"What we've got here is a failure to communicate."
--Strother Martin in Cool Hand Luke
Statutory Law
Governments pass laws, it's what they do. It is the job of others to interpret the laws that Parliament has made.
Statutory Construction
It is "presume[d] that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose": Tower v. M.N.R., [2004] 1 F.C. 183 (F.C.A.) per MALONE J.A. per curium at para. 15.
Also Communities Economic Development Fund v. Canadian Pickles Corp., [1991] 3 S.C.R. 388, per IACOBUCCI, J. at page 408 Interpretation of the Canadian Income Tax Act ("ITA") in practice is primarily done by the Canada Revenue Agency ("CRA"); followed closely by tax accountants and lawyers with the tying vote going to the Courts.
The Legislative Purpose
To raise money and implement federal policies.
The Accounting/Legal Purpose
To assist taxpayers to legally structure their affairs so as to minimize the taxes they must pay: IRC v. Westminster, [1936] A.C. 1 (H.L.), at p. 19 and Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536 (S.C.C.), at p. 540.
It is not difficult to foresee that the legislative objective and private sector tax adviser will frequently disagree. While CRA wins many such arguments by default (e.g., the taxpayer can't, or won't, fight) for those that do contest a restrictive or erroneous interpretation of the ITA, there is a heartening rate of success.
A caveat should be interjected here, this presumes challenges where have been made thoughtfully; that is, were CRA "got it wrong" and the taxpayer has called them on it. Frivolous challenged or specious arguments (i.e., R. v. Klundert) are not going to succeed.
Legislative Tools
In order to expedite the collection of taxes Parliament has given CRA broad powers to enforce the ITA, some require taxpayers to cooperate under a compulsion of law.
While such compulsion may be permissible in the civil context (R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627), the same is not true if the information sought or seized by CRA will be used to prosecute the taxpayer for an offence under the ITA (R. v. Jarvis [2002] 3 S.C.R. 757; s. 7 of the Canadian Charter of Rights and Freedoms).
Thus the following material assumes a CRA civil audit, but if you believe that in your situation CRA abused these provisions while you were under a criminal prosecution (e.g., s. 239(1)(d) ITA for evasion) then obtain immediately legal advice.
S. 230(1) ITA: Books & Records
Every "person" carrying on business or required to pay, or collect, taxes under the ITA is required to keep records and books of account at their place of business or residence. What books? Enough to enable you to calculate the taxes and for CRA to see that you did it correctly. "Person" includes corporations (s. 248(1) ITA).
This ties into with the obligation on each Canadian taxpayer to estimate the amount of the taxes payable in any taxation year under s. 151 ITA.
S. 231.1(1) ITA: Inspect, Audit & Examine Books
Someone from CRA may, enter your place of business to inspect, audit or examine your books and records, or those of another taxpayer, to see you fulfilled your obligation under s. 151, above. They may not enter your home without a search warrant, unless you invite them in.
Although the wording of this provision is broad, it is not unlimited: the person has to be authorized, their approach has to be at a reasonable time(s), the request has to be related to enforcement of the ITA and it is restricted to "inspect[ing], audit[ing] or examination[s]."
If you are subject to such a "compliance audit" you will want to have your accountant involved as soon as possible in the process.
If, however, you are audited and shortly thereafter charged with an offence under the ITA speak with your lawyer as this "audit," it may have violated s. 7 of the Charter and the Jarvis principles.
S. 231.2(1) ITA: Requirements To Provide Information and Documents ("RPIDs")
If CRA wants you (or a third party) to produce (a) information or (b) any document the Minister of National Revenue ("MNR") may, for any purpose related the ITA, give notice served to you, or that third person, personally requiring production, within a reasonable time, of stipulated materials listed in the notice: Tower, above, s. 17.
Like you, CRA must follow the wording of s. 231.1(1) ITA (Ludmer v. Canada, [1995] 2 F.C. 3 (F.C.A.), CHEVALIER D.J. at p. 17).
CRA does get this wrong from time to time. Just how serious their error is you can discuss with your lawyer. An irregular RPID doesn't necessarily mean the evidence will be excluded, but the mere possibility is sufficient to justify your lawyer thoroughly reviewing the memoranda, RPIDs and related materials for errors.
Only the MNR (or his delegate) can issue RPIDs. RPIDs must be subject to prior approval and the delegate must act in a quasi-judicial manner; or in other words, if they don't act unreasonably.
The Supreme Court of Canada has held that a taxpayer may have substantive defences to successfully attack RPIDs and any resulting prosecution (McKinlay Transport), defence which include:
1) unauthorized fishing expeditions by CRA (James Richardson & Sons, Ltd. v. M.N.R. [1884]1 S.C.R. 614 at p. 623), and
2) there is no a genuine and serious inquiry into a taxpayer's liability (relying on Canadian Bank of Commerce v. A.G. Canada (1962), 35 D.L.R. (2d) 49).
The court ruled that the test is objective, which means that what's important is statutory compliance not CRA's good faith.
If the Requirement power was used improperly and all of the resulting information was obtained in violation of the Charter then your lawyer may ask the Court to exclude the evidence: Charter s. 24(2).
If search warrants were obtained "based solely on information gleaned in violation of the Charter [those warrants] are invalid": R. v. Evans, [1996] 1 S.C.R. 8 at para. 26.
S. 231.2(2) ITA: Unnamed Persons
The MNR shall not impose on any third party a RPID to provide information or any document relating to any one, or more, unnamed persons without prior judicial authority.
The Supreme Court of Canada has held that warrantless searches are prima facie a violation of s. 8 of the Charter: R. v. Collins, [1987] 1 S.C.R. 265 per LAMER, J. at para. 22 and it then becomes a question of fact whether that violation was "reasonable."
To rebut this presumption the onus will be on the Crown/CRA; but normally a "search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable" (Collins, at para. 23).
In other words, an RPID will be legal if:
* the ITA was followed, exactly (Tower);
* if it was done in the civil context (McKinlay Transport);
* if there was a genuine and serious inquiry into a taxpayer??s liability (Canadian Bank of Commerce); and
* the taxpayer was named (s. 231.2(2) ITA; Artistic Ideas Inc. v. Canada (CRA), 2004 FC 573 (F.C.T.D.) per SNIDER, J.);
And, an RPID will not be valid and enforceable if:
* the ITA was not followed;
* if the MNR??s delegate didn??t act quasi-judicially;
* if the RPID was used as part of an investigation (Jarvis);
* if CRA was "fishing" (Richardson & Sons); and
* if CRA didn't obtain prior authorization for the RPID (Hunter v. Southam Inc., [1984] 2 S.C.R. 145 DICKSON J.)
This is a simplified version of the law, only your lawyer can give you advice about your particular situation.
S. 231.3(1) ITA: Search Warrants
CRA can apply to a judge for a search warrant ("SW") without notice to you.
A CRA officer must swear an Information to Obtain (s. 231.3(2) ITA) and under s. 231.3(3) ITA a judge may issue the search warrant if they are is satisfied that there are reasonable grounds to believe:
(a) an offence under the ITA was committed;
(b) a document or thing that may afford evidence of the offence; and
(c) the building to be searched is likely to be contain such a document.
S. 231.3(3) ITA now reads "may issue" rather than "shall" because the Baron v. Canada, [1993] 1 S.C.R. 416 declared the former invalid as a violation of s. 8 Charter because it unduly restricted judicial discretion in refusing to issue search warrants. So you can see judicious challenges can change not only the results, but the law as well.
S. 487 Criminal Code
Provides an alternative procedure for applying for SWs, similar to the foregoing; which in practice, CRA uses regularly; as you might imagine s. 487 has been extensively litigated and it is generally well understood by the criminal bar.
S. 231.5(1) ITA
Where any document is seized, inspected, examined or provided under ss. 231.1 to 231.4 ITA the CRA officer my make copies. Such copies, when certified, have the same probative force as the original.
S. 231.5(2) ITA
No person shall hinder, molest or interfere with any person doing anything he is authorized to do under ss. 231.1 to 231.4. If you think that CRA has violated your rights or otherwise failed to comply with the ITA ?V then call your lawyer. Don't try to stop them yourself.
S. 238(1) ITA
Provides that every "person" who has failed to file a return as and to comply with the sections of the ITA listed therein is guilty of an offence and in addition to any other penalty (e.g., s. 162(1) ITA). If convicted a taxpayer is subject to a fine and imprisonment
The Bottom Line
Although the CRA uses these provisions frequently, they don't always do so correctly.
Some CRA officers have testified that they followed CRA "practices" rather than the ITA per se (e.g., s. 231.2(2) ITA), but as only the statutory provisions that are binding this may give your lawyer grounds to challenge CRA use or reliance on any materials found.
Parliament has spoken, but sometimes CRA hasn't listened; that "failure to communicate" may, if your lawyer decides circumstances warrant it, may justify challenging CRA on their use of their requirement powers.
Staff Writer For - Tax Evasion Resources - <a target="_new" href="http://www.taxevasionresources.com">http://www.taxevasionresources.com</a>
