Hopefully as a spouse, family, friend or business associate you never get a letter that goes like this:

“Dear Mr./Ms. “X”, you received an asset from a taxpayer who knew or ought to have known he/she owed money at the time you paid less than full market value for the asset. We, the CRA, deem you to now stand in shoes of that taxpayer and we order you to pay the amount of the tax $BIG plus interest immediately”.

If you owe money to the CRA and have transferred assets into the names of loved ones for any reason (but often to protect them from creditors and on the advice of uninformed lawyers and accountants) then this article may disappoint you, and if you are the person who received the asset then this article may terrify you.

When you have a tax debt and then transfer assets into the name of another, like transferring your home into the name of your spouse for example, the CRA can use Section 160 of the Income Tax Act to transfer your tax debt to the name of your spouse and still attack not only the asset but your spouse as well. The Canadian Income Tax Act outlines all of the federal provisions and regulations regarding personal and business taxes for the country. It outlines what is required by all taxpayers in Canada.

What is Section 160 of the Canadian Income Tax Act? Section 160 is a portion of the Income Tax Act which relates specifically to the transfer of property from one individual to another. It states that if a person with a tax debt owing to the CRA transfers property to a spouse, common-law partner, someone under the age of 18, or someone not dealing with the individual at arm’s length, both the transferee and the transferor are responsible for a portion of the transferor’s tax debt. This means that, if property is transferred to you, you may be liable for their tax debt.

In this case, the Canadian Income Tax Act says:

The recipient of the property can be assessed the lesser of:

1.   The tax debt owing by the transferor; and

2.   The difference between the fair market value of the transferred property and the consideration received by the transferor.

This means that, if you have not given fair market value to the transferor, you are liable for that amount and can be assessed based on that amount – ultimately you could be on the hook for that portion of the transferor’s tax debt.

This transfer of property seems to be a common go-to method for those attempting to deal with their tax debt without having to pay. However, it is easy for the CRA to investigate and assess the transferee for a tax debt under Section 160 of the Canadian Income Tax Act.

The best thing that you can do if you have a tax problem is deal with it – before the CRA starts going after your property. The earlier you deal with your tax problem, the less interest you end up paying and the better to avoid penalties, and if you attack the problem before the CRA takes enforcement action, you will have more leverage when negotiating with them.

The Excise Tax Act has very similar provisions for HST/GST.

If you have found yourself assessed for someone else’s tax debt under Section 160 of the Canadian Income Tax Act and need a solution, please contact Tax Solutions Canada by calling 1.888.868.1400 or visiting us online at www.taxsolutionscanada.com.

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