Section 207.06

Subsection 207.06(1) - Waiver of tax payable

Cases

Sangha v. Canada (Attorney General), 2020 FC 712

failure of delegate’s decision to address taxpayer’s submissions and conditions in s. 207.06(1)

Mr. Sangha entered the 2017 taxation year having made excess contributions to his TFSA, which he added to in March 2017. He withdrew all funds from his TFSA in April 2017. Mr. Sangha then received a CRA letter (the “June 2017 Letter”) informing him of his excess 2016 TFSA contributions and that any excess contributions should be withdrawn immediately. The letter indicated that if he continued to make excess contributions “in the future”, he could be subject to a 1% tax for each month the excess remained in the TFSA. Despite the warning, Mr. Sangha contributed $35,000 to his TFSA in September 2017 (allegedly reflecting a misunderstanding that he was not required to wait until January 2018 to make this contribution), resulting in an excess contribution amount of $35,000. He maintained the excess contribution in his TFSA until August 2018.

CRA then issued TFSA tax assessments for the 2017 and 2018 taxation years, which imposed penalty tax on a month-by-month basis, including on the excess monthly balances in 2017 prior to the June 2017 Letter.

In response to the second request of Mr. Sangha for a penalty waiver pursuant to s. 207.06(1), which emphasized the imposition of penalties on the months prior to the June 2017 Letter notwithstanding its reference to “future” excess contributions, as well as his state of ill health, the delegate’s decision in relevant part stated:

[Y]ou continued to make excess contributions to your TFSA in 2017, after you were notified by the [CRA] about TFSA excess contributions made in 2016. …

We have to confirm that … there are no circumstances that would support the cancellation of the tax on excess TFSA contributions.

Before allowing the application and returning the matter for reconsideration by another delegate, Walker J stated (at paras. 27, 34):

The Minister’s delegate failed to address three material issues, the first of which is a determinative error. Specifically, the delegate did not consider Mr. Sangha’s submission regarding the impact of the June 2017 Letter and his prior withdrawal of all amounts from his TFSA. Second, the Minister’s delegate failed to explain why Mr. Sangha’s submission regarding reasonable taxpayer error was not persuasive. Finally, the delegate did not refer to the subsection 207.06(1) conditions or their application to Mr. Sangha’s circumstances. …

[T]he Decision was not reasonable. I find that the Decision does not reflect a coherent assessment of the relevant law and significant facts and submissions from the record and that the Minister’s refusal to exercise their discretion was not intelligible or justified. The reader is left to formulate its own chain of analysis to explain the refusal. The guidance in Vavilov makes clear the importance of looking to the reasons given by an administrative decision maker and warns the reviewing court against providing supplemental reasons to buttress the result in the decision in question … .

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 220 - Subsection 220(3.1) delegate's decision failed to contain “a coherent assessment of the relevant law and significant facts and submissions” 303

Gekas v. Canada (Attorney General), 2019 FC 1031

CRA’s denial of relief from penalty tax on TFSA over-contributions relating to errors of the financial institution was unreasonable

The taxpayer applied for judicial review of a decision of the Minister pursuant to s. 207.06(1) not to waive tax payable on excess contributions to his tax-free savings account. In 2016, the taxpayer had a TFSA contribution limit of $10,045.18, and on January 8, 2016 he contributed $10,000 to his TFSA. When he called 10 days later to ask if the contribution had been processed, the clerk erroneously proceeded to redo the contribution, resulting in an over-contribution of $10,000. In June 2016, the taxpayer requested his financial institution to split his deposits between two separate entities owned by the financial institution to enhancer deposit insurance, but this direction was mistaken for an order to contribute $10,000 to his TFSA, resulting in total contributions in 2016 of $30,000.

The taxpayer did not become aware of these over-contributions until July 2017 when he was assessed, following which he promptly withdrew the excess $20,000. The taxpayer’s requested relief included waiver of the Part XI.01tax of $1,784.60. The Delegate declined the request on the basis that he was a repeat over-contributor (respecting what in fact, in 2014, was his transfer of his TFSA contribution from one financial institution to another for which CRA waived the penalty tax).

Boswell J stated (at paras 30 and 31):

The over-contributions arose due to miscommunications between the Applicant and his financial institution and were outside of his control. … The Delegate’s characterization of the Applicant as “a repeat over-contributor to his TFSA account” is unjustified, especially when one considers that the CRA granted his request for a waiver of the tax imposed on the 2014 excess contribution.

… [T]he Delegate’s decision is unreasonable because it did not fully assess the extent to which the excess contributions resulted from the mistakes of persons other than the Applicant. The decision will therefore be set aside and the matter returned to the Minister for redetermination by a different delegate.

See Also

Robitaille v. The Queen, 2019 TCC 200 (Informal Procedure)

relief would be justified for inadvertent overcontribution

The taxpayer, as a result of tapping the wrong icon on an ATM machine, inadvertently deposited $40,000 to his TFSA rather than his chequing account. He did not discover this until the overcontribution was drawn to his attention by a CRA agent almost a year later, at which point he immediately withdrew the $40,000. He had in a previous year made a $5,000 over-contribution, so that CRA did not apply its policy of automatic relief for first-time over-contributors.

Spiro J found that the Minister’s assessment of tax under s. 207.07(1)(b) was correct, but then stated, obiter (at para. 30):

Should the Minister decide to exercise her discretion under subsection 207.06(1) of the Act to cancel the Appellant’s liability in respect of the inadvertent deposit of $40,000 to his TFSA on the night of July 21, 2016, such cancellation would find ample support on the extraordinary facts of this case

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 207.02 a fully-unintended TFSA overcontribution generated over-contribution tax 207

Administrative Policy

30 October 2012 Ontario CTF Roundtable, 2012-0462901C6 - Waiver or Cancellation of Part XI.01 Taxes Payable

Description of procedure to apply under s. 207.06 for the waiver or cancellation of tax.

Subsection 207.06(2)

Cases

Hunt v. Canada, 2020 FCA 118

FCA would be prepared to consider whether any broad discretion of CRA to waive tax was unconstitutional

The taxpayer, who had been assessed TFSA advantage tax under s. 207.05, and was unhappy with the amount of the tax that the Minister had ultimately offered to waive under s. 207.06, brought a Rule 58(1) application to the Tax Court, which asked whether s. 207.05 offends s. 53 of the Constitution Act, 1867 – with counsel arguing that in light of the potential waiver under s. 207.06 “the Minister sets the rate of tax, not Parliament, and this offends section 53” (para. 4).

Stratas JA effectively noted that the question, as posed, was defective, because it only referred to s. 207.05 itself, which clearly imposed a tax and delegated nothing to the Minister.

He considered, as did the Tax Court below, that the Court could exercise its discretion to go beyond the question posed and review the combined effect of ss. 207.05 and 207.06. However, he found that the Court should not so exercise this discretion given a “lack [of] adequate submissions[,] and fully developed reasons from the Tax Court.” In describing where assistance was needed, he stated (at paras. 13-15):

[A]fter a full examination of the text in light of its context and purpose, the Court might conclude that Parliament’s provision, in its authentic meaning, satisfactorily constrains the Minister’s discretion and defines what she can do and how she should do it. …

But in other cases, the Court might conclude that Parliament’s provision, in its authentic meaning, gives the Minister an unconstrained, undefined discretion without criteria. The Minister, not Parliament, would be creating and imposing the tax or coming up with the tax rate on her own. She would be a law unto herself.

Under that scenario, any measure adopted by the Canada Revenue Agency to guide the improperly wide discretion Parliament has given the Minister, such as policies, practices or interpretation bulletins, would be irrelevant. They would not fix the fatal problem: Parliament’s over-delegation of taxation power in the first place contrary to section 53 … .

Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Constitution Act, 1867 - Section 53 inadequate submissions for considering whether CRA discretion to waive tax was unconstitutional 461

Louie v. Canada, 2019 FCA 255

concerns about future value increases are intended to be addressed by relief provisions

From May 15 to October 17, 2009, the taxpayer directed 71 “swaps” under which TSX-listed shares were transferred between her self-directed TFSA and her taxable trading account at a discount brokerage (“TDW”), or between her TFSA and her self-directed registered retirement savings plan (also with TDW). The transfers were made near the close of trading for the day, and at the high trading price for the day if she was transferring out of her TFSA, and at the low price where she was transferring in. She ceased directing the swaps on the introduction of specific “swap transaction” rules effective October 17, 2009. However, she was assessed under s. 207.01(2) in amounts equalling 100% of the increase in the fair market value of her TFSA in 2009, 2010 and 2012 of $200,795, $70,841 and $29,217, respectively (her TFSA having decreased in value in 2011), on the basis that those FMV increases were “advantages” described in s. (b)(i) of the s. 207.01(1) definition.

Before dismissing the taxpayer’s appeal of 2009, Dawson JA stated (at para. 50):

… [T]he use of the phrase “directly or indirectly” evidences Parliament’s intent “to capture any and all methods through which a transaction could increase” the fair market value of a TFSA.

In allowing the Crown’s appeal of 2010 and 2012, she stated (at paras. 75, 82):

[T]he Tax Court’s concern about “when or how far into the future an advantage … will be considered as attributable to” abusive transactions did not justify a restrictive interpretation of the definition of advantage. Such concern is intended to be addressed by other legislative provisions, including the Minister’s ability to waive or cancel advantage taxes (subsection 207.06(2) of the Act) and to determine the unused TFSA contribution room (subsection 207.01(1) of the Act and more particularly the definition of “unused TFSA contribution room” as enacted in S.C., 2010, c. 25, subsections 57(5) and 57(8). … The ability to waive an advantage tax and reset an individual’s unused TFSA contribution room are the mechanisms intended to address the future impact of abusive transactions.

… [W]hile the increase in value in the TFSA in 2010 and 2012 was directly attributable to the performance of the shares held in the TFSA each year, it was indirectly attributable to the swap transactions which increased the number of shares held in the TFSA and their value.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 207.01 - Subsection 207.01(1) - Advantage - Paragraph (b) - Subparagraph (b)(i) advantages generated in Year 1 from swap transactions continued to produce indirect advantages thereafter 525
Tax Topics - Income Tax Act - Section 248 - Subsection 248(10) no necessity for predetermined endpoint or advance determination of price 203
Tax Topics - Income Tax Act - Section 251 - Subsection 251(1) - Paragraph 251(1)(c) taxpayer was directing mind in transactions involving an arm’s length trustee 133

See Also

Hunt v. The Queen, 2018 TCC 193, aff'd on narrower grounds 2020 FCA 118

Minister must consider the three s. 207.06(2) criteria

Before rejecting the taxpayer’s position (summarized at para. 16) that s. 207.05 was in contravened s. 53 of the Constitution Act, 1867 because “the existence of the discretionary relieving provision of section 207.06 following 207.05 gives the Minister the discretion to set the tax rate from anywhere between 0 and 100 percent thus amounting to an implied delegation of the right to set the tax rate”, Pizzitelli J noted (at para. 44) that CRA in some instances had waived a portion of the advantage tax so as to impose tax at the taxpayer’s top marginal rate, and stated (at para 45):

The fact the CRA would point out its ability to waive or cancel penalties and invite representations is, in my view, an appropriate courtesy to the taxpayer and a transparent acknowledgment indicating it has such power. … The Minister must still consider … the three criteria he is mandated to consider in subsection 207.06(2) … to discharge his discretionary duty.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 207.05 - Subsection 207.05(2) discretion under s. 207.06(2) did not render s. 207.05 unconstitutional 371
Tax Topics - Other Legislation/Constitution - Constitution Act, 1867 - Section 91 - Subsection 91(3) 100% TFSA advantage tax did not infringe provincial property-and-civil-rights power 224
Tax Topics - Other Legislation/Constitution - Constitution Act, 1867 - Section 53 CRA’s discretion to waive tax does not render the tax unconstitutional 155

Administrative Policy

S3-F10-C2 - Prohibited Investments – RRSPs, RRIFs and TFSAs

Factors relevant to waiver of tax

2.36 Subsection 207.06(2) gives the Minister the authority to waive or cancel all or part of the 50% tax on prohibited investments or the 100% advantage tax in appropriate circumstances. Various factors will be taken into account including reasonable error, the extent to which the transactions that gave rise to the tax also gave rise to another tax, and the extent to which payments were made from the taxpayer’s registered plan. ...

2.38 The CRA administers the waiver provisions in a fair and flexible manner in order to promote voluntary compliance with these rules and to encourage taxpayers to come forward and correct situations that do not conform to these rules, particularly those that involve pre-March 23, 2011 investments held in an RRSP or RRIF. Each waiver request will be considered on its own merits.

Example 4

The following example illustrates a situation in which the CRA may give favourable consideration to a request that the 100% advantage tax be waived.

Martin holds 5% of the common shares of a private company in his TFSA and another 4% of the shares outside of his TFSA. The shares are a qualified investment and are not a prohibited investment for the TFSA.

The company subsequently redeems a significant number of shares held by the principal shareholder. Martin had no involvement with or any influence over the decision to redeem the shares. As a result of the share redemption, Martin (directly and in his TFSA) holds 12% of the company's common shares.

Upon learning of the share redemption later that year, Martin immediately swaps the shares out of the TFSA for fair market value consideration. From the time the shares became prohibited to the time the shares are swapped out of the TFSA, the shares appreciate in value by $11,000.

Result

Martin’s 12% interest of the company’s common shares constitutes a significant interest in the company. This means the shares became a prohibited investment for his TFSA.

Although Martin qualifies for a refund of the 50% prohibited investment tax..., the portion of the capital gain that accrued while the shares are a prohibited investment constitutes an advantage and is subject to the 100% advantage tax.

Martin withdraws the $11,000 amount from his TFSA without delay and submits a waiver request which the CRA approves. The amount withdrawn from the TFSA will be included in Martin’s income pursuant to paragraph 12(1)(z.5) and section 207.061. Although a detailed discussion of TFSAs is beyond the scope of this Chapter and this Example, it is worth noting that the amount will not be added to his TFSA contribution limit. This is because, as a specified distribution, it is expressly excluded from variable C in the formula in the definition excess TFSA amount in subsection 207.01(1).