CRA resolution to disclaim taxpayer late-filing reduction despatched again for assessment


Jamie Golombek: Court docket says CRA was once ‘unreasonable’ and conclusion ‘now not justified, clear or intelligible’

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For those who personal overseas investments whose overall value exceeds $100,000 at any level in a tax yr, you’re required to document a Shape T1135, Overseas Source of revenue Verification Commentary, which covers evident overseas belongings, similar to finances in a Cayman checking account, but additionally overseas shares held in a Canadian, non-registered brokerage account.

Overseas securities held inside of pooled merchandise, like Canadian mutual finances, or inside of a registered account, similar to a registered retirement financial savings plan (RRSP), registered retirement source of revenue fund (RRIF), tax-free financial savings account (TFSA), registered training financial savings plan (RESP), registered incapacity financial savings plan (RDSP) or first house financial savings account (FHSA), are excluded. A overseas holiday house, like a Florida rental, may be excluded equipped it’s essentially for private use.

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The penalty for failing to document a T1135 on time is $25 according to day to a most of $2,500, plus non-deductible arrears hobby, compounded day-to-day, charged on the prescribed price for past due taxes, which is these days sitting at 9 according to cent. If you’re greater than 100 days overdue in submitting the shape for a specific tax yr, you’re hit with an automated late-filing penalty of the $2,500 most, plus hobby.

That’s what took place to an Alberta taxpayer who filed her T1135s for the 2015 and 2016 tax years in 2020. The Canada Income Company assessed the taxpayer consequences and hobby totalling about $6,000 for now not submitting the 2 T1135s on time.

After being assessed, the taxpayer wrote to the CRA asking for reduction from the consequences and hobby. She equipped clinical data to the CRA about her and her husband’s well being scenarios and described the long-standing demanding situations she was once experiencing in spaces similar to decision-making, time control and accuracy, which made it tough for her to hold out advanced duties, similar to submitting tax returns. It additionally described well being problems skilled by means of her partner, which restricted his talent to help the taxpayer and required the taxpayer to handle him.

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However this wasn’t excellent sufficient for the CRA, which denied her request for reduction, concluding that the couple’s clinical state of affairs must now not have averted them from submitting the desired paperwork on time. The officer famous the taxpayer was once able to working her trade, which, within the officer’s opinion, was once of “related complexity” to submitting tax returns.

The CRA officer additionally thought to be whether or not the taxpayer “had acted temporarily” to treatment her failure to document her T1135s. Since she was once ready to document her 2017 and 2018 paperwork on time, the officer concluded there was once no justification for her failing to document her 2015 and 2016 paperwork once they have been due.

However the proof confirmed the taxpayer in 2019 contacted the CRA searching for affirmation as to which T1135s have been lacking. She didn’t obtain a reaction and wrote to the CRA once more within the spring of 2020. The CRA answered in July 2020 and the taxpayer equipped the exceptional T1135s by means of August 2020. The “prolong” in submitting was once in part as a consequence of the CRA’s overdue reaction to the taxpayer’s inquiries.

The taxpayer asked a secondary assessment by means of a unique CRA officer and equipped further clinical data to the CRA. That 2nd assessment officer additionally refused to grant reduction. The taxpayer, feeling that the CRA officer’s resolution was once unreasonable as it didn’t take right kind account of her clinical cases, appealed the verdict to Federal Court docket. The court docket’s position, as in prior such T1135 circumstances, is to decide whether or not the CRA officer’s resolution to disclaim reduction was once affordable.

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A drop box outside the Canada Revenue Agency in Toronto.
A drop field outdoor the Canada Income Company in Toronto. Picture by means of Peter J. Thompson/Monetary Publish recordsdata

In court docket, the pass judgement on reviewed the proof, together with the inference by means of the CRA officer that for the reason that taxpayer, an inside dressmaker, were ready to stay her trade going, however her well being problems, there was once no explanation why she may now not document her tax paperwork.

“It isn’t transparent how the officer equated her talent to proceed to serve as in that capability (as an inside dressmaker) along with her talent to regulate advanced tax issues,” the pass judgement on stated. “There may be not anything within the report that will strengthen that conclusion.”

The pass judgement on additionally famous the taxpayer had prior to now equipped the similar clinical data to another CRA officer in conjunction with a separate request for reduction on her overdue GST filings. That officer licensed her request and cancelled consequences and hobby for the 2015 to 2019 tax years, masking the similar years for which the taxpayer had sought reduction for submitting her T1135s overdue.

In the end, the pass judgement on needed to decide why two other CRA brokers reached reverse conclusions in accordance with the similar proof. Was once it as a result of every CRA officer, having a point of discretion, weighed the similar proof otherwise? Or was once it on account of an error made by means of one of the most officials?

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Thankfully for the taxpayer, the pass judgement on concluded that the CRA’s refusal to grant reduction for the late-filed T1135s was once the results of “misguided inferences” from the proof that rendered the realization “unreasonable” because it was once “now not justified, clear or intelligible” nor did it reply “meaningfully” to the clinical proof the taxpayer had equipped.

The pass judgement on allowed the appliance for judicial assessment and ordered the subject be despatched again to the CRA for reconsideration by means of a unique officer.

Jamie Golombek, CPA, CA, CFP, CLU, TEP, is the managing director, Tax & Property Making plans with CIBC Personal Wealth in Toronto. Jamie.Golombek@cibc.com.

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