Income Tax Audit Manual

Domestic Compliance Programs Branch (DCPB)

Information

This chapter was last updated in June 2016.

Chapter 3.0 Taxpayer Rights and Taxpayer Relief

3.1.0 Overview

The CRA operates on the fundamental belief that taxpayers are more likely to comply with the law if they have the information, advice, and other services they need to meet their obligations. In an effort to ensure that taxpayers are aware of their obligations, their entitlements, and their rights, the CRA has published the Taxpayer Bill of Rights on the CRA Web site.

The Taxpayer Bill of Rights is a set of 16 rights confirming the CRA will serve taxpayers with a high degree of accuracy, professionalism, courtesy, and fairness. Taxpayers have the right to privacy and confidentiality and they also have the right to complete, accurate, clear, and timely information. Taxpayers have the right to have the law applied consistently.

The Taxpayer Bill of Rights includes the Commitment to Small Business, a five-part CRA pledge to support the competitiveness of the Canadian business community by ensuring that interaction with the CRA is as effective and efficient as possible.

3.1.1 Topics in this chapter

This chapter focuses on taxpayer rights as follows:

3.2.0 Taxpayer relief provisions

3.2.1 Introduction

The CRA can give relief to taxpayers through the taxpayer relief provisions and other programs, such as the Voluntary Disclosure Program and various trade incentive programs. The CRA can also give relief under other legislative provisions in the:

  • Income Tax Act (ITA)
  • Excise Tax Act (ETA)
  • Excise Act, 2001
  • Air Travellers Security Charge Act
  • Softwood Lumber Products Export Charge Act, 2006

The CRA can also give relief through remission orders.

The taxpayer relief provisions are a common-sense approach in dealing with those who, because of personal misfortune or other circumstances beyond their control, are unable to meet their tax obligations.

The taxpayer relief provisions give the minister the discretion in certain situations to:

  • cancel or waive penalties and/or interest;
  • accept late-filed, amended, or revoked elections;
  • issue income tax refunds or reduce amounts payable beyond the normal three-year reassessment period for individuals and testamentary trusts.

The taxpayer relief provisions are not intended, and must not be used, as a way to negotiate settlement of a taxpayer's account.

The taxpayer relief provisions are subject to a ten-year limitation period. The Bozzer v Canada, 2011 FCA 186 decision changed the CRA's interpretation of the ten-year limitation period for interest relief requests. For more information, go to the archived communication ATR2011-14 revised.

The Appeals Branch is the CRA's centre of expertise for all taxpayer relief matters. For more information, go to Taxpayer Relief, Service Feedback and CPP/EI Appeals Directorate.

Taxpayer Relief Procedures Manual

For guidelines and procedures on how to apply the taxpayer relief provisions, go to Taxpayer Relief Procedures Manual, which gives information about:

  • general policies and procedures;
  • cancelling or waiving penalties and/or interest;
  • inability to pay or financial hardship;
  • refunds or reductions in amounts payable beyond the normal three-year reassessment period; and
  • accepting late, amended, or revoked elections.

Other references

  • learning product TD1089-000, Taxpayer Bill of Rights: an Auditor’s Perspective
  • learning product TD1980-000, Orientation to Taxpayer Relief
  • learning product TD1989-000, Introduction to the Taxpayer Relief Registry
  • Income Tax Information Circular IC07-1 Taxpayer Relief Provisions
  • Taxpayer Relief Provisions - Legislative Reference
  • Agency-wide Taxpayer Relief Information

For information on filing returns for a refund beyond the normal three-year reassessment period, go to Income Tax Information Circular IC07-1 Taxpayer Relief Provisions.

3.2.2 Section removed

The information from this section is now included in 3.2.1.

3.2.3 Audit guidelines – waiver of penalties and/or interest

Decision to waive penalties and/or interest

Under the taxpayer relief provisions, the CRA may cancel or waive penalties and/or interest in whole or in part. The terms cancel and waive have two distinct meanings.

Cancel: Where the CRA reverses or reduces, in full or in part, a penalty and/or interest that has already been assessed or charged, it is cancelled.

Waive: Where a penalty and/or interest has not yet been assessed or charged and the CRA (on its own initiative or at the taxpayer's request) determines that it will not be assessed or charged, it is waived.

Auditors must be proactive in considering waiver of penalty and/or interest. If there are obvious reasons to waive penalty and/or interest in one or more reporting periods, the auditor must ensure that the waiver is completed before finalizing the audit.

The decision to recommend waiver of penalty and/or interest is based on the judgment of the auditor and the team leader after considering the facts of the case and the guidelines in Income Tax Information Circular IC07-1 Taxpayer Relief Provisions.

The reasons for recommending taxpayer relief must be adequately supported and explained.

Penalty and/or interest may be cancelled or waived where the penalty and/or interest has been incurred as the result of actions of the CRA or circumstances beyond the taxpayer's control, or financial hardship has prevented the taxpayer from complying with the Act. In making the decision on whether to give relief, the CRA will consider whether the taxpayer has:

  • a history of compliance with tax obligations;
  • knowingly allowed a balance to exist on which arrears interest has accrued;
  • exercised a reasonable amount of care and not been negligent or careless in conducting their affairs under the self-assessment system;
  • acted quickly to remedy any delay or omission.

Documentation in the audit file to support the decisions made on the waiver of penalty and/or interest at the audit stage must include:

  • a comment in the T20 Audit Report (go to 11.6.1);
  • relevant audit working papers – the information necessary to determine if it is appropriate to waive any penalty and/or interest; and
  • a chronological account of the audit, as well as comments about the cause of any delay, in Form T2020, Memo for File (or a similar working paper).

The information in the documents noted above must also be recorded in the Taxpayer Relief Registry to explain why relief was granted.

The team leader must approve all recommendations for waiver of penalty and/or interest. The recommendation to waive penalty and/or interest will be sent to the local independent taxpayer relief committee or to the section responsible for handling taxpayer relief for the Audit Division according to established tax services office (TSO) procedures. The approval of taxpayer relief must be made by persons independent of those responsible for making the related audit determination; that is, the supervisor authorizing relief must be a supervisor other than the team leader responsible for the audit.

Taxpayer Relief Registry

The Taxpayer Relief Registry was developed to record requests made under the taxpayer relief provisions. It is a national shared system that most business areas of the CRA must use. All cancellations and all waivers of penalties and/or interest, including proactive, must be recorded in the Registry, including an explanation of the decision.

The amount of penalty and/or interest cancelled and/or waived is processed by the applicable system; for example, T1 (CINDAC) or T2 (CORTAX). The information is then passed to Cognos 8 for reporting purposes. Before a financial transaction (for example, interest waiver) can be processed, the applicable system must be verified for a Taxpayer Relief Registry entry by searching for an entry number.

Any waivers approved under the taxpayer relief initiative in the course of an audit must be recorded in the Taxpayer Relief Registry. For audit-initiated relief requests, including proactive requests, Audit employees create the Registry entry.

For detailed information on the April 2013 integration of the Taxpayer Relief Registry with Case Appeals, go to Systems – Taxpayer Relief.

Before completion of the audit

The TSO must open and close the Taxpayer Relief Registry entries before the tax centre (TC) processes the request for income tax. For all revenue lines except PAYDAC/employer accounts, the Registry item must be closed to process the financial transaction.

To process the assessment or reassessment, give the taxpayer relief entry number to the TC to validate the waiver. The taxpayer receives an assessment or reassessment with the net interest assessed and the amount is passed to Cognos 8 for reporting purposes.

The taxpayer relief request must be decision-coded approved or partial in the Taxpayer Relief Registry before the audit upload. The TC will not process a taxpayer relief request decision-coded denied.

One entry per account must be created in the Taxpayer Relief Registry for each taxpayer relief request. Depending on the revenue type, the periods entered in the Registry must correspond to valid periods in the system. For example, for all Standardized Accounting (SA) revenue types, periods must match those in SA. For revenue type 02 (T2), the periods must correspond to those in SA and CORTAX.

Once a decision on the case is made, it is recorded in the Registry, and the entry is then closed. The host systems will not permit a taxpayer relief transaction until a corresponding Taxpayer Relief Registry entry exists. It is very important to ensure that a Taxpayer Relief Registry entry is created for each taxpayer relief request.

For more information, go to:

  • Taxpayer Relief Registry Guide
  • learning product TD1989-000, Introduction to the Taxpayer Relief Registry

After completion of the audit

To request cancellation of a penalty and/or interest after the audit has been completed, the taxpayer must submit a written request and may use Form RC4288, Request for Taxpayer Relief – Cancel or Waive Penalties or Interest.

Taxpayer-initiated penalty and/or interest relief requests received as of April 1, 2012, are part of the Taxpayer Relief Program administered by the Taxpayer Relief and Service Complaints Directorate, Appeals Branch. However, any taxpayer-initiated penalty and/or interest relief requests received before April 1, 2012, as well as the following workloads remain the responsibility of the Domestic Compliance Programs Branch (DCPB):

  • elections;
  • statute-barred;
  • proactive;
  • GST/HST wash; and
  • gross negligence penalties.

For DCPB workloads, written requests are sent to the first level supervisor or the taxpayer relief committee or section, depending on the structure of the TSO. The taxpayer relief committee or section will obtain and examine all audit documents and will consult the auditor, if they need more information.

3.3.0 Voluntary Disclosures Program

3.3.1 Purpose of the Voluntary Disclosures Program

The purpose of the Voluntary Disclosures Program (VDP) is to promote voluntary compliance with provisions under the ITA, ETA, Excise Act, 2001, Air Travellers Security Charge Act, and Softwood Lumber Products Export Charge Act, 2006.

The VDP gives taxpayers an opportunity to come forward and correct past omissions to comply with the requirements of the acts administered by the CRA. In some cases, the VDP also brings new taxpayers to the CRA. Taxpayers who make a valid disclosure must pay the taxes or charges plus interest, but may avoid penalties or prosecution, which would otherwise apply.

3.4.0 Privacy and confidentiality

3.4.1 Overview

Definitions

Terms used in this section include:

  • Disclosure means to share, release, provide, or communicate information.
  • Taxpayer information is defined in subsection 241(10) of the ITA.

General comments

At the CRA, the privacy and confidentiality of taxpayer information is protected and managed under:

  • the confidentiality provisions of the legislation administered by the CRA;
  • the Privacy Act;
  • the Access to Information Act; and
  • government and CRA policies related to security, privacy, and the management of protected taxpayer information.

Taxpayer information is available only to authorized CRA employees who need to know the information to carry out their official duties. Taxpayer information will not be disclosed to anyone outside the CRA, unless the taxpayer has given the CRA signed consent, as required by the ITA and the ETA.

A taxpayer can give consent to a representative in writing or by completing Form T1013, Authorizing or Cancelling a Representative (for an individual), or Form RC59, Business Consent (for a business).

Legislation administered by the CRA includes specific provisions to disclose information. A Memorandum of Understanding (MOU) must exist before disclosing information, where permitted by legislation, with the provinces, territories, and other federal government departments and agencies. For more information, go to Guidelines on the Use and Disclosure of Client Information.

3.4.2 The taxpayer's right to expect confidentiality

One of the underlying principles of the Canadian tax system and a right identified in the CRA's Taxpayer Bill of Rights is the right to privacy and confidentiality:

"Under this legislated right, you can expect us to protect and manage the confidentiality of your personal and financial information in accordance with the laws we administer, such as the Income Tax Act, the Excise Tax Act, and the Excise Act, 2001. Only employees who need your information to administer programs and legislation have access to your information."

The disclosure of taxpayer information is subject to the use and disclosure provisions of section 241 of the ITA. It is important for Audit employees to use and disclose taxpayer information only when consistent with the confidentiality provisions of the legislation.

3.4.3 Confidentiality guidelines

The confidentiality provisions of the ITA deal with the use and disclosure of taxpayer information.

Subsection 241(1) includes provisions that, except as authorized, no official shall knowingly provide or allow to be provided taxpayer information, allow access to taxpayer information, or use any taxpayer information other than in the course of the administration or enforcement of the legislation.

Paragraph 241(1)(c) provides that taxpayer information may only be used for the purpose of the administration and enforcement of the ITA, Canada Pension Plan, Employment Insurance Act, or for the purpose the information was provided under section 241.

Subsection 241(4) is an exception to the strict confidentiality rules. This subsection details the circumstances where an official may use or provide to others, taxpayer information, at the official's discretion.

Section 239 provides for severe penalties, including a fine (to a maximum of $5,000), imprisonment (to a maximum of 12 months), or both a fine and imprisonment, for the breach of the confidentiality provisions.

Consultations involving disclosures

Before undertaking consultations with provincial or territorial governments or federal departments and agencies that may involve disclosure of taxpayer information, consult with the Information and Relationship Management Directorate, Strategy and Integration Branch; email CSBD / SEDM-CRD-DRC Guidelines Enquiries - Demandes de renseignements sur les lignes directrices.

Only authorized persons can disclose taxpayer information. To contact an authorized person who may disclose this information, go to Atlantic, Quebec, Ontario, Prairies, and Pacific on Infozone.

Taxpayer information will only be disclosed when:

  • the CRA has the legal authority to disclose the requested information;
  • the requester has the authority to collect the information;
  • a written collaborative arrangement, such as a memorandum of understanding (MOU), is in place, where applicable; and
  • the information is disclosed according to the MOU.

Subparagraph 241(4)(d)(ii) states that taxpayer information may be given to officials only to implement a federal, provincial, or territorial fiscal policy or to administer or enforce an act of Parliament that provides for the imposition or collection of a tax or a duty. For example, officials of the Canadian Border Services Agency can only obtain information to administer or enforce the Customs Act or the Customs Tariff.

Guidelines on the Use and Disclosure of Client Information include these and other requirements.

The authority to disclose information to other countries under international tax conventions is delegated to the director general of the International and Large Business Directorate, International, Large Business and Investigations Branch.

Select here for more information about the delegation of ministerial powers, duties, and functions.

3.4.4 Circumstances where the strict confidentiality rules do not apply

Criminal Investigations Directorate Communiqué EDD 10-02, Confidentiality of Information, clarifies and consolidates policies and communications on section 241 of the ITA.

Specific circumstances where taxpayer information can be disclosed under the ITA are summarized below.

Legal proceedings

Subsection 241(3) deals with disclosure of information where criminal or legal proceedings have begun.

Circumstances involving imminent danger

Subsection 241(3.1) allows the minister to communicate taxpayer information to appropriate persons if, during the administration and enforcement of the ITA, the minister becomes aware of an imminent danger of physical injury or death to any individual.

Discretionary authority to provide information

Subsection 241(4) details the circumstances where an official may use, or provide to other persons, taxpayer information, at the official's discretion.

When responding to requests for information under these subsections, the official must take care to disclose only the information specifically requested and as permitted by the legislation.

Administration and enforcement of relevant acts

Paragraph 241(4)(a) outlines when an official may disclose information necessary to administer and enforce specific legislation. Taxpayer information may be disclosed for purposes of the ITA, Canada Pension Plan, Unemployment Insurance Act, and Employment Insurance Act.

Determining a person's entitlements or liabilities

Paragraph 241(4)(b) states that an official may provide to any person, taxpayer information necessary to determine that person's entitlement to a tax credit or refund or to determine that person's liability including penalty and interest.

For example, information to establish the goods and services tax credit may be disclosed from the return of a person's spouse or common-law partner, to the person, when that information is a factor used to determine the amount of refund, credit, or tax liability of that person. The disclosure must be limited to only the information that is necessary to determine the amount of entitlement or liability.

Before information is disclosed, any comments or messages must be removed. If the information is on a printout or other hard copy, procedures to remove information that may not be disclosed must be followed.

3.4.5 Requesting information under the Access to Information Act and the Privacy Act

Access to Information Act

The Access to Information Act gives Canadians, permanent residents, and individuals or corporations present in Canada a right of access to information in records under the control of the government. The records include electronic records such as email. Necessary exceptions to the right of access should be limited and specific.

When a corporation requests access to its files, it must name the authorized signatory or designated representative who is to receive the information.

Privacy Act

The Privacy Act gives Canadians and people present in Canada a right of access to information that is held about them by the federal government. The Privacy Act also protects against the unauthorized disclosure of personal information and strictly controls how the government will collect, use, store, disclose, and dispose personal information.

Paragraph 8(2)(e) of the Privacy Act states:

"Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed to an investigative body specified in the regulations, on the written request of the body, for the purpose of enforcing any law of Canada or a province or carrying out a lawful investigation, if the request specifies the purpose and describes the information to be disclosed."

Personal information can be obtained from other government institutions to assist in audit activities. Paragraph 8(2)(e) of the Privacy Act provides that the investigative body seeking personal information must specify in writing the personal information requested and the intended use of the information.

Administration of the Access to Information Act and the Privacy Act

The Treasury Board president is responsible and accountable to administer the Access to Information Act and the Privacy Act on a government-wide basis. The Access to Information and Privacy (ATIP) Directorate, Public Affairs Branch processes requests for access to records under the Access to Information Act and requests for personal information under the Privacy Act for the CRA.

For more information, go to Access to Information and Privacy Directorate.

There are ATIP consultants in the TSOs, regional offices, and TCs, as well as at headquarters. The ATIP consultants respond to general information requests about programs, examine and prepare the documents requested, and prepare recommendations. Assistant deputy commissioners and directors general at headquarters define the categories of documents and personal information files within their area of responsibility. They also determine which records can be disclosed under the ATIP legislation. These responsibilities are usually delegated to managers.

Info Source

Info Source publications describe the information holdings of all federal government institutions subject to the Access to Information Act and the Privacy Act. Info Source is a key reference tool to help individuals exercise their rights under the legislation. Info Source also supports the federal government's commitment to make it easier to access information about its activities.

Info Source can be accessed in CRA reading rooms, the main public and academic libraries, the constituency offices of federal members of Parliament, and most federal government public enquiry and service offices.

3.4.6 Formal requests for information

Under the Privacy Act, individuals may make a formal request for access to their own personal information. A formal request for access to information in records held by or under the control of the government can be made under the Access to Information Act. These statutes set out the obligations and responsibilities of the minister, as delegated to various senior officials within the CRA.

For a formal request under the Privacy Act or the Access to Information Act, taxpayers use the prescribed forms available from any public library in Canada, and then submit them to the Access to Information and Privacy Directorate, Public Affairs Branch.

For more information, go to Access to Information and Privacy Directorate.

3.4.7 Informal requests for information

For Audit purposes, informal requests are requests from a taxpayer or their authorized representative for access to information obtained by auditors and related to the audit activities carried out regarding that taxpayer (for example, working papers that support an assessment and/or reassessment).

To respond to informal taxpayer requests to disclose documents and information in their income tax files, auditors must follow these general guidelines:

General guidelines

The right to privacy and confidentiality is one of the underlying principles of the Canadian tax system and a right identified in the CRA's Taxpayer Bill of Rights. Auditors will abide by the provisions of section 241 of the ITA when disclosing taxpayer information. The strict confidentiality provisions in the ITA take precedence over the Access to Information Act and the Privacy Act. If there is any doubt, contact Legal Services and the Access to Information and Privacy (ATIP) Directorate or the ATIP contact.

The ITA authorizes the disclosure of certain information in prescribed circumstances for the specified purposes outlined in subsections 241(4) and 241(5).

Auditors may release an informally requested document after the completed document has been approved; auditors must adhere to the CRA's confidentiality and security policy. For more information, go to Transmittal and Transport of Protected and Classified Information and Assets Standards.

To ensure an informally requested document not prepared by the auditor is appropriately severed where necessary, the auditor should send the document directly to the ATIP contact.

Examples of severed documents that may be released to a taxpayer or authorized representative under an informal request include:

  • Form T20, Audit Report;
  • external and internal correspondence, including memoranda;
  • related correspondence with headquarters (for example, technical interpretation requests or opinions and referrals to specialized sections about a specific person);
  • related reports from external and internal valuators, appraisers, Electronic Data Support specialists, and scientific advisors; and
  • audit working papers, excluding credit reports, Risk Assessment reports, third-party information, leads, disclosure of audit techniques, and information from informants.

Under an informal request, a severed version of the Income Tax Audit Manual may be released at any time during the audit; for a severed version, email Income Tax Audit Manual / Manuel de la vérification – Impôt (CRA/ARC).

Should the taxpayer informally request any other document not noted above, the auditor should discuss with the ATIP contact.

A list of all documents or information informally released should be included in the taxpayer's file, including the date the documents or information were released, to whom they were released, and by whom. Documents in the taxpayer's file must remain intact, in their original state, and should not be marked. Instead, copies of released documents should be marked as "informally released" and the date released, to whom they were released, and by whom noted on the copies.

Note

All documents must be examined before their release to ensure that confidential information about a third party is not released.

Examples of information that cannot be released include:

  • social insurance numbers and business numbers, names and addresses of secondary files;
  • these audit working papers: credit reports, Risk Assessment reports, third-party information, leads, disclosure of audit techniques, and information from informants;
  • information obtained in confidence during an audit that may prejudice the results of the audit, such as Criminal Investigation reports, Royal Canadian Mounted Police reports, or documents obtained as part of an investigation;
  • audit verification techniques and specific audit guidelines;
  • information about investigations in process when a decision is pending;
  • documents of a related file under investigation;
  • confidential information about another taxpayer;
  • Department of Justice correspondence and information under solicitor-client privilege, including legal opinions from the Legal Services Branch (for more information, go to Disclosing Legal Opinions and Internal use of Legal Opinions);
  • specific advice and recommendations developed by or for a government institution or minister of the Crown that if disclosed, may restrict the CRA's ability to administer the ITA;
  • accounts of consultations and deliberations involving officials or employees of a government institution or minister of the Crown that if disclosed, may reasonably be expected to cause injury or restrict the CRA's ability to administer the ITA;
  • information to a third party, other than specifically permitted by paragraph 241(4)(d) of the ITA or where consent is given by the taxpayer;
  • copyright material; and
  • computer printouts from CRA computer systems. Instead, transcribe relevant taxpayer information from the printout and include in a letter to the taxpayer. The taxpayer or the authorized representative can be given an Income and Deductions (INCDED – RAPID Option C) printout of the taxpayer return.

Employees responsible for the Canada Pension Plan/Employment Insurance (CPP/EI) workload cannot disclose any information when responding to an informal request. They must inform requesters that they have to make a formal request under the Access to Information Act.

The assistant director, Audit (ADA) must ensure that Audit employees exercise exceptional care before releasing information in taxpayer files.

If taxpayers making informal requests are not satisfied with the results, they will be informed that they can file a formal request with the Access to Information and Privacy Directorate, Public Affairs Branch.

3.4.8 Release of Scientific Research and Experimental Development reports

For policy details about these reports, see Claim Review Manual for Research and Technology Advisors.

3.5.0 Appeals - formal review

Under the Taxpayer Bill of Rights, taxpayers have the right to receive entitlements and to pay no more and no less than what is required by law. Taxpayers have the right to have the law applied consistently. If taxpayers believe that they have not received the full benefit of their entitlements and have been unable to reach an agreement with Audit on an income tax or penalty and/or interest matter, they have the right to a formal review of their file. In these situations, Appeals officers, who were not involved in the original decision, conduct a formal and impartial review.

3.5.1 Audit dispute settlement process

In September 1996 the CRA adopted a policy on audit agreements and the waiver of objection rights under the ITA for corporations with annual gross revenue of at least $15 million. This policy has been extended to all taxpayers for the administration of the ITA.

For more information, go to Communiqué AD-05-02B, The Audit Agreement and Waiver of a Client's Right to Object.

3.5.2 Appeal process

Taxpayers have the right to dispute any assessment and/or reassessment and determinations and/or redeterminations for tax, duty, or penalty and/or interest under the ITA and the ETA, as well as rulings issued under the Canada Pension Plan and the Employment Insurance Act. For more information, go to 19.0, Objections and Appeals.

For more information on appeal policies and programs, go to Appeals Branch.

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