Canada Gazette, Part I, Volume 155, Number 16: Order Amending the Advance Income Tax Ruling Fees Order
April 17, 2021
Financial Administration Act
Canada Revenue Agency
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
The Canada Revenue Agency (CRA) provides advance income tax rulings (AITR) to clients in the private sector in respect of the tax implications of proposed business transactions. This is an essential element in the administration of the Income Tax Act and is intended to promote public confidence and encourage voluntary compliance.
The passing of the costs of providing rulings to those requesting the rulings has been the practice since the inception of the service in 1972. This service is largely used by tax professionals for whom the cost does not represent a burden. The fee for advance income tax rulings has previously been set by Ministerial Order in 1990, 1992 and 2000. During this period, the single-tier fee increased from $80/hour in 1990 to $90/hour in 1992, moving to the existing two-tiered fee in 2000 of $100 for each of the first 10 hours and $155 for each subsequent hour, or part of an hour, that is spent preparing the ruling. Beginning in April 2019, pursuant to section 17 of the Service Fees Act, the fee has been adjusted each year in accordance with the Consumer Price Index (CPI). The 2020 CPI-adjusted AITR fee is $104.04 for the first 10 hours and $161.26 for each subsequent hour, or part of an hour, that is spent preparing the ruling. As the adjustments do not address the gap in the service delivery fee, this fee must be updated to reflect current costs of $281.22/hour.
The current fees are charged to users for advance rulings. An alternative would be to provide the service to users at no cost. This would result in Canadian taxpayers bearing costs associated with providing advance income tax rulings of approximately $3 million annually. Passing such costs on to Canadian taxpayers in general, rather than to those who benefit directly from the service, would be in contradiction to the Government of Canada's cost recovery policy.
The income tax rulings provided by the CRA include three services: pre-ruling consultation, advance income tax ruling (ruling) and supplemental ruling.
A pre-ruling consultation allows taxpayers and/or their authorized representatives to discuss with the CRA any unique technical issue that is critical to the structuring of a definite transaction or transactions that a taxpayer is contemplating in advance of submitting a ruling request. The purpose of the pre-ruling consultation is to reduce the costs that a taxpayer might incur to prepare the more detailed submission required in connection with a request for a ruling that the CRA may not be in a position to provide. At the conclusion of a pre-ruling consultation, the CRA informs the taxpayer whether it will consider the issue further in the context of a ruling request. The fee for a pre-ruling consultation is the same as that for a ruling, which is $100/hour for the first 10 hours and $155/hour for each subsequent hour or part of an hour. These rates do not include applicable taxes. Pre-ruling consultations represent approximately 11.5% of requests processed by the Income Tax Rulings Directorate in the past five years.
Advance income tax rulings, which account for 83% of requests processed in the last five years, are written statements to a taxpayer confirming the CRA's interpretation of specific provisions of Canadian income tax law as it applies to a definite transaction or transactions being contemplated by a taxpayer.
If there is a change in the facts or proposed transactions described in a ruling, the taxpayer may make a written request to the CRA to obtain a supplemental ruling to confirm the tax implications of the new facts and proposed transactions. These requests account for approximately 5.5% of requests processed in the past five years. The fee for this service is the same as the fee for the advance income tax ruling.
It is a long-standing government policy that government departments impose user charges for services that provide identifiable recipients with direct benefits beyond those received by the general public, unless overriding policy objectives would be compromised. The aim is
- to promote the efficient allocation of resources;
- to promote an equitable approach to financing government programs, mandatory or otherwise, by fairly charging clients or beneficiaries who benefit from services beyond those available to the general public. This may allow a greater share of general tax dollars to be devoted to activities that benefit the general taxpayer, or to reduce the debt. It may also facilitate improvements in the delivery of specific cost-recovered services; and
- to earn a fair return for the Canadian public for access to, or exploitation of, publicly owned or controlled resources.
The Service Fees Act, which replaced the User Fees Act in 2017, helps ensure that the fees federal departments and agencies charge to Canadians remain current and more accurately reflect the costs of delivering related services.
In order to comply with government policy, the CRA proposes to amend the existing fee to reflect the current costs of delivering these services. The proposed fee of $281.22/hour was determined based on the results of a cost recovery exercise related to advance tax ruling services provided by the CRA. The exercise involved an analysis of activity-based direct and indirect costs associated with the number of income tax rulings produced during a five-year period from 2015 to 2020. Direct and indirect costs include costs associated with researching, writing, reviewing, and approving rulings. In the 2019 – 2020 Canada Revenue Agency Fees Report, the CRA reported $1.6 million of revenue from the advanced income tax rulings and costs of $3 million.
The proposed fee will replace the previous two-tiered fee structure, which included a lower fee for the first 10 hours spent on the file. Going forward, all billable time spent on files will be charged at the proposed single fee of $281.22/hour. The CRA is proposing to implement the fee increase incrementally over two years. Beginning April 1, 2022, the revised fee will be $221.24/hour and will increase to $281.22/hour on April 1, 2023.
Key stakeholders, including the Canadian Tax Foundation, the Chartered Professional Accountants of Canada, the Canadian Bar Association, the International Fiscal Association of Canada and the Tax Executives Institute, have all been made aware of the forthcoming fee increase. However, there have been no formal consultations on the proposed fee of $281.22/hour.
Cost-based user fees serve to recover an amount up to the full cost of the associated activity from users or direct-benefit recipients. The Treasury Board of Canada Secretariat's guide on establishing the level of cost-based user fees requires a public versus private benefit assessment. The objective of the assessment is to determine the attribution of costs incurred by a government department in the provision of services to identifiable recipients. Based on the assessment conducted by the CRA, it has been determined that an advance income tax ruling primarily benefits the requestor of the service beyond that of the Canadian public.
The Order, if approved, would come into force on April 1, 2022, and would be published as an amendment to the Advance Income Tax Rulings Fees Order. As well, the fee increase will be announced on the CRA's website.
Legislative Policy Directorate
Canada Revenue Agency
Place de Ville, Tower A, 6th Floor
320 Queen Street
PROPOSED REGULATORY TEXT
Notice is given that the Minister of National Revenue, pursuant to Order in Council P.C. 1989-1949 of September 28, 1989 footnote a, proposes to make the annexed Order Amending the Advance Income Tax Ruling Fees Order.
Interested persons may make representations concerning the proposed Order within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette Part I, and the date of publication of this notice, and be sent to Claire Arjang, Manager, Legislative Policy Directorate, Canada Revenue Agency, 320 Queen Street, Place de Ville, Tower A, 6th Floor, Ottawa, Ontario K1A 0L5 (tel.: 613‑670‑0532; email: email@example.com).
Ottawa, April 6, 2021
Minister of National Revenue
Order Amending the Advance Income Tax Ruling Fees Order
1 Section 2 of the Advance Income Tax Ruling Fees Order footnote 1 is replaced by the following:
2 The fee payable by a person who requests the Minister of National Revenue to provide an advance income tax ruling, whether or not the request is withdrawn, is $221.24 during the period beginning on April 1, 2022 and ending on March 31, 2023 and $281.22 as of April 1, 2023, for each hour or part of an hour that is spent in preparing the ruling.
Coming into Force
2 This Order comes into force on April 1, 2022, but if it is registered after that day, it comes into force on the day on which it is registered.