Do I Have to Submit to an Oral Interview During a Tax Audit? Canadian Tax Lawyer Explains CRA’s Policy

Introduction: CRA’s Power to Compel Oral Interviews

Starting from December 15, 2022, the Canada Revenue Agency (CRA) can compel taxpayers or any persons to attend oral interviews. The authority for the CRA to compel oral audit interviews was established through the Federal Court of Canada in the case of Minister of National Revenue v Cameco Corporation, 2019 FCA 67, and subsequently Bill C-32. Specifically, under paragraph 231.1(1)(d) of the Income Tax Act, “a taxpayer can be required to give an authorized person “all reasonable assistance, to answer all proper questions relating to the administration or enforcement of this Act,” which includes in-person or virtual audit interviews. The CRA’s official position is that the “objective in conducting an examination of information is to ensure compliance with tax laws” and expedite the process by interviewing taxpayers or any persons it deems necessary. The CRA also adopts a rather restrictive view that “refusal to participate in oral interviews, and to provide the assistance required during the course of a tax audit indicates a lack of openness and transparency, and potentially a higher risk of non-compliance.” However, the CRA also states in their policy that “the CRA will use alternative means to carry out its obligations in verifying a taxpayer’s level of compliance,” where taxpayers decline an interview request.

If you would like to learn more about the Cameco decision, please refer to our article “A Taxpayer Need Not Answer Questions During A CRA Tax Audit: Minister Of National Revenue v Cameco Corporation, 2019 FCA 67.”

Format And Process of The Tax Audit Interviews

An auditor can schedule an interview with a taxpayer and any persons virtually or in person. In-person interview locations can be the taxpayer’s place of business or a CRA premise. During the interview, the tax auditor will generally ask taxpayers questions and review relevant documents. If a taxpayer attends an audit interview with a Canadian tax lawyer, the lawyer can assist the taxpayer in addressing any questions from the auditor. In particular, if an auditor starts to inquire about the communication between the taxpayer and his or her lawyer, or any other inappropriate questions, the taxpayer’s experienced Canadian tax lawyer who’s present at the interview, will normally intervene. The lawyer’s intervention then prevents the taxpayer from disclosing information that is otherwise not required to be provided to the CRA.

After the tax audit interview, the CRA may have follow-up questions for the taxpayer. Subject to solicitor-client privilege, CRA officials can also require a taxpayer or a taxpayer’s representative, to produce working papers “that relate to a taxpayer’s books and records that may be relevant for any purpose related to the administration or enforcement of the tax laws.” If the taxpayer’s lawyer is present at the audit interview, the lawyer will be more prepared to assist with the taxpayer preparing any working papers required by the CRA. The taxpayer’s lawyer can ensure that the CRA officials are not requesting “voluminous, duplicative material” where there are other less burdensome alternatives that could serve to support the taxpayer’s position. In addition, the presence of a lawyer during an audit interview helps to ensure that the CRA is only requesting information or asking questions that are relevant to and reasonable for the tax audit.

Recording Policies of The Tax Audit Interviews

The CRA refuses to allow auditors to be recorded when conducting an oral audit interview, whether the interview is in person or by videoconference. However, paragraph 4.6.5 of the Income Tax Audit Manual clearly states that “CRA has no legal authority to prevent a taxpayer from video or audio taping an interview, audit, or examination at their own premises.” The CRA, as a result, requires that CRA employees must not consent to being videotaped or recorded when meeting with a taxpayer and his or her representatives. If a taxpayer or representative intends to videotape or record the audit interview, the CRA policy is that the meeting must be “terminated immediately” and the CRA will be in contact with the taxpayer to make other arrangements.

Taxpayers are likely also concerned about the CRA’s attempt to videotape or record the audit interview. Although there exists no clear CRA policy stating whether or not the CRA will or can record any audit interviews, there are other provincial and federal legislations that prevent unauthorized recordings, notwithstanding exceptional circumstances. For example, for individual taxpayers in Ontario, their rights not to be recorded without authorization are protected under the Ontario Freedom of Information and Protection of Privacy Act and the Federal Privacy Act. Under subsection 38(2) of the Ontario Freedom of Information and Protection of Privacy Act, “no person shall collect personal information on behalf of an institution unless the collection is expressly authorized by statute, used for the purposes of law enforcement or necessary to the proper administration of a lawfully authorized activity.” Subsection 39(2) of the Ontario Freedom of Information and Protection of Privacy Act further stipulates that “where personal information is collected on behalf an institution”, the individual should be informed the legal authority for the collection, the principal purpose or purposes for which the personal information is intended to be used; and the contact information of a public official who can answer the individual’s questions about the tax collection. The federal Privacy Act uses similar language regarding the collection of personal information. Subsection 5(1) of the federal Privacy Act requires a government institution to collect personal information that is intended to be used for an administrative purpose directly from an individual, notwithstanding certain exceptions, and subsection 5(2) requires the government institution to inform the individual of the purpose for which the information is being collected. Consequently, if the CRA intends to record or videotape an audit interview, the CRA must first obtain consent from the taxpayer to be recorded. Otherwise, the CRA will be in clear violation of the applicable provincial and federal privacy laws.

Pro Tips – Know Your Rights Before Attending a Tax Audit Interview!

The CRA policies regarding tax audit interviews or any CRA activities are constantly being updated. These policies are applicable to taxpayers whether or not they are fully aware of the effect and application of the policies. Without knowing your rights, you may disclose unnecessary information during an audit interview. Even if the CRA can not record or videotape an audit interview without your consent, the CRA can use your answers to their questions during a Tax Audit Interview against you.

It is therefore necessary and advantageous for taxpayers to engage with an experienced tax lawyer before attending a scheduled CRA tax audit interview. Our expert Canadian tax lawyers can provide legal advice on your rights and obligations before, during, and after the tax audit interview. We can also assist you with the tax audit process. You can read more about our successful cases here: https://taxpage.com/case-results/.

FAQ

Do I Have To Attend A Scheduled Tax Audit Interview With The Canada Revenue Agency (CRA)?

When the CRA sends an audit interview request, there is no obligation for a taxpayer or any other person to attend the interview. However, the refusal to attend a scheduled audit interview can result in a negative finding against the taxpayer since the CRA will likely deem the taxpayer unwilling to cooperate. If the proposed date and time for the audit interview does not work for you, you should be able to request to reschedule an audit interview with the CRA.

What Will Happen During and After An Oral Tax Audit Interview?

During an oral tax audit interview, the auditor, as well as other CRA officials who are present at the interview, will ask questions related to the ongoing audit. If you have received and completed a tax audit questionnaire prior to the audit interview, the questions are likely related to the answers you have provided to the CRA. Alternatively, the CRA may have discovered new information and ask for clarification and elaboration. The audit interview is unlikely to be recorded and you should not record the interview unless you have received consent from the CRA officials attending the interview. However, due to the CRA policy against recording and videotaping, your request to record will likely result in a termination of the scheduled interview.

After the audit interview, the CRA may have follow-up questions the and/or require you to produce working papers “that relate to a taxpayer’s books and records that may be relevant for any purpose related to the administration or enforcement of the tax laws.”

Disclaimer:

This article just provides broad information. It is only up to date as of the posting date. It has not been updated and may be out of date. It does not give legal advice and should not be relied on. Every tax scenario is unique to its circumstances and will differ from the instances described in the article. If you have specific legal questions, you should seek the advice of a Canadian tax lawyer.