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‘Lightning bolts out of the sky’

Legal Report: Tax
|Written By Mark Cardwell
‘Lightning bolts out of the sky’
Illustration: Peter Mitchell

When Rob Kreklewetz started his legal career as a tax and trade lawyer in the 1980s, tax law was a staid, even gentlemanly field of practice involving mostly matters of income tax and other direct taxes. Lawyers “were brought in at the early stage, usually by the client’s accountant, before a notice of objection was filed,” he tells Canadian Lawyer from his office at Millar Kreklewetz LLP in Toronto. “We had 90 days to file (and) delay collection until the amount of collection was determined. It was all very orderly.”

But the advent of an indirect tax — namely Canada’s Goods and Services Tax — has changed all that. Nowadays, notes Kreklewetz, Canadian tax lawyers are frequently forced to act with lightning speed in order to advise and defend clients against the sweeping collection powers the Canada Revenue Agency is now wielding to recover assessed amounts owed of GST — even if an appeal is pending. “It’s hard to explain to a client who receives one of these notices of assessment that, unlike with income tax, they have no recourse to a judge, that they have to pay millions of dollars, and might even lose their home before they have a chance to get a ruling on whether or not the assessment is right or wrong,” says Kreklewetz. “It’s not fair and it’s not the Canadian way.”

The aggressive actions of the CRA in regards to GST collection are driving tax lawyers to distraction. And they deplore the irreparable damages some of those actions are having on people’s lives and the health of otherwise viable businesses. “With income tax, funds asked for are held in abeyance if they’re disputed,” notes Greg Gartner, a partner with Moodys Gartner Tax Law LLP. “But now, with GST, CRA just plops down a notice of assessment and then asks for their money.”

According to Gartner, estimates can and often do reach into the millions of dollars. “I’ve seen estimates that would break even a big business,” he says. “And it hits them like a lightning bolt out of the sky.”

That was hardly the case when the GST was introduced as a multi-level value-added tax on Jan. 1, 1991. “During the first few years of GST everybody was getting their bearings,” he says. It wasn’t until the end of the decade that litigation began over run-of-the-mill commercial transactions that had not been seen in the legislation. “Even then,” says Gartner, “if you had bona fide differences in fact or reasonable differences in interpretation of the law, you could usually make a deal [with the CRA].”

In recent years, as the disparity he considers to exist between what the CRA views as trust funds (such as GST and source deductions) and income taxes continues to grow, Gartner says the CRA is less likely to negotiate and more inclined to use the broad collection powers at its disposal for imposing its interpretation of the law and how it applies to a file.

In addition to garnishing a person’s or company’s bank accounts and accounts receivable without having to see a judge, the CRA’s collection department can also personally assess a company’s directors (under the Directors Liability Act), a weapon Gartner says the CRA is starting to use more and more.

In response to these assertions, in a statement to Canadian Lawyer, the agency said: “The CRA works collaboratively with registrants or taxpayers who do not pay their taxes on time and makes every effort to reach a mutually acceptable payment arrangement before proceeding with garnishment or other forms of legal action. In situations where collaboration is not effective and GST/HST balances owing remain unpaid, the CRA can initiate legal action in order to collect the debt.”

According to Gartner, many disputes arise over property sales, particularly over the question of whether a transaction is, for accounting purposes, a sale or a lease. If it’s a sale, for example, GST is payable up front. If it’s a lease, however, GST is payable as payments are made. “Conceptually the GST is there, but the policy about remittance is in question,” says Gartner. “But the CRA auditors come in and apply their administrative interpretation and the client has to pay before they can get a decision on appeal.”

He adds the appeals process, which begins with rulings by CRA’s appeal division, can take upwards of two years to be heard. “I have to say that the CRA’s appeals division is more open-minded in regards to interruptions than the audit side,” notes Gartner.

Regardless of the outcome of an appeals process, Gartner says lawyers are sometimes forced to convince a client to make a proposal for bankruptcy in order to forestall collection actions and enable their business to continue operating. “It’s still the only defence,” says Gartner. “But it has a huge impact on people. I’ve seen some go into depression or cry, all kinds of terrible stuff.”

For Phil Nolan, a tax lawyer with Montreal’s Lavery de Billy LLP, the aggressive nature of GST collection in Quebec, which this year harmonized its taxes with Ottawa (though it remains the only province to collect federal taxes) has changed the landscape. “Tax law is no longer a gentlemanly field in Canada, it’s become the Wild West like in the United States,” says Nolan. “People now can and do get assessed for millions that are payable immediately.”

Sole tax practitioner Dale Barrett, author of Tax Survival for Canadians (Stand up to the CRA) who represents mostly small business owners and the self-employed, lays some of the blame on the quality of audits being carried out by CRA inspectors. “Audits are almost always poorly done,” says Barrett, who handles 1,000 cases a year. “It is plain to me that a lot of auditors just don’t get it and challenge every expense. But when they are presented in court, lawyers [for CRA] often just drop them right away because they are so frivolous.”

For Kreklewetz, the human fallout from the CRA’s collection actions are frightful. He has seen a corporate client assessed $30 million for GST owing on sales he had been told beforehand would be exempt because the land was on a reserve and the purchaser was aboriginal, and another client assessed $1.1 million in 2013 after the CRA changed its administrative interpretation of a previously exempt service and made the change retroactive four years. “It can be absolutely crazy when the CRA changes its administration policy and forces people to come up with money that was never there in the first place,” says Kreklewetz.

“Basically your only recourse is to try to survive the process [and] get to Tax Court as quickly as possible. Of course, by the time you get a ruling, lives may be destroyed and people have lost their businesses or their homes, or both. Imagine the impact that has on their sense of being and the health of them and their families.”

In a recent paper written for the Canadian Tax Foundation, he and fellow lawyer John Bassindale considered the possible extension of the statutory stay provided for income tax purposes in s. 225.1 of the Income Tax Act to other acts like the Excise Tax Act and the Customs Act on the basis “some practitioners feel reasonable arguments can be made [that] lack of protection may impose a significant hardship on a taxpayer, particularly if the taxpayer ultimately succeeds in challenging the assessment.”

In “No Statutory Stay of GST Collection Actions,” the two lawyers considered the case of Irving Leroux, a park and campground owner whose claim that the absence of a stay of collection under the ETA violated both the Charter and the Bill of Rights was rejected by the British Columbia Court of Appeal in February.

The decision in Leroux v. Canada (Revenue Agency) ended a 13-year dispute that began when the CRA allegedly and mistakenly shredded Leroux’s books and records. The CRA later agreed to a consent judgment by the Tax Court, reducing the taxpayer’s liability for income tax to nil, and for GST to $20,000.

While the appeal was pending, however, the CRA took action to collect on its assessment of nearly $100,000 owing for GST. Leroux claimed the move forced him to sell both his home and business. In assessing the subsequent court case, in which Leroux sued the CRA for tort damages and on constitutional grounds, Kreklowetz and Bassindale argue the judgment “seems to confirm that there is no tenable argument for a statutory stay under the ETA based on either the Charter or the Bill of Rights.

“More positively, however, the BCCA’s decision adds weight to the proposition that the [Federal Court] has an inherent ability to grant a stay or injunction in an appropriate case. Now that the BCCA has opened the door further to this type of relief, it is up to practitioners to attempt to cross the threshold.”

According to the CRA, GST net revenues for both fiscal years 2012-13 and 2011-12 are approximately $10.3 billion. GST net revenues include the federal portion of HST only. It is net of input tax credits (ITCs), rebates, and the GST quarterly tax credit for low-income individuals and families that the CRA administers. Total number of GST/HST audits and examinations conducted by the CRA’s Compliance Programs Branch for fiscal years 2012-13 and 2011-12 are 89,409 and 90,380 respectively.


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