Bankruptcies and Consumer Proposals are designed to legally release Canadians from the burden of tax debt, while leaving their retirement savings intact. But when the Canada Revenue Agency (CRA) gets involved, things may end up playing out in various unexpected ways, including a visit to Bankruptcy Court.
Like any other organization owed money, the CRA has the right to oppose a taxpayer’s discharge from Bankruptcy and petition the Bankruptcy Court to decide the outcome. Luckily, the CRA will not normally oppose a discharge. When they do oppose it is because the tax debt is large or the taxpayer has failed to file back taxes. In extreme cases there could be an accusation of tax evasion or fraud or the taxpayer has attempted to evade CRA collection efforts.
In these cases, the CRA is prone to oppose the discharge and a Court hearing gets scheduled. Even if the CRA itself does not request opposition to the Bankrupt’s discharge, the Bankruptcy & Insolvency Act (The BIA) legally requires a discharge hearing if tax debt is over $200,000 and 75% of the total debt owing.
Prior to any hearing, the CRA is often willing to discuss and negotiate a settlement with the taxpayer and the Insolvency Trustee. The CRA could (for example) allow the taxpayer to be discharged from the Bankruptcy if a financial settlement is agreed to and paid to the Trustee and if the Bankrupt remains current with any post-bankruptcy tax obligations. The Bankruptcy Court must then approve these settlement arrangements before a discharge is issued.
In the rare case where a settlement cannot be reached, a discharge hearing will proceed. However, this is no reason to panic. The discharge hearing is not a criminal hearing, and it is not overly formal or contentious. Some taxpayers even retain their own legal counsel to assist them at these hearings.
Here’s how it works: First, the taxpayer explains why tax debt was not paid. The Bankruptcy Court, the CRA and the Insolvency Trustee then question the taxpayer about their financial affairs. Then the CRA representative has time to explain their concerns. All parties then present written submissions to the Court with their recommended resolutions listed. After reviewing all of the submissions, the Bankruptcy Court makes its decision.
In making a decision, the Bankruptcy Court considers many factors. When the income tax debt is less than $200,000 (or less than 75% of the total debt), the Court may review: The taxpayer’s personal circumstances and their ability to pay, whether the taxpayer has a lengthy history of ignoring tax obligations, whether the purpose of the Bankruptcy was to avoid tax obligations, will consider the taxpayer’s lifestyle – is it lavish? The Court will also determine if the taxpayer failed to remain current with their post-Bankruptcy tax obligations.
In cases where the income tax debt is more than $200,000 and 75% of the total debt, then the Bankruptcy Court will review: The taxpayer’s circumstances when the tax debt was incurred, the taxpayer’s efforts (if any) to pay down the tax debt before the Bankruptcy was filed, enquire if the taxpayer made payments to other creditors but not towards their tax debt and determine the taxpayer’s future financial prospects.
The Bankruptcy Court also considers prior decisions made by courts across the country. These decisions are called “precedents”, and the Court will do its best to follow them. Based on any precedents the Court may require the taxpayer to:
– Remain in Bankruptcy for a certain period of time (for example, an additional 6 months)
– Repay between 1% and 15% of the tax debt owing
– Prove they have remained up to date with any post-Bankruptcy obligations to the CRA
These are known as “conditions”, and they must be completed before the taxpayer can be discharged. In rare cases, the Court can order a taxpayer to pay more than 15% or even refuse to release the taxpayer from Bankruptcy. In such cases the taxpayer was often found to have engaged in unethical behaviour, such as tax evasion or fraud.
Keep in mind that the amount a taxpayer could repay in a Bankruptcy or Consumer Proposal is normally significantly less than the total debt, especially when considering the amount of penalties and interest avoided by filing. But only a licensed insolvency professional can help taxpayers deal with the CRA.