1, TA1/TO1 of 2010 Project 2 and TA3/TO3 of 2010 Project 2. This results in total allowable SR&ED expenditures of $425,911 for the 2010 Taxation Year.

[224] I have performed a similar calculation for the 2011 Taxation Year. Using the numbers provided by the Respondent in Exhibit R-12, I have increased the $120,635 of salary and wages allowed by the Minister by the salary and wages incurred by the Appellant in respect of TA1/TO1 of 2011 Project 1. This results in total allowable SR&ED expenditures of $355,891 for the 2011 Taxation Year.

[225] The prescribed proxy amount is 65% of the SR&ED expenditures. For the 2010 Taxation Year this is 65% of $425,911, or $276,842. For the 2011 Taxation Year the prescribed proxy amount is 65% of $355,891, or $231,329.

[226] When calculating SR&ED expenditures, both the Appellant and the Minister took into account two forms of government assistance received by the Appellant.

[227] The NRC, pursuant to its IRAP, provided the first government assistance (the “IRAP Grant”). Pursuant to a contribution agreement between the NRC and the Appellant (Exhibit A-1), the NRC agreed to contribute up to a maximum of $500,000 for salary and wage costs incurred in the performance of certain work described in the agreement. [20] Pursuant to the PASF, the Appellant received $470,378 of the IRAP Grant. The Minister, when calculating the Appellant’s SR&ED expenditures and related ITCs, assumed that all of the projects in respect of which the Appellant claimed SR&ED were the same or similar to some of the projects covered by the IRAP Grant.

[228] The Appellant, when calculating its eligible SR&ED and ITCs, deducted $65,261 in the 2010 Taxation Year and $6,829 in the 2011 Taxation Year in respect of the IRAP Grant. Therefore, the Appellant assumed that it received at least a part of the IRAP Grant in respect of the SR&ED projects before the Court. I heard no evidence from the Appellant with respect to how it calculated the $65,261 and $6,829. In fact, the Appellant provided no evidence with respect to which of its employees’ remuneration was covered by the IRAP Grant and what work such employees performed in respect of the SR&ED projects.

[229] The Respondent, using information the Appellant provided to the CRA, provided the Court with a schedule (Exhibit R-7) showing the specific employees of the Appellant who worked on the five research projects, the number of hours each employee worked on the projects and the hours of each employee that were reimbursed under the IRAP Grant.

[230] For the 2010 Taxation Year, the schedule shows that 23 employees worked a total of 15,899 hours on the five research products [21] and 11,337 of the hours each employee worked for the Appellant were reimbursed under the IRAP Grant.

[231] The CRA then reduced the 11,337 reimbursed hours by those hours that related either to the Appellant’s projects that the CRA did not accept as SR&ED or related to other projects (see Exhibits R-7 and R-8). It determined that only 4,010 of the employee hours reimbursed under the IRAP Grant related to the projects it accepted as being SR&ED. It then applied each employee’s hourly rate to the 4,010 hours to arrive at a total IRAP Grant reimbursement of $131,054 in respect of the projects it accepted as SR&ED.

[232] For the 2010 Taxation Year, the CRA deducted the calculated IRAP Grant of $131,054 under paragraph 37(1)(d) when determining the Appellant’s deduction under section 37 for scientific research and experimental development expenditures (see Exhibit R-3, page 1). However, when determining the corresponding ITCs, the CRA deducted, under paragraph 127(18), $171,979, which represents all of the salary and wages the Appellant incurred when conducting the projects the Minister accepted as SR&ED (see Exhibit R-3, page 2).

[249] For the foregoing reasons, the appeals are allowed with costs and the reassessments are referred back to the Minister for reconsideration and reassessment on the basis that the Appellant incurred qualifying SR&ED expenditures of $449,878 and $508,351 in the 2010 and 2011 taxation years, respectively, and is entitled to corresponding ITCs of $157,457 and $177,923 for the 2010 and 2011 taxation years, respectively.

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