News of Note
CRA indicates that the GST gross negligence penalty can be levied on amounts that are not attributable to gross negligence
Email this ContentAlthough the ETA gross negligence penalty has essentially the same precondition – referencing “knowingly, or under circumstances amounting to gross negligence, makes or participates in, assents to or acquiesces in the making of a false statement or omission in a return [etc.]” – as ITA s. 163(2), the mechanics of computing the penalty (of 25% rather than 50%) differ.
First, understatements of net tax, understatements of tax payable and overstatements of rebate claims are computed separately (in ss. 285(a), (b) and (c), respectively). “Net tax” is essentially the positive or negative difference between tax collectible (or collected) in the reporting period and input tax credits claimed, as adjusted for specific adjustments such as bad debt credits or rebate credits under ss. 231 and 232. In a recent Interpretation, CRA appears to contemplate that s. 285(b) refers (and perhaps only refers) to situations where there was tax that was required to be self-assessed (or otherwise paid directly to the government in the registrant’s capacity of purchaser or importer rather than of collection agent) but was not, e.g., in relation to imported taxable supplies, or real estate purchases. It thus would appear to be likely that CRA does not contemplate that there can be any double-counting as between ss. 285(a) and (b), which is what one would expect.
Second, in this Interpretation, CRA states that, in contrast to ITA s. 163(2):
paragraph 285(a) does not refer to the portion of the understated net tax amount that is attributable to the false statement or omission for the reporting period for calculating the penalty. Rather, it provides that if there has been a false statement or omission relevant to the determination of the net tax of the person, then the amount of the difference between the actual net tax and the amount that would be the net tax for the reporting period (no apportionment) based on the information provided in the return will be subject to the 25% calculation.
Thus, for example, if in its monthly return a registrant overstated ITCs by $10,000 in circumstances amounting to gross negligence and made an honest mistake that $100,000 was not collectible on what it thought was an exempt supply, the 25% penalty would be exigible on $110,000.
Neal Armstrong. Summary of 31 October 2016 Interpretation 164696 under ETA s. 285.
CRA will exclude contingent-fee WIP from professionals’ post-Budget income
The 2017 Budget proposed that professional accountants, dentists, lawyers, medical doctors, veterinarians and chiropractors no longer be permitted to use billed-basis accounting for taxation years beginning after March 21, 2017, subject to a 50% phase-in rule for the first such taxation year. CRA has now announced that the old rule (respecting no requirement to include work-in-progress in income) will continue to apply to WIP relating to a “contingency fee arrangement,” which it defines as follows:
Under the terms of a contingency fee arrangement, all or a portion of a designated professional’s fees may only become known and billable at some time after the taxation year in which the professional provided services under the arrangement (e.g., where, under the terms of a written contingency fee agreement between a personal injury lawyer and a client, legal fees are only billable by the lawyer on a periodic basis as amounts are received by the client under a negotiated settlement or a court judgment). Until such time, there is often no liability on the professional’s client to pay any fee; consequently, no amount is receivable by the professional until the right to collect the amount is established.
There can be arrangements under which the fees of professionals respecting an acquisition or sale, financing, or reorganization contingent on lenders' or shareholders' approval, cannot be rendered until the closing, with an indeterminate "haircut" to be negotiated for a failed transaction. These may be contingency fee arrangements.
Neal Armstrong. Summary of Billed-basis Accounting (28 April 2017) under s. 10(5)(a).
CRA confirms that previously having incurred trivial ECE may generate better ECP transitional results
The elective transitional rule in s. 13(8)(d) applies to a corporation that disposed of eligible capital property in calendar 2016, where the gain was included in a taxation year that straddled January 1, 2017. The taxpayer may elect under s. 13(38)(d)(iii) to maintain the effect of the s. 14(1)(b) inclusion. One of the conditions is that the taxpayer has incurred an eligible capital expenditure respecting a business before January 1, 2017.
At the 2016 CTF Annual Conference, Q13, CRA indicated that this transitional rule is unavailable where a taxpayer’s only intangible asset was internally-generated goodwill with no cost – so that the taxpayer could not be said to have made or incurred an ECE in respect of the business, thereby ousting the election.
CRA has now confirmed the flip side of the coin: even a trivial previous ECE expenditure respecting the business, such as incorporation expense, will eliminate this particular issue.
Neal Armstrong. Summary of 27 March 2017 External T.I. 2016-0680141E5 under s. 13(38)(d)(iii).
Melman – Federal Court of Appeal confirms a finding of gross negligence for failure of an executive to review a tax return with an unexpectedly low amount payable
An executive with financial acumen received a $15M dividend, deposited the estimated tax thereon of $4.7M to mature on the filing due date, did not review his return (which omitted the dividend) before signing and filing it, and promptly redeployed the $4.7M. Before confirming Bocock J's finding of wilful blindness as grounds for the s. 163(2) penalty, Dawson JA indicated that Bocock J had “articulated the correct legal test for establishing gross negligence: neglect beyond a failure to use reasonable care.”
Neal Armstrong. Summary of Melman v. Canada, 2017 FCA 83 under s. 163(2).
CRA applies a factual FIFO approach to determining which upstream loans have been repaid first
CRA considers that, in the absence of specific designations, repayments of upstream advances made by a foreign affiliate to its Canadian parent will be treated as being applied to the oldest advance first. This approach is applied without regard to whether the upstream-loan transitional rules deemed an old advance to instead have been advanced on August 20, 2014, so that the repayment under CRA’s factual “FIFO” approach might be applied first to such loan even though there was, say, a 2012 advance that should have been repaid first in order to avoid an income inclusion.
Taxpayers should designate how a repayment is to be applied if they don’t like the results of the default FIFO approach of CRA. At common law, such a designation can be made well after the time of the repayment including, perhaps, even “in the witness-box,” e.g., in any Tax Court trial of how the repayment was applied – see Chitty on Contracts.
Neal Armstrong. Summary of 3 March 2017 Internal T.I. 2016-0673661I7 under s. 90(8)(a).
AG Shield – Tax Court of Canada allows individual shareholders to allocate all of their non-dividend earnings to SR&ED wages
The two 50% shareholders of a small business corporation, that followed the proxy method for SR&ED purposes, decided at year end that their draws during the year would be treated as wages to the extent of the number of hours (multiplied by an hourly rate of $30) spent by them on SR&ED, and that the balance of their draws represented dividends. CRA reassessed on the basis that a pro rata portion of the wages should be treated as having been paid for non-SR&ED activities based on the percentage (of well over 50%) of their aggregate hours which was not spent on SR&ED.
In allowing the corporation’s appeal, D’Arcy J stated:
[T]he Respondent argued that… [they] did not receive any compensation for the significant time they spent “performing director or management activities”.... As the controlling shareholders and managing directors of the Appellant, they chose to receive dividends in lieu of salary and/or bonuses. This was their choice and did not require a formal agreement.
Neal Armstrong. Summary of AG Shield Canada Ltd. v. The Queen, 2017 TCC 68 under Reg. 2900(2)(b).
Income Tax Severed Letters 10 May 2017
This morning's release of five severed letters from the Income Tax Rulings Directorate is now available for your viewing.
Rio Tinto Alcan – Tax Court of Canada confirms the validity of a reassessment made without a proper audit in order to beat statute-barring
When the normal reassessment period for one of the taxation years of Rio Tinto Alcan (RTA) was about to expire, CRA had not received any waiver from RTA in connection with the items under review (SR&ED expenditures incurred through a joint venture, whose manager was uncooperative with CRA) because the form of waiver demanded by CRA was unreasonable. CRA then reassessed within the deadline by denying recognition of all the expenditures. RTA did not object in time, but argued that the reassessment was invalid because it had been made before any audit of the items to be reviewed had really commenced and the reassessment had simply denied all the items. In rejecting this submission, D'Auray J agreed with a statement of C. Miller J that “there is no law…to the effect that a protective assessment is invalid if issued for the sole purpose of leaving the door open to conduct or continue an audit.”
The reassessment in question was followed by a further reassessment (made within the extended-by-three-years period for transactions with foreign affiliates) to reassess RTA for foreign accrual property income for the same taxation year, so that the further reassessment reflected the additional FAPI but otherwise did not change the previous reassessment. It was agreed by all that the further reassessment replaced the previous reassessment rather than being an additional assessment. D'Auray J rejected a submission of RTA that the effect of s. 152(4.01) was that the Minster could only reassess in the further reassessment for FAPI and was precluded from maintaining the effect of the previous denial of the SR&ED expenditures.
Neal Armstrong. Summaries of Rio Tinto Alcan Inc. v. The Queen, 2017 CCI 67 under s. 152(1), s. 166 and s. 152(4.01).
Six further full-text translations of Technical Interpretations are available
Full-text translations of the six French technical interpretations that were released between April 1, 2015 and March 11, 2015 are listed and briefly described in the table below.
These (and the other translations covering the last 26 months of CRA releases) are subject to the usual (3 working weeks per month) paywall.
CRA rules that the Alberta carbon tax is subject to GST
CRA has ruled that a natural gas distributor is required to include the Alberta carbon-tax levy (which it is required to collect from its customers) in the value of the consideration for such natural gas supplies for GST purposes – so that effectively the Canadian government is imposing GST on the Alberta carbon tax. Ruling 168521r (re imposing HST on the Ontario tire recycling levies) is somewhat similar.
Neal Armstrong. Summary of 9 February 2017 Ruling 181234 under ETA s. 154(2)(b).