20 June 2007 Ministerial Correspondence 2007-0237141M4 - requirement for copy of will on filing fin return

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Principal Issues: Why is a full copy of the will required in filing the final return for the deceased?

Position: T4011, guide for filing returns for deceased persons, requires a copy of the death certificate and a copy of the will or other document to establish that the person filing the return is the legal representative. The other document could be letters of administration or grant of probate. In addition, a copy of the will is required in order to obtain a clearance certificate.

Reasons: The enquirer was concerned about the privacy rights of the deceased. The Supreme Court of Canada has examined the Minister's broad discretionary powers to request documentation in light of the Canadian Charter of Rights and Freedoms and determined that such broad powers are required to maintain the integrity of the tax system and noted that the production of documents is the least intrusive means by which the CRA can effectively monitor compliance with the Act.

XXXXXXXXXX

Dear XXXXXXXXXX:

Thank you for your letter received on May 7, 2007, concerning the requirement to submit a copy of the full will with the final return of a deceased taxpayer.

As noted in the Canada Revenue Agency (CRA) publication T4011, Preparing Returns for Deceased Persons, when filing the final tax return for a deceased individual, the CRA requests a copy of the death certificate and a copy of either the will, the letters of administration, or the grant of probate in order to verify that the individual submitting the return is the deceased individual's legal representative. A partial copy of the will is not sufficient for this purpose.

Although Canada's income tax system is based on self-assessment and self-reporting, Parliament has granted the CRA broad authority so that it can administer and enforce the Income Tax Act. This includes the right to obtain any information or document, including a copy of the full will, required for any purpose related to the Act's administration or enforcement.

The Supreme Court of Canada has examined the issue of whether the authority conferred on the CRA violates an individual's rights and freedoms under the Canadian Charter of Rights and Freedoms. It was determined that such broad authority was necessary to maintain the integrity of the tax system and that the requirement for producing documents and records is the least intrusive means by which the CRA can effectively monitor compliance with the Act. The Supreme Court therefore concluded that the requirement to produce such documents does not infringe on an individual's statutory rights, including the right to privacy. In addition, an individual's privacy interest is protected as much as possible by section 241 of the Act, which, subject to certain stated exceptions, forbids any of the records or information obtained from the individual or any other taxpayer in the course of administering the Act from being disclosed.

Although the legal representative may submit any one of the three documents mentioned above-the will, the letters of administration, or the grant of probate-in order to process the final return of the deceased person, the legal representative can reasonably expect to be asked to provide a copy of the will, if such a will exists and has not already been submitted, when applying for the clearance certificate on Form TX19, Asking for a Clearance Certificate. As stated in Information Circular 82-6R2, Clearance Certificate, the legal representative is required to obtain such a clearance certificate before distributing any of the deceased person's property to the heirs. Note that the legal representative can be held personally liable for paying the deceased person's tax liability if such a clearance certificate is not obtained.

All the publications mentioned is this letter are available on the CRA Web site at www.cra.gc.ca.

I appreciate the opportunity to address your concerns.

Sincerely,

The Honourable Carol Skelton, P.C., M.P.

A. Humenuk
2007-023714
957-8585