Bhuvana Rai

3I'm doing well, thanks for having me on here.

5There's actually no stress. That's the strange trick, is that most languages have stress on some syllable, and in English it can be, you know, the first, second, or third. I think it's usually the second. But in Tamil, at least when it comes to my name, there's no stress, and that is a very challenging thing for speakers of any other language. And so what I try and do is have my preferred pronunciations, and I have two. I have one that's easy for English speakers, and I have one that's easy for Tamil speakers, and those are my preferences, which is interesting given the name debates, right? Because we have so many reasons to want people to pronounce our names correctly in a way that we're familiar with them.

6And I wonder whether for people who have always had to have dual identities, whether we're stuck with dual names. It's just something that I think about sometimes.

8Yeah.

11I think in French they might have an authority. I think there's actually an authority that tells you how to either pronounce or speak the language, which I think is really interesting.

14And it's hard. It's hard because that's actually— I mean, that's not isolated to English. I think it's an Indo-European language thing, I have to assume, because my first language is actually not even within the Indo-European group of languages.

16Yeah, it's a Dravidian language, which is actually just a different language group altogether. And I don't know whether the lack of emphasis has anything to do with the similarity of language groups. But this type of linguistic analysis is interesting, right? Because we think about the ways that words have been borrowed and used throughout history. And I wonder whether, you know, what you're saying makes a lot of sense, that when English borrows words, we lose the ability to pronounce them in any sort of standard way.

18My personal thought is that it always makes sense to just ask someone, and, you know, then you, you won't get it wrong per their preference. And I think that actually is my attitude towards a lot of things, right? If someone needs something or You know, if there's a way to help someone who has different needs from, you know, say 70% of the population, I think the first step is ask them what they need.

20Yeah,

22It's my first language.

24Yeah actually I studied at an English school, but my parents had forgotten to teach me English, so it was a challenging first year. The rest of, you know, the schooling went great, but they just kind of forgot that I need to know English to go to the school.

26No, from India.

28I think so. I think there's more Tamil-speaking people in India than anywhere else. There's also just so many people in India.

30Well, I think that, I think that Tamil Nadu, which means the land of the Tamils, and as a state in India might have some— but yeah, I mean, I mean, I think that certainly for most people in Canada, I think if they're Tamil, they're usually from Sri Lanka, although that's anecdotal for me.

32That's a good question. I think probably yes. I found that I liked thinking and I wanted to be able to really dive into an analysis of everything, right? If you ask a philosophy major they'll probably tell you that, you know, math— you know, mathematics might think of itself as a very pure field, you know, and think that science is applied mathematics. But in the same way, people who study philosophy might tell you that mathematics is applied philosophy. And I think, you know, regardless of where you fall on that argument, I think philosophy gives you amazing analytic framework to be able to sift through questions, analyze thoughts, and, you know, frankly, practice law. So I find that at least I'm using the same framework of thinking throughout, and I can go back to those principles even if I don't necessarily read a lot of philosophy anymore.

34I didn't really have a clue. And honestly, I was really into science in high school. So I didn't think that I would be a lawyer. I went into philosophy because it was what I was interested in. And luckily, 18-year-olds, I guess, don't think necessarily about long-term careers. And I really just wanted to study it because I was interested in it. But I was too interested in it. Finished most of the core courses really early. And in my second year, I was kind of thinking, okay, I need to figure out what I'm doing next year. Do I want to do a dual degree or do I want to go do something else like a law degree?

35And so I thought about it and decided that, you know, in my head, lawyers were paid to think, whereas philosophers struggle to get the jobs where they got paid to So I thought, okay, great, I will go to law school. I know that writing is an important skill, analysis is an important skill, and I applied to law school. I was lucky enough to get in at the University of Toronto, and so I decided to go on that adventure.

373 and a half. I had to do it at the same time as law school, so that was not the best decision.

39Yeah, that's right.

41That's right.

43Summer courses and a couple of courses through universities to fulfill my requirements for language and so on. I'd done all my philosophy courses, but there were other requirements for my degree that I had to complete.

45I'm not sure how you feel about it. I think we make too much of a confluence between degrees which are really for the purpose of scholastic and academic inquiry and we confuse or associate them with degrees which are practical and intended for a specific profession. I think, you know, given that, I wonder whether it makes sense to qualify as a lawyer going through something like a trade school, which is about half of what we learn, or maybe even less, in law school, and then to learn legal theory, which is also interesting and certainly something that I love thinking about. But I wonder whether it makes sense to have legal theory be separate and maybe even an add-on to the sort of essential trade aspects of law.

46I don't know if that really answers that question, but I wonder whether it makes sense to separate those, because I think the trade school could— and I call it that, but really the part of law that treats you, teaches you the practical essentials of how to run a business, how to be a lawyer, how to talk to clients, how to make clients feel comfortable, how to practice law, where to find the rules, where to find the forms. All of those things, I think, are just so different from the legal theory that we often learn in school, which is also valuable, but I just think that maybe we should separate them and then think about how much of each we want.

48So that was actually I, I didn't necessarily decide to do that so much as be— and, and I, I'm very grateful for this, but I was railroaded into that by Justice Hogan at the Tax Court when I was a clerk because he was so invested in making sure that we all had bright futures and used our degrees wisely and pursued our interests in tax law appropriately. And like, he told us to do a tax law degree. And I said, okay, well, I guess I will apply next year because the deadline's probably passed. And he followed up the next day with like, hey, so what if you ask them if you could go late?

49You know, I just found all of this. And I was like, well, if he's done all this research, I have to apply now. It was the best decision. That, gee, that LLM program taught me so much about tax law and tax practice and really crystallized a lot of those concepts that, you know, you sort of interact with through law school. So I'm really grateful I did it, but that was a happy accident.

51Yeah, it's a distance program, and the Tax Court was really great about letting clerks go and you know, take that leave when they needed to while still fulfilling those articling requirements.

53Yeah, I, I don't know if I'm the first Tax Court former clerk to appear on this, but I'll tell you a little bit about how it's different. You don't shadow one judge. You speak to all of the judges, and you'll ideally do assignments that are with a number of different judges, so you get a really well-balanced picture, or you hope you do. Sometimes, you know, a case is so large that you will just be assigned to it, and you might actually miss out on the opportunity to work with other judges, but on the other hand, you get to know one file and one judge really well. The idea is that, you know, that way you're not just learning from one person or thinking just about one person, because in tax court you need to do two very different things.

54You need to know the law that deals only with taxes, and But then you need to understand how to litigate tax cases, which is also different from normal litigation. So, you know, some people who are appointed to the tax court are appointed and they've been tax planners their whole lives. Some people have been tax litigators, and that's, I think, happening more and more these days. But because of that, you know, you might actually need multiple perspectives and multiple people to work with. And I'm really grateful that I got to work with so many different and amazing people at the tax court.

56So I would personally classify that as a tax dispute, but the litigation stage is when you file a notice of appeal or an application for judicial review, or in rare cases you file a claim with the provincial court, but that's actually quite rare.

59Yeah, I mean, it is similar and it isn't. In the notice of objection stage, if you're in appeals or even during the audit when you might be speaking to and negotiating with an auditor, you focus on the tax side of things primarily because you're not dealing with lawyers on the other side. You're focusing on the facts and you're focusing a little bit on the law, but you're primarily just focusing on making sure that the facts of your case align with the CRA's audit manual. Because the CRA audit manual isn't law, but that's what the CRA is going to use, and its internal guidance is going to be primarily what the CRA auditors and objections departments use when they're evaluating your claim.

60You might speak to the law, right? You might make representations, and they might even be very similar to the representations that you'll make later on, But at least personally, I don't think that that is the crux of a matter that is before audit or in objections. And there's also a couple of different paths you can take, right, because you don't have to go through objections and wait for them to resolve them within 3 years, because after 90 days you can just file a notice of appeal to the Tax Court. On the other side, you don't have to have gone through objection to have some sort of litigation with the tax court and— or sorry, within the tax realm.

61You need it for the tax court because you need to file a notice of objection and then proceed that way to the tax court. But if you need something that can't be dealt with by the tax court, if you're looking for some sort of equitable relief, then you might start at the federal court, right? So you might be in the middle of an audit and have an application before the federal court. You might have a collections issue, which will almost never touch Tax Court, but will be heard by the federal court. So there's some similarities, but there's also some differences. I think for me, the primary difference is even when you're talking about litigation in front of the Tax Court is that, you know, I think people who are litigators, we will often assume that different courts have similar rules.

62And that's true in some ways, but, you know, the truth is that the Tax Court has its own specific set of rules and they interact with substantive tax. So I think it's helpful to have that background if you're going to litigate in Tax Court. The other key thing, though, is that, you know, you are— I think it's unexpected for most people that Tax Court shifts the burden of proof. So the appellant, the taxpayer, is required to show that the minister's assumptions are wrong. And, you know, one of the Supreme Court dissents on this called it demolishing the minister's assumptions of fact. So the onus is on the taxpayer, the appellant, to show that the minister's assessment is wrong.

63And I think that can be a little counterintuitive for a self-represented taxpayer who you know, generally expects that the Crown should defend their assessment, but the truth is that you need to show that it's false. So the burden of proof being shifted is, I think, a little bit strange to people that don't practice in tax court.

65Exactly, yeah.

67Not beyond all reasonable doubt, it is the civil.

69or anything equitable,

71Yes. So the federal court can't hear tax matters. That's the exclusive jurisdiction of the tax court.

73The tax court isn't really permitted to give equitable relief. And sometimes that actually just means that, you know, how the taxpayers have a gap where, you know, the federal court will say, no, go to the tax court because it deals with the correctness of an assessment. And the tax court will say, well, this seems like an equitable remedy. So to a certain extent, we do have a little bit of tension there, and we do have a bit of a gap when a case has both equitable and correctness components to it.

75Yes.

77a lot of taxpayers have tried to show that the CRA wrongfully assessed them and caused them all these issues. It's been rarely, if ever, successful, and if successful, it's been very, very limited. CRA really, really truly needs to have done something so far off you know, what you would expect that, that you could even think about bringing an action. I mean, the reality is, right, people are emotionally invested in not being seen as cheating tax, and that can make tax a really personal thing for them. But the reality is that this is ultimately about money. It's not about civil liberty. It's not about whether or not you're going to be in jail. It's not about, you know, whether you get to see your kids.

78At the end of the day, tax law is about money. And the cases that are being disputed are about money. Taxpayers rarely feel that way, especially when it's an individual, because, you know, and I think this is correct, they feel that they're being judged, and harshly and wrongly, when they feel accused of something that they didn't do. And I think that's a real, you know, emotional part that we don't really pay attention to in tax. But, you know, the theory behind having all of these government rights, if you want to call them that, in tax is that it is just money. You know, you don't have the same sorts of procedural ideals necessarily as you would when you were discussing someone's freedom or their ability to, you know, move around the country or have privacy or something that really truly seems personal.

79The other sort of aspect of it, though, is just the Herculean task of administering the tax code, right? If, you know, tax affects everyone, even family law doesn't have as many, you know, relationships with someone's personal and day-to-day life as tax law does. Given how many people's returns the CRA has to assess and how many of them will get audited, audited because, you know, the government does spend a lot of money on the audit side of tax without necessarily spending the same on the tax court or the appeals branches, which is part of why the wait times get longer. But going back to the audit branch of the CRA, there's only going to be so many cases that they can get through.

80And if they had the burden of proof in every case, given that the taxpayer knows their own affairs best, it would be really difficult for the government to try and ensure any sort of compliance with the tax code. So it's sort of like there's no perfect answer. You just kind of have to do the best with what you have as a government. And that's the policy choice that Canada has made, is that, you know, we accept that taxpayers will have to go to court and disprove the government instead of expecting the government to prove their case.

82Criminal, but even, I mean, in other civil disputes, right? Think about family court. These are really personal issues about, you know—

84custody

86You know, there, there are a lot of sort of more personal torts, if, if I can characterize them that way. Things like injury to your person or privacy, anything for which you would normally seek equitable relief in tort. It doesn't really interact with tax law, or certainly it doesn't interact with the correctness of an assessment,

88They're primarily defined in the Income Tax Act, although there are parts of the Criminal Code that I'm sure you can add on. And that's, that's a really interesting area as well, right? Because there's such broad audit powers of the CRA because it's presumed to be a civil matter. But where CRA refers that, or believes that there may be a criminal matter involved, I mean, the former taxpayer now accused has different rights in terms of privacy and whether or not the CRA can just access all their property without a warrant. So that's a really interesting line and something that cases have started to address in the past decade or so.

90Just to be clear, you will be assessed the tax still, like you will still get all the taxes and the penalties, and then you might also get thrown in jail.

92This tax lawyer thinks that you should not commit criminal—

94Do not commit crimes.

96Yeah, I mean well, a lot of the time they don't, but I think it goes back to some other really special things about tax, right? So firstly, in tax, the government can't just accept, you know, half the money on the basis that we'll just cut the difference. There has to be a principal basis for each settlement. So they have to actually have a legal reason to settle in a particular way, which is unique, I think. They would settle, I think. I mean, ideally, they would settle when they can't make a case and when the taxpayer seems to be right. Functionally, I mean, I think the whole purpose of the adversarial process is, in a way, to find out what the truth is.

97And given that the taxpayer has such a heavy burden, it's been my experience that sometimes Justice lawyers will think, OK, well, Just come to court and prove it. Sometimes they think about a file early, but given the large caseloads and the proportion of funding that is given to the appeals and litigation stages as opposed to the audit stage, I'm not sure that there's really a capacity to review cases early enough to settle them.

99Thank you.

101It's the affiliated law firm, but I think they might even just call themselves EY now. I'm not sure.

103Well, I'm working on it.

105Well I guess I always thought that I might want to consider having my own law firm because I like the business of law. I think that not everyone really cares about or wants to engage in the business aspect of law, but I like it. I care about it. I think it's a good thing to think about. So, you know, I'm really grateful that I got to do all of these amazing things with some of the brightest people I've ever met. Because I've gotten to learn a lot of different skills from them. You know, at the Department of Justice, I was on my feet constantly. I was litigating constantly, and that was wonderful for giving me a really good sense of court procedure and the knowledge of how to take a file from beginning to end.

106BLG was a fantastic way to learn about the world of, you know, private corporations, estate planning, not as much tax litigation as I would have liked, but it was a really great way to learn about the planning and implementation side of tax, which is really important as well. And then when I went to Ernst& Young, I wanted to— or EY Law, which is, I guess, where I was primarily working— I wanted to move to Toronto, and I also wanted to work, you know, with sort of the biggest names in tax. You, you talk about being nerdy, and, and that's essentially what I wanted to do, is to work with all these people I'd heard of and to see what that experience is like, you know, because at a captive law firm you get clients handed to you by the accounting firm.

107You don't really have to do a lot of looking around for clients, but at the same time, you know, you have to be far more cost-conscious because an accounting firm just has different standards. It isn't designed to make life easy for lawyers. So for example, the partners do not have a dedicated admin assistant, which I think is crazy for a lawyer that is working in Bay Street to hear about. So one thing that I got from that experience is just I, I handwrote my invoices to clients so I know how to do that. I hand-did my conflict checks, so I know how to do that. I created my own ledgers because I had to, and so I know how to do that.

108So it gave me a lot of the skills that I needed to run my own firm because I wasn't relying on administrative support. And while that was frustrating while I was there, It actually really gave me a leg up when I had to come up with a retainer letter and I could just think about, okay, well, what have I liked? What have I not liked? And I just got to work with so many really smart people and feel that I could be part of the tax community and I could continue to add value and really be a tax lawyer by myself. Because I think whenever you're thinking about going into practice on your own, you wonder, okay, am I good enough?

109Am I going to be able to help clients? Am I going to be able to take a file from beginning to end? And it was nice to know that maybe I could, or at least it was worth trying.

111Yes, that's right.

113So I started from scratch. The way that tax practices at most firms work is that the tax group is supporting the other groups. You don't really have that much of a dedicated book of business within the tax group. So I was really nervous and it held me back for a long time. But, you know, one nice thing is that sometimes clients do want to follow you and You know, when you look at EY, it's an institutional— or it's a large institution with lots of institutional clients, so you don't really expect to take too many files with you. But I had a couple of former clients reach out about different matters or personal matters, and so that makes you feel good because you think, okay, this is a vote of confidence.

114But there's also just a huge mid-market in the in the tax law area that's not being served. You know, there are far too many self-represented litigants who go to the Tax Court, and I say far too many because they are firstly facing the Department of Justice, which has a lawyer. It has, you know, processes for dealing with and making representations on a tax matter. And then, you know, it also takes up a lot of court time for when you have self-represented litigants that need additional court additional procedural concessions. So I think, you know, as the tax bar grows, we need to think about how we can access this sort of middle market that doesn't need to hire a Bay Street law firm just to handle a relatively small tax matter, but doesn't want to represent themselves going to tax court.

116Yes, but only in certain areas. I focus more on the tax litigation side of things, primarily because I think, you know, you should be put to your highest and best use. And I think, you know, I'm better at tax litigation than I am at anything else.

118Of course. I mean, I think it's a changing area of both law and economics. And so that is actually, I think, something that we're all going to have to deal with a little bit in future.

120No,

122It's a bit of a nerdy joke. Again, I like to joke that my practice is death and taxes because I do estate planning and tax law. So I translated those words into Latin. And that's how I got Mors and Tribute.

124Very nerdy.

126Sounds good. So my hope and dream is to make, you know, frankly, the biggest, most well-respected tax law firm in the country. That's a long shot, but It'll take a lot of work and it'll take a lot of dedication, but that's what I want to do. I want to try and provide really high-quality legal services. Tax law, like personal injury, has a lot of money in it. So you can often have firms that are not law firms, they're referral services firms, because that's where they make the bulk of their money. And I thought early on that I wanted nothing to do with that because I want to focus on giving high-quality legal advice. And I want to refer work when it goes to the best person.

127And I want people to refer me work if they think I'll be the best person for the job. So I made the decision not to accept and not to pay referral fees. But we'll see how that goes in the future, right? Because it's actually very much an industry standard for small tax law firms. Given the commitment to providing the best quality legal services for a reasonable, appropriate price I think that that is the best marketing that you can have is satisfied clients, satisfied professionals. I don't have a typical client yet because I've had so many different types of cases and so many different types of requests so far. But my ideal client is actually other firms.

128I think that, you know, there's a lot of room for both accountants and for lawyers to be able to call a tax lawyer and just have them on retainer to give answers to tax questions on whatever files they're working on and to just provide legal advice as needed. I don't think that most law firms, especially specialty ones, need to have a tax lawyer on staff. But they often should get tax advice. And I think that that is my ideal client because, you know, if a question is coming from other professionals, it means it's a hard question. It means I actually have to think about it. It means I have to research it. So that's my ideal client.

129And my ideal question is just, you know, you wonder, how does this work? Or I wonder what to do about this. And you just get to call me and, you know, get 0.2 of an hour billed to you instead of trying to learn tax law on the side of your practice.

131Thank you for having me.