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A Canadian Tax Lawyer’s Perspective of Tax Audits of COVID-19 Tax Fraud Claims

COVID-19 Benefits and Subsidies

To assist individuals and businesses weather the economic downturn accompanying the ongoing COVID-19 pandemic, the Canadian government has introduced a number of COVID-19 subsidies and benefits. These include the Canada Emergency Relief Benefit (“CERB”) and Canada Emergency Wage Subsidy (“CEWS”). For further details on the benefits and subsidies available as a result of COVID-19, our experienced Canadian tax lawyers have published the following articles: COVID-19 Relief Measures For Individuals and COVID-19 Relief Measures For Businesses – Toronto Tax Lawyer Analysis. Our knowledgeable Canadian tax lawyers can additionally advise you on which benefits or subsidies will apply to your circumstances.

Once pandemic measures ease, our Canadian tax lawyers expect the Canada Revenue Agency will begin attempting to identify those who have improperly claimed COVID-19 benefits and subsidies. Those who have been improperly claiming these benefits and subsidies may face tax fraud enforcement action. To identify these taxpayers, the Canada Revenue Agency will begin tax auditing claims of COVID-19 benefits and subsidies.

Audit Process

Canada uses a self-reporting tax system. Taxpayers prepare and file their own taxes. Each taxpayer is responsible for reporting their income, expenses and claimed credits in manner the taxpayer feels best reflects the circumstances. The Canada Revenue Agency uses tax audits to periodically verify individual taxpayers are correctly self-reporting their taxation circumstances, and to catch taxpayers who are misreporting or underpaying their taxes or committing tax fraud.

The Canada Revenue Agency’s tax audit process typically takes one of two forms. The first form of tax audit is often called a Desk Audit. A Desk Audit is a standard form letter sent to a taxpayer asking them to provide certain documents supporting a specific claim on a tax return. For example, a taxpayer who claims the tuition tax credit may receive letter asking him or her to provide documentary proof of enrollment in a university or college. These are fairly simple tax audits in most cases, but can occasionally lead to the Canada Revenue Agency or taxpayer uncovering bigger issues.

See also
Proposed Changes to Tax Limit Periods Due to Covid-19 | Rotfleisch & Samulovitch PC

The other form of tax audit is where the Canada Revenue Agency targets a specific taxpayer. These tax audits will usually begin with an audit proposal. In these tax audit proposals, the Canada Revenue Agency informs the taxpayer the Canada Revenue Agency intends to assess or reassess the taxpayer in a particular manner. The taxpayer is invited to provide submissions and documents refuting the Canada Revenue Agency’s position. In response to the submissions, the tax auditor will either assess according to the proposal, reassess the taxpayer based on the information available or decline to assess the taxpayer. These tax audits can be very complex and it is always prudent to seek the advice of Canadian tax lawyer when receiving an audit proposal.

Taxpayers should be aware the Canada Revenue Agency has the authority to request information from third parties to verify that taxpayers are not improperly omitting relevant information to their benefit. These third parties could be other government departments, such as confirming with Service Canada whether a CERB applicant applied for Employment Insurance, or private third parties such as obtaining employment records from an employer.

COVID-19 Benefits or Subsidies Tax Audits

The Canada Revenue Agency will presumably use both tax audit types for COVID-19 benefits or subsidies audits. For example, those who have claimed CERB should expect the probability of receiving a standard form letter asking them to demonstrate proof of income. Taxpayers claiming the CERB, CEWS and other subsidies and benefits should keep copies of documents which may be relevant to proving they correctly claimed their COVID-19 benefits or subsidies.

See also
Tax Court's Fast Track Settlement Conference System | Rotfleisch & Samulovitch PC

Tax Fraud Enforcement Action

Taxpayers who incorrectly claimed COVID-19 benefits or subsidies may simply be required to pay back the incorrectly claimed amount. However, at time of writing this article, the Canadian government is deliberating on additional measures to effectively punish taxpayers who knowingly claimed COVID-19 benefits or subsidies they were not entitled to. These measures will include penalties and potentially criminal prosecution for particularly grievous tax fraud offenders. COVID-19 benefits or subsidies have come at substantial cost to the government, and with likely decrease in collectable income tax and GST/HST, the government will be looking out for those attempting to abuse the system.

Tax Tips: An Unsuccessful Tax Audit Is Not the End of the Road

The best protection against an audit where the Canada Revenue Agency decides you filed incorrectly is taking preventative steps. Before applying for a COVID-19 benefit or subsidy, ensure you qualify with a consultation with one of our experienced Canadian tax lawyers. Nevertheless, if you are reassessed as a result of an audit and you believe the Canada Revenue Agency’s tax auditors were incorrect, you can object to the results of that audit. These objections effectively give the taxpayer a second opportunity to defend their decision to claim a COVID-19 benefit or subsidy. Retaining one of our professional Canadian tax lawyers can help ensure a more successful outcome to the objection.

Disclaimer:

"This article provides information of a general nature only. It is only current at the posting date. It is not updated and it may no longer be current. It does not provide legal advice nor can it or should it be relied upon. All tax situations are specific to their facts and will differ from the situations in the articles. If you have specific legal questions you should consult a lawyer."

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