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: What guidance can be given in relation to obtaining information on a timely basis and what recourse does a taxpayer have if the information is not provided?
Position: Rights of a taxpayer are set out below
Reasons: Legislation
QUESTION #8 - ACCESS TO INFORMATION
In the course of an audit, filing of a Notice of Objection, or filing of a Notice of Appeal to the Tax Court of Canada, a taxpayer or authorized representative may determine that it would be of benefit to obtain information in the possession of the CRA, such as the auditor's working papers, or the report of the Appeals Officer. In order to do so, a request can be made informally, or through an application under the Privacy Act or under the Access to Information Act.
In a recent situation, an application was made under the Privacy Act to obtain the Appeals Officer's report in contemplation of filing a Notice of Appeal to the Tax Court of Canada. A period of 90 days is prescribed for the filing of a Notice of Appeal after confirmation of an assessment by the CRA Appeals Division. However, despite applying within days of receiving the confirmation, the CRA was unable to provide the information within the 90-day period. This can prejudice a taxpayer's position in filing a Notice of Appeal.
In such circumstances, what guidance can the CRA offer so that this information can be obtained on a timely basis, and what recourse does a taxpayer have if the information is not so provided?
CRA's Response
The Access to Information and Privacy (ATIP) Directorate promotes and encourages informal disclosure of documents by the Canada Revenue Agency (CRA).
The Access to Information Act (ATIA) and the Privacy Act (PA) were intended to complement and not replace existing procedures for access to government and personal information. The ITA provides for the taxpayer to have access to their own information, including any actions or reports used by the CRA to assess them. Normally, this type of information should be given to the taxpayer without directing them to the ATIP Directorate to make a formal request under the ATIA or PA. Formally or informally, the information would only be disclosed if authorized under the applicable legislation (for example, section 241 of the ITA).
The CRA's Publication P148, Resolving Your Dispute: Objection and Appeal Rights under the Income Tax Act, explains to taxpayers what information is available to them and what information is not available to them.
The list of records available to a taxpayer include audit reports and working papers; scientific, appraisal and valuation reports that the CRA relied on or used to assess a taxpayer; records of discussions held between auditors and appeals officers; and others. In the case of an ongoing audit, a taxpayer can request an update to his or her audit by going directly to the auditor. It should be noted that, before releasing the records to the taxpayer, the CRA can protect and or sever any information that would be injurious to the CRA's enforcement and investigations activities, or that may contain third party or tax information that does not relate to the taxpayer.
The ATIP Directorate has processes in place to deal with requests that are made pursuant to the ATIA or the PA. Indeed, such requests are dealt with in the order in which they are received. The ATIP Directorate does not have authority to treat certain requests as having priority over others that are received. The ATIP Directorate makes every effort to achieve the deadlines set out in the legislation; however, there can be instances where such turnaround times cannot be met.
Where a taxpayer has made a formal request under the PA and has not received a response to such request within the prescribed time frame, the taxpayer has recourse to file a formal complaint with the Office of the Privacy Commissioner of Canada. It should be noted however that in normal circumstances, this would not expedite the amount of time it would take for the original materials to be supplied.
Our colleagues at the ATIP Directorate recommend that a taxpayer first request their records from the applicable Appeals or Audit office with which they are dealing. If the request is refused, and the taxpayer is told that they must make a formal request, the ATIP Directorate would be required to contact the program area to ask for the request to be handled informally. This is because: 1) the ATIP Directorate has a legal duty to assist requesters; 2) the ATIA and PA are not intended to replace other means of obtaining access to government information; and, 3) an informal response would be faster than an formal one. In fact, in these cases, a formal request has no added value to the CRA or the requester. Although both Acts include the right to complain to an oversight commissioner (i.e. the Information Commissioner of Canada of the ATIA, or the Privacy Commissioner of Canada for the PA), a delay complaint would likely not be completed until after the appeal deadline has passed.
Katharine Skulski
2011-040375
June 2-3, 2011
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