CRA’s TFSA laws land two extra taxpayers in sizzling water


Jamie Golombek: The instances concerned an overcontribution and the constitutionality of the TFSA’s 100-per-cent merit tax

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The tax-free financial savings account (TFSA) was once presented again in 2009 and designed to be an overly simple financial savings car. You give a contribution after-tax greenbacks to the account and make investments them in just about the rest, with any expansion throughout the account being tax unfastened. You’ll withdraw price range every time you wish to have, for any function. If that’s no longer sufficient, the entire truthful marketplace worth of no matter you withdraw may also be recontributed starting the next calendar yr.

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With a lot of these advantages, and the simplicity inherent within the account design, what might be able to move flawed? Reasonably so much judging by way of the choice of instances we’ve noticed over the last decade because the TFSA’s release. Some instances contain consequences charged for unintended TFSA overcontributions, whilst others concerned taxpayers who were given stuck by way of the TFSA merit laws.

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Let’s have a look at two fresh instances, one involving a taxpayer who overcontributed, and one that includes a taxpayer who challenged the constitutionality of the TFSA’s 100-per-cent merit tax.

The primary case concerned an 83-year-old, self-represented Saskatchewan taxpayer who took the Canada Earnings Company (CRA) to courtroom over his TFSA overcontributions. As a reminder, when you by accident overcontribute on your TFSA past your most, you’ll be able to get hit with an overcontribution penalty tax that is the same as one consistent with cent per 30 days for each and every month you’re over the restrict.

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You’ll ask the CRA to waive or cancel this penalty tax if it may be established that it arose “as a end result of an affordable error” and the overcontribution is withdrawn from the TFSA “immediately.” If the CRA refuses to cancel the tax, you’ll be able to take the topic to federal courtroom, the place a pass judgement on will resolve whether or not the CRA’s resolution to not waive the tax was once affordable. That’s precisely what the taxpayer did on this most up-to-date case.

The taxpayer admitted to unknowingly overcontributing to his TFSA all over 2016 and 2017. On Jan. 1, 2016, the taxpayer had TFSA contribution room of roughly $27,500, however contributed $46,500 that yr, exceeding his contribution room by way of $19,000. In consequence, the CRA in July 2017 issued a Understand of Review in appreciate of his TFSA overcontribution for the 2016 taxation yr and charged him a penalty tax.

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The 2017 TFSA greenback restrict was once $5,500, so on Jan. 1, 2017, he exceeded his contribution room by way of $13,500. The CRA in July 2018 issued the taxpayer a moment Understand of Review in appreciate of his TFSA overcontribution for the 2017 taxation yr, once more charging a penalty tax.

For 2018, the TFSA greenback restrict was once additionally $5,500, so he exceeded his contribution room by way of $8,000 on Jan. 1, 2018. In a letter despatched in September 2018, the TFSA Processing Unit on the CRA advisable the taxpayer withdraw the surplus contributions from his TFSA once conceivable to forestall the per thirty days one-per-cent penalty tax from proceeding, and the taxpayer on Oct. 1, 2018, withdrew $9,000 from his TFSA.

Every week later, the taxpayer submitted a primary request for taxpayer reduction for his TFSA overcontribution, claiming he was once no longer answerable for the mistake as a result of he was once no longer knowledgeable by way of his financial institution or the CRA that he was once overcontributing. He additionally claimed he was once unaware that withdrawals he made out of his TFSA have been simplest added to his contribution room the next calendar yr.

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In January 2019, the CRA denied his request for reduction, so the taxpayer requested for a second-level overview, which was once once more denied in June 2019. In denying the second one request, the CRA officer famous the taxpayer didn’t take away the surplus contributions from his TFSA for 2016 and 2017 till Oct. 1, 2018, which was once no longer rapid sufficient.

The Canada Revenue Agency building in Ottawa.
The Canada Earnings Company development in Ottawa. Picture by way of Adrian Wyld/The Canadian Press

The taxpayer then grew to become to the Federal Court docket, asking it to check whether or not the CRA’s resolution denying him reduction was once affordable. In courtroom, the taxpayer’s number one argument was once that the CRA failed “to manage the source of revenue tax machine rather and slightly.”

He defined he didn’t in an instant withdraw his extra TFSA contributions as a result of he was once looking ahead to responses from the CRA to his questions. He additionally felt the CRA has “an obligation of care to have a machine that doesn’t permit overcontribution.”

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However those arguments, the pass judgement on discovered the CRA had slightly spoke back to his questions. She concluded the CRA officer’s resolution to disclaim penalty tax reduction was once affordable. “Even though (the taxpayer) was once notified of his overcontributions, he didn’t act immediately to take away the surplus contributions from his TFSA,” the pass judgement on mentioned.

The second one fresh case involving the TFSA penalty tax was once on the Tax Court docket and anxious the “merit laws,” which can be a sequence of anti-avoidance laws within the Source of revenue Tax Act designed to forestall abuse and manipulation of all registered plans, together with TFSAs. When you are offside those laws, you want to face a 100-per-cent penalty tax at the truthful marketplace worth of any “merit” you obtain this is associated with a registered plan.

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On this case, the taxpayer was once interesting reassessments by way of the CRA on his TFSA attributable to the merit he gained in regards to the switch of personal corporate stocks to his TFSA. The taxpayer requested the courtroom to resolve whether or not the penalty tax was once a penalty or a tax, and whether or not it must be declared unconstitutional as a result of Parliament having improperly delegated the rate-setting part of that tax to the CRA, in contravention of the Charter Act.

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In all probability no longer strangely, the courtroom, after a long prison research, held that the merit tax is, certainly, a tax and, moreover, is validly imposed. It additionally concluded it’s no longer unconstitutional, because the CRA doesn’t set the tax price; it simply has the discretion to waive or cancel “all or a part of the tax.” Because the courtroom wrote, “No matter delegation of taxation energy there could also be is simply, ministerial discretion, itself sufficiently constrained to authorised administrative tasks.”

The taxpayer has appealed this resolution to the Federal Court docket of Enchantment, which can most probably listen the case someday in 2023.

Jamie Golombek, CPA, CA, CFP, CLU, TEP, is the managing director, Tax & Property Making plans with CIBC Personal Wealth in Toronto.


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