Bill C-47 received Royal Assent on June 22, 2023, bringing into effect the new expanded reportable transaction rules. A failure to report as required by the new rules could result in substantial penalties for both taxpayers and their advisors. Taxpayers entering into transactions after this date should consider the application of these rules to any proposed transaction. [1]
The reportable transaction rules require certain persons to file information returns with the Canada Revenue Agency ("CRA") in respect of an "avoidance transaction" if at least one of three hallmarks are met. Very generally, these hallmarks may be met if:
- An advisor or promoter (or a non-arm's length person) has an entitlement (absolutely or contingently) to a fee that is based on the amount of a tax benefit, or is contingent upon obtaining a tax benefit, or on the number of persons who participate in the transaction (subject to certain limited exceptions);
- An advisor or promoter (or a non-arm's length person) obtains confidential protection, and the prohibition on disclosure provides confidentiality in respect of the tax treatment in relation to the avoidance transaction; or
- The person, an advisor or promoter (or a non-arm's length person) has or had contractual protection in respect of the transaction.
Prior to the Bill C-47 amendments, at least two hallmarks had to be present to trigger the reporting obligation.
An avoidance transaction is broadly defined, and could include any transaction where one of the main purposes of the transaction was to obtain a tax benefit, which could include a reduction, avoidance or deferral of tax, or an increase in a refund. Any transaction that is structured to minimize tax could potentially be an avoidance transaction based on this definition.
"Confidential protection" is defined as anything that prohibits the disclosure to any person or to the CRA of the details or structure of the transaction under which a tax benefit results.
The term "contractual protection" would include any form of insurance or other protection (e.g., an indemnity or guarantee), other than standard professional liability insurance, that protects against a failure of a transaction to achieve a tax benefit or reimburses expenses incurred in respect of a tax dispute. This definition of "contractual protection" been amended to exclude certain insurance or other protection in respect of an arm's length sale or transfer of all or part of a business, however such insurance or other protection must be obtained primarily for purposes other than to achieve any tax benefit from the transaction.
The required information return must be filed with the CRA within the specified time period, which will generally be 90 days after the transaction.
The classes of persons who are required to file a return is very broad, and could include every person for whom a tax benefit results (or is expected to result) based on the person's tax treatment of the reportable transaction, every person who has entered into an avoidance transaction for that person's benefit, every advisor or promoter in respect of the reportable transaction (if their fees are based on obtaining a tax benefit, as described above, or are in respect of contractual protection), and every person who does not deal at arm's length with such advisor or promoter (and was entitled to similar fees).
The penalties for a failure to file the information return are significant. For larger corporations, the penalty will be $2,000 per week to a maximum of the greater of $100,000 or 25% of the tax benefit. In any other case the penalty will be $500 per week to a maximum of $25,000 or 25% of the tax benefit. Advisors and promoters who fail to file an information return as required are subject to a penalty equal to the total of: (i) the fees charged by that person in respect of the reportable transaction; (ii) $10,000; and (iii) $1,000 per day to a maximum of $100,000.
In addition, if a taxpayer fails to file the required information return, the CRA may apply the general anti-avoidance rule (commonly referred to as the "GAAR") to the transaction to deny the tax benefit even if there is no misuse or abuse of the Act.
Given the significant consequences arising from a failure to file an information return as required, taxpayers and their advisors should consider the applicability of the reportable transaction rules in respect of all transactions entered into after June 22, 2023.
Footnote
1. The expanded reportable transaction rules apply to "each transaction that is part of a series of transactions that includes the avoidance transaction", so the expanded rules could also potentially apply in respect of a series of transactions that began before and ended after June 22, 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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