Law360 Canada (June 28, 2024, 2:42 PM EDT) -- Appeal by Dow Chemical Canada ULC (Dow Canada) from a judgment of the Federal Court of Appeal which determined that the Federal Court had exclusive jurisdiction to review the Minister of National Revenue’s (Minister) decisions under s. 247(10) of the Income Tax Act (ITA). Dow, a Canadian resident corporation, entered into a non‑arm’s length revolving loan agreement with a related Swiss company as the lender. Following a review of the transactions between Dow and the Swiss company, the Minister reassessed Dow for its 2006 taxation year, applying transfer pricing rules. This resulted in a significant increase in Dow’s income in the 2006 taxation year. Dow requested that the Minister exercised her discretion under s. 247(10) of the ITA to make a downward transfer pricing adjustment. The Minister refused. Dow appealed the reassessment for the 2006 taxation year to the Tax Court. The parties submitted the following question to the Tax Court: Where the Minister of National Revenue has exercised her discretion pursuant to s. 247(10) of the ITA to deny a taxpayer's request for a downward transfer pricing adjustment, was that a decision falling outside the exclusive original jurisdiction granted to the Tax Court of Canada under s. 12 of the Tax Court of Canada Act and s. 171 of the ITA? The Tax Court answered in the affirmative. The Federal Court of Appeal determined that the Federal Court had exclusive jurisdiction to review discretionary decisions by the Minister and allowed the appeal. The central question before the Court was whether the Minister’s decision under s. 247(10) of the ITA was part of an assessment, and therefore subject to the jurisdiction of the Tax Court....