FAQ

The CRA 2023 automobile limits and rates are as follows:

• The general prescribed rate that is used to determine the taxable benefit of employees relating to the personal portion of automobile operating expenses paid by their employers is increased by four cents to 33 cents per kilometre. For taxpayers who are employed principally in selling or leasing automobiles, the prescribed rate used to determine the employee’s taxable benefit is increased by four cents to 30 cents per kilometre.
• The limit on the deduction of tax-exempt allowances that are paid by employers to employees who use their personal vehicle for business purposes for 2023 increased by seven cents to 68 cents per kilometre for the first 5,000 kilometres driven and 62 cents per kilometre for each additional kilometre. 
• For the Northwest Territories, Nunavut and Yukon, the tax-exempt allowance increased by seven cents to 72 cents for the first 5,000 kilometres driven, and 66 cents per kilometre for each additional kilometre. 
• For purchases for ceiling on the capital cost of passenger vehicles for capital cost allowance (CCA) purposes, increased from $34,000 to $36,000 (New and used)  for non-zero-emission passenger vehicles, increased from $59,000 to $61,000 (new and used).
• The limit on deductible leasing costs increased from $900 to $950 per month (before tax and for new leases).

The following limits from 2022 will remain in place for 2023:

• The maximum allowable interest deduction for amounts borrowed to purchase an automobile will remain at $300 per month for loans related to vehicles acquired.

The CRA 2022 automobile limits and rates are as follows:

• 61 cents /kilometre for the first 5,000 kilometres driven
• 55 cents for each additional kilometre

The CRA 2021 automobile limits and rates are as follows:

• 59 cents /kilometre for the first 5,000 kilometres driven
• 53 cents for each additional kilometre

For more information about the Automobile Deduction Limits and Expense Benefit Rates, click here.

For more information about Automobile and motor vehicle allowances, click here.

Non-Residents Providing Services in Canada – Tax Implications (Regulation 105)

Contact UHY Canada US Tax Team for assistance with your Regulation 105 issues

UHY Victor LLP Canada US Tax Team

crossbordertax@uhyvictor.com 

(514) 282-0067

We have expertise in filing requirements, applying for waivers and filing corporate and personal income tax returns to recoup Regulation 105 withholdings.

Regulation 105 – Withholding Taxes Regulation 105 of the Canadian Income Tax Act imposes a 15% withholding tax on fees, commissions or other amounts earned from services rendered in Canada by non-resident individuals and corporations. If these services are rendered in the province of Quebec, they will be subject to an additional Quebec withholding of 9%. These amounts must be withheld by the Canadian payor even if the non-resident providing the services has no permanent establishment in Canada. However, even if the non-resident has no permanent establishment in Canada, these withholding taxes can be recouped. The non-resident entity must file a Canadian (and Quebec) tax return at the end of the non-resident’s fiscal year and claim a refund to the extent permitted on those tax returns. Purchasers of services from non-residents are relieved from the obligation to withhold taxes only if the non-resident obtains a waiver from the CRA and the MRQ, where applicable. The withholding tax on services is called Regulation 105 withholding. It applies to services only and NOT to the sale of goods (in bundled contracts) or the reimbursement of expenses where no profit is earned. Penalties for not withholding can be high – 10% of the tax (and 20% in cases of gross negligence). Non-residents have to apply to CRA for a business number (BN) and they should receive a tax slip (T4A NR) from each of their Canadian customers showing the gross amounts paid and the taxes withheld on a calendar year basis. The filing deadline for a T4A NR is February 28 of the year following the payment(s).

Regulation 105 – Waivers The 15% withholding is not the final tax of the non-resident. CRA considers the withholding to be a payment on account of the non-resident’s potential tax liability in Canada. Generally, non-residents are required to file a Canadian income tax return to calculate their tax liability or to obtain a refund of any excess withholding amounts. Where a non-resident can demonstrate that the withholding is higher than their potential tax liability in Canada, either due to treaty protection or income and expenses, the CRA may reduce or waive the withholding. Non-residents who want to request a waiver or reduction of withholding have to submit a waiver application to the CRA tax services office in the area where their services are to be provided. Waiver applications have to be submitted no later than 30 days before the period of service begins, or 30 days prior to the initial payment for the related services. Waivers from withholding taxes can be applied for by the non-resident. These waivers can be one of two types:

• Treaty-Based Waiver- complete exemption
• Income and Expense Waiver – an exemption to withhold on the basis of income net of expenses and at normal income tax rates

The non-resident must provide a letter from the Canada Revenue Agency authorizing a waiver or reduction of the withholding amount. If you do not receive such a letter, you have to withhold the usual 15%. Form: Regulation 105 Waiver Application Form Use this form if you are a non-resident self-employed individual or corporation and want to apply for a reduced amount of Regulation 105 withholding tax from amounts paid to you for services provided in Canada.

Regulation 105 – Tax Filing Obligations of the Non-Resident Every non-resident providing services in Canada must file a Canadian tax return (and Quebec tax return where applicable) and report the income that it earned in Canada. This obligation is the same whether or not the non-resident has or is deemed to have a PE. If the non-resident is an individual and has or is deemed to have a PE in Canada, then they will pay income taxes based on graduated tax rates without entitlement to any personal exemptions. Corporations pay part I tax (29% to 35%, depending on the province in which they operate) as well as a branch tax (5% for US corporations), with an exemption on the first $500,000 of business profits. Individuals have filing deadlines of June 15 of the following calendar year. Corporations have to file within 6 months after their year-end. Regulation 105 withholding can be refunded by completing a Canadian tax return. The refunds could be received more than 18 months after the taxes are withheld. These taxes are not refundable if tax returns are filed more than 3 years after the relevant taxation year-end.

Regulation 105 – Goods and Services Tax (GST) GST and its provincial counterparts, HST & QST, have to be charged on supplies (goods and services) made in Canada. Non-residents have to register for GST if they have a PE in Canada. PE definition for GST purposes is broader than for income tax purposes – the only criterion which must be met for PE to exist for GST purposes is the existence of a fixed place of business like an office or a workshop. Note that non-residents can voluntarily register for GST if they don’t have a PE in Canada. Registration for GST will entitle the non-resident to claim a refund on GST it incurs in its commercial activities in Canada. In this case, CRA requires the non-resident to post-security. The security is waived if the non-resident’s taxable supplies in Canada do not exceed $100,000 annually and whose annual net tax is between $3,000 payable and $3,000 recoverable.

Regulation 105 – Permanent Establishment Non-residents who provide services through a permanent establishment in Canada must file Canadian income tax returns. They must report and pay Canadian income taxes on the income they generate from the services provided. Americans must refer to Article V of the US Canadian tax treaty for the definition of permanent establishment:

• A fixed place through which business is carried on;
• A person acting as an agent, other than an independent agent, who has the authority to conclude contracts;

Note that an independent agent who is acting in the ordinary course of his business does not create a PE; PE specifically excludes a fixed place of business used solely for – storage, display or delivery of goods – Purchase of goods; and – Advertising or supply of information or scientific research.

Regulation 105 – The US-Canada Tax Treaty and the Fifth Protocol Changes to the rules on the taxation of services rendered by a US non-resident came into effect on January 1, 2010. Article XIV was eliminated and new deeming rules were introduced and inserted at the end of Article V of the Treaty (paragraphs V(9)(a) & (b)). The rules now state that if PE does not, in fact, exist based on the existing rules, then it will be deemed to exist if: 

• 9(a) The Single individual Test (for Individuals)

Services are performed by an individual who is present in the other Contracting State for more than 183 days in a 12-month period and, during this period, more than 50% of the gross active revenues of the enterprise are generated from these services; or

• 9(b) The Enterprise Test (for Corporations)

Services are provided in the other Contracting State for more than 183 days in a 12-month period with respect to the same or connected project for a customer’s PE in the other Contracting State. The collective presence of more than one individual providing services during one calendar day will only count for one day of physical presence by an enterprise in the other state.

Regulation 105- Tips for Non-Residents Providing Services in Canada  

Review any on-site installation and training activities in Canada to ensure that appropriate Canadian tax filings and payments are made. Review and complete the CRA’s checklist (T2 SCH 91 E) to determine PE status in Canada. If a PE is deemed to exist in Canada consider alternatives for recovering a portion of Regulation 105 withholding tax based on actual income earned on the contract in Canada. Ensure that contracts with Canadian customers clearly distinguish between services provided in Canada and elsewhere. If the distinction is not clear, the entire contract would be subject to Regulation 105 withholding tax. Review the obligation to register for GST/HST and QST where applicable. Given the delay in receiving a refund of Regulation 105 withholding and the fact that the IRS will not grant a foreign tax credit on foreign taxes which should be refunded, the US resident should consider creating a PE in Canada in order to expedite the recovery of its foreign taxes.

Click here to find out more information about the UHY Canada/ US Tax Team Sources

• Canada-US Income Tax Convention, article VII(1), Article V, Article XV(2)
• Fifth Protocol to the Canada/U.S. Tax Convention article V
• Dudney decision 2000 DTC 6169 (F.C.A.)
• ITA Regulation 105

CRA Information Circular IC 75-6R2 “Required Withholding from Amounts Paid to Non-Residents Performing Services in Canada” Quebec TP-1016-V

Interpretation Revenu Quebec ADM. 7-, “Reduction in Source Deductions in Income Tax in Respect of a Payment for Services Rendered in Quebec by a Person Not Resident in Canada”.

What is an FBAR? An FBAR is the “Report of Foreign Bank and Financial Accounts” that must be filed with the US Department of Treasury. The FBAR is now filed on FinCen Report 114 (formerly form TD F 90-22.1)

• Click here for a review of options for Americans who are non-compliant with their FBAR filing requirements.
• What is the 2019 filing deadline?

Who Must File an FBAR? United States persons are required to file an FBAR if:

• The United States person had a financial interest in or signature authority over at least one financial account located outside of the United States; and
• The aggregate value of all foreign financial accounts exceeded $10,000 at any time during the calendar year to be reported.

United States person means US citizens; US residents; Green Card Holders, entities, including but not limited to, corporations, partnerships, or limited liability companies, created or organized in the United States or under the laws of the United States; and trusts or estates formed under the laws of the United States.

Reporting and Filing Information: A person who holds a foreign financial account may have a reporting obligation even though the account produces no taxable income. The reporting obligation is met by answering questions on a tax return about foreign accounts (for example, the questions about foreign accounts on Form 1040 Schedule B) and by filing an FBAR. The FBAR is a calendar year report, which must be filed with the Department of Treasury on or before June 30 of the year following the calendar year reported. Generally, extensions of time to file an FBAR are not granted.

The FBAR is not filed with a federal tax return. Any filing extensions of time granted by the IRS to file a tax return does not extend the time to file an FBAR. Since July 1, 2013 – Electronic filing of FBARs is mandatory.

UHY Victor LLP is authorized to file FBAR’S electronically on behalf of the person who has the obligation to file an FBAR. US taxpayers holding foreign financial assets may also need to file Form 8938 (Statement of Specified Foreign Financial Assets) with their 1040 US tax return.

Visit:

• http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Report-of-Foreign-Bank-and-Financial-Accounts-(FBAR)
• http://taxes.about.com/od/preparingyourtaxes/a/TDF90221.htm

Canada US transfer pricing

Transfer prices are prices that companies charge for goods, services, tangible and intangible assets they trade with subsidiaries and other controlled entities. Given that these transfer prices are set internally by management, they are frequently subject to scrutiny by both the IRS and the CRA. Tax authorities concur that the proper transfer price is one which two parties dealing at arm’s length would agree to. Consequently, the objective of transfer pricing experts is to determine what is the “arm’s length price” or “market price” is for any particular situation. In recent years both the CRA and the IRS have increased their emphasis on transfer pricing audits. Both these tax authorities require companies to have documentary evidence supporting their transfer prices. A proper analysis of many factors is required to determine a transfer price, including:

• Nature of the company’s activities
• Risks
• Tangible and intangible assets employed
• Characterization of the entities and comparability of arm’s length with non-arm’s length transactions.

Regulations in Canada: In the absence of proper transfer pricing documentation, the tax auditor is required to assess a penalty of 10% of the net adjustment of the transfer price. In addition, companies are required to have transfer pricing documentation that is current, and it must be provided to the CRA within three months of a written request to do so.

Agreements: Companies start their transfer pricing analysis by identifying the transactions between related parties, which generally fall into the following areas:

• Transfer of tangible products such as inventory.
• Transfer of services such as management and administration services.
• Transfer of intangible assets such as the use of a patent or copyright.
• Transfer of tangible capital assets such as machinery and equipment.
• Intra-group loans.

Industry & Market analysis: The industry and market analysis provides a description of the general business environment, and includes:

• Industry profile.
• Market size and level of concentration.
• General profiles of competitors, their size, strategies and market shares.
• Current trends in the industry.
• Critical success factors.

Functional Analysis: Functional analysis is at the core of the transfer pricing study and includes analysis of:

• Functions – which entity carries out the following which activities: Design Manufacturing Financing, Inbound logistics R & D, Inventory management Outbound logistics, Marketing Sales activities, After-sale services and Supporting activities
• Risks – which entity bears the risks associated with the transaction, and include: Financial risk Credit and collection risk, Operational risk, Market risk and Product risk
• Intangible assets – which entity: Developed the intangibles Has the legal ownership of the intangibles Receives the benefit of the intangibles

Selection of a  Transfer pricing method: The CRA provides the following hierarchy of the following five methods:

• Comparable Uncontrolled Price (CUP) method
•  Resale Price (R-) method
• Cost Plus (C+) method.
• Profit Split (PS) method
•  Transactional Net Margin Method (TNMM).

The CRA requires that the CUP method is used if possible. In cases where the CUP method is not feasible, one of the remaining four methods is to be used. In the rare case that it is not possible to use any of the above methods, other unspecified methods may be used. However, in general, it is not advisable to use unspecified methods. The selection of a method will depend on the functional analysis and availability of comparable transactions. If it is possible to use the internal CUP method, then the selection of a method can be relatively straight-forward.

Economic Analysis The economic analysis provides the following:

• Selection of comparable transactions or companies consideration of the quality of data assumptions
• Comparability factors selection of appropriate economic
• Statistical methods profit level indicators quantification of appropriate adjustments

Recommendation The recommendation is a clear statement of the recommended transfer pricing policy.

Implementation & Monitoring This section details the most efficient method of implementing the selected transfer pricing policy. A transfer pricing study should be updated each year to reflect any material changes in the transactions under consideration. Provided that no material changes have occurred, an update is generally simple and straightforward. Since every study must be prepared by the filing due date (generally 6 months after the corporate year-end), it is advisable to monitor and document all the changes as they occur during the year. If circumstances change such that some or all transactions did not represent an arm’s length price, it is possible to record a compensating year-end adjustment. This adjustment should be fully documented.

Disclaimer: While every effort has been made to ensure that this site contains accurate information, it is possible that errors do exist in the materials presented. All of the information provided here is provided “as is”, with no guarantees of completeness, accuracy or timeliness, and without warranties of any kind, express or implied. The information presented on this site should not be considered to be or construed as legal, economic, tax, or accounting advice.

If you owe the IRS taxes on your 1040, there are several payment options available to you including electronic payments.

Payment options include:

• Direct Pay: This free online tool allows individuals to pay their income tax directly from bank accounts without any fees or pre-registration. Any taxpayer who uses the tool receives instant confirmation that their payment was submitted.
• Electronic Federal Tax Payment System: This free service gives taxpayers a safe and convenient way to pay individual and business taxes by phone or online. To enrol or for more information, call 800-316-6541 or visit www.eftps.gov.
• Electronic funds withdrawal: E-file and e-pay in a single step.
• Credit or debit card: Both paper and electronic filers can pay their taxes by phone or online through any of several authorized credit and debit card processors. Though the IRS does not charge a fee for this service, the card processors do
• Same-day wire federal tax payments: You can verify with your Financial Institution if they are able to do same-day wire. There may be cut-off times and costs
• Check or money order: Make your check or money order payable to “US Treasury”. Also, print on the front of the check or money order: “2016 Form 1040”; name; address; daytime phone number; and Social Security number. To help ensure that the payment is credited promptly, also enclose a Form 1040-V payment voucher.
• Cash: It can take up to seven days to have yourself set up to make a cash payment. Please read all the steps carefully on the IRS site.

More information is available at IRS Payment Options https://www.irs.gov/payments

Each year businesses face a choice – what report do they want on their year-end financial statements. There are several types of financial statements that we can prepare, including the following: audited financial statements (most costly), reviewed financial statements, compiled financial statements.

Audit Report: We give an opinion as to whether the financial statements, taken as a whole, are fairly presented. This opinion is given after extensive tests of the accounting records are made. The tests include confirmation with outside parties, analytical procedures, the inquiry of client personnel and a detailed study of the accounting records.

Review Engagement Report: We express limited assurance that we have not noted any items that would require adjustments that should be made to the statements in order for them to be in conformity with accepted standards. The accountant must conduct a review and be satisfied as to the reasonableness of the statements through inquiry and analytical procedures.

Compilation Report: We expresses no assurance on the correctness of the financial statements. We only disclose, in the form of financial statements, information that is the representation of the management of the business entity. The most common reason for obtaining the more costly audited financial statements include the requirements of outside parties (such as banks, bonding companies, creditors, absentee owners, or potential purchasers). Reviews are adequate for many businesses because they give us enough familiarity with our clients to provide tax planning advice and a consulting perspective where appropriate. Compilations are generally appropriate for simple situations where limited business and tax advice is required.

One of the most popular year-end tax-planning strategies is tax-loss selling, which can help you reduce your capital gains tax. Particularly with the recent strong performance in the Canadian stock market, you may have significant taxable capital gains, triggered by selling stocks at a profit. Half of your net capital gain is taxable at your marginal rate. However, you can offset your capital gains with capital losses. While no one likes selling a stock at a loss, it can make sense when the stock no longer meets your investment objectives – and you can use the loss to reduce your taxes.

Your investment advisor can help you identify which stocks are suitable candidates for tax-loss selling.

Key dates: For Canadian tax purposes, a sale takes place on the “settlement date” – normally three days after you initiate the sale. If you are considering a tax-loss sale, make sure you allow enough time for the transaction to settle in 2021.

Initiate sale by:

• Canadian securities – December 27th, 2022 (closed on December 25th and 26th 2022) 
• US securities – December 27th, 2022 (closed on December 25th 2022) 

Offsetting gains in past or future years: Capital losses have to be used to offset capital gains the current year first. If the losses exceed the gains, then you can apply the excess amount against capital gains in the three previous years (2020, 2021, or 2022) or you can carry it forward indefinitely.

Superficial losses: Simply selling stock to trigger a loss, and then buying it back within 30 days is considered a “superficial loss” by the Canada Revenue Agency, which means that the loss will be denied. The superficial loss rule also applies when your spouse or a corporation controlled by either you or your spouse acquires or reacquires the same security 30 days before or after the sale.

There are many reasons why one might decide to use a holding company, which include:

• Corporate Planning: If you are a business owner you transfer the shares of your operating company (Opco) to a holding company (Holdco) and then you can pay part of the earnings of Opco to Holdco as a dividend each year. This is generally a tax-free, intercorporate dividend. Holdco then uses that money to purchase investments such as real estate, marketable securities, and other private businesses. If Opco requires more cash for any reason, Holdco can lend the money back to Opco. If the business owner personally withdraws the same earnings from Opco, the dividend will be taxable. However since the dividend to the holding company does not trigger any taxes, more funds are available to invest, and therefore more investment income can be generated. In addition, a Holdco can pay income to the business owner and other family members. If other family members are in low tax brackets, they will pay less tax on the income distributions than the major shareholder would. One can consider a holding corporation as a private pension plan. The owners can accumulate funds in a holding company during high earning years, and then withdraw these funds when they are required, often when they are taxed in lower brackets. Another benefit is the excess earnings are transferred out of the operating company every year. As a result, these amounts are generally protected from the creditors of the operating company. If necessary, Holdco can lend that money back to Opco on a secured basis to retain that protection from creditors.

• Estate Planning: If you die with many investments owned as an individual, each asset will have to be re-registered in the name of an heir, unless they are held in joint ownership with the intended heir. However, if you own the same investments in a company, transferring assets to an heir can be accomplished by simply transferring the shares of the holding company to the beneficiary. If you own investments personally, the use of a holding company can allow you to do an estate freeze so that future growth accrues to your intended heirs, perhaps children or grandchildren. Properly structured, future growth goes to your heirs’ common shares, but voting control stays with you. Your estate’s potential tax liability will be limited to the value of the investments at the date of the freeze – the taxes on the future growth will be deferred to some time in the future. If you reside outside of Quebec, there may also be some advantages in using a holding company to reduce probate fees.

• US Estate Tax: Canadian residents could be subject to US estate tax if they own “US sites property,” which includes shares in US corporations, among other things. If you’re otherwise subject to US estate tax on those securities, you can hold these investments in a Canadian holding company to avoid the estate tax.

• OAS Claw-back: Taxpayers start to repay any federal OAS received when their income exceeds $67,668. If the individual can transfer investments to a holding company, the individual’s personal income may be reduced below the level where the OAS claw-back applies.

Notice: While holding companies offer excellent planning opportunities for many individuals, this route should not be taken without first consulting with a qualified tax advisor.

Contact us if you have questions or comments.

UHY Victor LLP Canada US Tax Team

crossbordertax@uhyvictor.com

(514) 282-0067

A trust is a legal entity which is separate from its settlor (the person transferring property to the trust), its beneficiary (the person who can benefit from the transferred property) and its trustee (the person who controls and administers the trust property).

Spousal Trusts: A trust that is set up through a will upon one’s death is called a testamentary trust. A spousal trust is a form of a testamentary trust whereby specific property is set aside from the estate to be used to provide for the maintenance and support of the deceased individual’s surviving spouse. Generally, the income earned on the assets is paid to the surviving spouse, who also has the right to encroach upon capital if required. Upon death, Canadian tax laws deem that disposition of one’s property occurs at its fair market value as at the date of death. As a result, the appreciation in the value of a deceased person’s assets can trigger income taxes payable on the deceased’s final return. However, if certain conditions are met, the assets transferred directly to a testamentary spousal trust are deemed to be disposed at their original cost, which defers the income taxes otherwise payable on their unrealized gains.

Creating a Testamentary Spousal Trust in a will can accomplish the following:

• Defers the income tax on the deceased’s unrealized capital gains until the death of the surviving spouse.
• Creates a separate entity for tax purposes which allows income generated from the transferred property to be taxed in the trust. This effectively doubles the lower income brackets available to each individual thereby reducing the income taxes on income generated by the transferred property.
• Protects the deceased individual’s capital from exposure to potential creditors of the surviving spouse.
• Allows the deceased to appoint responsible trustees to safeguard the capital in the Spousal Trust from inappropriate investments and risks.
• Helps ensure payment of the income generated by the assets in the trust to the surviving spouse.
• Helps ensure that the deceased’s capital is protected and will eventually be transferred to the deceased’s chosen beneficiaries after the death of the surviving spouse. This may be important in second marriages where the spouses have children from a prior marriage.

Notice: While spousal trusts can make sense in certain situations, the rules can be complex and this route should not be taken without first consulting with a qualified tax advisor.

Please contact Ken Shemie if you have any questions or comments.

For technical details refer to the CRA’s IT305R4 “Testamentary Spouse Trusts”.

There are many reasons why one might decide to incorporate a business, which includes: Limited liability: A corporation is a legally separate entity from the owners. Accordingly, the shareholders’ personal assets can be protected from claims made by creditors of the business.

Tax advantages: Income taxes advantages can often be realized because:

• Business and professional incomes are generally taxed at lower income tax rates if they are earned by a corporation rather than earned personally.
• Substantial income taxes can be deferred if the owner-manager does not require all of the earned income for personal needs.
• Taxes can also be reduced by choosing to draw a calculated mix of salary and dividends.

Income splitting: Family members can also own shares of a corporation, which can allow for the payment of dividends (directly or through a family trust) to other adult family members who are in lower tax brackets.

Estate planning: Incorporating a business enables the owner-manager to freeze the value of the assets of the company so that the taxes on future increases in the value of the business can be deferred.

Small business capital gains exemption: The tax authorities permit the first $750,000 of capital gains on the sale of Canadian business to be tax-free.

Succession planning:  The use of a corporation can enhance the orderly transition of a business to family members or to acquirers of a business.

Continuity of existence: A corporation is a legally separate entity from the owners. Therefore the death of a shareholder does not bring about the end of a business. The businesses activities can continue uninterrupted, and the new owner will be the party that inherits the companies shares from the deceased individual’s estate.

Other considerations: The benefits of incorporation must be weighed against the additional costs and effort that are required to set-up and administer a corporation.

Notice: While the use of corporations offers excellent planning opportunities for many individuals, this route should not be taken without first consulting with a qualified tax advisor.

Please contact Sylvie Plante if you have any questions or comments.

This is a complicated and often challenging question!

• Click here to find out what is an FBAR.
• What is the 2019 filing deadline?

We regularly assist Americans residing in Montreal and across Canada and other countries deal with late FBAR filings and their potentially expensive FBAR late-filing penalties. Usually, we start reviewing the details, such as:

• Are they compliant with their Canadian income taxes

• Are the US 1040 personal income tax return filings up-to-date

• If the US tax returns were filed, were they deficient in some way? Problematic and often overlooked forms/issues can include form 3520, 3520a, 8891, 5471, sub-part “f” income, US Income Sourcing, etc.

• What is nature/location/magnitude of the accounts to be reported on the FBAR?

• Has all income been reported completely/correctly on the Canadian tax returns?

FBAR – Streamlined Program: The IRS “Streamlined Program” commenced in September 2012. This program is designed to facilitate the process for non-compliant individuals who are considered to be “low-risk” to bring their US tax filings up-to-date and potentially avoiding late filing penalties. This program requires filing 6 years of FBAR’s and 3 years of tax returns and can resolve the FBAR issue at the same time as the unfilled US tax returns.

However the “Streamlined Program”:

• Does not deal with the scenario where the tax returns (1040s) were filed and the FBAR’s were not filed;

• Does not offer the structural protections that exist for filers using other options such as the Voluntary Disclosure Program (OVDI), and;

• Many individuals do not qualify for the “Streamlined Program” because they do not meet the criteria for “low risk“. For instance, if their US tax returns reflect taxes payable of greater than $1,500/year, the submission is not considered “low risk”.

Clearly, most Americans who are not compliant with their FBAR filings are concerned with the penalties that can be levied on late FBAR’s. While the Streamlined Program does not provide any guarantees, it can be an attractive option for those who are US tax returns meet the IRS criteria of “low risk”.

FBAR – Voluntary Disclosure:  A voluntary disclosure is one method of rectifying deficient tax filings. Thus, if you reported, and paid tax on, all taxable income but did not file FBARs, do not use the voluntary disclosure process. Note FAQ 17 of the OVDI web page states:

“The purpose of the voluntary disclosure practice is to provide a way for taxpayers who did not report taxable income in the past to come forward voluntarily and resolve their tax matters. Thus, if you reported, and paid tax on, all taxable income but did not file FBARs, do not use the voluntary disclosure process.”

However many US and Canadian tax attorneys still recommend using the OVDI program because this FAQ appears to be IRS “policy” only, and is not actual law. The OVDI is an option which should be considered, but keep in mind that the voluntary disclosure process can be expensive and arduous. Our experience is that the IRS OVDI program is backlogged with files, and processing a file can take several years.

FBAR – Quiet Disclosure: Another option is the “Quiet Disclosure”, which consists of quietly mailing in late filings with no special program or cover information. Quiet Disclosures were often successful in the past based on the experience that the IRS processed these tax filings and penalties were rare. We do not recommend this option because the IRS has been alerted to this issue, and we have been informed that their ability to identify late-filings has increased, and they are intending to assess been late-filing penalties.

FBAR – Noisy Disclosure: Some practitioners are still advocating the “Noisy Disclosure” approach, which involves bringing taxpayers through the normal filing process, but with a carefully worded legal letter and personal contact with the IRS. The “Noisy Disclosure” option has not been endorsed by the IRS, and therefore there is little comfort that it avoids late filing penalties.

FBAR – New Filing Procedures: Effective July 1, 2013, FBARs must be filed electronically using the E-Filing System maintained by the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”). This mandatory electronic filing requirement applies to all FBARs, and to amendments of previously filed FBARs, that are submitted by individuals or by entities on or after the effective date.

Final Comment: American residents in Canada and elsewhere are becoming increasingly aware of FBAR filing issues. Great care should be taken when filing late FBARs because the penalties can be onerous. Note that in extreme cases individuals can be subject to criminal prosecution with jail sentences as well as high financial penalties.