In an October 30, 2015 Federal Court case (M.N.R. vs. Amdoc Canadian Managed Services Inc., T-1018-15), the Minister applied for an Order (Section 231.7) requiring the taxpayer to provide the Minister with any access, assistance, information and documents available under Section 231.1 with respect to a transfer pricing audit, domestic audit, and a foreign accrual property income audit.

CRA issued 16 queries to the taxpayer. The taxpayer did not respond to three queries, explaining that the information was not within its possession, power or control.

records that the taxpayer may not possess

Taxpayer wins
The Court noted that the taxpayer did not possess nor have the power to acquire the information requested by the Minister, even if it existed elsewhere. The Tax Act does not contemplate the creation of records where they do not exist; that which does not exist cannot be produced.

Subsection 231.5(2) requires the taxpayer to do everything that a person is required to do under Subsection 231.5(1) or Sections 231.1 to 231.4, unless the taxpayer is unable to do so.

That said, the Court did note, however, that the Minister has the power under Subsection 230(3) to specify what books and records the taxpayer should keep in order to fulfill its obligations under Subsection 230(1), although it was not an issue in this decision.