tax treaty enforcement and collection - bankruptcy lawyer Murray Morisson --

My_question_is: Applicable to both US and Canada

Subject:        Canada USA tax treaty enforcement
Expert:         taxman@centa.com
Date:           Tuesday January 15, 2008
Time:           01:42 PM -0000

QUESTION:

I am a canadian Citizen living in USA, 
CRA claims back taxes. Let's suppose that CRA will win in the Tax Court the battle.
Could CRA enforce the payment using IRS or USA- Canada Tax treateay? If you need more details please let me know and I will call you.

Thanks
-----------------------------------------------------------------------------------------------
david ingram replies:

Absolutely:

Effecvtive Jan 1, 1996, there has been a mutual exchange of information and mutual collection procedure as follows in Articles 15 and 16 of the Protocols to the Income Tax convention


Article XV of PROTOCOLS -
Article XXVI A - Assistance in Collection

 

1. The Contracting States undertake to lend assistance to each other in the collection of taxes referred to in paragraph 9, together with interest, costs, additions to such taxes and civil penalties, referred to in this Article as a "revenue claim".

 

2. An application for assistance in the collection of a revenue claim shall include a certification by the competent authority of the applicant State that, under the laws of that State, the revenue claim has been finally determined. For the purposes of this Article, a revenue claim is finally determined when the applicant State has the right under its internal law to collect the revenue claim and all administrative and judicial rights of the taxpayer to restrain collection in the applicant State have lapsed or been exhausted.

 

3. A revenue claim of the applicant State that has been finally determined may be accepted for collection by the competent authority of the requested State and, subject to the provisions of paragraph 7, if accepted shall be collected by the requested State as though such revenue claim were the requested State's own revenue claim finally determined in accordance with the laws applicable to the collection of the requested State's own taxes.

 

4. Where an application for collection of a revenue claim in respect of a taxpayer is accepted

(a) By the United States, the revenue claim shall be treated by the United States as an assessment under United States laws against the taxpayer as of the time the application is received; and

(b) By Canada, the revenue claim shall be treated by Canada as an amount payable under the Income Tax Act, the collection of which is not subject to any restriction.

 

5. Nothing in this Article shall be construed as creating or providing any rights of administrative or judicial review of the applicant State's finally determined revenue claim by the requested State, based on any such rights that may be available under the laws of either Contracting State. If, at any time pending execution of a request for assistance under this Article, the applicant State loses the right under its internal law to collect the revenue claim, the competent authority of the applicant State shall promptly withdraw the request for assistance in collection.

 

6. Subject to this paragraph, amounts collected by the requested State pursuant to this Article shall be forwarded to the competent authority of the applicant State. Unless the competent authorities of the Contracting States otherwise agree, the ordinary costs incurred in providing collection assistance shall be borne by the requested State and any extraordinary costs so incurred shall be borne by the applicant State.

 

7. A revenue claim of an applicant State accepted for collection shall not have in the requested State any priority accorded to the revenue claims of the requested State.

 

8. No assistance shall be provided under this Article for a revenue claim in respect of a taxpayer to the extent that the taxpayer can demonstrate that

(a) Where the taxpayer is an individual, the revenue claim relates to a taxable period in which the taxpayer was a citizen of the requested State, and

(b) Where the taxpayer is an entity that is a company, estate or trust, the revenue claim relates to a taxable period in which the taxpayer derived its status as such an entity from the laws in force in the requested State.

 

9. Notwithstanding the provisions of Article II (Taxes Covered), the provisions of this Article shall apply to all categories of taxes collected by or on behalf of the Government of a Contracting State.

 

10. Nothing in this Article shall be construed as:

(a) Limiting the assistance provided for in paragraph 4 of Article XXVI (Mutual Agreement Procedure); or

(b) Imposing on either Contracting State the obligation to carry out administrative measures of a different nature from those used in the collection of its own taxes or that would be contrary to its public policy (ordre public).

 

11. The competent authorities of the Contracting States shall agree upon the mode of application of this Article, including agreement to ensure comparable levels of assistance to each of the Contracting States."

 

ARTICLE 16 - ARTICLE XXVII of Existing Convention (Exchange of Information)

 

1. Paragraph 1 of Article XXVII (Exchange of Information) of the Convention shall be deleted and replaced by the following:

1. The competent authorities of the Contracting States shall exchange such information as is relevant for carrying out the provisions of this Convention or of the domestic laws of the Contracting States concerning taxes to which the Convention applies insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Article I (Personal Scope). Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the taxation laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the administration and enforcement in respect of, or the determination of appeals in relation to the taxes to which the Convention applies or, notwithstanding paragraph 4, in relation to taxes imposed by a political subdivision or local authority of a Contracting State that are substantially similar to the taxes covered by the Convention under Article II (Taxes Covered). Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. The competent authorities may release to an arbitration board established pursuant to paragraph 6 of Article XXVI (Mutual Agreement Procedure) such information as is necessary for carrying out the arbitration procedure; the members of the arbitration board shall be subject to the limitations on disclosure described in this Article,"

 

2. Paragraph 4 of Article XXVII (Exchange of Information) of the Convention shall be deleted and replaced by the following:

4. For the purposes of this Article, the Convention shall apply, notwithstanding the provisions of Article II (Taxes Covered):

(a) To all taxes imposed by a Contracting State; and

(b) To other taxes to which any other provision of the Convention applies, but only to the extent that the information, is relevant for the purposes of the application of that provision.

  --------------------------
In other words, you have to be very careful.  A settlement conference or proposal may be in order.  In some situations, it wouild be worth returning to Canada for a year to declare bankruptcy and get rid of the debt for good.

My own story follows:

taxman@centa.com: Please see bottom of message if you wish to unsubscribe.
------------------------------------------



Hello David, I am trying to find someone who can advise me on getting out of an oppressive $60,000 debt to CRA. It resulted from an audit and ½ of it is interest and penalties. Is there not some way to negotiate down to a lower amount to be paid on a lump sum basis?

 

I spoke to a lawyer or interne at DiGuardio & Assoc and they basically wanted money to review my records so they could then ‘possibly’ work a deal with CRA. It sounded like they were collection agents for CRA frankly.

 

Any ideas?

 

---------------------------------------------
david ingram replies belatedly -

If you have not solved this, see Murray Morisson at (604) 930-9013  -  He is a bankruptcy lawyer who looked after my own tax bankrupcy.  You can find a link to his site on the front page of my site at www.centa.com.  He does not pay to be there.  I put him there because he is good, fair and competent if you are in BC..

He is a small office without the massive advertising overhead of those other guys and can do anything that they can do.

I can tell you that if you have the assets, it is unlikely that anything will be reduced much.

My own story follows as submitted to the Western Investor in February 2004 and published in March 2004.  After this article, I would bet that close to 2,000 individuals phoned or contacted me about their own tax bills.  I encouraged most to make a proposal or just plain go bankrupt depending upon their story. Three and a half years later, i still get the occasional phone call from some one who put it aside, kept on fighting and is now willing to pull the plug.

david ingram
--------------------------------------------------
 

----- Original Message -----
From: F. O'Brien
To: David Ingram at home - bus at taxman@centa.com
Sent: Wednesday, February 04, 2004 8:31 PM
Subject: MARWI - bankruptcy/ingram

Dave: check over the edits (below and in attachment)   
Send any changes to
fobrien@dccnet.com and cc to:  wieditor@biv.com


And thanks

Frank O'brien
--
Frank  O'Brien
editor
Western Investor
wieditor@biv.com
fobrien@dccnet.com
604-669-8500
direct: 1-604-885-6733



March 2004 ­ Western Investor
Column: Bankruptcy ­ David Ingram 12 blocks


Pullquote:  "Pull the plug if you are fighting a losing battle"

HEAD = BANKRUPTCY

LEAD = Last year in B.C. 9,527 consumers and more than 1,100 businesses filed for bankruptcy.


MONEY AFFAIRS
( Photo)
DAVID INGRAM

Editor¹s note: In 2003 David Ingram lost a near $5 million tax battle with Canada Customs and Revenue Agency, one of the largest personal tax judgements in Canadian history.  In this, the second of two parts, he offers a first-person account on dealing bankruptcy, what you are allowed to keep and what you have to lose.  


I have just received my discharge from bankruptcy.  It isn¹t completely over.  I have to pay $800 a month for 36 months starting on February 7th, but that is a lot better than the $4,853,000 income tax bill that started it with no assets.
Well there were family assets. But over a period of 21 years I went from a positive paper net worth of $4,800,000 to a negative $4,800,000 because of an income tax bill that I fought in court and lost and then got stubborn.
If I had to do it again, I would have walked into a bankruptcy trustee¹s office 15 years ago and got on with my life.  Instead I decided to fight.
So the house was put in my wife¹s name, the cars were in my wife¹s name, the motorhome was in my wife¹s name and the business was in my wife¹s name.  How could I get hurt?
Then my wife left me and took all the assets with her.
Thankfully, the CCRA finally gave up on collecting and hired a trustee to put me into bankruptcy.  I understand that I might be the first person that the CCRA put into receivership in Canada. Oh sure, there are thousands of instances where a taxpayer has declared bankruptcy because of a tax bill.  But apparently no one knows of an individual put into bankruptcy by the CCRA.
Now you have to know that I have advised a couple of hundred people to go bankrupt over the years.  Their situation was hopeless and bankruptcy was the only solution.  I had had an appointment to see a bankruptcy trustee myself on July 22, 1999 but broke my arm and leg in a motorcycle accident and never made the appointment. But I should have rescheduled and got on with my life three years earlier because it took the CCRA three more years to put me into bankruptcy.

Subhead = Ask for help

This article is meant to encourage you to see a trustee and pull the plug if you are fighting a losing battle, particularly if the major creditor is the CCRA.
If you have money problems for any reason that could include divorce, separation, unexpected tax penalty, leaky condo, company downsizing, illness, an accident or any combination of the above, you will need help.
That help may be as simple as taking an adult education course in family finances at your local high school.  Most adult education courses include such a course and even though I taught them for years, it did not keep me out of that $5,000,000 bankruptcy after three of the above events occurred.
If you need more immediate help and you happen to live in Greater Vancouver, contact a credit counselor. There are lots around. If you want a referral, send me a request to taxman@centa.com.
I am now seeing financial disasters of others on a daily basis.  I am talking about the $186,000 income tax reassessment for something that happened five years ago.  I am talking about the leaky condominium where the debt is $100,000 and you would have to earn $190,000 and pay $90,000 income tax to have $100,000 left and that is not counting interest accruing while you are doing it.
In this case, you need to consult competent legal help, a lawyer who specializes in bankruptcy law and will work for you and give you and your family the advice it needs to preserve any assets possible and tell you what you can do and cannot do.
Why not save a couple of dollars and go directly to the trustee?
The simple fact is that the trustee does not work for you. The trustee is working for the creditors.  

Subhead = What can you keep?

The trustees job is to get the most for the creditors following local federal, state or provincial guidelines that have different limits in each province and each state.

In British Columbia
, the assets that a bankrupt can keep are:
Equity in a home in Greater Vancouver and Victoria = $ 12,000.
In the rest of the province   = $ 9,000;
Equity in household items   = $ 4,000;
Equity in a vehicle    = $ 5,000;  The vehicle exemption drops to $2,000 if the debtor is behind on child care payments (to facilitate the enforcement of Maintenance Orders)
Equity in work tools    = $ 10,000;
Equity in essential clothing and medical aids is unlimited.

Alberta shows
its agrarian roots with much larger exemptions as follows:
Food required by the debtor and dependants for next 12 months;
Necessary clothing of debtor and dependants to a value of $4,000;
Household furniture and appliances to a value of  $4,000;
One motor vehicle not exceeding a value of $5000;
Medical and dental aids required by the debtor and dependants;
Where the debtor is a bona fide farmer and whose principal source of  livelihood  is farming,  160 acres, if the debtor's principal residence is located on  that 160 acres and that the 160 acres is part of the debtor's farm;
The equity in the debtor's principal residence, including a mobile home, up to a value of $40,000;
If the debtor is a co-owner of the residence, the amount of the exemption is reduced to an amount that is proportionate to the debtor's ownership interest;
Personal property (i.e. tools, equipment, books) required by the debtor to earn income from the debtor's occupation up to a value of $10,000;
Where the debtor's primary income is from farming operations, personal property required by the debtor for the proper and efficient conduct of the debtor's farming operations for the next 12 months, plus some other specific exemptions.  

Saskatchewan
Exemptions and agrarian routes are even more generous:
For Non-Farmers:
Household furniture and personal effects to a value of $4,500 per person;
Tools of the trade to a value of $4,500;
A motor vehicle, if required for employment;
$32,000 equity in your home ($64,000 if jointly owned);
Certain life insurance policies;
RRSPs, RRIFs and DPSPs are exempt from seizure (effective March 4, 2003); Certain pensions.
For farmers, the exemptions are more generous and include equipment and machinery for one year of farming; living expenses to the next harvest, certain life insurance and pensions and other specific exemptions.   

Manitoba
Exemptions are different again and maybe a little light:
Furniture, household furnishings and appliances not exceeding total value of $4,500;
Necessary and ordinary clothing of the debtor and family;
Food and fuel necessary to the family for period of six months or cash equivalent;
Actual residence of the bankrupt, equity of $1,500 each if in  joint tenancy, or $2,500 if not in joint tenancy.
If debtor is a farmer, exemptions include livestock, machinery and equipment necessary for farming operation for 12 months; enough seed all debtor land under cultivation, plus some other specific exemptions.
(For complete information on provincial farming exemptions see:
www.bankrutpcycanada.com )

Subhead = First step

Talk to a bankruptcy lawyer first.  If you want a reference, email me at taxman@centa.com.  Get your law straight.  Learn what you get to keep and what the limits are.  In B.C.for instance you can have $5,000 equity in a car.  However, The Bank of Nova Scotia (for one) will insist on seizing your car even if you have never missed a payment if the car loan is with them.  Arranging for someone else to take over the loan before you go bankrupt could make the transition easier.
Hope this helps.  Remember - see the lawyer first - before you see the trustee.  And only talk to a lawyer who deals regularly with bankruptcy and appears in court for bankrupts protecting their rights. That means perhaps one in 100 lawyers.  There is little chance that a lawyer you are already dealing with would be the one you would use because a bankruptcy lawyer is likely too busy today to do anything else.

At bottom:

- David Ingram is the CEO of david ingram's CEN-TA of  West Vancouver.  Ingram can be reached at (604) 980-0321 or email at taxman@centa.com.


It is very unlikely that blind or unexpected email to me will be answered.  I receive anywhere from 100 to 700  unsolicited emails a day and usually answer anywhere from 2 to 20 if they are not from existing clients.  Existing clients are advised to put their 'name and PAYING CUSTOMER' in the subject and get answered first.  I also refuse to be a slave to email and do not look at it every day and have never ever looked at it when I am out of town.  expert  US Canada Canadian American  Mexican Income Tax help
However, I regularly search for the words"PAYING CUSTOMER" and always answer them first if they did not get spammed out. As an example, as I write this on Oct 18, 2007 since June 16th (124 days), my 'spammed out' box has 34,939 unread messages, my deleted box has 11854 I have actually looked at and deleted and I answerd 1078 email questions for clients and strangers.  I have also put aside 622 messages that I am maybe going to try and answer because they look interesting. -expert  US Canada Canadian American  Mexican Income Tax help

Therefore, if an email is not answered in 24 to 36 hours, it is lost in space.  You can try and resend it but if important AND YOU TRULY WANT OR NEED AN ANSWER, you will have to phone to make an appointment.  Gillian Bryan generally accepts appointment requests for me between 10:30 AM and 4:00 PM Monday to Friday VANCOUVER (Seattle, Portland, Los Angeles) time at (604) 980-0321.
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Disclaimer:  This question has been answered without detailed information or consultation and is to be regarded only as general comment.   Nothing in this message is or should be construed as advice in any particular circumstances. No contract exists between the reader and the author and any and all non-contractual duties are expressly denied. All readers should obtain formal advice from a competent and appropriately qualified legal practitioner or tax specialist for expert help, assistance, preparation, or consultation  in connection with personal or business affairs such as at www.centa.com. If you forward this message, this disclaimer must be included." expert  US Canada Canadian American  Mexican Income Tax help.
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Phone consultations are $400 for 15 minutes to 50 minutes (professional hour). Please note that GST is added if product remains in Canada or is to be returned to Canada or a phone consultation is in Canada. expert  US Canada Canadian American  Mexican Income Tax help.
This is not intended to be definitive but in general I am quoting $900 to $2,900 for a dual country tax return.
$900 would be one T4 slip one W2 slip one or two interest slips and you lived in one country only (but were filing both countries) - no self employment or rentals or capital gains - you did not move into or out of the country in this year.
 
$1,100 would be the same with one rental
 
$1,300 would be the same with one business no rental
 
$1,300 would be the minimum with a move in or out of the country. These are complicated because of the back and forth foreign tax credits. - The IRS says a foreign tax credit takes 1 hour and 53 minutes.
 
$1,600 would be the minimum with a rental or two in the country you do not live in or a rental and a business and foreign tax credits  no move in or out

$1,700 would be for two people with income from two countries

$2,900 would be all of the above and you moved in and out of the country.
 
This is just a guideline for US / Canadian returns
 
We will still prepare Canadian only (lives in Canada, no US connection period) with two or three slips and no capital gains, etc. for $175.00 up.
 
With a Rental for $375
 
A Business for $375 - Rental and business likely $500
And an American only (lives in the US with no Canadian income or filing period) with about the same things in the same range with a little bit more if there is a state return.
 
Moving in or out of the country or part year earnings in the US will ALWAYS be $800 and up.
 
TDF 90-22.1 forms are $50 for the first and $25.00 each after that when part of a tax return.
 
8891 forms are generally $50.00 to $100.00 each.
 
18 RRSPs would be $900.00 - (maybe amalgamate a couple)
 
Capital gains *sales)  are likely $50.00 for the first and $20.00 each after that.

Catch - up returns for the US where we use the Canadian return as a guide will be $150 to $500.00 depending upon numbers of bank accounts, RRSP's, existence of rental houses, etc.

Just a guideline not etched in stone.
 
 
This from "ask an income trusts tax and immigration expert" from www.centa.com or www.jurock.com or www.featureweb.com. David Ingram deals on a daily basis with expatriate tax returns with multi jurisdictional cross and trans border expatriate problems  for the United States, Canada, Mexico, Great Britain, United Kingdom, Kuwait, Dubai, Saudi Arabia, Thailand, Indonesia, Japan, China, New Zealand, France, Germany, Spain, Italy, Russia, Georgia, Brazil, Peru, Ecuador, Bolivia, Scotland, Ireland, Hawaii, Florida, Montana, Morocco, Israel, Iraq, Iran, India, Pakistan, Afghanistan, Mali, Bangkok, Greenland, Iceland, Cuba, Bahamas, Bermuda, Barbados, St Vincent, Grenada,, Virgin Islands, US, UK, GB, and any of the 43 states with state tax returns, etc. Rockwall, Dallas, San Antonio Houston, Denmark, Finland, Sweden Norway Bulgaria Croatia Income Tax and Immigration Tips, Income Tax  Immigration Wizard Antarctica Rwanda Guru  Consultant Specialist Section 216(4) 216(1) NR6 NR-6 NR 6 Non-Resident Real Estate tax specialist expert preparer expatriate anti money laundering money seasoning FINTRAC E677 E667 105 106 TDF-90 Reporting $10,000 cross border transactions Grand Cayman Aruba Zimbabwe South Africa Namibia help USA US Income Tax Convention. expert  US Canada Canadian American  Mexican Income Tax help.

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