Final Report

Corporate Audit and Evaluation Branch
Program Evaluation Division
May 2012

Table of Contents

• Executive Summary
• 1.0 Introduction
• 2.0 Background
• 3.0 Evaluation methodology
• 4.0 Study limitations and constraints
• 5.0 Findings and recommendations
  • 5.1 Effectiveness in addressing taxpayer contested decisions
    • 5.1.1 Impartiality of the review process
    • 5.1.2 Significant increase in aggressive tax planning has impacted the CRA's ability to resolve taxpayer contested decisions in a timely manner
    • 5.1.3 There are differences between the GST/HST and income tax appeals in terms of the collection effort required following Tax Court decisions
    • 5.1.4 Taxpayers are providing new information throughout the dispute resolution process
    • 5.1.5 Further development of business rules and analytical capacity is needed to support program improvements
  • 5.2 Potential modifications and alternatives to improve program effectiveness
    • 5.2.1 Impartiality can exist in conjunction with internal review and feedback
    • 5.2.2 Opportunities exist to increase taxpayer awareness of the implications of non-compliance and of participating in aggressive tax planning
    • 5.2 3 Horizontal working relationships – A catalyst for change
• 6.0 Going forward
• Appendix A
• Appendix B
• Appendix C
• Appendix D

Executive Summary

This report presents the findings of the Tax Appeals Evaluation. The purpose of this evaluation was to assess how effectively the Canada Revenue Agency (CRA) is addressing taxpayer contested decisions, Footnote 1 including factors impacting the program, and to identify potential alternatives or modifications that could improve the CRA's effectiveness.

The Appeals Branch is responsible for providing a timely, impartial and consistent review process to resolve disputes arising from decisions made under the legislation within the different programs administered by the CRA. Total spending related to taxpayer contested decisions in 2010-2011 was $117.0 million and $101.4 million in 2009-2010.

For this evaluation study, we completed a workload analysis of the 2009-2010 inventory of taxpayer contested decisions and an analysis of an aggressive tax planning Footnote 2 group file. We also completed a case file analysis of a statistically valid sample of Personal Income Tax (T1), Corporate Income Tax (T2) and Goods and Services Tax/Harmonized Sales Tax (GST/HST) Tax Court of Canada (Tax Court) decisions from 2009-2010, conducted interviews and focus groups with both internal and external stakeholders and reviewed CRA documents and related studies including literature from other similar tax jurisdictions.

Our capacity to analyze the contested decisions from the moment of entry into the Tax Appeals Program to the communication of a decision was limited. This is attributable to the current appeals business rules, system constraints within computer processes and challenges identified with the quantity and quality of retained documentation in taxpayer files. As a result we have determined that the Tax Appeals Program needs to identify information needs and gaps in current business rules and computer processes including the lack of appropriate linkages, to develop analytics that could support program improvements.

Overall our analysis of program results has revealed that the Tax Appeals Program continues to provide taxpayers with a process to obtain an impartial review of their tax situation; however, the significant increase in aggressive tax planning is impacting the program's ability to resolve taxpayer contested decisions in a timely manner.

For aggressive tax planning group files, once a Tax Court decision has been made there is no legal provision to make the decision binding to all appellants. Proposed legislation was issued for consultation on November 10, 2011 that would permit the Tax Court to hear a question affecting a group of two or more taxpayers that arises out of substantially similar transactions where the resulting judicial determination would be binding across the group. If this proposed legislation becomes law, it could assist the Tax Appeals Program in resolving the 211 national group files, which represent 129,000 taxpayers and approximately $2.2 billion in Federal Tax, in the inventory as of January 2012.

Beyond program results, our analysis revealed that there are noticeable differences between the Excise Tax Act (ETA) and the Income Tax Act (ITA) concerning the requirement to pay or secure the tax liability when filing a notice of objection. The ETA requires that GST/HST registrant pay or post suitable security when filing a notice of objection or appeal. As part of our analysis, we determined no collection activities were required for the GST/HST cases however 23% of the T1 and 33% of the T2 cases heard by the Tax Court required some type of intervention by the CRA to obtain payment of the tax arrears. Although the requirement to pay or provide security when filing a notice of objection may not be required in every instance, opportunities exist to strengthen compliance by implementing this requirement in situations where the CRA believes taxpayers may have engaged in aggressive tax planning. This may reduce the advantage of taxpayers using the appeals process for a purpose for which it was not intended.

We also determined that some taxpayers are not providing all relevant information to support the amounts claimed as income or deductions when requested to do so by the CRA. Our case file review found that new information was provided and considered in 50% of the decisions made by the Tax Court. With respect to notices of objections, a study Footnote 3 undertaken by the Compliance Programs Branch, in consultation with the Tax Appeals Program, found that taxpayers provided new information to the Tax Appeals Program in 73.7% of audits conducted in the Small and Medium Enterprises Audit Program. Full disclosure legislation, similar to the current legislative requirement for foreign based entities, would support the CRA's mandate to administer tax, benefits, and related programs in a more effective and efficient manner.

It is recognized that communication can be a powerful tool to influence taxpayer behaviour. An increased level of taxpayer awareness on tax obligations and the consequences of non-compliance and aggressive tax planning could influence taxpayer behaviour and leverage the impact of our tax administrative efforts. Responsible citizenship requires that all taxpayers pay their fair share of tax to support the economic well-being of all Canadians. The CRA should continue their efforts to create an environment where filing, remitting and reporting tax obligations are well understood by taxpayers.

The increase in taxpayer contested decisions is a challenge for both the Appeals Branch and other stakeholder branches. From initial assessment to audit, appeals and collections the cost to resolve individual taxpayer issues increases as the number of contacts with the taxpayer increases. The Tax Appeal Program is responsible to review the relevant facts, law and other evidence provided by both the CRA and the taxpayer in order to reach a decision. The cumulative information gathered during this process is available and could be analyzed, shared and discussed with other stakeholder branches to add value and enhance both the focus and direction of future CRA compliance activities. Although communication mechanisms exist to support the interaction and the sharing of information with CRA stakeholders it is not at a sufficient level to support program improvements. Improved internal review and feedback, both before (strategic level) and after a decision (case specific) is made, could support CRA's compliance efforts.

Horizontal working relationships are a catalyst for change. The CRA has started to assess the potential benefits of different branches working together to identify and stop the issuance of unwarranted refunds. The CRA should continue their efforts to adapt and to evolve with current trends in aggressing tax planning through the increased use of horizontal management, front-end validation processes and the use of CRA intelligence.

This evaluation identified opportunities to improve program effectiveness and to increase communication and taxpayer awareness to promote compliance and deter non-compliance. We therefore made the following recommendations:

• CRA should undertake an analysis to identify and assess the feasibility of options for requiring appellants to pay the amount under dispute or post suitable security in situations where the CRA believes a taxpayer may have engaged in aggressive tax planning.
• CRA should undertake an analysis to identify and assess the feasibility of options for improving the full disclosure of taxpayer information when requested, including the possibility of introducing mandatory disclosure rules.
• The Appeals Branch should identify their information needs and gaps in current business rules and the Case Appeals/Equitas system to allow for the development of analytics to support program improvements.
• The Appeals Branch should explore opportunities for improved internal review and feedback, both before (strategic level) and after a decision (case specific), is made to support CRA's compliance efforts.

1.0 Introduction

In January 2011, the Management Audit and Evaluation Committee of the Canada Revenue Agency (CRA) approved the framework for the Tax Appeals Evaluation. The framework identified the following evaluation issues:

1. How effectively is the CRA addressing taxpayer contested decisions Footnote 4, including the factors that may be impacting the program? and
2. Are there alternatives or modifications that could improve the CRA's effectiveness in addressing taxpayer contested decisions?

This evaluation report summarizes the findings related to these issues.

2.0 Background

The Appeals Branch is responsible for providing a timely, impartial and consistent review process to resolve disputes arising from decisions made under the legislation administered by the CRA. Operating independently of other CRA Branches, the Tax and Charities Appeals Directorate and the Program Management Analysis Directorate (Tax Appeals Program) of the Appeals Branch (including appeals regional operations) are responsible for dealing with disputes that arise from assessments of income tax, excise tax, goods and services tax, harmonized sales tax, benefit programs, softwood lumber products export, air traveller security and charities. Within the Appeals Branch, total spending Footnote 5 related to taxpayer contested decisions was $117 million in 2010-2011 and $101.4 million in 2009-2010.

Taxpayers have multiple avenues to communicate with the CRA to resolve tax and service related issues. This includes the enquiries program, taxpayer requested reassessment program, the taxpayer relief program and the service complaints program. Although these avenues exist, it is recognized that some taxpayers will exercise their right to have an impartial and timely review of their tax situation.

The Minister of National Revenue has the authority to assess or reassess tax payable and the time limitations for doing so are stipulated in the Income Tax Act (ITA) and Excise Tax Act (ETA). Once an assessment or reassessment has been issued, a taxpayer may dispute the amount assessed or reassessed by filing a notice of objection, outlining the reasons for their objection and requesting an impartial review.

The Tax Appeals Program conducts these reviews by actively engaging in dialogue with the taxpayer and using alternative dispute resolution processes when appropriate. Decisions must be in accordance with applicable legislation and result in a fair and equitable treatment of taxpayers within established timeframes. To ensure impartiality, taxpayers Footnote 6 who file a notice of objection have a review completed by an appeals officer who was not involved in the original assessment or reassessment.

The Tax Appeals Program has an established process in place to receive, process and respond to notices of objections. The Case Appeals/Equitas system is used to track and monitor taxpayer contested decisions. Upon receipt of a notice of objection by mail, fax, through the CRA website or in person at a Tax Centre (TC) or Tax Services Office (TSO), the notice of objection is forwarded to either the Eastern or Western Appeals Intake Centre Footnote 7 where it is reviewed for validity, date stamped and entered into the Appeals inventory. An acknowledgement letter is issued to the taxpayer to indicate its acceptance or rejection. The notice of objection is then assigned to an appeals officer according to a predetermined workload allocation process and level of staff expertise.

Upon being assigned the notice of objection, the appeals officer completes the review by interpreting the relevant legislation, policies and the taxpayer's point of view. When necessary, they also obtain technical, expert and/or legal opinions.

If the matter is not resolved to the taxpayer's satisfaction, an appeal of the CRA's decision can be made to the Tax Court of Canada (Tax Court). This next level of review is referred to as litigation and is subject to the rules of the Tax Court. The litigation process requires that the Tax Appeals program assist the Department of Justice (DoJ) in the preparation of the Tax Court cases including pleadings, discoveries, attendance at trials and consideration of proposals for settlement. They also play a key role in considering the impact of adverse court decisions and recommending whether to appeal or accept the Tax Court's decision. Appendix A provides an overview of the notice of objection and appeals decision process from initial dispute to an appeal to the Tax Court.

In recent years, the Appeals Branch has faced major challenges due to the growth in workloads. The workload entering this program is generated through the action of both taxpayers and other CRA activities and as such is not under the direct control of the Tax Appeals Program. In order to address these challenges, the Appeals Branch initiated an internal study Footnote 8 for the purpose of finding solutions to mitigate the growing cost of processing notices of objections and appeals to the Tax Court. The Agency Management Committee recognized that these pressures are expected to increase in future years unless the CRA can proactively introduce measures to manage and stem this growth.

3.0 Evaluation methodology

For this evaluation study, we used the following methodologies:

• A workload analysis of the 2009-2010 inventory of taxpayer contested decisions was undertaken. This included an analysis of the total number of cases allowed, partially allowed, disallowed and/or in work-in-progress status.
• A case file analysis of a statistically valid sample Footnote 9 of Personal Income Tax (T1), Corporate Income Tax (T2), and Goods and Services Tax/Harmonized Sales Tax (GST/HST) Tax Court decisions from 2009-2010, representative of the five regional operations and headquarters was undertaken. This included taxpayer contested decisions from the TC/TSO through to the Tax Court. Appendix B provides information on sample size by region and revenue line.
• An analysis of an aggressive tax planning Footnote 10 group file, which included 1,163 taxpayers, was undertaken to identify the characteristics of this group and how the taxpayer contested decisions were resolved.
• Interviews and focus groups were carried out with 182 CRA managers and staff. Participants were selected from the Appeals Branch, the Assessments and Benefits Programs Branch (ABSB), Compliance Programs Branch (CPB), Taxpayer Services and Debt Management Branch (TSDMB), Legislative Policy and Regulatory Affairs Branch (LPRAB) and the Public Affairs Branch (PAB) and included regional personnel in the Atlantic, Ontario, Quebec, Prairie and Pacific Regions.
• External interviews were conducted with representatives of the DoJ, the Office of the Taxpayer's Ombudsman, and the United States of America (USA) Internal Revenue Service (IRS) and the USA Government Accountability Office (GAO).
• CRA documents and related studies and literature from other similar tax jurisdictions and countries were reviewed.

4.0 Study limitations and constraints

Our capacity to analyze the taxpayer contested decisions from the moment of entry into the Tax Appeals Program to the communication of a decision at the Tax Court was limited due to the current Tax Appeals Program business rules, constraints within the Case Appeals/Equitas system and the inconsistent retention of documents within the taxpayer's tax files. This affected our ability to analyze critical account level events for individual taxpayers as part of our qualitative case review analysis. We were also unable to assess the Appeals Branch strategies and research plans as they were not available for review. This is discussed in section 5.1.5.

5.0 Findings and recommendations

5.1 Effectiveness in addressing taxpayer contested decisions

As part of the Appeals Branch, the Tax Appeals Program is responsible for providing a timely, impartial and consistent review process. We found that the program is set up to provide taxpayers with a process to obtain an impartial review of their tax situation; however, the significant growth in aggressive tax planning is impacting the programs ability to resolve taxpayer contested decisions in a timely manner. On average it took 299 calendar days to resolve a notice of objection in 2009-2010 and there have been challenges in meeting the service standard of 30 days for initial contact to the taxpayer. We were unable to examine the consistency of decisions since complete information was unavailable for the full sample of cases selected for our file review.

The workload entering this program is generated through the action of both taxpayers and other CRA activities. The resulting volume and diversified nature of this workload creates challenges for the Tax Appeals Program to adapt, evolve and respond to taxpayer contested decisions in an effective and efficient manner. The next sections of the report outline the results of our analysis on how the CRA is addressing taxpayer contested decisions and factors that may be impacting the program.

5.1.1 Impartiality of the review process

The term "impartial" implies the absence of actual or perceived bias; that is, whether a reasonable person would consider that an official's personal interest might have an influence on the exercise of their duty.

There are different situations which could place the impartiality of a decision-maker in question. In the case of the Tax Appeals Program this would be situations where an appeals officer would have (or be perceived to have) an interest, either direct or indirect, in the outcome of the objection before them. Another situation would be where the relationship to one of the parties is sufficiently close to give rise to a reasonable apprehension of bias.

We found that policies and procedures are in place whereby regional appeals officers keep taxpayers informed of any discussions with other CRA personnel (e.g. protocol agreements with TSDMB, CPB, LPRAB). Interviews with appeals officers also confirmed that they recognize the importance of the principles of impartiality and do not review any taxpayer contested decision where they know the taxpayer and/or had been involved in the tax assessment or reassessment. We were unable to test for any instances of impartiality as part of our statistically valid case file analysis as consistent information was not available in the taxpayer's files. This is discussed in section 5.1.5 of this report.

5.1.2 Significant increase in aggressive tax planning has impacted the CRA's ability to resolve taxpayer contested decisions in a timely manner

Over the period of 2006-2007 to 2009-2010 there has been an increase of 367% for disputes related to aggressive tax planning schemes Footnote 11. Our workload analysis of the 2009-2010 remaining inventory (119,335 cases) revealed that 79% of the cases were recorded as aggressive tax planning and 21% were considered regular taxpayer contested decisions. It was also noted that 86% of this inventory were recorded as having previously been audited by CPB.

To better understand what was occurring and to determine how taxpayer contested decisions were resolved; we reviewed the 2009-2010 workload related to notices of objections, appeals to the Tax Court and an aggressive tax planning group file.

Notice of Objections

The Tax Appeals Program's resolution of taxpayer contested decisions has been relatively consistent. The CRA Annual Reports to Parliament revealed that 55,303 income tax disputes were resolved in 2007-2008 and 56,974 in 2008-2009. As part of our workload analysis, we determined that in 2009-2010, the Tax Appeals Program resolved a total of 59,569 cases and 119,335 Footnote 12 remained in inventory as of March 31, 2010.

From the total volume of 178,904 notices of objections in the 2009-2010 inventory, our analysis revealed that 33% were closed by the Tax Appeals Program. Of the amount closed, 22,547 were intake from previous years and the remaining 37,022 were new intake received in 2009-2010. Interviews with Tax Appeals Program managers and staff revealed that the business decision to process new intake ahead of other cases may in part be attributed to the increased front-end validation process undertaken by the Eastern and Western Intake Centres. These Centers were introduced in 2006 to support program management in the timely and consistent validation of notices of objections as well as the assignment of the case to an appeals officer according to a predetermined workload allocation process and levels of staff expertise.

Decisions from the CRA are categorized into 13 types by the Appeals Branch, as outlined in Appendix C. Our analysis of the notices of objections revealed that 27% of the decisions were in favour of the taxpayer and 26% in favour of the CRA. An additional 17% were partially agreed upon between the CRA and the taxpayer. The remaining 30% were dismissed because the taxpayer did not meet the timeline to file a notice of objection (11%) or the notice of objection was considered invalid for other reasons (19%).

With respect to timeliness, in 2009-2010 it took on average 299 calendar days to resolve a notice of objection. Our review of the CRA external service standard of 30 days for initial contact to the taxpayer revealed that the target of 85% was met in 2006-2007 but was not achieved in subsequent years (Figure 1). This, in part, has been attributed to the increase in the volume of taxpayer contested decisions since 2006-2007.

Figure 1

Source: CRA Annual Report to Parliament 2010-2011

Appeals to the Tax Court

Beyond the notice of objections phase, our analysis revealed that during the 2009-2010 fiscal year 3,692 cases were resolved through different levels of the judicial process. During the 2009-2010 fiscal year 3,147 cases were resolved at the Tax Court. In addition 461 cases were resolved at the Federal Court of Appeal, 59 cases at the Provincial Court, 1 case at the Supreme Court, and 24 cases at the Canadian International Trade Tribunal. For this evaluation study the focus of review was on 3,136 Footnote 13 cases resolved at the Tax Court during 2009-2010.

Decisions from appeals to the Tax Court are categorized into 11 types by the Appeals Branch, as outlined in Appendix D. Cases may have been heard by a judge and allowed in full, allowed in part or dismissed; cases may be resolved in whole or in part through a formal consent to judgment without a court hearing; or cases may be determined by the judge to be invalid or dismissed by the judge for want of prosecution. The manner in which a case is ultimately resolved can increase the time and cost to administer the file depending on the degree of legal resources required.

Our analysis revealed that the majority of the Tax Court cases (52%) were resolved without a hearing before a judge, most often resulting in a full or partial consent between the taxpayer and CRA (73%). A hearing before a judge resulted in a decision in the remaining cases (48%). Of the case heard by a judge, 28% were allowed (i.e. the judge allowed the taxpayer's appeal in full or in part). The remaining 72% were either dismissed by the judge (33% of all cases heard) or withdrawn by the taxpayer (39% of all cases heard). Our analysis of timeliness revealed that from the date of registration to the Tax Court it took on average 688 calendar days to resolve a case in 2009-2010.

The legal costs, provided by the DoJ, associated with our statistically valid case file analysis of Tax Court decisions revealed that in 2009-2010, $5.3 million was spent on the provision of legal services for a total disputed amount of $1.1 million. This represents a 5:1 ratio. Although this ratio appears high, the Tax Appeals Program is mandated to review cases based on law and fact not on the value of the taxpayer contested decision. The need for further analysis of legal costs is discussed in section 5.1.5.

For the Taxpayer Relief Program, our analysis of the cases resolved by the Tax Court revealed that 12% of the appellants applied for taxpayer relief after their case was resolved by the Tax Court and 36% of these applications were approved or partially approved. The most common reason for requesting taxpayer relief was recorded as CRA errors or delays.

Aggressive Tax Planning Group File

In general terms, aggressive tax planning Footnote 14 schemes are questionable transactions that are promoted on the basis that they offer an income tax savings, often referred to as a tax benefit. A tax benefit is a reduction, avoidance or deferral of tax or other amount payable under the applicable legislation or an increase in a deduction claimed to reduce taxable income.

Document reviews and interviews with CRA managers and staff revealed that there are many common types of legitimate deductions that could potentially be used for aggressive tax planning purposes. These include:

• Widely marketed business loss arrangements
• Loss carryovers
• Registered and unregistered gifting tax shelters
• Other registered and unregistered tax shelters
• Large charitable donations
• Allowable business investment losses

Considering that aggressive tax planning represents the largest segment within the 2009-2010 inventory, we randomly selected and reviewed one group file from within the statistically valid sample of 355 Tax Court cases. Individuals within this group had filed tax returns in 2005 and/or 2006 claiming that they had made a charitable donation during that year(s). There were a total of 1,163 taxpayers that were identified as part of this particular aggressive tax planning scheme. We analyzed all 1,163 cases to understand CRA's ability to resolve these types of taxpayer contested decisions.

Our analysis revealed that the taxpayer files in question were initially identified by CPB as a group of individuals who had claimed a questionable charitable donation. The average donation claimed was approximately 17% of gross family income. Based on an average gross family income of $68,000, this equates to a charitable donation claim of $12,000. This is high in comparison to the Canadian average charitable donation amount of 1.8% Footnote 15.

Upon CPB's review, reassessments were made to the tax return(s) of the 1,163 taxpayers. This resulted in 1,314 notices of objections and 188 requests for time extensions. Of these, 130 cases were appealed to the Tax Court. Of the notice of objections, 86% received a decision as of March 31, 2011 of which 66% were in favor of the CRA and the average time for a decision was 187 calendar days. For the Tax Court, 50% received a decision of which 49% were resolved by partial agreement or consent and the average time for a decision was 609 calendar days. Circumstances presented by individual taxpayers may differ and result in varying decisions despite being classified under the same group file. This finding suggests that further analysis is required to understand the underlying reasons for the different treatment of taxpayers within the same group file. The need for further analysis, including that of the differences in decisions, is discussed in 5.1.5. As many of these cases are still under dispute, a full analysis of the CRA's ability to collect could not be undertaken.

Once a decision has been made for an aggressive tax planning group file there is no legal provision to make the decision binding to all appellants. At the present time taxpayers have the legal right to appeal to the Tax Court. The Tax Appeals Program advised that they inform taxpayers of the most recent decision of the Tax Court based on similar cases along with any relevant new policies. The taxpayer is not required to change their position based on this new information.

Proposed legislation was issued for consultation on November 10, 2011, that would permit the Tax Court to hear a question affecting a group of two or more taxpayers that arises out of substantially similar transactions where the resulting judicial determination would be binding across the group. If this proposed legislation becomes law, it could assist the Tax Appeals Program in resolving the 211 national group files, which represent 129,000 taxpayers and approximately $2.2 billion in Federal Tax, in the inventory as of January 2012.

5.1.3 There are differences between the GST/HST and income tax appeals in terms of the collection effort required following Tax Court decisions

Currently, the ETA requires that GST/HST registrants either pay the full amount of their outstanding tax liability or provide suitable security when filing a notice of objection. Since the GST/HST amounts are considered to be "amounts held in trust for Her Majesty" this requirement ensures that there is a minimal risk of recovery in situations where assessments are confirmed in whole or in part by the CRA or the Tax Court. In comparison, we identified notable differences within the provisions of the ITA. Although there is a requirement that large corporations Footnote 16 pay 50% of amounts assessed upon receipt of a notice of assessment, individual taxpayers are not required to pay any portion of their tax balance when filing a notice of objection or appeal to the Tax Court.

To better understand any potential impact of these different legislative requirements on collections, we completed a case file analysis of Tax Court decisions. We identified the number of cases within each revenue line that were confirmed in whole or in part at the Tax Court to determine whether an unpaid tax balance existed at the time of decision, whether the amount was subsequently paid and the degree of intervention, if any, required to recover the tax arrears.

For the T1 revenue line, a total of 86 cases were confirmed in whole or in part and 77% of those cases were paid without further intervention by CRA. The remaining 23% required some intervention by CRA to obtain payment of the tax arrears. The range of actions included issuing a letter or contacting the taxpayer by telephone, garnishment of wages and in the most severe cases, registration of the debt in Federal Court and seizure and sale of assets.

The T2 revenue line revealed 9 confirmed cases with no intervention being required in 67% of those files. For the remaining 33%, the CRA did not recover any of the outstanding tax as two of the cases were closed through insolvency and the other was closed by a write-off of the debt.

For the GST/HST revenue line there were 13 confirmed cases and we did not identify any situations where CRA action was necessary as no outstanding amounts remained at the time of decision. This is likely due to the requirement to pay or provide suitable security at the beginning of the process.

The result of this analysis indicates that although collection activity is sometimes required when an amount remains outstanding at the time of decision, requiring taxpayers to pay the amount under dispute or post suitable security significantly reduces the risk and need for collection action after a decision has been communicated. In circumstances where taxpayers have engaged in aggressive tax planning for the purpose of delaying the payment of tax, a requirement to pay the amount under dispute at the time of filing a notice of objection may reduce the advantage of using the appeals process for a purpose for which it was not intended. Although this approach may not be required in every instance, many CRA managers and staff were of the opinion that opportunities exist to strengthen compliance by implementing this requirement in situations where the CRA believes taxpayers may have engaged in aggressive tax planning.

Recommendation 1

CRA should undertake an analysis to identify and assess the feasibility of options for requiring appellants to pay the amount under dispute or post suitable security in situations where the CRA believes a taxpayer may have engaged in aggressive tax planning.

Management Response

We concur with this finding and recommendation. The Appeals Branch agrees to undertake an analysis of this issue in fiscal year 2012-2013.

5.1.4 Taxpayers are providing new information throughout the dispute resolution process

The ITA and the ETA require that taxpayers maintain appropriate books and records to support the amounts claimed as income or deductions on their respective tax returns. These acts also require that the taxpayer submit this supporting documentation for review when requested by the CRA. In the absence of documentation the CRA will disallow the expense.

To enhance the effective resolution of disputes, the legislation provides for an administrative review process. The success of these processes is contingent on the timely provision of complete information, by all parties, combined with a genuine willingness to achieve a resolution. The absence of either of these elements increases the likelihood that additional time and expense will be unnecessarily incurred on both sides.

CRA's ability to raise accurate assessments and reassessments is affected by the availability of taxpayer information. When the taxpayer does not provide the supporting information, without a valid reason, it affects the timeliness of the process and the accuracy of the assessment or reassessment. Our case file review found that new information was provided and considered in 50% of the decisions made by the Tax Court. An internal study Footnote 17 undertaken by CPB, in consultation with the Tax Appeals Program, found that taxpayers provided new information to the Tax Appeals Program, at the notice of objection stage, in 73.7% of audits conducted in the Small and Medium Enterprises Audit Program. The addition of this new information resulted in changes to the original assessments.

Many CRA managers and staff interviewed were of the opinion that some taxpayers and their representatives are increasingly aware of the environment in which the CRA operates and use this to their advantage. By this they mean that by not providing requested information to support the amounts claimed as income or deductions on their return, as required by law, and then filing a notice of objection and/or an appeal to the Tax Court, they are making a conscious attempt to deliberately delay the payment of tax.

The Tax Appeals program is committed to providing taxpayers with an impartial review of contested decisions; however, questions remain as to whether an impartial review of the facts is impacted by taxpayers providing new or additional information at a later stage in the review process. The absence of relevant information contributes to unnecessary delays since it requires both a review of the initial facts and a review of the new information by the Tax Appeals Program. During our interviews many CRA managers and staff expressed frustration with situations where new information had been introduced at a later stage in the process. They found this particularly discouraging when they had made repeated requests to taxpayers for supporting documentation related to an assessment or audit and did not receive a response.

The use of full disclosure legislation was frequently suggested by both CRA managers and staff as an opportunity for program improvement within the CRA compliance continuum. It is their belief that the full disclosure of taxpayer information when requested at initial assessment or during an audit would reduce the time and expense required to administer the legislation. Efficiencies could also be gained by the Tax Appeals Program as all relevant facts would be available for their review on receipt of a notice of objection.

An Organisation for Economic Co-operation and Development (OECD) study Footnote 18 reported that providing timely, accurate and complete information is a benefit to governments and taxpayers. The mutual benefits of which can include fewer routine audits, increased transparency and a positive impact on compliance culture in general. They reported that mandatory disclosure rules can:

• Reduce the time taken by tax administrations to detect a scheme
• Enable effective risk based investigations
• Allow for a rapid response through legislation, compliance action and/or litigation and
• Deal with aggressive tax planning schemes more quickly, thus reducing the period in which promoters can earn professional fees from those schemes and users can accrue tax advantages from those schemes. This has a significant deterrent effect and reduces the attractiveness of aggressive tax planning.

Full disclosure legislation, similar to the current legislative requirement for foreign based entities, would support the CRA's mandate to administer tax, benefits, and related programs in a more effective and efficient manner.

Recommendation 2

CRA should undertake an analysis to identify and assess the feasibility of options for improving the full disclosure of taxpayer information when requested, including the possibility of introducing mandatory disclosure rules.

Management response

We concur with this finding and recommendation. The Compliance Programs Branch, with the support of the Legislative Policy and Regulatory Affairs Branch, will collaborate with CRA stakeholders in 2012-2013 to develop a business case PROTECTED.

5.1.5 Further development of business rules and analytical capacity is needed to support program improvements

Building a strong foundation for improving a program requires that business rules, systems and analytics be in place to gather necessary information to understand what is occurring within a program and what improvements are needed.

In implementing our data analysis plan, we noted that taxpayer information collected and retained by the Tax Appeals Program throughout the lifecycle of a taxpayer contested decision is limited. This is largely because the appeals business rules, constraints within Case Appeals/Equitas system including the lack of appropriate linkages, and the inconsistent retention of documents within tax files will not allow a taxpayer who has contested their tax assessment or reassessment to be tracked and monitored from a notice of objection to an appeal to the Tax Court. This is further complicated when a taxpayer raises several notices of objections or appeals to the Tax Court as the Case Appeals/Equitas system will not allow for all contested decisions for a particular taxpayer to be reviewed as a whole. This limited our ability to reconstruct a taxpayer`s case as part of our statistically valid case file analysis to understand:

• the level of impartiality (e.g. appeal officer was not involved in the initial assessment or audit);
• the reason for the taxpayer contested decision;
• the validity of the taxpayer contested decision (e.g. received within legislative timeframes);
• the communication between the appeals officer and the taxpayer or other CRA stakeholders;
• the actions taken by the appeals officer (e.g. steps taken and timelines to resolve the case);
• the consistency and rationale for the decision (e.g. differences in decisions for cases with similar circumstances); and
• the impacts on other CRA stakeholders.

Furthermore, as outlined in 5.1.2, gathering and analyzing information on the investment in legal costs and the underlying reasons for the differences in decisions for taxpayers within the same aggressive tax planning group file could support program improvements not only for the Tax Appeals Program but for other CRA stakeholders.

Beyond the analysis of program results, consideration should also be given to measurement of expected results of new initiatives. This will support the Appeals Branch in ensuring that major initiatives are clearly defined in terms of expected results and are supported by sound measurement, reporting and accountability provisions at their outset. For example, many Tax Appeals regional personnel interviewed had concerns with the introduction of the settlement protocol between the CRA and the DoJ. This agreement came into effect on February 10, 2004 and was revised on February 10, 2010. In this agreement, the DoJ may proceed to settle low-impact cases before the Tax Court without being required to obtain prior instructions from the Appeals Branch. The Tax Appeals Program had no information regarding results of this initiative. However, the DoJ provided some preliminary analyses which indicated that, since 2008, the average number of hours required to complete a case having met the specific criteria has decreased by 4.9%. Feedback to personnel on the results of this strategy would be beneficial. Results of how DoJ settlements were made could also support training and improve how the CRA reviews cases.

The lack of this type of information, as well as the information collected and retained by the program, makes it difficult to have a clear understanding of the volume or costs of taxpayer contested decisions for a distinct taxpayer or aggressive tax planning group file or to confirm adherence to policies and procedures. This does not allow for any profiling or trend analysis to identify opportunities for program improvement on how cases are reviewed and decisions made. Improved analytics could lead to increased program effectiveness and efficiencies for the Tax Appeals Program and other CRA stakeholders.

Recommendation 3

The Appeals Branch should identify their information needs and gaps in current business rules and the Case Appeals/Equitas system to allow for the development of analytics to support program improvements.

Management response:

We concur with this finding and recommendation. The Appeals Branch is committed to undertake a review during the fiscal year 2012-2013 to determine information needs and identify the analytics needed to support program improvements based on the findings from this evaluation report as well as other studies. Based on this review, the Appeals Branch will initiate the development of an action plans in 2013-2014 that are supported by measurement, reporting and accountability at the outset.

5.2 Potential modifications and alternatives to improve program effectiveness

Through data analysis, literature research, information gathered from other tax administrations and interviews with CRA managers and staff, both in headquarters and the regions, the evaluation identified opportunities for improvement to support the CRA's mandate to address taxpayer contested decisions. These are discussed in the sections that follow.

5.2.1 Impartiality can exist in conjunction with internal review and feedback

The principle of impartiality has created communications challenges between the Tax Appeals Program and other internal stakeholders. CRA interviews highlighted the need for greater information exchange, both before (strategic level) and after decision (case specific), as an impediment to CRA compliance efforts.

The Tax Appeals Program is uniquely positioned in their capacity as an impartial review body within the CRA. When a taxpayer files a notice of objection or an appeal to the Tax Court, the Tax Appeal Program is responsible to review the taxpayer's interactions with the CRA which resulted in the assessment or reassessment. They review the relevant facts, law and other evidence provided by both the CRA and the taxpayer in order to reach a decision. The cumulative information gathered during this process is available and could be analyzed, shared and discussed with other stakeholder branches as it could provide value to the focus and direction of future CRA compliance activities.

The Tax Appeals Program advised that communication mechanisms exist to support the interaction and the sharing of information with CRA stakeholders. They indicated that they lead the Appeals Branch Risk Management Committee, are piloting an Appeals Feedback Loop initiative and Regional Chiefs of Appeals regularly communicate with TSOs and TCs. Although these mechanisms exist, CRA stakeholders interviewed stated that the current level of feedback is not of a sufficient quantity or quality to support their efforts to allow for program adjustments. For example, many stated that more analysis on the adverse court decisions is required to understand the rationale for the differing positions taken by the Tax Appeals Program or the Tax Court including the relevant facts and supporting documentation. Many also stated that the Tax Appeals Program should be more engaged in discussions surrounding CRA compliance strategies being considered. The Tax Appeals Program perspective on previous decisions could prove useful in considering the risks related to future compliance strategies. The CPB Appeals Variance Study (referred to in section 5.1.4) also recognized that although CPB and Appeals have separate and distinct responsibilities, knowledge of the reasons for disposition of objections (whether or not the assessment was varied and if so, in what part), may be relevant in improving audit practices. This information could support training, process improvements as well as the quality of audit cases being brought forward.

The Australian Government's Inspector-General of Taxation completed a study Footnote 19 on the management of tax objections which included references to studies completed by the Australian Review Council (ARC). It was their opinion that the ultimate aim of a dispute resolution system must be to improve original decision making. The ARC considered that it is important to foster a culture where overturning a decision does not necessarily mean that the original decision was 'wrong' or that it is intended as a 'criticism' of the standard of original decision making. They stated that the analysis of statistics of internal review reversal rates can be used, among other purposes, to monitor trends, identify problems in policy and legislation, and identify training needs.

Discussions with representatives of the IRS and the GAO recognized the importance of providing meaningful feedback between the original decision maker(s) and their Appeals Program. The IRS also supports strong communication at the strategic level. They have recognized that there is a clear dividing line between issues of an administrative nature versus issues that are case specific. For example, we were informed that IRS appeals personnel regularly participate in discussions related to strategic planning, operational or legislative issues that may impede or adversely affect the IRS's effectiveness in achieving program delivery. Any potential impacts on Appeals are also discussed in the development of compliance strategies. Conversely, discussions of case specific nature are avoided to ensure impartiality. This balanced approach ensures that relevant information is freely exchanged among all IRS stakeholders so that it can be incorporated into compliance strategies for the IRS as a whole.

Improved internal review and feedback is a critical element for future CRA program planning and success. It is possible to retain impartiality of decision in conjunction with the provision of meaningful feedback.

Recommendation 4

The Appeals Branch should explore opportunities for improved internal review and feedback, both before (strategic level) and after a decision (case specific), is made, to support CRA's compliance efforts.

Management response

We concur with this finding and recommendation. The Appeals Branch is currently piloting an Appeals Feedback Loop initiative, wherein case disposal information is provided to CRA stakeholders at all levels. The Appeals Branch will analyze and report on the results of the pilot by September 2012. In 2012-2013, the Appeals Branch will also consult with relevant CRA stakeholders to identify opportunities for improved communication at the strategic and operational levels to support CRA compliance efforts while maintaining its impartiality and independent process.

5.2.2 Opportunities exist to increase taxpayer awareness of the implications of non-compliance and of participating in aggressive tax planning

The ITA and ETA are recognized as two of the most complex pieces of legislation in Canada. These laws are the framework from which the CRA administers the tax system. For the taxpayer, the ability to comply with the ITA and ETA is affected by their understanding of the tax laws, awareness of the implications of non-compliance and of participating in aggressive tax planning schemes. Responsible citizenship requires that all taxpayers pay their fair share of tax to support the economic well-being of all Canadians.

Our analysis of the 2009-2010 inventory revealed that 79% of the cases were recorded as aggressive tax planning. Participation in aggressive tax planning is of primary benefit to individuals that have tax payable. By decreasing their taxable income, they reduce the amount of tax payable. This may result in the issuance of a tax refund to which they may not be entitled. Individuals participating in these arrangements may also reduce their taxable income which can increase the amount of social benefits received such as GST/HST credits and Child Tax Benefit payments.

Participation in aggressive tax planning schemes can also result in significant financial challenges if a taxpayer is ultimately required to repay an unwarranted refund. In circumstances where a taxpayer has knowingly, or under circumstances amounting to gross negligence, made or participated in, assented to or acquiesced in the making of, a false statement or omission in the tax returns filed there is also the potential for prosecution. CRA compliance strategies continue to identify questionable activity both before and after an assessment. Many of the CRA managers and staff interviewed expressed the view that certain taxpayers or their representatives are interpreting the ITA and ETA outside of the spirit and intent of the legislation and using this to gain some type of tax savings.

Communication is a powerful compliance tool. A 2010 report Footnote 20 by the OECD states that communication plays a critical role in how a deterrence strategy is perceived by taxpayers. A CRA study Footnote 21, on the potential impacts of compliance communication on taxpayer perceptions about tax cheating revealed that the majority of focus group participants had not in the past year seen or heard of people getting caught for tax cheating, and almost none had seen information on the general likelihood of getting caught. Furthermore a report Footnote 22 from the Canadian Federation of Independent Business recommended that more effort by the CRA is required to provide basic examples and guidelines for what constitutes compliance and non-compliance.

Most CRA managers and staff interviewed were of the opinion that current outreach activities may not be at a sufficient level to maximize the potential benefits. Regional personnel involved in outreach activities advised that the consequences of non-compliance are mentioned but not discussed in any great detail during outreach presentations. The increased need for communication has also been recognized in previous program evaluation reports Footnote 23. An increased level of taxpayer awareness on the consequences of non-compliance and of participating in aggressive tax planning is needed. Preventing tax avoidance can produce significant tax revenue. Moreover, it is crucial to the integrity of the self-assessment tax system.

The Summary of the Corporate Business Plan Footnote 24 has identified the need for the CRA to expand efforts to find out what works best in building taxpaying values in our society, and to put that learning into practice. The focus moving forward is to build upon existing programs. For example, the CRA promotes tax and benefit compliance as elements of responsible Canadian citizenship to all taxpayers through expanded use of social media including Agency You Tube and Twitter Channels. The CRA should continue their efforts to create an environment where filing, remitting and reporting tax obligations are well understood by taxpayers.

5.2.3 Horizontal working relationships – A catalyst for change

The increase in taxpayer contested decisions is a challenge for both the Appeals Branch and other stakeholder branches. From initial assessment to audit, appeals and collections the cost to resolve individual taxpayer issues increases as the number of contacts with the taxpayer increases. The Appeals Branch can achieve limited success on its own in dealing with the increased use of aggressive tax planning, particularly in terms of changing taxpayer behavior.

Interviews with CRA managers and staff as well as our literature review Footnote 25 suggest that the review of past behavior can be a valuable tool in predicting future behavior. Once a taxpayer or a tax preparer is identified as having participated in an aggressive tax planning scheme there should be a higher degree of scrutiny assigned to their subsequently filed returns to ensure deductions and tax credits are legitimate before any refunds are issued.

We recognize that Section 152(1) of the ITA requires the Minister to assess "with all due dispatch" however there are situations, supported by case law, where it is appropriate to delay the assessment of a return for a period of time. Preventing taxpayers from receiving unwarranted refunds reduces the cost of post assessment compliance activities. Furthermore it sends a strong message to both the taxpayer and/or their representative that addressing non-compliance and aggressive tax planning remains a high priority within CRA.

The CRA has started the process to assess the potential benefits of this approach. For example, the Burnaby–Fraser TSO and the Surrey TC Compliance Working Group is PROTECTED. Another example is the Suspicious Activities Working Group (SAWG). The SAWG initiative includes the pre-assessment review and analysis of various taxpayer risk indicators such as verifying proof of payment for charitable donation claims and multiple taxpayers linked to the same deposit account before the returns are assessed and refunds issued. From mid-February 2010 to mid-June 2010 SAWG Footnote 26 stopped over $8.3 million in unwarranted or suspicious refunds from being issued. When the potential tax savings associated with referrals to the Enforcement and Refund Examination programs are factored in, the total estimated tax impact associated with SAWG review work would approach $16 million. Although these new horizontal working relationships have not been fully assessed, the individuals responsible recognized the value of using front-end validation programs and unanimously agree that they should be expanded. Open communication and the sharing of information between the different branches involved have been identified as an unintended positive impact.

Implementing targeted compliance strategies can often result in additional public scrutiny. It is reasonable to expect that some taxpayers are likely to complain to the CRA, the Taxpayers Ombudsman, their Member of Parliament or the Minister of National Revenue if they do not receive their expected refund soon after filing and some may even engage the media. If this type of compliance strategy were expanded, a strong communication plan would have to be developed to inform taxpayers of the CRA direction to deal with aggressive tax planning. The Minister of National Revenue and CRA stakeholders would have to be alerted and educated so that they understand the rationale and are prepared to appropriately respond to potential enquiries and complaints.

Based on the preceding it is our conclusion that the CRA should continue their efforts to adapt and to evolve with current trends in aggressive tax planning through the increased use of horizontal management, current front-end validation processes and the use of CRA intelligence.

6.0 Going forward

We observed a high level of commitment, in headquarters and the regions, and recognition for the need to adapt and to evolve with the current trends in aggressive tax planning. We recognize that it will take time to implement the recommendations contained in this report. In some respects, the implications are significant and entail changes in how the CRA conducts business. This includes the need for increased horizontal management, potential legislative changes, increased front-end validation and changes in external communication practices to influence taxpayers to respect the intent and spirit of the ITA and ETA.

Appendix A

Notice of objections and appeals to the Tax Court

View screen image - Notice of objections and appeals to the Tax Court

Appendix B

*Correction made to get the minimum size of account (20) for Atlantic

**This total was later corrected (3,748) by removing notice to request for extension of time in order to analyse only notice of objections. Nine cases found as notice to request for extension of time that were first selected were replaced.

Appendix C

Appendix D

Footnote 1 Contested decisions are notices of objections submitted to the CRA and appeals to the Tax Court of Canada.

Footnote 2 Aggressive tax planning schemes are questionable tax transactions that are promoted on the basis that they offer an income tax savings, often referred to as a tax benefit.

Footnote 3 Appeals Variance Study, March 2009

Footnote 4 Contested decisions are notices of objections submitted to the CRA and appeals to the Tax Court of Canada.

Footnote 5 Source: Programs Management Analysis Directorate, Salary and O&M $ (SSA 54110 & 55100, including HQ)

Footnote 6 For the purpose of this evaluation the term "taxpayer" also includes businesses responsible for collecting and remitting payroll deductions and GST/HST

Footnote 7 Eastern Intake Centre is located in the Sudbury TSO/TC and the Western Intake Centre is located in the Surrey TC.

Footnote 8 Appeals Mitigation Study: Growth in the Appeals Objections Workload and Volume of Litigation and Costs of Conducting Litigation, dated: September 22, 2010.

Footnote 9 95% confidence level, 5% error rate

Footnote 10 Aggressive tax planning schemes are questionable tax transactions that are promoted on the basis that they offer an income tax savings, often referred to as a tax benefit.

Footnote 11 CRA Annual Report to Parliament 2009-2010

Footnote 12 Time extension requests for notice of objections were not included as a formal notice of objection was not yet filed.

Footnote 13 11 cases were excluded as no decision was recorded in the Case Appeals/Equitas system.

Footnote 14 http://www.cra-arc.gc.ca/gncy/lrt/vtp-eng.html

Footnote 15 CRA – Final statistics - Sample Data 2010 Edition (2008 tax year)

Footnote 16 Total of taxable capital employed in Canada of the corporation, at the end of a particular taxation year exceeds $10 million. (Source: Income Tax Act 225.1 (8))

Footnote 17 Appeals Variance Study, March 2009

Footnote 18 Tackling aggressive tax planning through improved transparency and disclosure, February 2011

Footnote 19 Australian Government – Inspector-General of Taxation – Review into the underlying causes and the management of objections to Tax Office decisions – A report to the Assistant Treasurer – 15 April 2009

Footnote 20 Forum on Tax Administration - Understanding and Influencing Taxpayer's Compliance Behaviour, 2010

Footnote 21 Exploring the potential impacts of compliance communication on taxpayer perceptions about tax cheating, November 28, 2007

Footnote 22 Canadian Federation of Independent Business Audit of the CRA – January 2012

Footnote 23 GST/HST Registration (Non Registration) Evaluation Study, July 2008; GST/HST Delinquent Filing and Remitting Evaluation Study, April 2009; Debt Management Call Centre Evaluation Study, June 2010; and Enforcement and Disclosures Programs Evaluation Study, October 2010

Footnote 24 2012-2013 to 2014-2015

Footnote 25 HRMC Deliberate Defaulters Programme and Australian Government – Australian Taxation Office, 2010-2011 Compliance Program

Footnote 26 Suspicious Activities Working Group – Tax Centre Reviews 2010 Program, March 2011