Tax & Trade Blog

Our tax system is complex, with many potential procedural pitfalls that taxpayers need to navigate.  One such issue is the jurisdictional boundaries between the Tax Court and the Federal Court for tax disputes.  Recent Supreme Court’s companion decisions in Dow Chemical Canada ULC v. Canada (“Dow Chemical”), and Iris Technologies Inc. v. Canada (“Iris”) provide clarifications on this issue.  However, these “clarifications” may result in a less streamlined and more costly process and thus may not be good news for taxpayers.

The Digital Services Tax (“DST”) has come into force in Canada!  It was enacted in the Digital Services Tax Act (Bill C-59)  (the “Act”) and came into effect with an order-in-council issued on June 28, 2024, and with effect to January 1, 2024 – targeting large Canadian and non-Canadian businesses generating revenue from
“in-scope” digital services.

In short, this is a potential significant piece of taxing legislation, with potential retroactive effect to January 1, 2022, requiring major digital entities like Netflix, Amazon Prime, and Spotify to pay a 3% annual tax on digital services revenue attributable to Canadian customers.

Voluntary disclosures (“VDs”) are permitted for Canadian tax purposes under the Canada Revenue Agency’s (the “CRA”) Voluntary Disclosures Program (the “VDP Program”), and their importance is highlighted by a recent case where the CRA reached back into history to assess a taxpayer prior tax exposure.

CRA Power to Reassess Beyond Limitation Periods

Typically, the CRA can reassess a taxpayer within four years for GST/HST matters and three years for income taxes:  see paragraph 298(1)(a) of the Excise Tax Act (the “ETA”);  see subsection 152(3.1) of the Income Tax Act (the “ITA”).

We have blogged here and here about the real estate projects that the CRA is currently working on, usually resulting in assessments of GST/HST on sales of renovated homes or short-term rental housing.

In a recent Tax Court case involving Cheema, the CRA was permitted to open up statue-barred periods in order to assess a homeowner for taxable income generated from a short-term purchase and resale of a house in Calgary.  This case serves as a warning for taxpayers in similar situations: treating housing like “inventory” to produce gains will result in CRA assessments —even many years later, making Voluntary Disclosures the only viable strategy for addressing past exposure.

As a tax lawyer assisting clients in defending themselves against the all-powerful CRA (and its equally powerful ally, the Department of Justice – Canada’s largest and best-equipped law firm), I welcome any judicial decisions that help to right that power imbalance. 

Justice Patrick Boyle’s recent decision in Frigorific Warehouse is an exceptional attempt at addressing an inherent problem with Canada’s GST/HST system, which lacks proper mechanisms to deal with tax rogues who gain access to the CRA’s registration system to charge, collect and abscond with GST/HST funds from unsuspecting Canadian businesses. The CRA’s traditional position has been to attempt to recover the lost GST/HST from these unsuspecting businesses (by denying them input tax credits – “ITCs”). Justice Boyle’s decision seems to put that ability into serious question!