In light of recent amendments to the Income Tax Act (ITA), Canadian lawyers face significant changes in their professional obligations. The amendments to the ITA, enacted in June 2023, have sparked debates and legal challenges regarding mandatory disclosure requirements and their implications for client confidentiality. Additionally, changes regarding reporting requirements for bare trusts have added further complexity to the regulatory landscape. This blog post aims to explore the key amendments, their impact on legal practitioners, and the ongoing legal developments shaping the profession.
The amendments to the ITA introduced expanded mandatory disclosure obligations and new provisions for notifiable transactions. These changes may require legal professionals to report on clients’ separate trust accounts, as well as any reportable transactions and notifiable transactions. While aimed at promoting transparency and combating tax avoidance, the amendments have raised concerns within the legal community about potential breaches of client confidentiality and conflicts of interest.
The Canada Revenue Agency (CRA) has provided a frequently asked questions (FAQ) page regarding these amendments: New reporting requirements for trusts: T3 returns filed for tax years ending after December 30, 2023.
Initially, new reporting requirements for bare trusts were introduced for the 2024 tax season, mandating anyone with a bare trust to file a T3 tax return form by April 2, 2024, naming the trustees, beneficiaries, and settlors of each trust. However, with just days remaining before the deadline, the CRA announced a pause on the reporting measures. The CRA claimed that the new reporting requirements had an unintended impact on Canadians, and unless the CRA makes a direct request for these filings, bare trusts are exempt from trust reporting requirements. John Oakey, a vice president with the Chartered Professional Accountants of Canada, highlighted that there has been a lack of communication from the government regarding these changes.
The update can be found here: New – Bare trusts are exempt from trust reporting requirements for 2023
Although there has been a pause on filing for the 2023 year, the CRA intends to work with the Department of Finance to further clarify its guidance on this filing requirement in the coming months. This suggests that Canadians should expect to adhere to this anticipated guidance and prepare to file for the 2024 year.
The temporary pause on bare trust reporting requirements provides relief for legal professionals and their clients, yet there is still uncertainty regarding these amendments. Although the CRA has indicated that there is an exemption from the filing requirement for general trust accounts, this exemption is not applicable to separate trust accounts that law firms may hold for clients. It should be noted, however, that additional exemptions may apply for trusts that have existed for less than three months and trusts with a total fair market value that does not exceed $50,000. Otherwise, lawyers may be obligated to file when it comes to specific trust accounts, and the penalties for failing to file are significant. Subsection 237.3(8) of the ITA establishes that penalties can include the fees charged, $10,000, and penalties for delayed reporting up to $100,000.
Lawyers should also be aware of the constitutional challenge initiated by the Federation of Law Societies of Canada. The amendments raise concerns about the potential disclosure of confidential and privileged client information to the CRA, and the Federation has recognized that these requirements could undermine the duty of loyalty that legal professionals owe to their clients. On September 11, 2023, the Federation lodged an application with the Supreme Court of British Columbia, contesting the constitutionality of amendments to the Act. The Federation was granted an injunction which suspended the application of reporting obligations pending the outcome of the litigation.
As of March 13, 2024, the Supreme Court of British Columbia ruled on the scope of the injunction. The Court’s decision, issued by Justice Warren, clarifies that there will be no retroactive application of the contested provisions. This ruling holds significant implications for legal professionals, as it dictates that disclosures will only be required for transactions occurring after the final decision on the challenge. No date has been set regarding the hearing on the merits of the Federation’s petition.
This legal challenge underscores the uncertainty surrounding the constitutionality and application of the amendments. Lawyers may deal with ambiguity regarding future implications of the reporting requirements pending the outcome of legal proceedings. It would be beneficial to stay informed about ongoing advocacy efforts and seek out promised guidance from the CRA on how to navigate the new reporting obligations.
As legal challenges and debates surrounding the amendments continue, proactive engagement within the legal profession remains crucial. In the face of these changes, lawyers may need to adapt their practices and procedures to ensure compliance with the amended ITA. This could involve implementing new reporting protocols, enhancing internal controls, and educating staff about their responsibilities under the law.
The ruling in favour of the Federation of Canadian Law Societies indicates that legal challenges to the mandatory reporting obligations are feasible and may continue. Future legal proceedings may further shape the application and scope of reporting requirements for legal professionals; therefore, lawyers should stay informed on these proceedings.
The outcome of legal challenges and potential legislative changes may influence the dynamics of client relationships. Legal professionals may need to communicate transparently with their clients about reporting obligations and privacy considerations, fostering trust and understanding amidst regulatory uncertainties.
Despite the injunction delaying the application of the provisions, uncertainty persists regarding the future implications of these regulatory changes, highlighting the need for vigilance and adaptation among legal practitioners.
The amendments to the Income Tax Act have introduced profound changes to the legal obligations of Canadian lawyers, prompting debates and legal challenges about their implications for client confidentiality and professional ethics. While recent judicial rulings have provided some clarity and temporary relief, ongoing legal proceedings underscore the need for vigilance and proactive engagement within the legal profession. By staying informed, advocating for their rights, and upholding the highest standards of professional ethics, lawyers can navigate the complexities of the regulatory landscape and uphold the trust and confidence of their clients in an ever-evolving legal environment.
By Kiera Brown
Note: This article provides general commentary and is in no way intended to replace the need to consult with a legal professional concerning the specific circumstances of your situation. This article should not be construed or relied upon as legal advice.
