CRA – The Anti-Santa

It’s Christmas time, and that’s got the CRA thinking about gifts – taxing them, that is. The recent case of Shaw v. R. is a cautionary tale for anyone who believes that a gift of cash is never taxable to the recipient.

When a taxpayer tries to take advantage of technicalities in the Income Tax Act (“ITA”) to his advantage, it’s called an abuse of the provisions of the ITA. If the taxpayer is successful, the law is usually changed.

When the CRA taxes an amount of income twice, using the provisions of the law to its benefit, well, that’s just the way it is, end of story. In a previous article, we described a case where the CRA unsuccessfully attempted to tax the same amount of income twice. In the case of Shaw, they succeeded.

Mr. Shaw was a long time employee of a private company called Robert Ltd. Mr. Robert, the owner, apparently did very well and sold the assets of the company to CEDA International. At the time of the sale Mr. Robert had substantial amounts owing to him by his company which had been taxed as bonuses in previous years and credited to his shareholder loan account.

After the sale, Mr. Robert wanted to reward his long-time managers. He sent them each an amount of cash from Robert Ltd., representing $10,000 for each year of service, along with a letter thanking them for their loyal service, and assuring them that these amounts were tax-paid gifts that would be charged to his shareholder loan account and therefore not taxed in their hands. Only one condition was attached to the gift, and that was that they remain employees of CEDA International. Mr. Shaw received $140,000.

Section 6(1)(a) of the ITA provides that all “benefits of any kind whatever” are to be included as employment income if they were received “in respect of, in the course of, or by virtue of an office or employment.”

In this case, the court explained that subsection 6(1)(a) is a broadly worded provision and that the amounts received by Mr. Shaw fell into the category of a taxable employee benefit. The amount was calculated based on his number of years of service, and also came with the condition that he remain employed by the purchaser. Accordingly, the payment, regardless of who made it and what form it took, was made by virtue of Mr. Shaw’s employment.

What is unfair in this scenario is, of course, the fact that the amounts paid had been taxed previously; so in assessing Mr. Shaw, the CRA was essentially successful in taxing the same amount of income twice. It didn’t matter that the person who paid the amount was not the employer, nor did it matter that Mr. Shaw was no longer an employee of Robert Ltd. at the time the amount was paid.

This case should be seen as a warning to those who believe they can avoid tax by directing funds to another person on the premise that it is a gift. The CRA will always look to the underlying reason for any payment and apply the provisions of the ITA accordingly, regardless of whether or not it seems fair to the parties involved.

And no, don’t expect the law to be changed to prevent such an unfair result in the future.

Merry Christmas!

CRA and the Air Miles Double-Standard

Whenever I use my frequent flier points, it always seems like I’m getting something for free. That’s the beauty of it, isn’t it? But of the course, like everything else, the CRA has to spoil it. The CRA believes there’s value to those points. Sure, there’s value, but does this view only hold true when it benefits the government?

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Using Points For Personal Purposes

Everyone loves a vacation. So when you use those travel points to fly for free, would you ever think that the CRA would tax you? Until recently, the CRA’s policy was indeed to tax an employee on the value of reward points used for personal purposes if the credit card charges to earn those points were made as an employee and reimbursed by the employer. So, let’s say you took a trip to Vancouver on business and charged the hotels, flight, meals etc. on your credit card. When you returned, you put in an expense report and were reimbursed for all those costs. In December, you decided to take a trip to Disney World with the kids, and used reward points to pay the airfare. Prior to 2009, the CRA would have asked you calculate the value of your points, then the portion of that value that related to the amount that was reimbursed by your employer, and then they would tax you on this amount. I kid you not!

Well, the CRA has since changed their policy. They came to the realization that they were being completely nutty (my word, not theirs 🙂 ) in asking employees to make such determinations. Starting in 2009, they no longer tax you in cases such as the one described above. As long as the credit card is yours, and the reimbursements are not in some way abusive to the point where you are really disguising some form of additional remuneration, then there will now be no taxable benefit on the use of your points. However, if you are spending money on a company credit card, where the employer controls the points, any use you make of them will be taxed in your hands, and your employer will be required to value the benefit as described above, and add it to your T4 as taxable employment income.

The Johnson Case – Points Used For Medical Travel

The above policies by the CRA shows how interested they are in the value of these reward programs – when there is tax to be collected. But what about when there is a deduction to be taken? Suddenly these valuable points become totally impossible to appraise.

In 2007, Mr. Johnson flew to Chicago from Thunder Bay in search of medical care. Travel costs can be eligible medical expenses, and Mr. Johnson claimed the value of his flight, even though it was paid with his Aeroplan points.

Given the CRA’s clear view that such points have value (when it suits their purpose), it is truly baffling to note that the Minister of National Revenue argued in Tax Court that “the value of the points that were used to obtain the ticket could not be determined, and therefore, that it could not be said that an amount was paid for the ticket”.

Really, CRA? Have you not read your own policies?

In the end, the judge decided that the points had a value, since they could be exchanged for something that had a price.

The taxpayer won his case and of course, the CRA policy  still exists (although far less onerous since 2009).

Free travel? Have you seen my credit card statement?