6 November 2023 External T.I. 2022-0954001E5 - Meaning of “Express Consent” in Regulations 209(3)

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: Whether the requirement of providing "express consent" as stated in Regulations 209(3) and 209(4) is considered to have been given by a taxpayer where (1) the taxpayer provides their consent to the issuer over the phone and (2) the taxpayer provides their consent by selecting electronic receipt of documents option using a touchtone phone?

Position: No, express consent would not be considered to have been given by a taxpayer in the described scenarios. However, if subsection 209(5) of the Regulations applies in the scenarios provided, express consent would not be required.

Reasons: Although it is a question of fact as to what constitutes express consent for the purposes of Regulations 209(3) and 209(4), express consent is not considered to be provided by the taxpayer in the scenarios presented as the described methods of providing consent would not constitute consent in writing or electronic format in accordance with Regulations 209(3) and 209(4).

XXXXXXXXXX									2022-095400
										Mei Ng

November 6, 2023

Dear XXXXXXXXXX:

Re: Meaning of “Express Consent” in Regulations 209(3) and (4)

Unless stated otherwise, all statutory references in this document are to the Income Tax Act (Canada), R.S.C. 1985, c.1 (5th Supp.) (the “Act”) or the Income Tax Regulations (“Regulations”), as amended to the date hereof.

We are writing in reply to your email inquiry of October 25, 2022 concerning whether “express consent” as provided by Regulations 209(3) and (4) would be considered to have been given by a taxpayer in two hypothetical scenarios:

1. The taxpayer provides their consent to the issuer over the phone; or

2. The taxpayer provides their consent by selecting electronic receipt of documents option using a touchtone phone.

This technical interpretation provides general comments about the provisions of the Income Tax Act and related legislation (where referenced). It does not confirm the income tax treatment of a particular situation involving a specific taxpayer but is intended to assist you in making that determination. The income tax treatment of particular transactions proposed by a specific taxpayer will only be confirmed by this Directorate in the context of an advance income tax ruling request submitted in the manner set out in Information Circular IC 70-6R10, Advance Income Tax Rulings and Technical Interpretations.

Our comments

Under subsection 209(1) of the Regulations, a person required to issue T4 slips and other taxpayers’ portions of information returns specified therein (the “issuer”) must provide two copies of the portion that relates to the taxpayer to whom the return relates. The two copies referred to in subsection 209(1) shall be sent to the taxpayer’s last known address or delivered in person to the taxpayer under subsection 209(2).

Generally speaking, subsection 209(3) permits an issuer to provide information slips in an electronic format if the issuer has received the “express consent” of the taxpayer to receive the information in that format, unless subsection 209(5) applies. Subsection 209(5) permits the issuer of a T4 slip, Tuition and Enrolment Certificate, FHSA slip, T4A slip or T5 slip to provide the information slip to a taxpayer electronically, without having received the taxpayer’s “express consent” to receive the information slip in this format.

Subsection 209(4) of the Regulations defines “express consent” to be consent given by the taxpayer in writing or in an electronic format.

Although it is a question of fact what constitutes express consent for the purpose of Regulation 209, it is our view that the taxpayer must be duly informed and aware that by providing consent, he or she is providing consent to receive the information slips electronically. The consent given must be clear and explicit, and not be tacit or implied.

Subsection 209(4) of the Regulations refers to express consent given in writing or in an electronic format. It is our view that “electronic format” refers to records retained in an electronically readable format. Verbal or oral consent are not indicated as means by which express consent can be obtained by virtue of subsection 209(4).

In the first scenario outlined in your inquiry, where a taxpayer provides consent to the issuer over the phone, the consent provided would constitute verbal consent. As such, it is not consent in writing or in an electronic format. Additionally, an audio recording of verbal consent provided over the phone would not be considered consent in writing or in an electronic format, as the recording would not be in an electronically readable format. In this regard, it is our view that express consent as provided by subsections 209(3) and (4) of the Regulations would not be considered to be given in the described scenario.

In regard to the second scenario, it is our view that the consent provided by a taxpayer selecting the electronic receipt of documents option using a touchtone phone would not constitute consent in writing or in an electronic format. The act of selecting an option using a touchtone phone does not provide clear and explicit consent in writing. Furthermore, unless the consent provided in this scenario can be retained in an electronically readable format, it would not constitute consent in an electronic format. As such, it is our view that express consent as provided by subsections 209(3) and (4) of the Regulations would not be considered to be given in this scenario.

It should be noted that if subsection 209(5) applies, express consent would not be required in the described situations.

We hope our comments are of assistance.

Yours truly,

Gillian Godson
Manager, Administrative Law Section I
Specialty Tax Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch