Here is an agenda for the Blumbergs' Charity Law Institute 2015. You can register here.
Here is an agenda for the Blumbergs' Charity Law Institute 2015. You can register here.
We are compiling a list of Canadian cases dealing with charities, gifting and related issues. Let us know if you have any other suggestions:
Mark Blumberg will be team teaching, with Valerie Campbell and Sharilyn Hale, the Humber Fundraising Management Course "Ethical and Legal Issues". It was previously taught by Ken Wyman so we will have big shoes to fill.
In the recent Supreme Court of Canada decision Guindon v. Canada - 2015 SCC 41 the SCC has upheld the third party civil penalties provided under the Income Tax Act.
The CRA has revoked the Canadian Friends of Pearl Children for involvement with what CRA would term an abusive charity gifting tax scheme.
Properly issuing official donation receipts has been challenging for many registered charities. According to the CRA, 89% of registered charities that are audited are not correctly issuing official donation receipts. Issuing incorrect receipts can result in revocation or penalties. It is easier to do it right than fix problems later! Here is a new half-day program from Blumbergs entitled "Fundamentals of Receipting by Canadian Charities".
In Arthur v. The Queen, 2015 TCC 43, Juliet Arthur was appealing a reassessment made by CRA relating to two receipts. The case provides a good summary of the cases dealing with lack of appropriate documentation for donations - especially when they are either cash or gifts in kind. The TCC dismissed the appeal with "Considering the evidence as a whole, I conclude that the appellant has not shown on a balance of probabilities that she made a charitable donation in the total amount of $3,529 to Emilia in 2006, even though a receipt was provided which purported to show that she had done so."
The Australian website Pro Bono Australia has published an article on an Australian Federal Court decision to impose a $1.5 million fine on a "fake philanthropic scheme was modelled on an arrangement which previously failed in Canada, and involved the purchase and donation of AIDS pharmaceutics to charities in Africa." It is interesting that as we are considering in Canada the constitutionality of civil penalties, that the Australians are imposing such civil penalties on Canadians for schemes offered in Australia by a Canadian company. It is also interesting that these type of abusive charity gifting tax schemes issued receipts in Canada for over $6.3 billion dollars. The "success" in Australia was much more limited and perhaps 1/1000 of that.
The Canada Revenue Agency has distributed a press release that it has revoked the registration of African Computer and Technology Literacy Awareness Program (ACTLAP) Inc. for involvement with an abusive charity gifting tax scheme.
In a recent case French v. The Queen, 2015 TCC 35, the CRA asked that certain arguments related to defining a gift be struck as they had no hope of success. Campbell J. Miller of the Tax Court of Canada agreed with CRA. The argument made by a group that had invested in an abusive charity gifting tax scheme (Ideas Canada Foundation) relates to bijuralism or that within Canada there are two legal traditions (namely common law and civil law) and that they have slightly different views on a gift and that there was ambiguity in the common law definition and that the civil law definition should be used to interpret what is a gift.. The court concluded that the bijuralism argument is not novel and that it is hopeless. "I find reliance on Québec laws to interpret common law, when the common law is clear, is not arguable." TCC continued "I find no basis upon which the Appellants can mount any argument that would extend the civil law definition of gift to the advantage of taxpayers in common law jurisdictions for purposes of the Charitable Donation Tax Credit. Their position with respect to this argument is hopeless." The TCC found that with respect to the definition of a gift "There is no confusion. There is no ambiguity."
Should CRA do a better job of warning Canadians about abusive charity gifting tax schemes? Well a group of Plaintiffs who participated in the abusive tax shelter gifting scheme Global Learning Group Inc (GLGI) thinks so. "The Plaintiffs made a claim in negligence in 2011 against Her Majesty the Queen, the Canada Revenue Agency [CRA], and the Attorney General of Canada for the CRA’s alleged breach of its duty of care by failing to properly warn the Plaintiffs in a timely fashion of the consequences that could follow from their participation in the GLGI program."
According to Canadian Press "The federal revenue agency can now hand the police possible evidence of serious crime — including terrorist activity — that it happens to come across while reviewing taxpayer files. The Canada Revenue Agency gained the little-noticed new authority, which does not require a judicial warrant, through an amendment tucked into the government's most recent omnibus budget bill." At the moment CRA is largely muzzled when it comes to sharing information - certainly with the public but even confidentially with other departments.
A few years back the Australian government set up the Australian Charities and Not-For-Profit Commission (ACNC). Then a new government came into power and decided that having the ACNC was just red tape and that it should be abolished. Thankfully that new government has done some reconsidering. Here is an article from Pro Bono Australia http://shar.es/1oiJBZ
Here is an updated version of the Canadian Charity Legal Checklist. For those who are interested in reviewing legal compliance for their registered charity they may find the checklist helpful.
The CRA Corporate Business Plan discusses CRA plans. It provides some interesting information on the Charities Directorate. Here are some of the highlights:
CBC discusses charitable giving in an article entitled "Holiday giving? Don't pick a charity by financial statements alone: Research, volunteer and donate directly if you want to give smart this holiday season".
We are looking forward to presenting the Blumbergs' Canadian Charity Law Boot Camp 2015 on April 14, 2015. For information or to register see: Blumbergs' Canadian Charity Law Boot Camp 2015
The Charities Directorate of the Canada Revenue Agency has revoked the charitable registration of Ecotecture: Centre for Ecological Art and Architecture for its involvement in a scheme known as the Via Project or Vintage Iconic Archives. The former registered charity had issued over $200 million in receipts.
Tax Court of Canada has released a number of judgements dealing with false receipting this week. The cases all relate to a scheme in Vancouver involving the issuance of approximately $12 million in false receipts. The cases of Azim Bani (2012-35421(IT)I, Jose Vekkal (2013-882(IT)I), Remmy Vekkal (2013-883(IT)I), Martin Izkendar (2013-220(IT)I), Ruben Nocon (2013-635(IT)I), Iraj Rasuli (2013-886(IT)I), Khorshid Rasuli (2013-887(IT)I), Ladan Abootaleby-Pour (2013‑1779(IT)I) and Oleg Komarynsky (2013-3354(IT)I) all related to this scheme. In one case for example it notes that CRA "alleges that the Appellant purchased false charitable donation receipts from his accountants, Fareed Raza and Saheem Raza (the “Raza Brothers”). The Raza Brothers provided accounting and tax services under the trade names Fareed Raza & Co. Inc. and F & A Accounting Corporation (“FA”). The Raza Brothers were charged with fraud for making false statements on income tax returns prepared by them for their clients." The Tax Court of Canada disallowed these false receipts.
CRA has put up another reminder to Canadians about abusive charity gifting tax shelters. The title is "Warning: be cautious if you are thinking of participating in a gifting tax shelter schemes"
The Supreme Court will be hearing the Guindon case in December. The case deals with the constitutionality of certain penalties that are provided for in the Income Tax Act (Canada). We have discussed the case in an earlier blog posting. It will be interesting to see what the Supreme Court of Canada decides in this matter. Apparently only about 50 such penalties have been imposed by CRA over the last decade but the ability to impose penalties is significant.
The recent terrorist attacks in Quebec and Ottawa are a reminder of the impact of terrorism. Canadian charities are an important part of Canadian society and it is important that they protect their employees, volunteers, and other resources from terrorist abuse.
The CRA announced that it has revoked a charity, Skyway Foundation of Canada, for issuing inflated receipts for donations of marketable securities. In our Receipting Kit we note: "When a donor donates shares on certain stock exchanges, the CRA has “as a general rule, accepted the use of the closing bid price of the share on the date it is received or the mid-point between the high and the low trading prices for the day, whichever provides the best indicator, given the circumstances, of fair market value on normal and active market trading.” In some cases, such as thinly traded shares, this may not be appropriate." CRA notes in its press release that "During 2008, a private group of taxpayers engaged in transactions designed to artificially inflate the value of publicly traded shares. These shares were subsequently donated to the Organization which, in turn, issued official donation receipts totaling approximately $2.6 million. Subsequent to the donation, in 2009, these shares lost nearly 95% of their value resulting in a substantial loss to the Organization." it appears that this revocation was for thinly traded shares that were artificially inflated.
I was delighted to read a publication "Donor Beware: Investigation into the sufficiency of the Canada Revenue Agency's warnings about questionable tax shelter schemes". The special report was prepared in December 2013 by J. Paul Dubé, the Taxpayers' Ombudsman. The 39 page report rips into charitable gifting tax shelters. Although it is generally very positive about the work of CRA in trying to educate taxpayers and denying the tax credits it does make some recommendations for CRA to increase educational efforts to donors on the dangers of these schemes. I was quite pleasantly surprised that there were a number of references to articles I have written or websites that I edit.
On October 3, 2014, CRA released an updated resource on tax shelter arrangements on the CRA website. This page provides detailed information on what is a tax shelter, provides links to case law dealing with tax shelters, and cautionary steps for individuals considering getting involved in a tax shelter.
Do you require legal advice with respect to Canadian or Ontario non-profits or charities?
Mark Blumberg is a partner at the law firm of Blumberg Segal LLP in Toronto and works almost exclusively in the areas of non-profit and charity law.