Taxpayer Interest And Penalty Relief: How Can A Taxpayer Get Some Relief?

Canadian taxpayers are entitled to apply to the Canada Revenue Agency for taxpayer relief of penalties and interest.  All that is required is for a taxpayer who has been assessed to complete and submit an RC4288 form "Request for Taxpayer Relief - Cancel or Waive Penalties and Interest".  This form can be used for goods and services tax ("GST") and harmonized sales tax ("HST") relief in addition to income tax.

The form is relatively simple - however, the devil is in the details.  Section 2 is very important and any taxpayer seeking a significant amount of relief should take care in writing the reasons for the request for relief.  We often prepare a separate document providing the facts and reasons why relief should be granted - we do not limit the written communication to the form.  We also attach relevant documents to show transparency and openness.

It is important to understand that relief is not guaranteed.  While the CRA has broad discretion to grant relief, they also have broad discretion to deny relief. The CRA provides limited information about when they will grant penalty and interest relief.  The CRA indicates that the Minister of National Revenue may grant relief from penalty or interest when the following types of situations prevent a taxpayer from meeting their tax obligations:

  • extraordinary circumstances:  Penalties or interest may be cancelled or waived in whole or in part when they result from circumstances beyond a taxpayer's control. Extraordinary circumstances that may have prevented a taxpayer from making a payment when due, filing a return on time, or otherwise complying with a tax obligation include, but are not limited to, the following examples:
    • natural or human-made disasters, such as a flood or fire;
    • civil disturbances or disruptions in services, such as a postal strike;
    • serious illness or accident; and
    • serious emotional or mental distress, such as death in the immediate family;
  • actions of the Canada Revenue Agency (CRA): The CRA may also cancel or waive penalties or interest when they result primarily from CRA actions, including:
    • processing delays that result in taxpayers not being informed, within a reasonable time, that an amount was owing;
    • errors in CRA material which led a taxpayer to file a return or make a payment based on incorrect information;
    • incorrect information provided to a taxpayer by the CRA;
    • errors in processing;
    • delays in providing information, resulting in taxpayers not being able to meet their tax obligations in a timely manner; and
    • undue delays in resolving an objection or an appeal, or in completing an audit;
  • inability to pay or financial hardship:  The CRA may, in circumstances where there is a confirmed inability to pay amounts owing, consider waiving or cancelling interest in whole or in part to enable taxpayers to pay their account. For example, this could occur when:
    • a collection has been suspended because of an inability to pay caused by the loss of employment and the taxpayer is experiencing financial hardship;
    • a taxpayer is unable to conclude a payment arrangement because the interest charges represent a significant portion of the payments; or
    • payment of the accumulated interest would cause a prolonged inability to provide basic necessities (financial hardship) such as food, medical help, transportation, or shelter; consideration may be given to cancelling all or part of the total accumulated interest; and
  • other circumstances: The CRA may also grant relief if a taxpayer's circumstances do not fall within the situations described above.

The CRA is working to improve its procedures for dealing with Requests for Taxpayer Relief. When a completed form is filed with the supporting documentation, the CRA should send a letter to the requester acknowledging receipt of the Request for Taxpayer Relief.  The file should be assigned to a CRA officer and the taxpayer should receive requests for relevant documentation (unless a full set of relevant documents is provided with the Request for Taxpayer Relief).

If the taxpayer gets a decision that is not favourable - it happens often - then there is the ability to request an impartial review of the CRA officer's decision by the CRA (not the same CRA officer who rejected the request).

If the review procedure ends in a rejection of the requested relief, it is possible to seek a review by the Federal Court of Appeal by way of a judicial review.  However, judicial reviews often are an expensive legal procedure and can cost tens of thousands of dollars (even hundreds of thousands of dollars in some cases depending on the complexity of the issues). There have been judicial review applications filed and the Federal Court of Appeal has in some cases sided with the taxpayer.

I will be honest with you - the Request for Taxpayer Relief Program can be frustrating for persons seeking relief. That does not mean it is not worth the effort and one should not try. Just know that you may feel like you are still stuck in the mud while pursuing a process that may take time.

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com.  We have many useful articles about tax audits under Free Information - Sales Tax, Harmonized Sales Tax (HST) and Goods and Services Tax (GST) Articles.

What is the worst GST/HST infraction?

The worst goods and services tax (GST) / harmonized sales tax (HST) infraction is collecting HST and not remitting the GST/HST to the Receiver General of Canada.  The Canada Revenue Agency (CRA) considers this to be on the same level of wrongdoing as stealing the government's money.  Many auditors say to registrants and non-registrants who charge HST who do not file GST/HST returns after collecting GST/HST from recipients  or who file returns without the remittance cheque that they are stealing the government's money.

GST/HST is a tax on consumers or on consumption.  Generally speaking, businesses do not bear the ultimate burden of the GST/HST.  However, the Government of Canada relies on suppliers to collect GST/HST from recipients of taxable supplies.  If a business takes advantage of the fact that they collect GST/HST and keep the government's money, the system breaks down.

This is why there is no limitation period for this type of infraction.  If a person collected GST from a recipient in 2001 and did not remit it to the Receiver General, that person could be audited and assessed today.  If the person is a corporation and still in business, the CRA could assess a director if the money cannot be recovered from the corporation.  If the person is a corporation and no longer is in business, the CRA could assess a former director so long as the director did not cease to be a director more than 2 years ago.  If the person is a partnership, the CRA may assess one or more of the partners.  If the person is a sole proprietorship, the individual may be assessed.

When a supplier discovers that it collected tax and failed to remit it (for example a bookkeeper was stealing the money) over a lengthy period of time and makes a voluntary disclosure, the CRA may ask the person to go back in their records to the very beginning (at least until the start of GST or the systematic failure).  The interest charges on the unremitted GST/HST can exceed the amount not remitted (I have seen theis many times).

The person who does not register for GST/HST purposes and who falsely informs recipients that they are registered, gives a false GST/HST number, and takes the GST/HST money for themselves is arguably the worst of the worst type of offender.  Persons who do this may be prosecuted criminally for fraud and other GST/HST specific offences. Persons who collect GST/HST from recipients and just keep the money may also be prosecuted under the Excise Tax Act and the CRA publicly announces convictions.

Some businesses that commit this type of infraction have "good" explanations after their wrongdoing is discovered.  It is not easy to convince the CRA that the decisions are not blameworthy.  If you think that you will just tell the CRA a reasonable story and they will not issue an assessment for the tax not remitted plus penalties plus interest, you are living in a fantasy world.  There are few very good explanations that satisfy the conditions of the fairness policy or that pass the smell test.

For this reason, if you discover (not in the context of an audit because that would be too late) that you have collected GST/HST and failed to remit it, the best course of action is to make a voluntary disclosure (not the type within the CRA's voluntary disclosure program but voluntary in that you come forward on your own initiative).  If you admit your wrongdoing to the CRA (with a lawyer preferably) and pay the GST/HST collected and not previously remitted (or make arrangements to pay the amounts owed) and penalties and interest, the CRA may not pursue criminal charges.  There is a risk of criminal charges even if you come forward voluntarily and that is why making a voluntary disclosure with a lawyer's assistance is prudent.

For more information, please contact Cyndee Todgham Cherniak at 416-760-8999.  I am a lawyer and our discussions will be subject to solicitor-client privilege.