T1135 - Just the beginning?

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Postby patriot1 » 04 Oct 2009 12:08

Well you certainly don't have to report anything held within an RRSP, RRIF or TFSA as they are Canadian domiciled trusts.

As for me, well I doubt I'll ever see the day when I have over 100K of taxable foreign holdings. :D
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Postby Clock Watcher » 04 Oct 2009 12:18

patriot1 wrote:Well you certainly don't have to report anything held within an RRSP, RRIF or TFSA as they are Canadian domiciled trusts.

As for me, well I doubt I'll ever see the day when I have over 100K of taxable foreign holdings. :D


In my case I have very little RRSP contribution room (about $1K a year), so I don't even bother. I figure when I retire, hopefully there will be enough room that I can put the non-sheltered part of my severance into it.
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Postby travesty » 05 Oct 2009 21:29

If someone has taken a look at their holdings in a prior year and realized that they have have eclipsed the $100k limit at some point in the prior year - and the time now is such that they would certainly pay the $2,500 fee if they submitted the form late, would it advisable to simply ignore this, file the form as required in upcoming years and hope nothing happens? It seems that the worst case outcome is simply having the pay the $2,500 fine, which is the best case outcome if you submit it late, voluntarily.
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Postby DenisD » 05 Oct 2009 22:08

travesty wrote:If someone has taken a look at their holdings in a prior year and realized that they have have eclipsed the $100k limit at some point in the prior year - and the time now is such that they would certainly pay the $2,500 fee if they submitted the form late, would it advisable to simply ignore this, file the form as required in upcoming years and hope nothing happens?


Possibly you could avoid the fine By making a voluntary disclosure?

BTW, the worst-case outcome is going to jail!
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Postby DenisD » 05 Oct 2009 22:47

DenisD wrote:BTW, the worst-case outcome is going to jail!


Could be I'm wrong about that. :oops: IANAL.
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Postby travesty » 05 Oct 2009 22:51

Yes, it seems like the voluntary disclosure program could work (it is a real shame that some people have not known and filed it late when this alternate method could maybe have avoided the penalties completely).

DenisD wrote:
DenisD wrote:BTW, the worst-case outcome is going to jail!


Could be I'm wrong about that. :oops: IANAL.


Yes I was going to comment that the penalties seem quite explicit - up to a maximum of $2,500 for unintentional non-disclosure (probably the default unless it can be proven otherwise) with progressively increasing penalities for willful non-disclosure such as ignoring CRA requests, but never any mention of jail (which presumably requires going to court, etc).
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Postby travesty » 29 Oct 2009 19:22

Does US property include stock holdings in an RRSP?

Edit: answered upthread!

patriot1 wrote:Well you certainly don't have to report anything held within an RRSP, RRIF or TFSA as they are Canadian domiciled trusts.
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Re:

Postby Bylo Selhi » 25 Jan 2010 18:55

brianmunich wrote:
pitz wrote:The 'problem' with the T1135, at least for a Canadian, is that the CRA routinely fines people, seperately, if they are late in filing their entire income tax return.

So while the late filing penalty on income tax is 5% or so of the amount owing (+ interest), there is a seperate fine for not filing the T1135 'on-time'.
Not sure if this should be in a separate thread, however i am experiencing a similar problem.

basically received NoA for 2007 with NIL balance, after late filing - all ok.
last week, received NoA stating late filing of T1135 (for 2007), and now a $2500 penalty PLUS interest. This is the first I have heard of this, so find it harsh to be fined the maximum penalty...

I just got a CRA dunning letter for this :(

Some background first. The letter is for my holding company. The holdco does own over $100k in US assets. However corporate tax returns for several years have included T1135s to declare this.

This year we filed late. The main reason was that our accountant retired and it took a while to get a replacement, transfer relevant files, etc. In any case, none of us were concerned about the 01Jul tax return filing deadline because there was no income tax owing (because the holdco pays us a management fee equal to its net income.)

So while there's no late filing penalty in respect of the tax return, CRA is using subsection 162(7)(a) to fine us for being late with just the T1135. Note that they acknowledge that they got the T1135, albeit a month and half late. Note that it's identical to the one we've filed in past years, i.e. it declares the same assets in the same value ranges. Note that there's no way to infer that we were trying to hide anything or to avoid paying taxes.

Nevertheless the letter of the law...
ITA 162 wrote:(7) Every person (other than a registered charity) or partnership who fails
(a) to file an information return as and when required by this Act or the regulations, or
(b) to comply with a duty or obligation imposed by this Act or the regulations is liable in respect of each such failure, except where another provision of this Act (other than subsection 162(10) or 162(10.1) or 163(2.22)) sets out a penalty for the failure, to a penalty equal to the greater of $100 and the product obtained when $25 is multiplied by the number of days, not exceeding 100, during which the failure continues."

Anyone have experience in dealing with this sort of thing? Is it worth filing an objection even as interest charges pile up? I'm concerned that if I pay up and simultaneously file an objection they won't be too sympathetic to that objection.
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Re: Re:

Postby ghariton » 26 Jan 2010 03:57

Bylo Selhi wrote:Anyone have experience in dealing with this sort of thing? Is it worth filing an objection even as interest charges pile up? I'm concerned that if I pay up and simultaneously file an objection they won't be too sympathetic to that objection.


I'd pay the amount they claim and file an objection anyway. The fact that you pay (under protest) should not affect the internal dispute resolution process. It certainly won't affect the decision of the Tax Court judge -- IMHO you're unlikely to get a serious hearing short of that stage. The good news is that you don't need a lawyer to go to Tax Court. Just tell your story. The bad news is that your chances of winning are small.

But I am not a tax lawyer.

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Re: Re:

Postby Bylo Selhi » 28 Apr 2010 16:19

ghariton wrote:It certainly won't affect the decision of the Tax Court judge -- IMHO you're unlikely to get a serious hearing short of that stage. The good news is that you don't need a lawyer to go to Tax Court. Just tell your story. The bad news is that your chances of winning are small.

Indeed :(

You file late at your peril
So, if you don't owe any tax, why rush to meet Friday's deadline?

Ask Jean-Claude Leclerc, who found himself in Tax Court after being assessed two late-filing penalties of $2,500 each, plus nearly $1,200 in arrears interest for failing to file Form T1135, the "Foreign Income Verification Statement" in both 2003 and 2006.

Form T1135 must be filed annually if the total cost of all your foreign investments, including foreign stocks (but not Canadian mutual funds with foreign holdings) held in non-registered Canadian brokerage accounts, was over $100,000.

The penalties for failing to file this form are severe: $25 per day, to a maximum of $2,500. If you knowingly or under circumstances amounting to "gross negligence," fail to file the form, the penalty jumps to $500 for each month the form is not filed, to a maximum of 24 months.

Historically, the CRA used to waive these harsh penalties for first-time, non-filing offences, but in recent years has been taking a harder line.

Mr. Leclerc filed his income-tax returns late in the two years in question, but there was no balance of tax payable and therefore no penalty was assessed for late filing those returns. He argued that his failure to file Form T1135 on time was due to his return to school and the illness of his mother.

Mr. Leclerc testified that he never failed to declare any foreign income and that the penalty was unreasonable since for 2003, it amounted to 148.4% of his total tax payable.

While the judge was sympathetic to Mr. Leclerc and agreed that he made an honest mistake caused by his ignorance of the consequences of not filing Form T1135 within the time limit, it was ruled that the penalties assessed by the CRA were properly imposed.

Added: Before adrian2 points it out, yes the enabling legislation was originally passed by a Liberal government. However it seems that it was under the "law-and-order" Conservative government that CRA was pressured into tightening the screws even on first time "offenders."
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Re: Re:

Postby adrian2 » 29 Apr 2010 08:41

Bylo Selhi wrote:Added: Before adrian2 points it out, yes the enabling legislation was originally passed by a Liberal government. However it seems that it was under the "law-and-order" Conservative government that CRA was pressured into tightening the screws even on first time "offenders."

It's not my habit to point the finger at the Liberals; as I've mentioned, they are my second choice for votes. OTOH...
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Re: Re:

Postby Bylo Selhi » 29 Apr 2010 12:43

adrian2 wrote:
Bylo Selhi wrote:Added: Before adrian2 points it out, yes the enabling legislation was originally passed by a Liberal government. However it seems that it was under the "law-and-order" Conservative government that CRA was pressured into tightening the screws even on first time "offenders."
It's not my habit to point the finger at the Liberals

OK let's assume that you've never pointed a critical finger at the Liberals :roll:

Do you believe that CRA's actions as described in Golombek's piece are "fair"? Do you believe that imposing draconian fines on people who make administrative errors (as opposed to those who evade tax) is a productive use of CRA's resources? Do you believe that the current minister of Revenue (of whatever political stripe) should be held accountable for this abuse of power by the department he leads?
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Re: Re:

Postby adrian2 » 29 Apr 2010 13:10

Bylo Selhi wrote:Do you believe that CRA's actions as described in Golombek's piece are "fair"? Do you believe that imposing draconian fines on people who make administrative errors (as opposed to those who evade tax) is a productive use of CRA's resources? Do you believe that the current minister of Revenue (of whatever political stripe) should be held accountable for this abuse of power by the department he leads?

No.
No.
No -- they are applying the letter of the law. Lobby for the law to become fairer, don't ask for the head of its enforcer because they are doing their job.
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Re: Re:

Postby Bylo Selhi » 29 Apr 2010 13:21

adrian2 wrote:No -- they are applying the letter of the law.
Indeed. However, they have discretion in how that law is applied. For some reason they've decided in recent years to tighten the screws, widen the net, or whatever. While correlation (with a new government) doesn't imply causation, it sure seems suspicious.

don't ask for the head of its enforcer because they are doing their job.
I'm not asking for his head. I'm, um, pointing out some unintended consequences when a bunch of law-and-order ideologues blindly decide to get tough with "tax evaders." I wonder how much revenue from actual tax evaders that this initiative has generated. I bet it's less than what they're raking in from people like Leclerc and me.
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Re: Re:

Postby IdOp » 29 Apr 2010 22:43

Bylo Selhi wrote:... it sure seems suspicious.

Maybe they want to encourage us to sell our US ETFs and replace them with more expensive Canadian substitutes, so they can tax the MER-based profits of the product providers? No wait, I'm being paranoid, the government is really there to help us.
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Re: Re:

Postby DenisD » 29 Apr 2010 23:01

Bylo Selhi wrote:and me

Maybe they're targeting you specifically. :shock: Payback for all those times you called the PM "Steve". :wink:
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Re: T1135 - Just the beginning?

Postby Bylo Selhi » 30 Apr 2010 14:49

You guys might have a smidgen of credibility if there was any likelihood that you'd take the same position if some other party was in power.

Maybe they want to encourage us to sell our US ETFs and replace them with more expensive Canadian substitutes, so they can tax the MER-based profits of the product providers?
There's actually a bit of logic to that. The foreign assets declaration form came about when the Chretien/Martin government began a crackdown on undeclared foreign assets. You may recall that without intervention from several groups, including this one, they were going to start taxing US ETFs on an annual mark-to-market basis. That's when your conspiracytheory might have held some water.
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Re: T1135 - Just the beginning?

Postby IdOp » 30 Apr 2010 22:15

Bylo Selhi wrote:You may recall that without intervention from several groups, including this one, they were going to start taxing US ETFs on an annual mark-to-market basis. That's when your conspiracytheory might have held some water.

Thanks, I didn't know about the mark-to-market thing.

I do think the theory may make some sense, although surely it's not significant enough to be a real motivation for them. As for the sense part: the US MERs they never get to tax, and the extra capital gains are taxed on a delayed basis at half the rate. If that stuff is in Canada, they get to tax it now at a corporate tax rate or some at the income tax rate of a well-paid manager. (And I haven't thought it through any more than that.)

<mini-rant>I guess my real beef with it is that those holding US ETFs seem to be innocent by-standers caught in the trap. I fully understand that world-wide income is to be reported to CRA and that there are people who evade this and they want to crack down. No problem with that. But if we hold these ETFs at a Canadian broker, then CRA already does get informed about every bit of income from them and not only that, every time we sell them so they know there's a capital gain to be reported. They should make an exemption for foreign property for which all income is already/otherwise reported to them for the whole year. Then we wouldn't have to file these blasted ill-defined forms every year, and worry about getting fined if we're late. :evil:

Since the consequences of CRA not receiving this form are so severe to the taxpayer, maybe people who file them should request written confirmation from CRA that they did receive them, just in case CRA ever loses what you sent them. Of course if they made a sensible exemption for foreign ETFs at a Canadian brokerage, less people would have to make this request. :twisted:
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Re: T1135 - Just the beginning?

Postby Bylo Selhi » 01 May 2010 06:49

IdOp wrote:the extra capital gains are taxed on a delayed basis at half the rate. If that stuff is in Canada, they get to tax it now at a corporate tax rate or some at the income tax rate of a well-paid manager.
CGs on appreciation of NAV are taxed the same way, i.e. deferred until the ETF is sold. OTOH distributions from US-based ETFs are taxed as ordinary income regardless of how they're characterised, i.e. capital gains and dividends are taxed at much higher rates. I suspect there's much more extra tax revenue from that than is foregone on taxation of 10bp MERs. So based on that treatment, CRA should prefer that we all own US rather than Canadian ETFs.

I guess my real beef with it is that those holding US ETFs seem to be innocent by-standers caught in the trap. I fully understand that world-wide income is to be reported to CRA and that there are people who evade this and they want to crack down. No problem with that. But if we hold these ETFs at a Canadian broker, then CRA already does get informed about every bit of income from them and not only that, every time we sell them so they know there's a capital gain to be reported. They should make an exemption for foreign property for which all income is already/otherwise reported to them for the whole year. Then we wouldn't have to file these blasted ill-defined forms every year, and worry about getting fined if we're late. :evil:
These are exactly the points I'm trying to make. ISTM the legislation was poorly worded. First, it didn't exempt foreign assets held in a Canadian account even though they're already "known" to CRA. Second, because the T1135 is bundled with standard annual tax returns, it's easy to miss the filing requirement and thus attract the draconian penalties that ensue, when someone files their tax return late because they don't owe any tax. In the past CRA used its discretion to waive T1135 penalties in such cases. For some reason they've recently decided to tighten the screws. Did they do that on their own initiative or were they directed to do so by the current government? (And regardless, why?)

Of course if they made a sensible exemption for foreign ETFs at a Canadian brokerage, less people would have to make this request.
AFAIK CRA has the power to do that administratively, i.e. using an Interpretation Bulletin. The same for waive late-filing penalties when the taxpayer has previously filed T1135s and/or for first-time "offenders" where there's no evidence of willful tax evasion. No change of legislation is required, especially if their current actions are perceived to be unfair.

P.S. to adrian2 et al. When I ran the campaign re taxation of US ETFs, my target was (Liberal) PM Jean Chretien and FM Paul Martin. One of the people I enlisted to help was (Reform) finance critic Jason Kenney. I even spoke with him on the phone a couple of times, presumably to help him prepare for Question Period. If I was as staunch a Liberal as you suppose, (a) why wouldn't I have gone directly to Martin and (b) why would I have used the Opposition to embarrass "my" party?
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Re: T1135 - Just the beginning?

Postby snowback96 » 01 May 2010 10:13

Leaving partisan politics aside, I would like to thank Bylo for taking an active role in helping kill the ridiculous mark-to-market proposals for US ETFs. :thumbsup:
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Re: T1135 - Just the beginning?

Postby Norbert Schlenker » 01 May 2010 10:43

The requirement that holdings of foreign securities held in street name by a Canadian broker must be disclosed on a T1135 surprises me every year. It makes no sense on its face. There must be some obscure reason that it's there, though, so I would be interested to hear some theories from FWF members. The only thing that comes to my mind is that transactions have no privacy protection from government's prying eyes while assets still do.
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Re: T1135 - Just the beginning?

Postby IdOp » 01 May 2010 14:08

Bylo Selhi wrote:CGs on appreciation of NAV are taxed the same way, i.e. deferred until the ETF is sold. OTOH distributions from US-based ETFs are taxed as ordinary income regardless of how they're characterised, i.e. capital gains and dividends are taxed at much higher rates. I suspect there's much more extra tax revenue from that than is foregone on taxation of 10bp MERs. So based on that treatment, CRA should prefer that we all own US rather than Canadian ETFs.


Bylo, thanks for clarifying that, I wasn't looking at it properly :oops:. What I had in mind was a situation where the ETF paid no distributions, and in that context what I wrote should make more sense. But in reality that's irrelevant since ETFs do pay distributions higher than the MER, as you indicate.

But let's look at that closer, with a hypothetical example. The numbers in the example are not as important as the general idea. Suppose a Canadian investor wants exposure to the broad US market. He has two options:

First, he can buy a US ETF with a 10bp MER and a 2% distribution that is reduced to 1.9% after the MER. After one year the fund also has a capital gain of 6% that is unrealized until sold. The CRA gets to tax 1.9% as foreign income in the hands of the investor. 0.1% is lost to them.

OR: he can buy an equivalent (market) Canadian ETF with an MER of 35bp. The 6% capital gain is the same as above. The investor receives foreign income of only 1.65%, again taxed at his rate. But the other 0.35% is not all lost to the CRA. Some of it is profit for the fund company that is taxed at the corporate rate. The rest is used as company expenses, but paid to others like the fund manager, information systems consultant, mail-room clerk, etc. Most of that money may stay in Canada and eventually be taxed as profit for other companies or income for people, many of whom are well paid.

So it's not at all clear which way the CRA gets more money, is it?

Which corrects the conclusion I got by ignoring the distribution, which was not the right way to look at it in most cases, so I'm glad you caught it! Apologies for the confusion and to the CRA (on this one ;)).
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Re: T1135 - Just the beginning?

Postby Bylo Selhi » 01 May 2010 16:25

Norbert Schlenker wrote:There must be some obscure reason that it's there, though, so I would be interested to hear some theories from FWF member.

I'll invoke Ockham's razor: poor wording of the T1135 enabling legislation.

Recall that Martin was going after tax evaders in 1999. The initial draft cast a very wide net that caught all sorts of red herrings, including US mutual funds and ETFs. After protests from far and wide Finance relaxed the FIE definition to exclude anything that's listed on a prescribed stock exchanges, including those in the US. They've been tinkering with that stuff ever since. The final legislation to define FIEs still hasn't passed according to this chapter from Arnold's Taxation of the Foreign-Source Income of Canadian Residents. If we could find the rest of the book it might explain the T1135 situation better. My guess is that they didn't relax the T1135 wording in tandem with the FIE wording.

The only thing that comes to my mind is that transactions have no privacy protection from government's prying eyes while assets still do.
Interesting. But then since CRA knows what you buy and sell, as well as what income you derive from it they should be able to deduce what you have at a coarse enough level to satisfy the same needs as the T1135 provides. ISTM this would be more convenient for all parties since no additional paperwork would need to be filed.

Added: In any case, the same privacy protection applies to Canadian securities held in a Canadian brokerage account. So why doesn't CRA need a T1135 (or equivalent) for Canadian securities?

IdOp wrote:So it's not at all clear which way the CRA gets more money, is it?
Which is partly why I don't think the MER difference is what motivates CRA's new get-tough policy on T1135s.
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Re: T1135 - Just the beginning?

Postby Bylo Selhi » 19 Oct 2010 15:25

In part to prove to adrian2 that I read more widely than just the Red Star, this from today's Notional Pest, suggests that CRA's casting its T-1135 net far and wide. And worse, their catches are being upheld in tax court.

Own foreign securities? You may be fined $2,500
The requirement to disclose foreign investments held in Canadian brokerage accounts seems to make little sense and can lead to severe penalties even if the foreign income from the "non-disclosed" investments was fully reported...

These seven cases, along with three other similar decisions, now bring the total to 10 reported federal court cases in the past year or so dealing with failed attempts by taxpayers to get relief from penalties and interest for late-filed T1135 forms.

Not withstanding any reversal upon appeal, which has already been filed, it's high time that the legislation was reformed to either formally introduce a "one-chance policy" or, even better, to carve out foreign securities held in Canadian brokerage accounts from the definition of "specified foreign property" required to be reported on Form T1135.
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Re: T1135 - Just the beginning?

Postby crystals » 16 Apr 2011 22:21

I'm using Studio Tax for a return. Studio Tax doesn't seem to be able to include a T1135. Should the tax payer
(1) EFile everything else, print and hand fill T1135 then mail in T1135 only;
(2) Print all pages done by Studio Tax, print and hand fill T1135, then mail in everything without EFiling;
(3) Pay for a different software that has T1135 and EFile;
(4) Is there a free software that has T1135 and support EFile?
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