With CRA and TFSA regulations, lack of knowledge no longer an excuse for overcontributions

Jamie Golombek: Taxpayer hit with overcontribution penalty will get no aid from CRA regardless that she claimed to not know regulations

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As we buckle down and do tax season anxiously expecting the ones ultimate few T5 and T3 slips for 2023 to reach, we must make sure that we’ve taken complete good thing about the contribution room to be had to us in all of the more than a few registered plans with the intention to decrease the volume of taxable funding source of revenue we’ll want to record in years yet to come.

With the cumulative tax-free financial savings account (TFSA) contribution room doubtlessly as prime as $95,000 in 2024 (assuming you had been 18 and a resident of Canada since 2009), and this yr’s annual greenback restrict set at $7,000, there’s in point of fact no excuse for someone to have any non-registered taxable investments for those who haven’t absolutely maximized your cumulative TFSA contributions.

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You’ll test your TFSA contribution restrict on-line via going surfing to the Canada Income Company’s on-line portal for people referred to as My Account. However take note your TFSA contribution and withdrawal data isn’t up to date in actual time and is also old-fashioned. Take a look at the “as of” date posted on-line along your TFSA room.

The cause of vigilance is to keep away from the overcontribution penalty tax, which is the same as one in step with cent per 30 days for every month you’re over your restrict. A one in step with cent tax doesn’t appear to be so much, however the tax is one in step with cent per 30 days for every month you’re over the restrict till the overcontribution is withdrawn — that’s 12 in step with cent in step with yr.

In the event you do get hit with a TFSA penalty tax, you’ll request the CRA to waive or cancel it, which the company has the ability to do if it may be established the tax arose “as a outcome of an inexpensive error,” and the overcontribution is withdrawn from the TFSA “immediately.” If the CRA refuses to cancel the tax, you’ll take the topic to Federal Court docket, the place a pass judgement on will decide whether or not the CRA’s resolution to not waive the tax used to be “affordable.”

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The latest resolution involving a TFSA overcontribution involved a taxpayer who used to be assessed just about $11,000 in penalty taxes, plus a late-filing penalty and arrears hobby.

The taxpayer first opened a TFSA account in 2010, however most effective in point of fact began to “use it” in 2020. She testified that because of the onset of COVID-19, she needed to take break day paintings to take care of her daughter. Round that point, she determined to perform a little making an investment inside of her TFSA and used her financial savings and a few cash lent to her from members of the family.

As of Jan. 1, 2020, the taxpayer’s TFSA contribution restrict used to be $68,113. All over 2020, she contributed $396,400 and made withdrawals totalling $299,296. In consequence, given her restrict of $68,113 originally of 2020, she had overcontributed via $28,990 via the top of the yr.

The CRA in July 2021 issued the taxpayer a TFSA Realize of Overview (NOA) for the 2020 taxation yr indicating she owed $10,815 in penalty tax in accordance with her extra contributions to her TFSA for 2020, plus a late-filing penalty price and arrears hobby.

The taxpayer in January 2022 officially asked the CRA cancel the tax assessed on her extra TFSA contributions, noting that she “didn’t have enough data in regards to the regulations governing the usage of TFSAs, and that she concept {that a} TFSA operated in the similar approach as a typical financial savings account.” She added that she referred to as the CRA to procure additional data as soon as she was acutely aware of her extra contribution.

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The CRA denied the taxpayer’s preliminary request for aid, noting {that a} “lack of know-how of taxation regulations can’t be thought to be past a taxpayer’s keep an eye on as data is quickly to be had on (the CRA’s) web page and thru (its) normal inquiries phone line.”

The CRA officer additional famous “it’s the accountability of the taxpayer to pay attention to the principles governing the management in their TFSA,” and identified the taxpayer had held the TFSA for greater than a decade sooner than the overcontribution in 2020 happened.

The CRA in July 2022 despatched the taxpayer a 2d TFSA NOA, this time for the 2021 taxation yr, notifying her she now owed $14,748 in connection along with her ultimate extra TFSA contributions from 2020, a few of which remained unwithdrawn in 2021, plus further hobby and consequences.

The next month, the taxpayer wrote to the CRA asking for it to study its preliminary resolution to disclaim her aid, reiterating she used to be “blind to the principles, however had sought to right kind her error.” She stated she had contacted the CRA in reference to the NOA, however used to be urged to withdraw most effective the surplus quantity via the top of the yr.

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In the meantime, hobby at the authentic quantity owed used to be proceeding to accrue. She added that she had misplaced the cash invested via her TFSA, used to be on maternity depart, had no longer returned to the place of job for child-care and pandemic-related causes, and didn’t be capable of pay.

Speedy ahead to February 2023 when her case used to be reviewed via a 2d CRA officer, who once more denied the taxpayer’s request to cancel the penalty tax, bringing up a number of causes. The primary used to be that the taxpayer had held her TFSA since 2010 and must had been familiarized with the principles.

As well as, her lack of know-how of the principles can’t be thought to be as one thing “past her keep an eye on” as a result of such data and sources are extensively to be had. The officer additionally famous the taxpayer used to be urged of the overcontribution in July of 2021, however most effective took steps to withdraw the surplus quantities in 2022. This used to be no longer, within the view of the CRA, “inside of a cheap period of time.”

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After being denied aid for the second one time, the taxpayer appealed to the Federal Court docket in search of a judicial overview of the CRA’s resolution to not forgive the penalty tax. In those circumstances, the courtroom’s position is to decide whether or not the CRA officer’s resolution used to be affordable.

On this case, the pass judgement on concluded it used to be. “A taxpayer’s lack of know-how or false impression does no longer render a CRA’s discretionary resolution not to grant tax aid … (to be) unreasonable,” she stated.

Jamie Golombek, FCPA, FCA, CFP, CLU, TEP, is the managing director, Tax & Property Making plans with CIBC Personal Wealth in Toronto. Jamie.Golombek@cibc.com.

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