David J. Rotfleisch Opinion Taxation

Auditor General Slams CRA For Unfair Treatment Of Taxpayers

Michael Ferguson finds the CRA unable to measure its own activities

Author: David J. Rotfleisch

TORONTO, December 6, 2018 – On November 20, 2018, the Auditor General of Canada released its audit report on the Canada Revenue Agency's tax compliance efforts. In particular, the Auditor General examined whether the CRA consistently applied Canada's tax laws during compliance activities — like a CRA tax audit. The Auditor General also looked at how the CRA measured, monitored and reported its performance to the Canadian federal government. 

Surprisingly — or unsurprisingly, for our Canadian tax lawyers and accountants, who regularly deal with the CRA — the Canada Revenue Agency fell short on both accounts. The CRA not only failed to consistently apply tax rules but also couldn't accurately gauge its own performance. 

Inconsistent Treatment of Taxpayers

The Auditor General's first finding was that the Canada Revenue Agency extended favorable treatment to some taxpayers but not others. Specifically, the Canada Revenue Agency burdened some taxpayers with: 

• less time to provide requested information or respond to a proposal;
• higher standards for penalty-and-interest relief;
• longer and more involved tax audits; and
• delayed reassessments resulting in additional interest.

Yet the CRA provided other taxpayers with: 

• more time to provide requested information or respond to a proposal;
• unprompted penalty-and-interest relief; and
• delayed assessments resulting in extra time before payments were due.

Notably, the Auditor General discerned that the CRA's favorable treatment tended to fall upon large international businesses and taxpayers with offshore assets or transactions. For example, paragraph 7.39 of the Auditor General's report observes that these taxpayers received unprompted penalty-and-interest relief more often:

•  ... for small and medium-sized enterprises, international and large businesses, and taxpayers with offshore transactions, the Agency's compliance activity was more likely an audit. In those cases, the Agency required its auditors to consider offering relief without taxpayer requests.

Likewise, paragraphs 7.31 to 7.33 describe the Canada Revenue Agency's tendency to apply stringent response deadlines to employees while granting seemingly unlimited extensions for large corporate taxpayers and taxpayers with offshore assets or transactions:

• Most taxpayers are individuals with Canadian employment income. We found that the Agency requested information from these taxpayers more quickly, and gave less time to respond, than it did with other taxpayers, such as international and large businesses, and taxpayers with offshore transactions.
• For example, if the Agency asked an individual to provide a receipt to support a claimed expense and the taxpayer did not provide the receipt within 90 days, the Agency would automatically disallow the expense as an eligible income tax deduction. The Agency would assess the taxpayer's income tax return on the basis of the information it had available and would notify the taxpayer of the taxes due.
• For other taxpayers, such as those with offshore transactions, we found that the time frame to provide information was sometimes extended for months or even years. ... Sometimes, the Agency did not obtain information at all, and the file was closed without any taxes assessed.

The Auditor General attributed these inconsistencies to a number of sources, including the judgment of the CRA tax auditor or agent, the region were the taxpayer's file was reassessed, and the type of taxpayer — i.e., individual, small business, or large corporation.

As a result of its findings, the Auditor General provided the Canada Revenue Agency with a number of recommendations, such as:

• setting consistent time limits for audit workloads and, when those time limits expire, enforcing the Income Tax Act's provisions compelling a taxpayer by court order to produce information;
• considering proactive relief for taxpayers in all types of compliance activities; and
• developing a formal tracking process to monitor the time to process an assessment.

In response, the Canada Revenue Agency has promised that by March 2020 it will — depending on the recommendation — either implement the recommendation, review its procedures, or create an action plan.

CRA’s Failure to Gauge its Own Performance

The Auditor General's second finding was that the CRA couldn't accurately measure — and thus didn't accurately report — its performance. In particular, it found that the Canada Revenue Agency:

• couldn't clearly explain how it established annual revenue goals;
• closed most tax audits and assessed additional taxes by March 31st—just in time to report its annual performance;
• overstated the revenue it generated by failing to account for taxes that were still under dispute and uncollectable or tax debts that were written off; and
• neglected to accurately track the relationship between the amount of budget spending it required to generate additional revenue.

These findings prompted the Auditor General to recommend that the CRA clearly document how it sets additional-revenue targets, accurately measure the additional revenue generated from budgetary funding, and refine its performance indicators to report on actual collected tax revenues.

The Canada Revenue Agency again responded by promising that by March 2020 it will either implement the recommendation, review its procedures or create an action plan.

Dealing with the Canada Revenue Agency

Our experienced Canadian tax lawyers don't find the Auditor General's report surprising. The Income Tax Act grants the CRA expansive tax audit and compliance powers. And courts respect these powers. So, our Canadian tax law firm often deals with CRA tax auditors, appeals officers, and collectors who unfortunately appear ignorant of tax-law principles or administrative-law procedural requirements.

By reviewing the CRA’s Taxpayer Bill of Rights, you can learn about the CRA's purported commitments to taxpayers. As a result, Canadian taxpayers take the first step toward guarding themselves against lazy or aggressive CRA employees.

David J. Rotfleisch, CPA, JD, is the founding tax lawyer of Rotfleisch & Samulovitch P.C., a Toronto-based boutique tax law firm. With over 30 years of experience as both a lawyer and chartered professional accountant, he has helped start-up businesses, resident and non-resident business owners and corporations with their tax planning, with will and estate planning, voluntary disclosures and tax dispute resolution including tax litigation. Visit www.Taxpage.com and email David at david@taxpage.com

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