Tax & Trade Blog

Given the tight timelines under the Excise Tax Act (“ETA”) it is not uncommon for tax appeal deadlines to seemingly come and go. Fortunately, sometimes even when it appears that a deadline has been missed an extension may be granted or it may not have actually expired due to procedural missteps by the Canada Revenue Agency (“CRA”).

On December 13, 2017, the CRA released GST/HST Memorandum 16-5 outlining its new GST/HST Voluntary Disclosure Program (“GST/HST VDP”) (IC00-1R6, Voluntary Disclosures Program which was released around that same time outlines the new Income Tax VDP). The new GST/HST VDP is a marked departure from the present VDP that it will replace as of March 1, 2018.

In a recent blog titled “Can I go to jail for tax evasion”, we discussed how the CRA has been increasingly seeking jail time for people engaged in tax fraud or tax evasion. In fact, relatively recently a Toronto man was sentenced to five years in jail for filing false GST/HST returns.

The recent decision in (British Columbia (Director of Civil Forfeiture) v. Sanghera, shows that not only can those who commit tax evasion face jail time, but they can also have their assets seized by the government under civil forfeiture statutes.

To date, civil forfeiture statutes have been enacted in the following eight Canadian provinces: Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, and Quebec.

These civil forfeiture statutes allow the government to seize and transfer ownership of property without compensation when the property is suspected of having been acquired through an illegal act or suspected of being used to commit an illegal act.

In Masa Sushi Japanese Restaurant Inc. v. The Queen, 2017 TCC 239 (“Masa Sushi”), the Tax Court of Canada (“TCC”) confirmed that lawyers are the only representatives that are authorized to represent tax appellants in court under General Procedure tax appeals.

If the CRA believes that taxpayers have knowingly failed to report income or remit GST and other taxes owing they will often bring concurrent criminal tax evasion charges in addition to simply re-assessing a taxpayer. In this scenario, the protections afforded to taxpayers in the criminal tax evasion matter – the burden of proof being on the Crown to prove the charges beyond a reasonable doubt – are not present in the tax appeals.  Similarly, unlike in the criminal context, the burden of proof in tax appeals is on the taxpayer, who must demolish the CRA’s assessment and any relevant assumptions of fact. 

Given the differing standards in criminal versus civil proceedings, criminal acquittals typically have little, if any, impact on a subsequent civil proceeding. The CRA is therefore often successful in tax appeals before the Tax Court of Canada (“TCC”) even after a taxpayer has been acquitted in a criminal prosecution based on the same fact pattern.

Samaroo v. The Queen, 2016 TCC 290 (“Samaroo”) is an exception to the general rule.