Although section 323 of the Excise Tax Act imposes joint and several liability onto the corporate director for a corporation’s failure to remit GST/HST, this liability is negated if the director “exercised the degree of care, diligence and skill to prevent the failure that a reasonably prudent person would have exercised in comparable circumstances.” In order to establish this due diligence defence, a director has to meet a fairly high threshold according to current jurisprudence. The recent decision of Cherniak (2015 TCC 53), suggests that this defence will be very difficult to meet where the corporation assessed was involved in “artificial” transactions.
Tax & Trade Blog
In light of the inherent risks of serving as director of a corporation, business owner-operators may be tempted to appoint their spouse or family member as the sole director of their corporation, despite the fact that that person may be completely uninvolved with or unknowledgeable about the corporation’s operations. This is primarily done with a view to “creditor-proofing”. However, as the Federal Court of Appeal (FCA) decision of Constantin v. The Queen (2013 FCA 233) illustrates, this strategy is far from invincible when it comes to GST/HST remittances.
As a general rule in tax litigation, the initial onus is on the appellant-taxpayer to “demolish” the Minister’s assumptions that form the basis of the disputed assessment. This initial onus is met where the appellant makes out at least a prima facie case. If this is done, the burden then shifts to the Minister to prove, on a balance of probabilities, that the assumptions were correct. The primary reason for this rule is that the taxpayer generally has the best knowledge of his/her own affairs in a self-reporting tax system.
However, the TCC has held that the initial onus may not be on the taxpayer in the context of so-called “derivative assessments” such as assessments against directors pursuant to director’s liability provisions for underlying corporate assessments (ss. 323 ETA and 227.1 ITA) and against transferees pursuant to non-arm’s length transfer rules for underlying assessments against the transferor (ss. 325 ETA and 160(1) ITA).
Businesses (other than financial institutions) that provide a mix of both taxable and exempt supplies must utilize the allocation rules found in section 141.01(5) of the Excise Tax Act (ETA) to determine the proper amount of input tax credits (ITCs) to claim in their GST/HST return. This generally requires that the taxpayer employ a fair and reasonable method to determine the extent to which its inputs are each used in making taxable or exempt supplies.
The TCC decision in BC Ferry Services (2014 TCC 305) provides a good overview of various aspects of the ITC allocation rules for non-financial institutions.
In Skechers v. CBSA (2015 FCA 58), the Federal Court of Appeal (“FCA”) considered a Canadian International Trade Tribunal (“CITT”) decision which applied a broad interpretation of “price paid or payable” for Customs Act valuation purposes, resulting in a significantly higher value for duty for the imported footwear at issue in the case, and with far-reaching implications for all Canadian goods, especially apparel and footwear items.
Both the Income Tax Act (“ITA”) and the Excise Tax Act (“ETA”) include an increased burden on entities considered “large corporations” or “specified persons”, respectively, when it comes to the level of detail required in a notice of objection. Specifically, the “large corporation rule” in section 165(1.11) of the ITA requires that a large corporation, inter alia, “reasonably describe each issue to be decided” and “provide facts and reasons relied on by the corporation in respect of each issue” in its notice of objection. The “specified person rule” in section 301(1.2) of the ETA includes the same requirements. In each instance, the taxpayer is only allowed to appeal to the tax court in respect of the issues described in its notice of objection that meet the requirements of the large corporation/specified person rule.
Prior to the enactment of these rules, a number of large corporations had their tax years left open through outstanding notices of objection or appeals such that they had been able to raise new issues based on emerging interpretations and court decisions challenged by other taxpayers. The rules were intended to identify disputed issues sooner so that a taxation year's ultimate tax liability can be timely determined, and avoid appeals from dragging on.
Recently, in Ford Motor Company of Canada v. The Queen, 2015 TCC 39, Justice Boyle of the Tax Court of Canada (“TCC”) considered a Crown motion to strike portions of a Notice of Appeal under the ETA on the basis that the issues identified in the Notice of Appeal were not “reasonably described” in the Notice of Objection. The decision includes a thorough analysis of the existing case law on the rule and a serves as an example of its sound, practical application.
Liquefied Natural Gas (LNG) has been making the headlines for the past year as a result of significant interest in potential sales to energy-hungry Asian markets from the coast of British Columbia. There are at least 19 LNG proposals for British Columbia, but so far none of the proponents have commenced construction.
Where a business provides both taxable and exempt services, claiming ITCs can become a thorny issue that generally requires an attribution of inputs between the business’ supply of exempt and taxable services. Section 141.01 of the Excise Tax Act (“ETA”) creates a framework for allocating ITCs for non-financial institutions. These rules require registrants to allocate ITCs in a manner that is “fair and reasonable”, which predictably leaves significant room for interpretation.
In the recent decision in Sun Life Assurance Company v. The Queen (2015 TCC 37), the Tax Court of Canada considered whether ITC allocation in respect of leased office space was “fair and reasonable” under section 141.01(5). The decision is notable for what it says regarding the concept of intention in allocating ITCs for the purposes of section 141.01(5).
Although importers have regularly been subject to paying additional customs duties on their imports as a result of subsequent upwards price adjustments, importers had been limited in their ability to obtain a refund or reduction in duties where subsequent downward price adjustments were made. However, a recent change in Canada Border Services Agency (CBSA) policy in light of a 2014 Canadian International Trade Tribunal (CITT) decision now provides importers with an expanded ability to claim reductions in duty in the context of downward price adjustments.
Determining whether contracts are for the sale of tangible personal property or for provision of services is often of central importance in provinces still levying Provincial Sales Tax (“PST”). This issue has been the subject of on-going litigation in the context of providing oilfield services to oil and gas exploration companies in British Columbia and Saskatchewan. A recent case from the British Columbia Court of Appeal (“BCCA”) provides practitioners with increased guidance on how to avoid application of PST on materials used in the provision of oilfield services. The bottom line still remains: get advice early and often !
Whether a notice of assessment was mailed or not has important legal consequences for taxpayers. There is an irrebuttable presumption of receipt of the notice of assessment by a taxpayer once it is mailed by the Minister (S,248(7)(a) of the Income Tax Act (“ITA”)); a notice of objection must be served on the Minister within 90 days of the date on which the notice of assessment was mailed (s.165(1)); upon receipt of a notice objection, the Minister is obliged to reconsider the assessment and vacate, confirm or vary the assessment or reassess and to notify the taxpayer of its decision (s. 165(3)); and the taxpayer may appeal the assessment to the Tax Court of Canada (“TCC”) if the Minister has not vacated or confirmed the assessment or reassessed within 90 days of receiving the notice of objection (s. 169(1)). Parallel provisions are found in the Excise Tax Act.
Input Tax Credits (“ITCs”) are typically not available for “holding companies” that exist solely to hold shares or indebtedness of another company due to the fact that taxpayers are only entitled to ITCs in respect of tax paid on property or services acquired in the course of commercial activities. However, section 186(1) of the Excise Tax Act contains a special rule allowing a company to claim ITCs in respect of expenses “that can reasonably be regarded as having been so acquired for consumption or use in relation to shares of the capital stock, or indebtedness, of another corporation that is at that time related to” the company, in certain instances.
January 1, 2015 was a big day for changes in the General Preferential Tariff (the "GPT"). On that day, Canada removed 72 countries from the list of nations that benefited from the GPT. Most notable among the list of countries removed from the GPT was China, an exporting superpower, but other significant countries on the list include Brazil, India, Russia, South Africa, and Turkey. The full list is provided at the bottom of this page.
In Invesco Canada Ltd. v. The Queen (2014 TCC 375), CRA assessed the taxpayer for GST, arising out an arrangement designed to minimize income tax. Specifically, at issue was a determination of the value of the consideration paid for the supply of management services provided to mutual fund trusts.
GST/HST rules provide that a notice of objection has to be filed with the Minister within 90 days of the mailing of an assessment (section 301(1.1) of the Excise Tax Act (the “ETA”); the parallel provision in the ITA is section 165(1)). However, as established in Le sage au piano v. The Queen (2014 TCC 319), the clock may not start ticking on the 90 day period if the CRA has left out important details of the taxpayer’s address on the notice of assessment—extending the previous doctrine from income tax cases that it is insufficient for the CRA to mail a notice of assessment to an incorrect address (The Queen v. 236130 British Columbia Ltd., 2006 FCA 352). The fact that litigation continues in this area also highlights the fact that there is no electronic means of determining whether a notice of assessment has been issued.
In Kraft Canada Inc. v. CBSA (appeal No. AP-2013-055), the Canadian International Trade Tribunal (CITT) reviewed the complicated rules for classifying goods for Canadian customs tariff classification purposes, where the goods are really a combination of two different goods. In doing so, the CITT outlined how the “retail sets” rules for tariff classification purposes interact with the “essential character” rule, and the case stands as an excellent example of the intricacies of tariff classification when anything other than simple goods are imported.
Section 156 of the Excise Tax Act (the "ETA") provides GST/HST relief in the context of certain supplies between closely related corporations and partnerships, and is amongst the most important provisions in the GST/HST legislation. Recently enacted changes have created quite the buzz around this election, as among other things, it now needs to be filed with the CRA, and that filing needs to be done in early 2015 for it to be effective for 2015 supplies. Here are some helpful details.
For years it was an open question as to whether or not a Canada Revenue Agency ("CRA") auditor owed a duty of care to a taxpayer under audit. In the recent case of Leroux (2014 BCSC 720) the Supreme Court of British Columbia (BCSC) concluded that, on the facts, the CRA auditors owed a duty of care to the taxpayer. But what is the appropriate standard of care a CRA auditor must meet to avoid a finding of negligence?
In a recently released GST/HST ruling, CRA seems to place a high bar on the exempt treatment of administrative services acquired by an Insurance Company in operating its insurance business. In RITS 154220 (Application of GST/HST to Insurance-related Administrative Services), the CRA effectively takes the view that virtually all administrative services acquired by an insurer are viewed by CRA as excluded from the financial services exemption, and therefore taxable for GST/HST purposes.