Receipt fraud by tax preparers

CRA wins and warns on gifting tax shelters

The adage “if it’s too good to be true …” does not appear to be a sufficient warning for some taxpayers to resist participating in fraudulent donation tax schemes.

Indeed, it seems to have become a regular part of the Canada Revenue Agency’s communications efforts to warn against tax schemes masquerading as legitimate charitable operations.  Unfortunately, the message does not appear to be getting to everyone, or at least it is not being heeded as much as may be hoped.

This past November, rulings were handed down denying nine appeals of reassessments originating out of the same tax preparation firm.  But that’s just the tip of the iceberg.

Mehfuz Trust and the Raza brothers

According to the judgments, Mashud Miah’s son survived a premature birth in Vancouver, motivating the father to establish a charity in the child’s name in 2000-2001.  In its early years, the Mehfuz Trust may have properly served its purpose of funding a children’s medical clinic in Mr. Miah’s homeland Bangladesh.  By 2009, tax controversy led to the closure of both charity and clinic.

Mr. Miah served as chairman of the trust, which was established with the assistance of a Fareed Raza, a tax preparer.  Mr. Miah’s other occupation was in janitorial services, including cleaning for Mr. Raza’s office.

Anatomy of a tax investigation

At a CRA internal training session in 2008, an investigator from the Vancouver enforcement office learned how her Toronto colleagues had been uncovering false charitable receipt schemes perpetrated by some tax preparers.

Upon returning to her home office, the investigator began looking into significant donations going to the Mehfuz Trust through the tax preparation offices run by Fareed and Saheem Raza.  Not only were the donations out of character with past giving patterns, many taxpayers appeared to be donating a very significant portion of their net income.

A criminal investigation of the tax preparation office led to the seizure of files and records.  The evidence showed that the actual amounts donated were as little as 10% or less than the amount claimed by the taxpayer.  As well, the form used for the inflated receipts differed from the official receipts issued by the Mehfuz Trust.

It was Mr. Miah who had reported the Raza brothers to the CRA in the spring of 2008, having come across the impugned receipts in the hands of Saheem Raza.  Even so, the judge was critical of Mr. Miah who had signed the charity’s annual returns each year, which clearly showed the inflated receipt amounts well in excess of the known actual donations.

The seizure of the office records gave the CRA a roadmap of which taxpayers to audit and eventually reassess as far back as 2003, well beyond the normal reassessment period (being generally three years from original assessment).

Of course these court rulings were only with respect to those taxpayers who appealed their reassessments.  The Vancouver CRA investigator estimated that the total forged receipts through this operation amounted to approximately $12,000,000, resulting in initial lost tax revenue of about $4,700,000.

Latest warnings from CRA

Unrelated but roughly coinciding in time with the release of these judgments, in late November the CRA posted yet another Alert on its website about gifting tax sheltering schemes.

The posting is a reminder that taxpayers who claim credits based on such tax shelters will have their assessments (and potential refunds) withheld until the corresponding tax shelter has been audited.  And if a claimed amount is in dispute, 50% of the assessed tax must be paid pending resolution of the dispute.

That said, the cases above were not registered tax shelters, but simply the sale of fraudulent charitable receipts.  Perhaps “buyer beware” should be added to “too good to be true”.

Tax relief on charitable donations at death: More flexibility for executors and estates

While donations to charity should always be driven by philanthropic desire, tax issues can influence the manner and timing of a gift.

Our tax system provides a fair amount of flexibility to allow donors to manage the fiscal component in an optimal manner. Although the charitable tax credit is limited to a donation amount up to 75% of a taxpayer’s net income, any unused amount may be carried forward up to five years.

This carry-forward opportunity obviously has limited value for donations made at death. In recognition of this, special rules have long applied to estate-related donations. Here are some milestone developments in this field, including the most recent evolutionary development coming out of the 2014 Federal Budget.

Section 118.1 of the Income Tax Act (Canada)

This is the section of the Act dealing with claiming the charitable donations tax credit. It spans three dozen or so subsections.

Rather than the general 75% limit, the donation limit is 100% when claimed in the year of death, or “terminal year”.  Any excess may be carried back to the year prior to death, where again the higher 100% threshold applies. Donations made by way of a donor’s Will are deemed to occur in the donor’s terminal year, and may also be carried back to the prior year.

As discussed below, there are modifications coming out of the 2014 Federal Budget, but the foregoing rules will continue to apply for deaths occurring before the end of 2015.

2000 Federal Budget Designations in favour of charity

Up until February 2000, donors faced a conundrum when determining how to make donations sourced from a registered retirement savings plan, registered retirement income fund or life insurance policy. To take advantage of the deemed donation at death, such proceeds had to come into the estate, and in turn be donated via the Will provisions. Of course, this potentially exposed those proceeds to estate creditors, probate tax (where applicable) and administrative delay.

In order to provide consistency in the income tax rules, the 2000 Federal Budget allowed direct beneficiary designations to also be deemed to occur in the donor’s terminal year, with the same carryback provision. It applied retroactively with respect to deaths after 1998. (The treatment was extended to beneficiary designations from tax-free savings accounts once they became available in 2009.)

2014 Federal Budget – Estate donations

A donation made by an estate will initially be applied against the estate’s income tax otherwise payable.   Donations made by Will and direct beneficiary designations will now be deemed to have been made by the estate. However, for qualified donations occurring in the first 36 months of the estate, the trustee of the estate will have the flexibility to allocate the available donation among any of:

  • the taxation year of the estate in which the donation is made;
  • an earlier taxation year of the estate; or
  • the last two taxation years of the individual

This measure will apply for donations when death has occurred after 2015. For other estate donations (i.e., past the 36-month limit), the credit may be claimed in the donation year, again with the five-year carryforward.

For testator/donors, this greater flexibility may allow individuals to simplify otherwise more complex estate planning previously put in place to work around then-existing hurdles.

For executors, not having to rush to dispose of assets will doubtless provide some welcome relief.  Prior to this change, a donation by Will had to occur within the estate’s first year in order to qualify for carryback.  This was particularly challenging where the estate was named as a residual beneficiary, since most of the estate activity had to be complete before determining the donation value, let alone delivering the cheque.  With the longer timeframe now available, executors may take more time to realize assets with greater due diligence.  Of course, they should otherwise perform their duties with appropriate expediency.

Direct beneficiary designations will continue to be the most efficient route for timely and intact delivery to the charity.  Where the particular plan proceeds may be needed for the estate’s liquidity however, it may be necessary to channel funds through the estate proper.  A coordinated consultation among executor, lawyer and financial advisor should help guide the options and implement the plan.

Claiming tax credits for charitable donations at death

At issue

While donations to charity should always be driven by philanthropic desire, tax issues can influence the manner and timing of a gift.

Our tax system provides a fair amount of flexibility to allow donors to manage the fiscal component in an optimal manner.  Although the charitable tax credit is limited to a donation amount up to 75% of a taxpayer’s net income, any unused amount may be carried forward up to five years.

This carryforward opportunity obviously has limited value for donations made at death.  In recognition of this, special rules have long applied to estate-related donations.  Here are some milestone developments in this field, including the most recent evolutionary proposal from the 2014 Federal Budget.

Section 118.1 of the Income Tax Act (ITA)

This is the section of the ITA dealing with claiming the charitable donations tax credit.  It spans three dozen or so subsections, with the key provisions regarding donations at death in ss.(4) through (5.3).

Rather than the general 75% limit, the donation limit is 100% when claimed in the year of death, or “terminal year”.  Any excess may be carried back to the year prior to death, where again the higher 100% threshold applies. Donations made by way of a donor’s Will are deemed to occur in the donor’s terminal year, and may also be carried back to the prior year.

Federal Budget 2000 – Designations in favour of charity

Up until February 2000, donors faced a conundrum when determining how to make donations sourced from a RRSP, RRIF or life insurance policy.  To take advantage of the deemed donation at death, such proceeds would have to come into the estate, and in turn be donated via the Will provisions.  Of course this would potentially expose those proceeds to estate creditors and administrative delay.

In order to provide consistency in the income tax rules, the 2000 Budget allowed direct beneficiary designations to also be deemed to occur in the donor’s terminal year, with the same carryback provision. It applied retroactively with respect to deaths after 1998.

(The treatment was extended to beneficiary designations from TFSAs once they became available in 2009.)

Federal Budget 2014 – Estate donations

A donation made by an estate may only be applied against the estate’s income tax otherwise payable. As proposed, donations made by will and direct beneficiary designations will now be deemed to have been made by the estate.  For qualified donations occurring in the first 36 months of the estate, the trustee of the estate will have the flexibility to allocate the available donation among any of:

  • the taxation year of the estate in which the donation is made;
  • an earlier taxation year of the estate; or
  • the last two taxation years of the individual

This measure will apply for donations in the context of a death that occurs after 2015.  For other estate donations, the credit may be claimed in the donation year, again with the five year carryforward.

Practice points

  1. This greater flexibility may allow individuals to simplify otherwise more complex estate planning previously put in place to work around some of these hurdles.  A coordinated consultation with lawyer and financial advisor might be considered.
  2. Direct beneficiary designations will continue to be the most efficient route for timely and intact delivery to the charity.  Where the particular plan proceeds may be needed for the estate’s liquidity however, it may be necessary to channel funds through the estate proper.
  3. Where a legacy donation requires conversion to cash, this should provide estate trustees with some welcome relief not to have to rush to dispose of assets.  Of course, they should otherwise perform their duties with due expediency.