Privacy Laws in Canada and the Income Tax Implications

Privacy of Banking Information

Many individuals throughout the world have utilized traditional banking-secrecy strongholds, such as Switzerland, to avoid paying taxes. In 2009, the Internal Revenue Service (“IRS’), fully aware of such activity, coerced UBS AG (a Swiss bank) to turn over information on 4,450 accounts held by US persons.

Canada, which is also trying to clamp down on tax evasion is supposedly also prepared to take UBS to court to gain access to Canadian accountholder details. Ottawa has been pressing UBS since early September 2009 for the names of Canadian bank accountholders, but has had limited success to my knowledge.

However, many Canadian clients of UBS AG have contacted the Canada Revenue Agency (“CRA”) to voluntarily disclose income they previously failed to report. According to press reports, at one point in 2010, thirty-two of those customers reached settlements with the Canadian government, allegedly reporting over twenty-five million dollars in income. Canada has had some success obtaining information from domestic financial institutions as noted in this article.

Personally, I have no issue with the IRS or the CRA breaching privacy laws where there is clear evidence of tax evasion. I pay my taxes - why should I care about the privacy of someone evading taxes using the secrecy of the Swiss banking system?

However, as discussed in Barrie McKenna’s article “Privacy Commissioner eyes the long arm of the U.S. tax law" , the U.S. tax authorities want to force all foreign financial institutions to identify Americans and their bank account information. This violates my personal boundary for invasion of privacy in regard to tax evasion.

It is my experience that Americans living in Canada are not “evading” income taxes, but are what I will call non-filers. As discussed in my recent blog, although the IRS expects to find a significant number of Americans who have not filed income taxes returns (required because the US income tax system is based on citizenship not residency), these people are usually (a) unaware they have a U.S. filing obligation, or (b) are aware and just do want the hassle of filing. As noted in my blog, whether a U.S. citizen falls under scenario (a) or (b), in most cases if their income is not US source, they will not owe any income taxes to the U.S.

Tax Evasion or Non-filing?

Thus, the $64,000 question: is the act of not filing income tax returns tax evasion, even if no income tax will be owed? And, if it is tax evasion in your opinion, does it even compare to the blatant income tax evasion of those who hide their assets for income tax purposes in Switzerland? It is interesting to note that even Finance Minister Jim Flaherty argued that Canada is not a “tax haven” in Barrie McKenna's article.

In my opinion, there is such a clear distinction between the tax evaders and the non-filers that I feel the breach of privacy is justified in the Swiss tax evasion scenario, whereas in the case of non-filers, the breach of the privacy laws is unjustified.

I seem to recall that the IRS has in the past, considered or used a tax clemency for foreign non-filers. I would suggest that the IRS have a clemency or tax amnesty program for any year prior to say 2011 where an individual has income tax of less than say $1,000 owing in regard to a prior year not filed.

There should also be a highly publicized move-forward position that tax returns are required for all U.S. citizens (and green card holders) living outside the U.S. and that there is a standard penalty for non-compliance. Something along those lines would solve the non-filer issue and avoid the invasion of people’s privacy where there is no “true” tax evasion.

The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs.

Probate Fee Planning- Income Tax, Estate & Legal issues to consider

Planning to reduce or eliminate probate taxes requires one to navigate a minefield of income tax rules, joint tenancy and right of survivorship issues and legal precedents. Questions of legal versus beneficial ownership of property and evidence of intention often come into play. The scary thing is, that this type of planning is often done by the uninformed.

When I started writing this blog months ago, my objective was to provide probate planning techniques. However, as I wrote and researched, I realized the legal concepts were extremely complex and beyond my area of expertise. Consequently, this blog became more conceptual in nature than initially planned. After reading this blog, I hope it becomes clear to you that you need to consult a tax or estate lawyer when undertaking any significant probate planning.

Probate Fees in Ontario

In Ontario, probate fees (technically called the “estate administration tax”) are levied on a deceased taxpayer’s estate at the rate of $250 on the first $50,000 of assets and $15 per $1,000 thereafter. Consequently, if a person were to die with assets of $1,000,000, the estate would have a probate fee liability of $14,500. An estate of $5,000,000 would have a probate fee liability of $74,500. For the other provinces, see this summary.

Two of the more common strategies to minimize probate fees are making gifts and transferring assets to joint tenancy. While these techniques may reduce or eliminate probate fees, they can create significant income tax and estate issues if not done properly.

Gifts to children and your spouse

If cash gifts are made during a person’s lifetime, they will reduce the value of his or her estate for probate purposes. If the gift is made to a child under 18 years of age, the income earned on the gifted property (i.e.: interest and dividends) will be attributed back to the person making the gift for income tax purposes. Where a cash gift is made to a spouse, the income earned on these assets (i.e.: interest and dividends as well as capital gains and losses) is attributed back to the person making the gift for income tax purposes. Cash gifts made to children who have attained the age of 18 do not invoke the income attribution rules in the Income Tax Act. So, you can make a gift to an 18 year old child which will reduce probate fees and not create any income tax problems.

Where non-cash gifts of capital property (such as gold or stocks) are made to a person other than your spouse, the property is deemed to be sold at its fair market value for income tax purposes. Thus, if a mother were to gift 1,000 shares of BCE having a total cost of $10,000 and fair market value of $30,000 to her 20 year old son, she would realize a capital gain for income tax purposes of $20,000, even though the shares were not sold and no money was received.

In an effort to avoid probate fees, some families seek to “add” the names of children to the title of a surviving parent’s home. This is done by transferring the title to the house from the surviving parent (“original owner”) to the children and surviving parent, as joint tenants (the “new owners”). Upon the transfer, the original owner/parent is treated for income tax purposes as having sold a portion of the transferred house based on the number of new owners. For example, if the new owners were parent and two children, each new owner will be treated as owning a one third interest. This means the original owner/parent in this example will be considered to have disposed of a 2/3 interest in the house. The 2/3 sale would be tax-free due to the principal residence exemption. However, 2/3 of any increase in value from the date of the gift until the house is ultimately sold will not be eligible for the principal residence exemption (assuming that the children have their own principal residences). If you are into horror stories, check out Jim Yih's blog for a nightmare of a story of a parent that put a child on title to her principal residence.

Situations such as the above may be avoided in certain circumstances where a lawyer knowledgeable in tax and/or estate law separates legal from beneficial ownership before the transfer. The Canada Revenue Agency (“CRA”) has stated that where there is a change in legal ownership without a corresponding change in the beneficial ownership (the real value is in beneficial ownership), there is not a disposition of the asset for tax purposes. What could be accomplished in the above scenario is a transfer of legal title only, without changing beneficial ownership. This would have no income tax implications but would assist in dealing with probate issues.

A further problem with transfers to joint tenancy (such as the home above) arises because with a joint tenancy, the entire title will pass to the last person alive which often is not the intent of the parent. For example, if a bank account belonging to Mom is transferred into a new account in the names of Mom, Son and Daughter, as joint tenants with right of survivorship, and Mom and Son die together, Daughter would become the “owner” of the entire account. This was not likely the intent of Mom, who likely wanted the split the account between her two children (or her grandchildren if one of her children passed away) – if not for trying to save probate fees, Mom would have never done this.

Joint Tenancy can be problematic-The Pecore Case

If property is held as joint tenants with a right of survivorship, on its face, the property will pass automatically to the surviving joint owner and is therefore not subject to probate fees. I have seen many cases where parents put their adult children’s names on bank accounts and investment portfolio accounts. The parents consider these accounts to now be exempt from probate, yet the parent continues to report the income earned on these investments in their own name for income tax purposes. (As noted above, it is the CRA’s view that if beneficial ownership has not changed there is no disposition for income tax purposes, which is in accordance with the parents plan above, however, at least from the CRA's perspective, they have some issue with whether probate transfer is effective, which is not in accordance with the parents plan above). However, many parents fail to look past the probate issue and their intention in regard to the funds is unclear, i.e., is it the parent’s intention that the funds held jointly with one child belong to that child or do they belong to all their children and there is an understanding that the child on the account will share with their siblings?

This issue was addressed in Pecore v Pecore , a 2007 Supreme Court case where the court addressed these two potentially conflicting intentions. Legally, these two intentions are known as the presumption of a resulting trust and the presumption of advancement. The presumption of resulting trust means that when a parent dies, the transferred assets form part of their estate and will be passed on to the beneficiaries of the will, typically all their children. The presumption of advancement presumes any transfer to a specific child belongs to that child. The potential for conflict is rife where a parent transfers assets into joint tenancy with one child for ease of administration.

In the Pecore decision, the Supreme Court stated that where assets are transferred without consideration (such as to a child to avoid probate) that the presumption of resulting trust will operate in almost all cases save transfers from a parent to a minor child. This means that where a parent transfers assets into a joint account with one child, there must be evidence of the intention to make a gift to that specific child. As I am not a lawyer, I cannot state what counts as irrefutable evidence, but from what I have read, a written document is a minimum requirement.

The best summation of the various legal concepts discussed above that I have found is an article by a lawyer James Baird who attempts to explain these complexities.

If done correctly and carefully, gifting, creating joint tenancy arrangements and separating legal from beneficial ownership can result in the reduction or elimination of probate fees. However, probate planning can lead to unintended income tax and estate implications as discussed above that far outweigh the probate tax savings. It is thus essential that you engage a lawyer who is comfortable in dealing with these issues, most likely a tax or estate lawyer when undertaking any significant probate planning.

The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs. Please note the blog post is time sensitive and subject to changes in legislation or law.

Patience and Conviction in Investing

The expression “patience is a virtue”, has no truer application than investing. Patience typically necessitates conviction, which can be fleeting in the investment world. Most everyone who has ever invested in the stock market has regretted selling a stock too early because their conviction wavered. As Warren Buffett has stated “The stock market is designed to transfer money from the active to the patient.”

It has taken me several years to understand that part of the key to conviction, and staying focused on your long-term investing goals is realizing that your conviction, in many cases, will be tested. The market often does not reward your conviction with even the slightest acknowledgement by way of a small stock price increase. The stock market is cold hearted and does not care about your conviction or timelines, and may mock you and continually test your conviction by trying to convince you that have made the wrong decision.

That is, you may buy a stock at $12 and it trades for three to four years (or longer) between $10 and $12, and your conviction waivers. Then, suddenly, that stock finds market acceptance - be it through a significant transaction for the company, an analyst starting coverage, or just that sector becoming the flavour of the year with no underlying change to the company. Waiting out the stock market to have your convictions confirmed is often the hardest aspect of investing, as timing and conviction don’t often seem to converge.

An interesting sidebar to investment conviction, at least in my case, is that it has revealed a personality flaw. For someone who is typically not jealous or envious of others and open to discuss stocks I own, I have noted I have some resentment towards people when I know they have purchased a stock and received the same absolute dollar gain in two months that took me five years to achieve. It is not the monetary gain that causes this resentment, but the fact they did not have to suffer in the trenches with the same doubts and stress and persevere like I did - especially where the stock has been volatile, or had downward pressure. I know this is very small of me and I should just be satisfied my conviction proved correct, but I know others that feel the same way. I wonder if any of my readers have the same feelings, or is the fact your conviction proved correct satisfaction enough?

I return to Mr. Buffett to conclude, “With each investment you make you should have the courage and conviction to place at least 10% of your net worth in that stock.”

The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs.

Avoid a 20% Penalty-Ensure you report every income tax slip, no matter the amount

This year, several of my clients received their T3 and T5013 income tax slips well into April. A troubling offshoot of the late receipt of these income tax slips is that many people either file their income tax returns assuming they have all their income tax slips, or run out of patience and file with the slips they have on hand. The two filing scenarios noted above are not problematic; as long as you file a T1 adjustment form upon the receipt of these late income tax slips to report the missing income. 

However, in some cases, people do not receive their missing slips because they have moved during the year or the slips are lost in the mail or mixed in with the junk mail that is thrown out. Since people either forget about these missing slips or are oblivious to the fact they are missing [It should be noted that the Canada Revenue Agency ("CRA") uses a matching program to ensure you have reported all your income tax slips] an insidious penalty provision registers strike one in an abbreviated two strike at bat.

You see, under Subsection 163(1) of the Income Tax Act,  where a taxpayer has failed to report income twice within a four-year period, she/he will be subject to a penalty. The penalty is calculated as 10% of the amount you failed to report the second time. A corresponding provincial penalty is also applied, so the total penalty is 20% of the unreported income. It is important to note that the amount of income that was unreported the first time is not relevant in the calculation. If you failed to report $100 the first time and $10,000 the second time, the penalty will be $2,000, a somewhat ludicrous result considering if the slips were missed in the reverse order the penalty would only be $20.

One would think that the taxpayer relief provisions (“fairness provisions”) would address the potential absurd outcome that results, but this is not always the case as Ian Spence learned. Mr. Spence omitted a small amount of income in 2004 (I am not sure why, but it could have been the tax slip was lost in the mail or any number of reasons). This omission was strike one. Strike two was more costly. Mr. Spence had H&R Block prepare his 2007 return and for whatever reason $36,219 in employment income and the related income taxes were not included in his return. The CRA reassessed his return for the $36,219 in income not reported. It also reassessed Mr. Spence for another $124 in tax, the net amount of income tax owing after including the $36,219 and giving Mr. Spence credit for the $9,000 or so of income tax withheld on the missing slip. As this was strike two, the CRA also assessed a penalty of $7,243, a seemingly unfair result.

Two things must be noted at this point. (1) If Mr. Spence had omitted the $36,219 of income in 2004 and then omitted the small amount in 2007, the penalty would have been minimal. (2) The actual amount of income tax owing due to the second omission was only $124, while the penalty was $7,243.

Mr. Spence applied for relief under the fairness provisions. He was not granted any relief. He then applied to the court seeking a secondary review by the CRA and the court granted such. However, the CRA once again turned down Mr. Spence’s request under the fairness provisions. Finally, Mr. Spence went back again to the Federal court seeking another review. This time the Federal court dismissed the application.

The moral of this story is: ensure you file a T1 adjustment for any slip you receive late and if you are missing a slip, follow up with the issuer, as the CRA will most likely not be sympathetic to your case.

The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs. Please note the blog post is time sensitive and subject to changes in legislation or law.

United States Citizens and Green Card holders must file U.S. tax returns

I was not going to write a blog today, however, I read the article entitled “U.S. taxman reaches north” by Barrie McKenna on Tuesday and want to highlight the income tax filing issues for citizens of the United States and Green Card holders, raised in the article.

If you are a U.S. citizen, you are taxed on your worldwide income and you must file a U.S. income tax return each year. This is still the case even if you live in Canada, file a Canadian income tax return and have no ties to the U.S.. The U.S. is one of the only countries in the world that taxes you for the privilege of citizenship rather than residency.

The same holds true for Green Card holders. While you hold a Green Card, you are considered to have the same filing obligations of a U.S. citizen as noted above.

As discussed in McKenna’s article, most people caught by these filing rules will not owe U.S. income tax if they do not have U.S. source income; as you can claim the foreign earned income exclusion and claim foreign income tax credits. However, returns and various reporting forms are still required, even if you do not owe any tax.

What the article does not not mention, is that in many cases you cannot just give up your U.S. citizenship or Green Card and walk away. There are complicated exit tax rules. I would strongly suggest that you engage an accountant familiar with these U.S. rules to advise you of the income tax consequences, before giving up your citizenship or Green Card. You probably also want to discuss the issue with an immigration lawyer.

Finally, if you are required to file a U.S. return, you probably want to voluntarily file before being contacted by the IRS.

The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs.

LinkedIn IPO- The linked get in

When LinkedIn went public on May 19th, its shares soared to $94.25 from the Initial Public Offering (“IPO”) price of $45. It has been reported the initial IPO target price was to be $32 to $35 per share, but huge demand moved the IPO price to $45. Personally, I have concerns in regard to LinkedIn’s valuation, however, that is not the topic of this blog.

On May 20th, many newspapers carried the following unattributed quote “I got 500 shares and was told to consider myself lucky,” said one hedge fund manager, who flipped his holdings in the low-80s. “There are billion-dollar institutions that are not getting any stock.”

I chuckled to myself when I read that quote, as we mere mortal retail investors are never afforded access to these IPO’s. We pay the inflated IPO price after the huge profits have been made by the investment bankers' top customers; mutual funds, pension funds, hedge funds, friends and family and other major money managers who have access to these IPO’s before they trade publicly. So, I did not shed very many tears for the poor hedge fund manager who only had 500 shares to sell for a one day profit of $20,000; although his buddies probably made $200,000 to $1,0000,000 that day, so maybe he does deserve some sympathy for his large allocation envy.

The LinkedIn IPO was typical of any hot IPO; the shares stayed within the inner investment banking circle. The rich get richer. As a capitalist at heart, I am torn between allowing the market system to work and the distaste of what I consider a "capitalistic aristocracy". Yes, I understand the risk investment bankers take and the need to reward its best customers for buying other IPO's and other products, but the bankers and their customers make absurd amounts of money on these type IPO’s.

I guess what bothers me the most is that retail investors are typically only given access to IPO’s when the demand is insufficient from the investment banker’s best customers or the IPO is considered fairly priced, so there is no easy money to be made. Sort of a don’t call us when we have a great IPO, but we will call you when we have otherwise. The above discussion does not even account for the regulations in place for accredited investors that exclude the typical retail investor, for their “own protection" in certain circumstances.

The IPO process has an inherent systemic bias that I accept, but that does not mean I have to like it.

[Bloggers note: I know my loyal reader and commentator Skuj will follow with a capitalistic diatribe on this blog; so Skuj, in my opinion you can be a capitalist and still think the system is slanted unfairly at times].

The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs.

The Income Tax Planning tail wagging the Tax Dodge

It is said that the biblical verse "Render unto Caesar that which is Caesar’s", commands people to respect state authority and to pay the taxes the state demands of them. In modern day Canada, this phrase often seems to be interpreted as: render unto Stephen Harper the absolute minimum in income tax payments, even if the consequences of minimizing one’s income tax payments are at significant personal detriment.

Why the new modern day interpretation? I find that many people are so averse to paying income taxes that they dive into very short-sighted income tax plans oblivious to the consequences. I believe in minimizing income taxes to the greatest extent possible, however, you cannot tax plan in isolation.

Enough philosophy, lets get to some examples.

In many Canadian families, the high income earner either contributes to their own Registered Retirement Savings Plan ("RRSP") or makes a spousal contribution; in both cases the high income earning spouse receives the income tax deduction at their marginal income tax rate. However, over the years I have seen many people so focused on the the potential income tax savings a RRSP contribution will garner, that they also make RRSP contributions for their stay at home spouses, to utilize their spouses RRSP contribution limits (these are not spousal contributions). But, because the spouse has minimal or no income, no income tax refund is generated and the RRSP deduction is not utilized (it can however, be carried forward to a future year).

The ultimate example of the tax tail wagging the tax dodge is the purchase of a Flow- Through Limited Partnership (“FTLP”) unit. These tax shelters are condoned by the Canada Revenue Agency and certainly have income tax benefits, but also have investment risk. In simple terms, you purchase a FTLP for say $5,000, obtain an income tax deduction for $5,000 and then have a mutual fund of small cap resource stocks with a nil cost base that you can sell two years hence. People become so enamoured with the income tax savings that they don’t realize they have over allocated their portfolio to risky small cap resource stocks (I call these people, tax shelter junkies) and in some cases, in the ultimate irony, they purchase such a large amount of FTLP's, that they create alternative minimum tax, defeating their original intent of saving on income taxes.

Now, let’s next look at some probate misplanning.

Probates taxes in Ontario are for all intents and purposes 1.5% of your estate upon death. Yet people blindly transfer stock investments to their children to avoid these taxes. These people are very pleased with themselves, as they have saved 1.5% in probate fees. However, their chest thumping quickly seems to abate when I inform them they may now owe 23% capital gains tax on the deemed disposition they caused by transferring their investments to their children.

Many Canadians also commonly open a bank account with joint ownership and the right of survivorship with one of their children for ease of administration as they age and to avoid probate tax. The parent typically assumes that the monies in joint ownership belong to their estate to be shared by all their children. However, the child they opened the account with often considers those funds to be theirs alone. Thus, the parent may have saved 1.5% in probate tax, but they also may have been the catalyst for litigation amongst their children.[I have an all encompassing blog discussing various probate issues including income tax, legal and estate issues such as the Pecore case (which has applicability to the joint ownership transfer above) in progress, that I hope to post in the next week or two].

In conclusion, care must be taken to ensure your income tax planning does not leave you barking up the wrong tree.

The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs.