Accountant urges NHLPA to help fight tax ruling

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Few NHL players have probably heard of Allan Garber even though he has been quietly waging a one-man war to help reduce their Canadian taxes.

Garber, a Toronto accountant, has spent four years challenging the Canada Revenue Agency over its decision to prevent hockey players and other professional athletes from deducting agent commissions from their taxable income. Those fees are deductible in the United States, but not in Canada, something Garber has been trying to change. He now wants the NHL Players' Association to take up the fight.

The NHLPA "should have been interested parties in this," he said. "I don't even see why the NHL and the NHLPA can't co-operate on this because it's no skin off their nose."

It is not inconsequential. Just about every NHL player has an agent and those representatives charge between 3 and 5 per cent in commission. That means a player earning $2-million annually pays between $60,000 and $100,000 in annual agent fees. Since the NHL plays games in the United States and Canada, all players pay at least some taxes in both countries.

The CRA issued a notice years ago saying it would not allow athletes to deduct these fees. Garber felt the CRA misinterpreted the tax law.

"Most [accountants] accept what CRA says as gospel," he said. "My position is the CRA doesn't write the law. The Department of Finance writes the law and the CRA has been proven wrong as many times as they have been proven right if you look at court decisions."

Garber does taxes for more than a dozen NHL players and for years he routinely deducted agent commissions, waiting for a challenge from the CRA so he could fight the issue. That finally came in 2008 when the CRA audited the taxes of Michael Caruso, a 24-year old defenceman with the Florida Panthers.

Caruso, who is from the Toronto area, was hardly a high-profile target. A fourth-round pick of the Panthers in 2006, he has spent his entire pro career in the minors. In 2008 he signed a three-year contract with the Panthers that included a minimum annual salary of $74,750 (U.S.). His agent, MFIVE Sports Management, charged Caruso a 3.5-per-cent fee, or $2,616. Garber deducted that amount from Caruso's taxable income that year. When the CRA disallowed the deduction, Garber headed to the Tax Court of Canada.

He argued the agent fees were no different than legal fees that are deductible in some circumstances. Judge Wyman Webb disagreed. In a ruling released this week, Judge Webb said the fees weren't the same and he backed the CRA's interpretation of the tax law.

Garber said he won't appeal the decision because the amount involved is so low. Instead, he wants the NHLPA to push the government for changes.

"My ability to lobby the government is limited," he said. "I think that if the NHLPA went after them, that would be a lot stronger."

He noted that entertainers can deduct agent fees from their taxable income. That's mainly because they are contract workers, unlike NHL players, who are employed by a team.

The NHLPA and NHL were in negotiations Thursday and unavailable for comment.