CEWS & Revenue Tax Act Part 125.7: Canadian Tax Lawyer’s Information – Tax

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Introduction – The Canada Emergency Wage Subsidy

Many Canadian businesses have been impacted by the ongoing

COVID-19 pandemic. While many businesses are experiencing financial

hardship, some of them are unable to pay their employee’s

wages. In response, the Government of Canada introduced the Canada

Emergency Wage Subsidy (CEWS) in April 2020. The CEWS subsidies a

portion of an employee’s wages for eligible employers. The

purpose of the CEWS is to (1) allow employers to maintain their

employees on the payroll during the pandemic; (2) prevent job loss

and layoffs; and (3) create new employment opportunities.

Effective April 11, 2020, Canada’s Income Tax Act was

amended to introduce the CEWS. The CEWS rules apply by

“deeming qualified entities to have overpaid tax and then

giving the Minister discretion to refund them (all or part of) the

deemed amount.” To be a qualifying entity under subsection

125.7(1) of the Income Tax Act, a Canadian employer must have

experienced a reduction in revenues from the average of its

revenues in January and February 2020 or from revenues for the same

month in the prior calendar year. The deemed overpayment amount is

determined using the formula set out in subsection 125.7(2) of the

Income Tax Act. Subsection 152.7(3.4) of the Income Tax Act grants

the Minister power to, at any time, determine the amount deemed by

subsection 125.7(2) of the Act to constitute an overpayment and

issue a notice of determination to the employer. Further,

subsection 164(1.6) of the Income Tax Act grants the Minister the

discretion to refund all or part of the deemed overpayment.

In Iris Technologies Inc. v. R the Federal Court

dismissed the Canadian tax litigation lawyer for the Minister of

National Revenue’s (the “CRA”) motion to set aside a

decision of Prothonotary Kevin Aalto (the

“Prothonotary”), who dismissed the Minster’s motion

to strike the taxpayer’s, Iris Technologies Inc.,

application for judicial review of the June 19, 2020 decision,

wherein CRA denied Iris’ claims for the CEWS for Periods 1 and

2, and a July 10, 2020 decision, wherein CRA denied Iris’ claim

for the CEWS for Period 3. This decision sheds light on the CEWS

measures incorporated into the Income Tax Act and the CRA’s

discretionary power and limits under these measures. This article

provides tax guidance related to the CEWS rules under the Income

Tax Act and the Canada Revenue Agency’s (CRA) tax audit of CEWS

claims.

The CEWS Eligibility Criteria

Employers that have experienced a decline in revenue due to the

COVID-19 pandemic may be eligible for the CEWS to cover a portion

of their employee wages, retroactive to March 15, 2020. To be

eligible to receive the CEWS, applicants must meet the following

criteria:

  • Have a CRA payroll account on March 15, 2020:
    • Applicants who did not have a CRA payroll account on March 15,

      2020 may still qualify for the CEWS if:
      • Another person or partnership made remittances on their behalf;

        or,
      • They purchased all (or almost all) of another person’s or

        partnership’s business assets.
  • Be one of the following types of employers:
    • Individuals
    • Corporations or Persons (that are not exempt from Part I of the

      Income Tax Act)
    • Registered charities
    • Partnerships consisting of eligible employers
    • Specific private organizations
  • Have experienced a drop in revenue.

The CEWS Application Process

There are three ways to apply for the CEWS online:

  • My Business Account
  • Represent a Client
  • The CEWS Web Forms application

Applicants must submit a separate application for each CEWS

claim for which they are eligible to apply, and for each payroll

account they have with the CRA. Generally, CEWS applicants who are

registered for direct deposit through their payroll account with

the CRA receive the payment within 3 to 8 business days. However,

in certain circumstances, CEWS payments may be delayed if

additional review (of a CEWS claim) is required or if the CEWS is

paid by cheque. It should be noted that only business

representatives authorized at level 2 or 3 will be able to apply

online under the Represent a Client option.

The CEWS Claim Period

The time frame for each CEWS claim is 4 weeks, beginning on a

Sunday. Applicants must confirm their eligibility according to the

specific period for which they are applying. The CEWS was

introduced in April 2020 with the following claim period:

  • Period 1: March 14 to April 11, 2020
  • Period 2: April 12 to May 9, 2020
  • Period 3: May 10 to June 6, 2020
  • Period 4: June 7 to July 4, 2020
  • Period 5: July 5 to August 1, 2020
  • Period 6: August 2 to August 29, 2020
  • Period 7: August 30 to September 26, 2020

Subsequently, the Government of Canada announced its plan to

extend the CEWS, as part of its measures to create new jobs and

restore employment levels to pre-pandemic. Consequently, the

following claim periods were introduced:

  • Period 8: September 27 to October 24, 2020
  • Period 9: October 25 to November 21, 2020
  • Period 10: November 22 to December 19, 2020
  • Period 11: December 20, 2020 to January 16, 2021
  • Period 12: January 17 to February 13, 2021
  • Period 13: February 14 to March 13, 2021
  • Period 14: March 14 to April 10, 2021
  • Period 15: April 11 to May 8, 2021
  • Period 16: May 9 to June 5, 2021
  • Period 17: June 6 to July 3, 2021
  • Period 18: July 4 to July 31, 2021
  • Period 19: August 1 to August 28, 2021
  • Period 20: August 29 to September 25, 2021

Iris Technologies Inc. v the Minister

Facts

Iris Technologies Inc. (Iris) is a Canadian corporation that

provides telecommunications services to Canadians and abroad. Iris

filed applications for the CEWS for periods 1 through 3. Iris

reported that its revenues declined in all three periods by 95.92%,

88.57% and 97.08%, respectively, compared to its average revenue

earned in January and February of 2020 and “more than the

requisite threshold reduction for the same months in

2019”.

Backgrounds

On August 28, 2020, the Canadian tax litigation lawyer for Iris

filed a Notice of Application (Application) for judicial review,

pursuant to sections 18 and 18.1 of the Federal Courts

Act. Specifically, Iris’s Application for judicial review

was of the June 19, 2020 decision, wherein CRA denied Iris’

claims for the CEWS for Periods 1 and 2, and a July 10, 2020

decision, wherein CRA denied Iris’ claim for the CEWS for

Period 3. On October 2, 2020, the Canadian tax litigation lawyer

for the CRA brought a motion seeking to strike Iris’

Application, without leave to amend. CRA’s motion relied on the

affidavit of Marie Lusson (the “Lusson Affidavit”)

wherein the CRA determined that Iris’ entitlement to the CEWS

for Periods 1 through 3 was $0. However, on March 5, 2021, the

Prothonotary dismissed CRA’s motion to strike out Iris’s

judicial review Application. Subsequently, the Canadian tax

litigation lawyer for the CRA filed a motion, on behalf of the CRA,

for an order, pursuant to Rule 51 of the Federal Courts

Rules, seeking to appeal and set aside the Prothonotary’s

March 5, 2021 decision.

Issues

The issues before the Federal Court are as follows: (a) whether

the Prothonotary erred in refusing to admit the Lusson Affidavit;

and (2) whether the Prothonotary erred in refusing to strike out

Iris’ Application for judicial review.

Analysis

The Federal Court held that the “Prothonotary’s

conclusions of law are reviewable on a standard of correctness, and

his findings of fact or mixed fact and law are reviewable on the

standard of palpable and overriding error.”

With respect to the admissibility of the Lusson Affidavit, the

Federal Court confirmed that subsection 244(9) of the Income Tax

Act “requires that the affiant “has charge” of the

appropriate records” and that the Lusson Affidavit

“contained no express statement to that effect.” The

Federal Court explained that Prothonotary’s decision not to

admit the Lusson Affidavit into evidence was because it failed to

establish that Ms. Lusson had insufficient “knowledge of the

document to support its introduction into evidence.” In

addition, the Federal Court held that once the requirements of

subsection 244(9) are met, the document in question “is

admissible into evidence to establish its nature and

contents”. Further, subsection 244(13) of the Income Tax Act

may subsequently provide “additional useful purposes

surrounding the evidentiary value of the documents.” The

Federal Court therefore found “no palpable and overriding

error” in the Prothonotary’s decision to decline to admit

the Lusson Affidavit into evidence.

With respect to striking Iris’ application for judicial

review, the Federal Court structured its reasons into the following

four parts: (1) essential nature of the application; (2) CRA’s

discretionary power; (3) adequate alternative remedy; and (4)

mootness.

The Federal Court agreed with CRA’s position that the

Prothonotary’s analysis in context of the essential nature of

the application is “reviewable on a standard of

correctness.” Upon reading Iris’ Application holistically,

the Federal Court explained that the Application “is pleading

a sequence of events in support of an assertion that CRA has failed

to pay such benefits for improper reasons.” In addition, the

Federal Court accepted Iris’ “assertions surrounding the

decline in its revenues and its resulting entitlement to CEWS

benefits”. The Federal Court also upheld the

Prothonotary’s position that Iris’ Application pertains to

the Minster’s conduct “in exercising the discretion

granted under the COVID-19 measures incorporated into the ITA,

which conduct Iris asserts to be procedurally unfair and an abuse

of process”. Further, the Federal Court upheld the

Prothonotary’s conclusion that Iris’ Application is indeed

within the Federal Court’s administrative law

jurisdiction”.

With respect to the Minister’s discretionary power under the

Income Tax Act, the Federal Court rejected CRA’s position that

the Prothonotary has “overstated the scope of the CRA’s

discretion” under the Act and has “erroneously found that

the application engages a discretionary power on the part of the

Minister.” The Federal Court found “no palpable and

overriding error” in the Prothonotary’s analysis relating

to the Minister’s discretionary power.

In context of adequate remedy, the Federal Court rejected

CRA’s submissions relating to the effect of the jurisdictional

provision in subsection 18.4 of the Federal Court Act and that the

Prothonotary “erred in failing to strike the

application.” The Federal Court, however, agreed with

Iris’ position that is “consistent with the statutory

purpose of the CEWS program, which is to enable Canadian employers

to retain employees while coping with the commercial impacts of the

COVID-19 pandemic.” In context of adequate remedy, the Federal

Court found “no palpable and overriding error on the part of

the Prothonotary.”

With respect to mootness, the Federal Court held that since

there was no error in the Prothonotary’s decision to refuse to

admit the Lusson Affidavit, there is “no evidentiary

foundation for the mootness argument.” Therefore, the Federal

Court found “no palpable and overriding error” in context

of mootness.

Federal Court Decision

CRA’s position for an order pursuant to Rule 51 of the

Federal Courts Rules is dismissed.

The Benefits & Concerns Associated with the CEWS

There are ongoing concerns regarding CRA’s audit of CEWS

claims and potential repayment. CEWS recipients may have to repay

the CEWS if they (i) amend or cancel an application (ii) made a

calculation error in their application (iii) receive a notice from

the CRA indicating that following a review of their CEWS, their

claim has been reduced or denied. Excess CEWS amount received that

is not returned to the CRA may be subject to interest. Potential

penalties and imprisonment may also apply in circumstances of

fraudulent CEWS claims. Further, CEWS recipients who reduce their

revenue for the purpose of claiming the CEWS will be required to

repay the wage subsidy amount in full, plus a penalty equal to 25%

of the total value. Moreover, Iris Technologies Inc. v. R

exemplifies how CEWS recipients could potential incur unnecessary

legal fees as a result of CRA tax audit into their CEWS claims.

Given the ongoing concerns associated with the CEWS, businesses

and organizations should bear in mind that any CRA tax audit, including an audit into a CEWS

application, can result in the CRA requesting access to details,

including corporate and financial records, that may not be relevant

to the CEWS claim as part of a broader tax audit. As such, CEWS

applicants should review the relevant eligibility criteria, posted

on CRA’s website, prior to submitting their claim. Applicants

who notice an error in their CEWS application or in any payment

received should contact the CRA immediately to address the error

and to confirm their eligibility or consult with an expert Canadian

tax lawyer.

Pro Tax Tips – Tax Guidance and CEWS Tax Audit

CEWS recipients who are subsequently found to be ineligible for

the wage subsidy can face tax audit and will have to repay the

amounts with interest and penalties. If you have questions

concerning CRA’s CEWS tax audit, or if you received a letter

from the CRA pertaining to a CEWS audit or the repayment of the

CEWS and you would like to dispute the CRA’s decision please contact

our tax law office for tax guidance from one of our top Canadian

tax lawyers.

FAQ

Which employers can apply for the CEWS?

Employers that have experienced a decline in revenue due to the

COVID-19 pandemic may be eligible for the CEWS to cover a portion

of their employee wages, retroactive to March 15, 2020. To be

eligible to receive the CEWS, applicants must meet the following

criteria: (1) have a CRA payroll account on March 15, 2020; (2)

Have experienced a drop in revenue; and (3) be one of the following

types of employers: (i) individuals; (ii) corporations or persons

(that are not exempt from Part I of the Income Tax Act); (iii)

registered charities; (iv) partnerships consisting of eligible

employers; or (v) specific private organizations.

What potential tax consequences may arise if the CRA

audits a CEWS application?

Any CRA tax audit, including an audit into a CEWS application,

can result in the CRA requesting access to details, including

corporate and financial records, that may not be relevant to the

CEWS claim as part of a broader tax audit. In addition, CEWS

recipients who are subsequently found to be ineligible for the wage

subsidy can face tax audit and will have to repay the amounts with

interest and penalties. If you received a notice from the CRA

relating to any CRA tax audit, including an audit into a CEWS

application, please contact our tax law office for tax guidance

from one of our top Canadian tax lawyers.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.