Another Tax Loophole

Just image, you are a small manufacturing company, business has been good, but yesterday you received a call from a customer who wants 50,000 widgets in 45 days. The customer is a large account and if you turn the business down, he may never call you again.

Problem: You need to hire more staff to meet the manufacturing needs of this customer. AND the customer said nothing about an advance payment. In fact he mentioned that he would be paying net 30 once shipment was received.

You need working capital and you needed it yesterday

You sit down and you start to think. Well let's see, it will take much needed time to apply to the bank for a loan, your wife threatens to leave with the kids if you refinanced the house one more time for business reasons and your credit cards are maxed out.

As you look around your messy yet effective office you wonder where you can get the working capital you need?

Sitting in front of you is your secretary mailing out invoices. You slowly walk over to her desk and you ask "What's the total amount of invoices that we have outstanding at this very moment?

Your secretary looks on her computer, moves the rat around a few times, clicks a couple of times, and then hits something that makes the printer start singing. She looks up at you with those "I want a raise" eyes" and says, "it's coming out on the printer"

You walk slowly over to the printer and pick up the sheet of paper. Just when you think you are ready to read and understand the page another page prints. She says very softly, "the second page will give you the total" You pick up the second page and allow your eyes to scroll down to the bottom of the page and much to your surprise the total amount is well over $300,000.

You don't want to call a Factoring company because, they will discount your Invoices and you won't get all your monies OR do you?

Your secretary reminds you that all the fees for Factoring the Invoices is tax deductible and in the end the Factoring will cost you nothing. (Your secretary is taking tax classes at night, something about becoming more valuable to the company and earning more money) She also reminds you that you can Factor the Invoices and be paid up to 92% of the total invoice amount within 48 hours. Plus, the Broker does not charge you.

It is at this point that you try to remember why you married your wife instead of your secretary?

You quickly change from that thought back to who should I call? There are so many Sharks in the water and about $200,000 of the invoices are Government Contracts.

You know you need a Factoring company whose rates are fair and who can deal with the endless paperwork that the Federal Government requires to Factor one of their Contracts.

Needless to say, he called me; the names have been changed to protect the guilty.

Hurricane Katrina - How To Use Your Business Loss To Get A Refund on 2004 Taxes

With the massive losses caused by Katrina, the economy of the Gulf Coast region is in extremely bad shape. Fortunately, there is a quirk in the tax code that can help you generate a large refund from your 2004 taxes.

Apply Losses to 2004 Taxes

When a large geographic area suffers a disaster, the President can declare it a federal disaster area. President Bush has made such a declaration for the Gulf Coast area.

While you've probably heard such declarations occur over the years, I doubt it means much to you. The declaration, however, has major implications for recovery efforts. Initially, the declaration of a federal disaster area means the federal government is going to provide disaster relief loans, special grants that don't have to be repaid, unemployment benefits and a variety of other assistance. It also signifies a major tax break for impacted businesses.

When a business suffers a loss, the deduction must typically be made in the year the loss occurred. With Hurricane Katrina, the deduction would typically occur when you file taxes in 2006. The problem, of course, is 2006 is a very long time from now if your business is destroyed. You will find this hard to believe, but the IRS is here to help.

The IRS is going to give you cash. Under current tax law, you may make a special election to deduct your business losses caused by Katrina on your 2004 taxes. By doing this, you do not have to wait till 2006 to get a tax refund. You don't have to do this, but it may be the key to getting necessary cash.

To make the special election, you must claim it on your 2004 taxes. If you have already filed taxes for 2004, you can file an amended tax return claiming the deduction.

In Closing

Using this tax strategy can help generate badly needed cash. Make sure you pursue the strategy with the help of your tax professional. If all your records are destroyed, you can order copies of past tax returns from the IRS.

Fraudulent Tax Shelters - KMPG Goes Down Hard

In the largest criminal tax case ever filed, KMPG has copped a plea to using fraudulent tax shelters to bilk the government out of 2.5 billion dollars. KMPG has agreed to pay a fine of $456 million dollars, but nine of its executives still are under indictment.

Son of Boss Tax Shelters

From 1996 to 2003, KMPG promoted a tax strategy known as the Son of Boss. This shelter was used to create phony tax losses that could be claimed by wealth individuals looking to write off tens of millions of dollars. KMPG promoted the structure despite the fact it's own internal tax attorneys warned the structure was fraudulent and could result in criminal charges. So far, wealthy individuals participating in the scheme have paid over $3.7 billion dollars to the IRS.

There should be no mistaking the impact of the plea agreement in this case. KMPG may have enjoyed the huge fees earned from the scam, but it is paying an incredible price for pursuing this practice. The price paid includes:

1. 456 Million Dollar Fine,

2. Permanently barred from providing tax services to wealthy individuals,

3. Permanently barred from involvement in any pre-packaged tax strategies,

4. Permanently barred from charging a contingency fee for work,

5. All actions monitored by government appointee for three years,

6. Full cooperation with government in indictments of individual KMPG employees.

Remaining Indictments

While KMPG pled guilty, it left its employees out to dry. An interesting maneuver since one can assume KMPG enjoyed the millions of dollars produced from the fraudulent tax shelters. Those under indictment, who are all now former employees, are:

1. Jeffrey Stein, former Deputy Chairman of KPMG, former Vice Chairman of KPMG in charge of Tax and former KPMG tax partner;

2. John Lanning, former Vice Chairman of KPMG in charge of Tax and former KPMG tax partner;

3. Richard Smith, former Vice Chairman of KPMG in charge of Tax, a former leader of KPMG's Washington National Tax and former KPMG tax partner;

4. Jeffrey Eischeid, former head of KPMG's Innovative Strategies group and its Personal Financial Planning Group and former KPMG tax partner;

5. Philip Wiesner, former Partner-In-Charge of KPMG's Washington National Tax office and former KPMG tax partner;

6. John Larson, a former KPMG senior tax manager;

7. Robert Pfaff, a former KPMG tax partner;

8. Mark Watson, a former KPMG tax partner in its Washington National Tax office.

In Closing

In the end, KMPG led clients down a very dangerous path for the apparent purpose of generating revenue. While even bad publicity is supposed to be good publicity, this situation seems to suggest the opposite.

Small Businesses: Company Car Vs. Personal Mileage Reimbursement In Hurricane Katrinas Wake

With gas prices at an all time high before Hurricane Katrina left her mark on our nation, most Americans were hoping that gas prices would settle down once summer passed. But gas prices have jumped as much as 80 cents a gallon across the country once Hurricane Katrina destroyed the Gulf Coast and impacted all of our lives.

While Hurricane Katrina is a horrible tragedy, it's not just affecting the Big Easy. Hurricane Katrina will impact every single American that commutes to work, takes a vacation, or shops online.

Company Car vs. Mileage Allowance

Companies and individuals alike are now concerned that the federal mileage deduction or their company's gas mileage reimbursement will no longer cover the costs of operating a vehicle for business purposes.

At the beginning of 2005, the IRS standard federal mileage reimbursement rate for business use of a personal vehicle (including vans, pickups or panel trucks) was 40.5 cents a mile for all business miles driven, up 3 cents from 37.5 cents a mile in 2004; The primary reason for the increase was higher prices of vehicles and fuel in 2004.

Christopher Tanis, District Manager of a restaurant chain in New York State travels for business to 5 different stores per week. For him, the 2005 federal reimbursement rate worked out quite well, and he opted for using his personal vehicle instead of using a company car. Now that fuel costs are so high, he's decided to re-examine the financial feasibility of mileage reimbursement.

Poor Gas Mileage Cars are Losing Value

Chris Brown; owner of Auddie Brown Superstore, an automobile dealership located in Florence, South Carolina, commented "I think [the jump in gas prices resulting from Hurricane Katrina] is ridiculous because they act like we're running out of fuel and we've got plenty."

Selling cars, the standard expense for selling each vehicle used to include a full tank of fuel when they bought a car, once the price hit $2.50 a gallon, Chris starting limiting his fuel allowance to $10. Chris explains, "Some cars take $80 worth of fuel to fill up and on a new car we're lucky if we make $80 in profit on them -- especially the new cars. Our new car profit margin is at its lowest ever. At this point we're just glad to sell the car and bring in some inventory."

Now that gas prices have gone through the roof, small business owners are working furiously to dump those 6,000 pound gross vehicle weight fuel guzzlers they bought only a year or two previously under a tax loophole which allowed small businesses to write-off most of vehicle cost in one year.

Mr. Brown has experienced this situation on a larger scale than most of us, adding "People come in to trade their larger trucks and SUV's with poor gas mileage for smaller, better gas mileage vehicles. Most consumers are not only so upside-down (owing more on the car than its fair market value) but are finding it hard to trade-in these larger vehicles. Not only they are valued less because of gas prices but people just cannot afford the fuel that would be needed to maintain these lower gas mileage vehicles."

The Annual Gift Tax Exclusion: Getting The Edge

Whether helping the kids with a down payment on their first home, paying the premiums on a life insurance policy in an irrevocable trust, or moving appreciated assets to a younger generation, annual gifting will touch the lives of millions of Americans. But before the transfer is made, an investor should spend some time looking at the investment and the tax ramifications of the property to be passed.

Much of the gifting itself will be done under the Annual Gift Tax Exclusion, a method that alleviates both a gift tax and the need to report the transfer. This exclusion applies to gifts only between individuals. Gifts made to charities and other organizations fall under a completely different set of rules.

The transfer is not deductible by the donor nor is it taxable to the recipient. Currently (in calendar year 2005), the annual exclusion is set at $11,000. In the future, this can be adjusted for inflation, but only in $1,000 increments. Spouses can increase their gifts to others to a maximum of $22,000 and, finally, gifts between spouses, like love, knows no limits.

Most transfers are done for one of two reasons. In the past, passing along property to diminish the value of an estate and, therefore, estate taxes was a major consideration in estate planning. This is still used extensively for larger estates but, under current law, fewer estates are subject to the tax. If the estate has no tax exposure (and if nursing care is taken care of), many advisors recommend not to gift at all but, instead, toallow the assets to receive a "stepped up" tax basis upon death.

Gifting to allow for current use of assets has been and continues to be popular. Often a parent wants to see a child use the gift immediately in order to enjoy an extended vacation or to make a major purchase. Here, it is expected that any gift of securities will be converted into cash with the appropriate tax paid.

Both donors and recipients should be aware that various gifts for educational or medical purposes may not reduce the annual exclusion. You should check with your tax advisor to determine whether this applies to a your specific situation.

Certain kinds of property (real estate, art, collectibles, closely held business interests, etc) should be appraised before a transfer is made. Consulting an expert in the particular field is usually a good idea to calculate the fair market value of the property.

Another circumstance requiring professional help is when "spending down" an estate for Medicaid purposes. An elder law attorney should be consulted for help in this area.

The actual gift of marketable securities or cash is fairly straightforward. Giving a check to someone or journaling over securities is enough to complete the gift. However, before making the gift, you should understand some of the potential tax considerations.

Let's first look at stock that has appreciated in value. Remember, whatever tax basis the donor in the gifted property will become the recipient's tax basis. If the donor is in a higher tax bracket than the recipient, it is often wise to gift the stock to the recipient and let the recipient sell the stock at his or her lower tax bracket.

If the fair market value of the stock is below the donor's original cost, then the donee must use the fair market value of the property as of the date of the gift in determining his or her tax basis. If you find yourself in this situation, the donor should consider selling the asset and then gifting the cash proceeds to the recipient.

Obviously, there will be times when a gift needs to be made regardless of the consequences; but, when time allows, you should do your homework to see what works to your best advantage.

Glenn ("Chip") Dahlke, a senior contributor to the Living Trust Network, has 28 years in the investment business. He is a Registered Representative of Linsco/Private Ledger and a principal with Dahlke Financial Group. He is licensed to transact securities with persons who are residents of the following states: CA. CT, FL, GA, IL. MA, MD. ME, MI. NC, NH, NJ, NY.OR, PA, RI, VA, VT, WY.

Taxing Overseas Firms for SOX Compliance

The Sarbanes-Oxley Act, also called the Public Company Accounting Reform and Investor Protection Act of 2002 was signed into law on July 30, 2002 by President Bush. In the aftermath of Enron, Arthur Andersen, Global Crossing, and WorldCom, SOX promises greater corporate accountability and transparency. Named after Senator Paul Sarbanes and Representative Michael G. Oxley, SOX focuses on the importance of ethical behavior in corporate governance-across the United States and now?overseas.

All countries have government-required laws like Sarbanes Oxley. In the UK, it's the "Combined Code on Corporate Governance," in The Netherlands it's the "Code Tabaksblatt," Germany has a "Bilanz Reform" and a "Bilanz Kontroll Gesetz." But then, why do we need SOX overseas since we already have the required laws? It's because companies with U.S. headquarters must ensure that all foreign outposts meet federal standards. This is the major cause of concern in the management and accounting circles. According to some experts, the Sarbanes Oxley Act might have dictated convoluted rules and regulations on the U.S. businesses. While the rules are concrete ideologies that prevent accounting scandals, the constant flux in the policies confuses businesses around the globe.

SOX compliance by vendors and business partners outside the U.S. is a frightening task. The risks and complications involved in enforcing the regulations for multiple firms around the world are enormous. The U.S. firms should keep themselves abreast of the data operations and data management followed by overseas vendors. This complicates the case further as the data should be integrated in financials or entered in balance sheets. Cumbersome processing of data would step up IT-related expenses.

The global impact of SOX is tremendous. At the moment, the UK Big Four firms are feeling SOX repercussions in their consulting sectors. Big4.com -a website for global Big4 alumni- receives periodic updates on the latest news and trends at the Big Four firms. The Big Four in UK reportedly lost GBP250 million in consulting fees since 2002-a direct outcome of Sarbanes-Oxley Act. Among the Big Four firms, PricewaterhouseCoopers faced a huge decline in their consulting fees. Causes for this decline can be attributed to:

· The increased cost of compliance that usurped consulting budgets.

· Independence restrictions in Sarbanes-Oxley have restrained companies from utilizing their auditors for many consulting services.

There is an apparent role reversal in consulting fees and audit services. If consulting fees have declined, audit fees have considerably increased. A whopping 30% increase in Big Four audit fees has been observed over a period of two years. This spike does not compensate for the revenues lost for consulting. Consulting was the major strength of the Big Four in the UK. But, in the present conditions, the significant decline in consulting fees clearly demarcates the performance of the Big Four in the UK.

According to a survey by an European firm, many overseas firms with their shares listed in the U.S. were not ready to meet the deadlines of Sarbanes-Oxley. Since European firms already have specific regulations, SOX compliance is extremely difficult. Some overseas firms have been attempting to get delisted from the U.S. stock markets since SOX's inception. Foreign firms about to get listed on overseas exchanges are also resisting to get listed in the U.S. These problems would take toll on the U.S. market performance and economy. But, the exit of foreign firms from the U.S. exchanges is not that easy. As per SEC guidelines, foreign firms holding 300 or more shareholders in the U.S. cannot delist from the U.S. exchange where they trade.

In the light of these problems, the Securities and Exchange Commission-in its bid to offer sustained flexibility-started modifying rules for overseas firms listed in the U.S. The SEC would facilitate foreign firms to delist their securities that are traded on the U.S. exchanges. Modifying SEC rules to accommodate European firms would create a state of unrest among the American managements.

The SOX compliance should be an "all-encompassing" formula-that which enables governments and managements worldwide to function efficiently and in rhythm. A level headed approach to weed out this disconcert would improve the situation.

Render Unto Caesar

Once a year Canadian taxpayers are required, by law, to file an income tax return in the prescribed form: $150(1).

For individuals: $150(1)(d) ITA, they must do so by April 30 of the following year, provided that they owe any taxes or if they are served with a requirement to file: $150(2) ITA.

There are other rules for corporations, trusts, partnerships and deceased individuals.

If any taxpayer is required to file under $150 then they are also required to estimate the amount of the taxes payable: $151 ITA.

Caesar's Reply

Once the taxpayer has filed their return, the Minister of National Revenue ("MNR") shall examine the return and assess the tax for the year, the interest and penalties, if any, payable: $152(1) ITA.

If the ministerial delegates don't agree with what the taxpayer has filed, then the MNR may at any time make an assessment, reassessment or additional assessment for a taxation year: $152(4) ITA.

Not filing won't prevent the MNR from making an arbitrary assessment: $152(7) ITA.

Some writers have concluded that Canada's self-assessment system is based on 'voluntary compliance;' however, CRA on its website, under "Tax Myths" (No 2) clarifies that the system is voluntary only in the sense that you can choose to comply. The consequences of not complying are entirely involuntary and Draconian.

Non-Filing And Late Filing

Not filing will, not surprisingly, have consequences, such the imposition of penalties: e.g., $$162(1), 163(1) ITA. Interest will also accrue (at a rate prescribed quarterly) and the taxpayer may be charged with non-filings as an offence: e.g. , $238(1) ITA.

Whether a taxpayer can be convicted of the criminal offence of tax evasion, under $239(1)(d) ITA, if they haven't filed is problematic: R. v. Paveley (1976), 30 C.C.C. (2d) 483 (Sask. C.A.); but any taxpayer who find themselves in such circumstances should immediately retain legal counsel to take advantage of the voluntary disclosure programs offered by CRA; attempting to do so without experience legal assistance may prove risky.

I Object!

Under $165(1)(a)(ii) of the ITA, a taxpayer who has been assessed, or re-assessed, may file a Notice of Objection (Form 400A) setting out their reasons for objection and all relevant facts, within 90 days.

$166.1(1) ITA does provide that were a taxpayer hasn't filed their Objection in time, that an application can be made to the MNR for an extension, but such wholly discretionary remedies are to be avoided if at all possible.

Some of the most complex statutory provisions known to mankind are found in the ITA and taxpayers who endeavour to prepare and file Objections without professional accounting or legal help are too often engaging in a forlorn hope.

If a taxpayer doesn't object then they lose their rights to complaint about that assessment.

In other words, if you want relief, you are compelled to object.

Charter $7

There is no provision in the ITA to allow taxpayers who have been charged with an offence under $239(1) ITA with an automatic extension, or a right not to appeal, pending the resolution of their criminal charges.

This element of compulsion under $165 ITA, as it applies to taxpayers charged with offences under $239(1) ITA, "owing to the threat of imprisonment": R. v. Jarvis, [2002] 3 S.C.R. 757, may violate $7 of the Charter of Rights and Freedoms.

Whether this potential violation of Charter $7 crystallizes depends on whether what access CRA Investigations has to the information contained in the Objections, and whether the prosecution 'could' use it.

CRA's Policy

CRA's publication RC 4213 "Your Rights" at page 9 of 13, under the caption "Your right to a formal review" states that,

"?appeals representatives who were not involved in the original decision are available to conduct a formal and impartial review" and again under caption "How do we ensure redress processes are impartial?" where it states that, "[T]he Appeals Branch operates independently in relation to other CCRA branches;" "Appeals Branch staff have a mandate to resolve disputes?by impartially reviewing CCRA decisions" and "The representative who reviews your case will not have been involved in the original assessment?"

The Concise Oxford Dictionary defines, "independent" as being "not depending on authority of? unwilling to be under obligation to others" and it defines "impartial" as being "?unprejudiced."

From the language used CRA is warranting to taxpayers that they have these Rights. It is therefore CRA's public policy to consider its Appeals Division (where Objections are filed) to be "impartial" and "independent" of the rest of CRA - including Investigations.

Most taxpayers would expect that CRA Investigations wouldn't have access to their Objections filed with Appeals, because communication between the divisions wouldn't be fair or impartial.

CRA's Practices

Violations of the Charter aren't established on CRA's best practice scenarios, they are based on what actually happens in practice.

Since reassessments and the criminal charges will generally proceed hand in hand this problem will continue to reoccur. Taxpayers are compelled to file an Objection, or lose their rights; but if they do file then what they have filed can immediately be used by the prosecution against them.

It may surprise taxpayers to know that CRA's Appeal Division has been known to give Objections filed by taxpayers charged under $239(1) ITA to the Investigation Division; it may astonish taxpayers to know that those materials were then used by the Crown against those taxpayers facing prosecution for tax evasion; but it should shock taxpayers to learn that when this violation of CRA's policy concerning Appeals "impartiality" and "independence" was brought to them, no one in CRA considered this the least bit objectionable - not locally and not in Ottawa.

A Clear Violation

How widespread the practice is, as yet, unknown but that it should be permitted to exist at all is, in this writer's opinion, a clear violation of Charter $7: R. v. White, [1999] 2 S.C.R. 417; Blencoe v. B.C. (Human Rights Commission), [2000] 2 S.C.R. 307.

Failure To Pay Employment Taxes - Penalties

As an employer, you must pay employment taxes if you have employees. Fail to pay and the IRS will rain all over your parade.

Penalties

If you have employees, you absolutely must deduct and withhold various taxes from the paychecks of your employees. Since you are deducting money from the employee's paycheck, you are handling their funds. This fact is very important to the IRS and it places great emphasis on any failure to deposit employment taxes.

If you fail to pay employment taxes, you will be subject to a 100 percent penalty. Yes, 100 percent. Known as the "trust fund recovery penalty", the penalty is assessed against the person responsible for paying the taxes, not the entity. The person can be the owner, corporate officer or other "responsible person." In short, a business entity is not going to protect you from the wrath of the IRS.

Late Payments

Cash flow crunches are an inevitable event for practically every business. So, what happens if you make a late payment for employment taxes. Unless you can show a reasonable reason for the delay, the IRS is going to penalize you.

Late payment penalties range in amount depending on the delay. If the delay is less than six days, the penalty is two percent. Delay for six to 15 days and you are looking at five percent. More than 15 days in delay is going to push the penalty to 15 percent. If you delay this long, the IRS will be peppering you with penalty notices telling you where you stand.

Employment Taxes - Depositing With The IRS

If your business has employees, you must pay employment taxes. The payment system can be a bit confusing, so this article discusses how to go about depositing employment taxes with the IRS.

Depositing Employment Taxes

To pay employment taxes, you must deposit the money with the IRS. As is typical with tax situations, the payments are not actually made to the IRS. Instead, you must deposit the employment taxes with a federal depository. Moving the burden to the private sector, the IRS requires most banks to act as depositories. If your business has just started hiring employees, ask you bank if they act as a depository. If they do not, you may want to change banks.

To deposit the taxes, you forward money per the bank specifications. You will also need to file a Federal Tax Deposit Coupon, Form 8109, with the deposit. The IRS typically sends these forms to you at the beginning of each calendar year. If you don't receive any, you can download the form from the IRS site or ask your tax professional.

When To Deposit

You must deposit employment taxes either once or twice a month. The IRS will send you a schedule at the end of each year for the subsequent year. As a general rule, you want to file within a few days of each pay period.

Failure To Deposit

Collecting employment taxes is a high priority of the IRS. Since the taxes include money deducted from an employee's paycheck, the IRS views an employer's non-payment as a form of theft. If you fail to pay, you can expect the IRS to come down hard on your business and, potentially, shut it down. In short, make absolutely sure you deposit the employment taxes.

In Closing

There is no other way to put it - paying employment taxes is a pain. Just make sure you pay them to avoid the wrath of the IRS.

Paying Workers - What Can You Write-Off?

As your business grows, you are going to need help. This help comes in the form of employees and independent contractors. What you can write-off is dependent upon how your helper is classified - as an employee or independent contractor.

Independent Contractor

Whenever possible, you want to use independent contractors to assist you. Payments to independent contractors are completely deductible. You simply claim the deduction on your return. If you pay them more than $600 during the tax year, you also must issue a 1099-MISC in January of the following year. Importantly, you do not have to pay employment taxes or make withholding on the compensation.

Unfortunately, the IRS doesn't allow you to randomly classify a worker as an independent contractor. The key to the determination is whether you "control" the actions of the worker. Generally, you must be able to show the IRS that the worker is an independent contractor because they have the ability to control the details and means by which the work is accomplished. To this end, it is helpful to show the worker sets their own ours, has a work place and risks not getting paid if the work is below standard.

Employee

If your worker is classified as an employee, the tax burden increases. Under federal law, you are responsible for paying employment taxes related to the worker, even if there is only one.

Initially, you must withhold FICA, Social Security and income taxes from employee paychecks. As an employer, you must also contribute FUTA payments on your own, to wit, they are not deducted from the employees pay.

FICA stands for the Federal Insurance Contribution Act. This Act created a system to collect and provide benefits for workers who retire, are injured or become disabled. FICA is better known as Medicare.

FUTA stands for the Federal Unemployment Tax Act. This Act created a system to provide unemployed workers with temporary benefits until they obtain a new job. The system works in tandem with state unemployment acts. Most consider it a disaster, but you still have to pay.

Where to Find Tax Breaks for Your Home Based Business

April 15th looms in front of most people every year like a big, full moon full influencing a tax based frenzy, but knowing where to find tax breaks for your home based business can make that frenzy a little less frantic and more beneficial to you and your home based business. Finding tax breaks for your home based business is not overly difficult, but make sure you discuss tax breaks for your home based business with the person doing your taxes.

A great way to find those tax breaks for your home based business is to get information from your local municipality as to what fees you will have to pay and what the available tax breaks for your home based business are available. They may even be able to tell you what forms are required from the state in order to make sure you get tax breaks for your home based business rather than fines for not filing the right paperwork. Understand that to optimize the tax breaks for your home based business, you should make sure you are structuring your business in the best way. Filing your business as a sole proprietorship, partnership, or corporation can have a definite influence on the tax breaks for your home based business. The Department of Revenue should be able to offer you more information on how to file, along with fees and available tax breaks for your home based business.

Understand, too, that working for yourself may not just be about tax breaks for your home based business. There are taxes that your will have to pay, like employment taxes, federal income taxes, and social security taxes that are required, although there are many tax breaks for your home based business that can offset some of these taxes you will have to pay.

In most cases, there are tax breaks for your home based business that are just like those available for regular businesses. Tax breaks for your home based business will allow you to deduct thousands of dollars in household items. For instance one common area of tax breaks for your home based business includes automotive expenses. By deducting your mileage, car payment, and automotive maintenance fees, you are getting one of many tax breaks on your home based business. Other tax breaks for your home based business can include travel expenses, computer and office supplies, a portion of your home's property taxes, entertainment expenses, and even health insurance expenses.

Insider Guides to IRS Audits!

Ever wish that, as a business owner, you knew exactly what would raise "red flags" at the IRS? Or how to make an IRS audit go as smoothly and painlessly as possible?

If you're in the right type of business, you can get that information, directly from the IRS!

Traditionally, IRS examiners have been responsible for auditing many types of businesses. An examiner might audit a grocery store one week and a construction company the next. A lot of the examiner's time was spent learning about the business.

To improve efficiency, the IRS launched the Market Segment Specialization Program (MSSP). Examiners now focus on specific types of businesses. To help the examiners understand each type of business, the agency has developed training guides, called "Audit Techniques Guides." The guides explain the standard practices for the business, and tell the examiners exactly where to look for potential problems. (For example, auto repair shops sometimes don't report the parts they have in stock as inventory.)

The IRS has developed Audit Techniques Guides for dozens of business types, ranging from pizza shops to major league sports franchises. In addition, there are guides that deal with specific business practices, such as executive compensation, shareholder loans, or stock based compensation.

You can download the guides directly from the IRS website. There are other sites that distribute the ATGs as well, and some of them seem to have guides, perhaps a little out of date, that don't appear on the IRS website. Simply search the web for IRS Audit Techniques Guides to find a list!

Back To School - Educators Deduct School Expenses

As teachers and students head back to school following a glorious summer, it's time to remind teachers to organize 2004 school expenses. Under a temporary tax code change, teachers can deduct certain school-related expenses from adjusted gross income.

Educator Expense Deduction

If you work in the education field, you may be able to deduct up to $250 from your adjusted gross income for 2004 taxes. Unfortunately, the deduction is only applicable to 2004, but there is a reasonable possibility it will be extended to the 2005 tax year and beyond. As a result, you should continue to keep records so you can claim the deduction if it is extended. So, who can claim it and what can be claimed?

"Educators"

Under the tax code provision, "educators" are defined as a fairly broad group of professionals. You are an education if you comply with the following guidelines:

1. You teach kids in kindergarten or through grade 12;

2. You are a teacher

3. You are an instructor

4. You are a counselor

5. You are an aide, or

6. You are a principal

If you fit within one of the above positions, there is an additional time requirement that must be met. You must work at least 900 hours in an elementary or high school during the year in question. This equates to roughly half a year.

Expenses

As an educator, you are allowed to deduct unreimbursed expenses you paid for school room items. Examples include books, computer programs, writing supplies and those little stars I used to love getting on my book reports. Just make sure the school is not covering the costs.

The educator expense deduction is a rather disappointing $250, but every deduction counts when it comes to taxes. Make sure you claim the deduction and keep your receipts for the write off.

Six Urban Myths About Taxation

Six Urban Myths - Taxation

"I am proud to be paying taxes? I could be just as proud for half the money." - Arthur Godfrey

Temporary Taxation in Canada

In 1917, the Income War Tax Act (7-8 George V, Chap. 28) introduced Canadians to a 'temporary' tax on corporate and personal income.

After 88 years it's safe to say that the first myth of taxation is that Parliament considers taxation to be 'temporary.'

Taxation Isn't Constitutional

You've heard that it is against Canada's Constitution for the federal government to collect income taxes.

The British Parliament in the British North America Act, 1867 §91(3) specifically empowered the federal government of Canada with the authority for "the raising of money by any mode or system of taxation".

The highest court in Canada has held that this power to raise money through taxes is "apparently limitless" (Re Anti-Inflation Act [1976] 2 S.C.R. 373 at 390 (S.C.C.), per LASKIN, C.J.)

American readers who've heard the same thing (i.e., Congress cannot legally collect taxes) should read the Sixteenth Amendment to the Constitution, which when ratified in 1913, empowered the U.S. Government to impose income taxes directly on its citizens.

So the second myth of taxation is that the federal government doesn't legally have the authority to collect taxes.

I Can't Be Convicted Of Evasion If I Believe?

Perhaps, you've heard that in order to be convicted of evasion you have to have a 'guilty mind' and if you believe, you really believe, that collecting taxes is illegal you cannot be convicted of evasion.

§239(1)(d) Income Tax Act ("ITA") provides that every person who wilfully evades or attempt to evade taxes imposed by the ITA is guilty of an offence.

The offence of evasion is a true criminal offence: R. v. Klundert (2004), 242 D.L.R. (4th) 644 (Ont. C.A.) per DOHERTY, J.A. at §32; and R. v. Knox Contracting Ltd., [1990] 2 S.C.R. 338 (S.C.C.) at pp. 346-348.

There are two constituent elements of a crime: the prohibited conduct (actus reus) and the requisite fault (mens rea).

Parliament's use of the word "wilfully" in §239(1)(d) ITA implies by something done by conscious design or on purpose; but does that really mean what it sounds like?

No; mistakes of law generally aren't a defence (e.g., §19 Criminal Code), but certain factual mistakes (e.g., errors of addition) could be - it depends on the circumstances.

"A person's mistaken belief that a statute is invalid or is otherwise not applicable to that person's conduct is a mistake of law. It is, however, a mistake of law that is irrelevant to the existence of the fault requirement in s. 239(1)(d).": Klundert at §59; Criminal Code s. 19; R. v. Ricci (2004), 190 O.A.C. 375 (Ont. C.A.)

The third myth of taxation is that you cannot be convicted of evasion if you believe you don't have to pay taxes.

What Canada Revenue Tells Me Is Binding On Them

A taxpayer calls a Canada Revenue Agency ("CRA") hotline or goes to a local tax service office and gets their question answered, or receive other guidance on how to 'properly' do what that taxpayer is obliged to do under the ITA.

What if the advice is wrong? Most Canadians think that they can rely on it, but can they?

The short answer is that they can't - that the fourth myth.

Why this is true is somewhat complex: Since 1931 Canada's Parliament has been sovereign and they could pass any law they wanted (Burma Oil Company v. Lord Advocate [1965] AC 75 (H.L.)), but with the Canada Act, 1982 (U.K.) Parliament became subject to The Charter of Rights and Freedoms, which imposed legal limits on Parliament's ability to infringe certain fundamental rights.

The ITA is a complete code (i.e., covering all aspects of its subject matter) and it is the job of taxpayers to follow it, CRA to enforce it, the courts to interpret it and then back to Parliament if amendment is needed.

These various interests are perpetually in conflict: taxpayers want to pay as little tax as legally permissible (Inland Revenue Commissioners v. Westminster (Duke of), [1936] A.C. 1 (H.L.)) but Parliament wants to collect as much money as it possibly can.

Subject to a Charter prohibited infringement of a fundamental right, Parliament's complete code in the ITA is paramount. In other words, no one at CRA can change one word in the ITA and if any advice they give is contrary to the Act, that advice is ineffective and the ITA provision will prevail. Thus, CRA's advice is only binding on them - and you - if it's correct. It all goes back to the ITA and Parliamentary supremacy.

CRA's Can't Find My Offshore Funds

Perhaps you set up an asset-protection trust somewhere and you've been collecting income offshore for years; or, possibly you want to sell your condo in Barbados and plan to keep the proceeds in Belize.

§2(1) ITA imposes taxes on residents of Canada, not only on their Canadian source income but on their worldwide income. The limits on this general rule are few, narrow and require specialized expert advice to interpret (e.g., in-coming immigrants and Tax Treaties).

Just so we're clear, what we are talking about here is the crime of tax evasion.

In the post 9/11 world, secrecy doesn't exist like it did.

Domestically in the U.S. the Bank Secrecy Act (1970; "BSA") was expanded and clarified after 9/11 with passage of the USA Patriot Act (2001; HR 3162 RDS). Congress decided that an effective way to catch terrorists was to monitor cash transaction and require reporting from "money services businesses". Since the threshold for transactions in now in aggregate US$1,000 per day, it's a very tight filter.

Canada established The Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) to collect, analyze and, when appropriate, disclose financial intelligence on suspected money laundering, cash transactions and terrorist financing activities.

Internationally the U.S. used its political and diplomatic clout to step up foreign disclosure of suspicious transactions.

Canada and the U.S. belong to various international organizations that share financial and other information. One of the most dreaded of these among tax havens is The Organisation for Economic Co-operation and Development ("OECD"), which has obtained commitments from 33 of the world's 35 listed tax havens to comply with the OECD's principles of transparency and effective exchange of information.

By compelling tax havens to disclose banking information OECD members obtain fiscal information for the one purpose (combating money laundering and tracing terrorist's funds), which they can then use for another purpose (fighting fraud and other tax crimes).

It is myth number five that you can access or use offshore money and not have be discovered; it can happen in any of a thousand different ways, the majority of which his entirely beyond your control.

If a taxpayer finds themself in this position and wants to take advantage of an amnesty provision, then must retain the services of a tax lawyer. Because communications with an accountants aren't usually privileged (in Canada - Baron et al. v. The Queenm [1990] 1 C.T.C. 125 (F.C.A.); or in the U.S. - U.S. v. Arthur Young et al., (1984) 465 U.S. 805 (S.C.)) only a lawyer can achieve this without disclosing their client's before the terms are agreed to, and reduced to writing.

CRA Is There To Help

CRA says it wants you to be, "treated fairly and have the information, advice?[you] need to meet [your] obligations:" http://www.cra-arc.gc.ca/agency/fairness/rights-e.html.

Except CRA doesn't, and can't, hold itself accountable for any "information [or] advice" it gives. If they make a mistake, and you rely on their wrong 'advice', it will be you who will pay.

CRA has an opinion on everything to do with taxes; but having an opinion is no guarantee that the opinion is correct. To do what CRA says is the safe decision, but it may not always be the right decision: Canada v. Imperial Oil Ltd., [2004] 2 C.T.C. 190 (Fed. C.A.).

Caveat: Employees have little, or no, scope to tax plan. The wealthy and businesses do potentially have such flexibility, but deciding whether to take advantage of their opportunities is a question that requires an in-depth analysis of their particular circumstances by expert accountants and lawyers.
A creative tax plan may be challenged, but a creative and highly successful plan (i.e., one that defers or eliminates a lot of taxes) will be challenged. A safe rule of thumb is 'if you can't afford - or don't want - to fight about it, don't do it.'

This is not to say that all potential problems with CRA are self-created - they aren't.

In R. v. Roberts & Viccars, [1998] B.C.J. No. 3184 (Prov. Ct.) the court stayed charges under §24(1) of the Charter, against the accused charged with tax evasion and fraud. The court found that, "the abuses in his case are varied and blatant and span the investigation ? what [the CRA officer] did, aided and abetted by his supervisor?" showed "distain for the Charter."

In R. v. Saplys [1999] O.J. No. 393 (Ont. Gen. Div.) granted a stay when the investigation proved to be so unfair as to contravene fundamental notions of justice that it undermined the integrity of the justice system and compromised the defendant's right to a fair trial.

"These cases [and others] indicate that the abuses in Roberts & Viccars are not limited to a particular office. It remains to be seen whether there will be widespread changes in the conduct of SI investigations": Thomas Boddez, Esq.; Canadian Tax Highlights, 1999, Vol. 7, ? 3, © Canadian Tax Foundation.

Since R. v. Norway Insulation Inc., (1995), 23 O.R. (3d) 432 (Gen. Div.), there was a growing (but not unanimous) condemnation in the case law of investigative techniques employed by [CRA] Investiga-tions: "The End Determines the Means", Canadian Tax Highlights, 1997, Vol. 5, ? 7, © Canadian Tax Foundation. The issue was settled in favour of taxpayer rights under §7 of the Charter in R. v. Jarvis, [2002] 3 S.C.R. 757 (S.C.C.) Iacobucci and Major, JJ. at §96.

So the sixth myth of taxation is that CRA is there to help you; they are there to collect taxes for Parliament, any help they give will be incidental to that larger purpose.

What About Your Rights?

If you believe you have a problem with CRA, or if you believe its officers have broken your rights (e.g., §§7, 8, 10(b) or 11(d) of the Charter) to whom, should you complaint?

Unlike most federal government departments CRA doesn't have an Ombudsman, so you cannot go there.

In another abuse case (in which the court excluded the evidence under §24(2) of the Charter), defence attempts to go to supervisors, local TSO directors, national directors, national director-generals, the Commissioner and even the Minister of National Revenue all proved to be ineffective.

CRA publishes Your Rights, but declarations without accountability are meaningless. CRA says that it requires its officers to adhere to a Code of Ethics and Conduct, but then refuses to release a copy so compliance with the Code can be tested.

Natural justice requires that both sides be heard - audi alteram partem; but what if one side isn't listening? CRA may police the ITA, but "who polices the police?"

In the cases above, only the courts were able to restrain CRA in, what a senior CRA officer characterized as "rebels out there deciding policy" when the indications were that this was an entire SI office that was "out of control" (Roberts & Viccars, above).

While the courts have indicated a willingness to protect Charter rights (R. v. Clayton and Farmer, (2005) Docket No.s C37990; C36722 (Ont. C.A.) per Doherty, J.A. at § 95) they are not the optimal venue for seeking redress for these wrongs; the expense and time involved in such litigation limits access for many. Even an award of costs against the Crown (cf., Saplys, above) would prove to be adequate compensation.

CRA's failure to recognize the dichotomy between their policies and their application is creating a crisis of confidence for many Canadians who believe themselves to have been a victim of a process, which CRA labels as "fair."

Fiscal Deity: Tax Consultant

Strategic planning throughout the year results in a minimal tax balance. The objective of planning your tax payables is not to prevent paying taxes, it is to pay no more than your fair share of taxes, and keep your money where it earns you the most.

If you aren't aware of it yet, Uncle Sam pays no interest. If he deducts your tax payment monthly or quarterly, and takes more than his fair share, he doesn't give you anything back for the privilege of using your hard earned money. By the same token, if you don't pay in enough, he charges you a penalty and interest.

As a W-2 wage earner, if you are over paying your tax debt, you may be considering it a 'forced savings plan', but you gain nothing, using that particular plan. By putting the same amount in savings every year, earning interest on the balance, and continuing to regularly invest in your savings fund, you may be able to utilize the retirement savings plan reducing your tax debt significantly. With the advice of a competent tax consultant, your savings can become an investment with a tax reduction at the end of the year.

As a business owner paying tax quarterly, over paying your taxes can cost you considerably more. Your tax debt may actually be borrowed money, on a line of credit from the bank where you pay interest for the use of the money. If tax planning were part of your business expenses, you get to deduct the amount paid to the tax consultant from your business, you don't have to pay interest on more than you need to pay in (if using a line of credit to pay taxes), and any saved money can be placed in a retirement fund or savings plan to draw interest for you. Once again, a tax consultant can save you money.

These are just a couple of ways you can save money by hiring a tax consultant. So, who is your Tax Deity? Your tax consultant or Uncle Sam?

Tips and Simple Guidelines on How to Calculate Payroll Taxes

Managing a business small, medium or big requires you to pay your taxes, as well as your employees taxes. Managing a payroll can be an arduous and taxing job, no pun intended. There are laws that require us to pay taxes and everyone have to comply with that. But keeping up with the payroll can give many people sleepless nights. There are so many deductions needed to be done and they have to be exact to avoid confusion and complications later on. State and federal taxes are very strict and you don't want the IRS pounding on your door because of some mistakes. Make sure that you do your calculations correctly to avoid a mess later on. Keep your payroll records and tax payments as your reference so you have proof of the deductions and payments you have done. Different states have different laws about records; check it out with your lawyer or accountant to make sure.

So just what are payroll taxes? Payroll taxes are the taxes that every business are required to deduct from the employees salary and pay to the state and the federal government, you are required to do this in behalf of your employees. Aside from withholding state and federal taxes, social security and medicare taxes are deducted also from the salary as required by law. The business on the other hand must match the amount paid for the social security and medicare.

In stating to calculate payroll taxes, each of your employee must complete an IRS form W-4. This form will be used to calculate payroll taxes. In the W-4, you can calculate the amount of the federal income tax, and because most states have income tax structures that are based on the federal taxation system, you may also use this form to calculate the state tax to be deducted from the salary of your employees. Also needed to calculate payroll taxes are the percentage currently used for the social security and medicare. Both the employer and employee split the amount needed to be paid. Whatever is deducted from the employee to pay the social security and medicare taxes, the employer must match that amount.

Aside from those, the law requires the employer to pay federal and state unemployment tax; this is part of the payroll taxes. Federal and State unemployment taxes (FUTA and SUTA) are based on the amount of unemployment claims that are filed by employees that you have released or fired. FUTA rates are the same for all state, while SUTA rates will differ from state to state. If your employee earns more than seven thousand dollars per annum, you do not have to pay those taxes anymore.

For some business owners, doing the payroll and to calculate payroll taxes just gets in the way of the day to day business he or she has to do. That's why some proprietors get payroll services to do the dirty work for them. But this means more expenses for the company. While for some this is worth the money, small businesses with a small labor force should just do their own payroll. What they get is the luxury of concentrating more on their business without the need to worry about how to calculate payroll taxes. Just remember, always obey the laws so that you do not complicate matters which could end up to losing the business.

The Tax Man Cometh... To Search

You're at your office, or home, and the doorbell rings - it's the Canada Revenue Agency ("CRA").

The first thing to do is find out why they've come. If it is an "inspection, audit or examination" of your books and records under §231.1 Income Tax Act ("ITA") then they have a right to be at your place of business, during business hours, to do these things.

Just collect a copy of the business card of the officer and ask them to write what authority under the ITA they are relying on. Other than that cooperate with them, and produce your books and records.

If they are there to serve you with a "Requirement to Produce Information or Documents" under §231.2 then, they'll have an RPID, in writing, to give to you. Subject to certain technical prerequisites this is something CRA is empowered to do.

Just collect a copy of the business card of the officer, as well as, a copy of the RPID and ask them to write on the back of their business card; whether it is you, or someone else, who is the subject of the RPID.

If it someone else, ensure that their name is listed on the front of the RPID. CRA must give you a "reasonable time" to produce the information or documents and use this time to consult with your accountant or lawyer. Normally, however, you'll be required to produce the materials required.

Once again, be polite and listen to what is said. When the officer's leave write everything you can remember down.

But, if they are at your house, or present you with a search warrant then this is something else entirely, and you need to know your rights.

There is no substitute for prompt legal advice, but the following suggests may assist you, when and if this ever happens to you:

1. Ask to see the search warrant before you let anyone in. If you are at home, step outside and close the door behind you while you examine the Search Warrant ("SW") papers.

The searchers are required to show you a copy of the warrant or tell you what is in it before executing it. Examine the paperwork very carefully. The officers are required to leave you a copy of the SW when they leave.

SWs can be based on incorrect, incomplete or inadequate grounds and searches can be carried out as a "fishing" expedition by CRA; if any of those prove to be true then you do you have legal rights, but that is something that your lawyer will have to handle for you - in the future - while the search(es) are on-going your only responsibilities are to be observant, record everything that occurs, be polite and avoid a confrontation with the officers.

2. Ask the person in possession of the search warrant to identify themselves and all of those with him (or her) and to indicate whether those persons are authorized to aid in the execution of the warrant.

See if the persons who are present are listed on, or authorized by, the warrant to conduct the searches. Collect business cards from each of the searchers, and if someone doesn't have a card then get a card from another searcher and have them write their information on the back of that card.

3. Request time to review the warrant and to obtain legal advice with respect to your appropriate course of conduct.

4. Read the warrant carefully to determine:

- the premises covered

- the specific documents or objects it covers

- the alleged offence(s) which are the subject of the warrant(s)

- Read the date and times that the warrant authorizes search.

While you do these things the officers will see that nothing is removed from the premises, either by you or by someone else; but as long as they can ensure this to be the case, they should give you the time to review and satisfy yourself on the terms of the SW.

5. At the same time that the warrant is being reviewed, instruct someone to make the following calls:

- to your legal counsel; say something like "Officer, I have nothing to say until I speak with my lawyer." You have the right to be silent, use it.

NB: if your lawyer's office, or home, is searched they should claim your solicitor-client privilege and follow the procedures set forth by their provincial Law Society. Because you are not the lawyer's only client the lawyer should ask to have their Law Society send a representative out to attend at the search site and ensure that your lawyer's other client's rights and privileges are not violated.

- to your accountant

- other individuals named in the warrant whose offices or homes are to be searched. They should be told not to remove any books or records before the SW is executed on their premises.

6. If told that you must sit down and not use the phone, ask: "Am I under arrest?" If the answer is "No" or "Not yet" then no one has any right to touch you, or to hinder your use of the telephone.

If an officer does touch you, then ask again: "Am I under arrest?" If the answer is no, then say: "In that case, please take your hand off me." If this happens call your lawyer immediately, and seek their advice.

Be polite and if you make an objection make it calmly and ensure that you record all of the details carefully.

It is possible that you may be subjected to "administrative detention," which is practically like being arrested, but it will stop when the search is over.

7. Do not "agree" that the search can be expanded beyond the limits described in the warrant. If you are asked to "agree" say very clearly that you don't agree and ask the officer in charge to witness your refusal.

This may be important if the officers make over-seizures; that is, take things not authorized by the warrant (and chances are that they will). Some such extra seizures may be authorized by law, but keep detailed notes and discuss this with your lawyer.

8. Do not answer any substantive questions; that is, don't make any statements or allow yourself to be questioned without your lawyer being present - use common sense here.

If you insist on ignoring your right to remain silent, then when you do say something be honest and tell the truth.

9. The CRA will be accompanied by an RCMP officer, ask this officer for a business card as well. This officer is present to keep the peace and not to search. If the RCMP does appear to be searching or making seizures then tell your lawyer.

10. Keep track of the paperwork that is being seized; see that each item (as far as possible) is authorized for seizure by the search warrant and that the officers don't engage in over-seizures. If they do take things not authorized by the warrant, then record the particulars and tell your lawyer - do not argue with the officers.

11. In the unlikely event that the searching officers damage your property then politely object to the officer in charge, giving any pertinent details and ask them to stop. Be sure to write down as much information as possible.

12. DO NOT attempt to impede, physically, verbally or otherwise, any person from executing a search warrant. To do so may be an offence.

If you believe that the warrant doesn't authorize a particular seizure, then ask the officers to wait while you call your lawyer. Have your lawyer discuss any technicalities with the CRA officers.

13. If you have any documents over which solicitor-client privilege may exist, identify the documents and their location and indicate to the search officer that the documents are subject to solicitor-client privilege and that you require that the appropriate procedures be followed to protect the privilege.

This includes sealing the documents into a separate box, listing the contents (in general terms) and having the box taken to the Sheriff. CRA will ask you to give them custody of these materials, but it is better to have them delivered to an independent third party.

14. Keep an accurate log (or copy) of all documents seized and have the officer in charge confirm that your copy is accurate - do this before the officers leave the premises.

If the officer(s) refuse then obtain from them a written undertaking tell you when you will get an inventory, and ask for both the paper and the electronic versions, to make reviewing the data easier on your lawyer.

15. If CRA takes a copy of your computer hard drive(s), or takes copies of your computer disks, CDs or DVDs then request a copy of all of the seized originals before they leave the premises.

If possible observe each disk being copied, and have the officer sign the copy, numbering each disk in the series (i.e., 1 of 5, etc.)

16. The CRA officer in charge, or team leader, will have sworn a document called an 'Information to Obtain a Search Warrant' ("ITO") which was presented before a Justice who must be satisfied that the officer has reasonable and probable grounds that there has been an offence committed and that a search of the premises will disclosure evidence relating to the commission of that, or those, offence(s).

17. Once the search has been completed the officer in charge, or the searchers having, must file a "Report to a Justice" with the court, explaining what they did with the SW and listing what they took.

Examine the attached scheduled must list all that is seized, if you find any discrepancies between what is listed there and with what you recorded as seized tell your lawyer immediately.

18. Have your lawyer request the right to attend at the hearing before the Justice, when the Report to a Justice is presented.

19. Have your lawyer request a copy of the Witness List(s), for all of the officers who attended the search, as well as, a copy of their statements, any affidavits sworn in support of the Report to a Justice, and any Will Say Statements, as they become available.

If you are charged, your lawyer will be entitled to these documents, but do what you can to obtain copies as soon as possible, because any problems should be raised at the first possible opportunity by your lawyer.

20. Get your lawyer to obtain from CRA a copy of the ITO relating to the search warrant. They will also be available from the Court Office where it is a public document and can be obtained for the cost of photocopying - this ITO will prove to be valuable to your defence.

If you have not been charged with an offence under the Income Tax Act ("ITO") or Criminal Code ("CC") then CRA will require a Retention Order to keep your seized materials.

21. The Income Tax Act and Criminal Code each provide a code of rules which CRA officers must comply with in preparing ITO's and executing warrants. If they have failed to do so or otherwise fail to comply with the law, then your lawyer may be able to pursue remedies on your behalf.

Just like you, CRA officers, are required to follow the law.

IRS Lock-In Letters - What's An Employer To Do?

Employers often ask employees to designate the amount of tax withholdings for paychecks. Occasionally, employees will fail to withhold a sufficient amount in the eyes of the IRS. The IRS will then send a "lock-in" letter on the amount to be withheld. What's an employer to do?

Withholdings

Four taxes must be withheld from employee paychecks - Medicare, Social Security, Federal Income and State Income tax. The Medicare tax is set at roughly 1.5 percent of salary while social security is set at 6.2 percent. The withholding for federal and state income tax, however, is subject to adjustments made by employees. The amount of tax required to be withheld by the IRS requires a calculation beyond the scope of this article, but you can look to the "Employer's Tax Guide" on the IRS web site.

If an employee claims excessive deductions that result in insufficient withholdings, the IRS may respond. The typical response is to send an employer a "lock-in" letter.

The lock-in letter tells the employer to increase the amount of withholding tax of the employee. The IRS will actually specify the maximum number of withholding exemptions the employee can claim. The more exemptions claimed, the less tax withheld in each paycheck. The IRS will also send a copy of the correspondence to the employee.

As an employer, you must comply with the IRS lock-in letter. The IRS will designate a specific compliance date. Better to have died a small child than fail to comply with the letter. Failure to comply will result in the tax liability transferring from the employee to the employer. The employer can also expect the unwanted attention of IRS auditors. In short, make absolutely sure you comply with the lock-in letter.

What should you do if you receive a lock-in letter, but the employee no longer works for you? You must send a written response to the IRS office listed in the correspondence. The response must state the employee no longer works for you and the last date of employment to the best of your knowledge.

What should you do if the employee refuses to comply with the lock-in letter? You must comply with the lock-in letter. The employee's wish is irrelevant and you have no discretion in the matter. Instead, the employee should be told to contact the IRS directly and request a modification to the lock-in letter.

Lock-in letters can cause stress in employee-employer relationships. Unfortunately, there isn't much you can do about.

Get Uncle Sam To Pay $36,000 For Your Childs Education!

Let's assume that you would like to begin saving for your children's education fund. At the end of each year, for the next 8 years, you will contribute $2,000 into a Coverdell Education Savings Account (Education IRA), using your after-tax dollars. The money grows tax-free, and neither the contribution nor the interest is taxed when you make a withdrawal, as long as you use it for education purposes.

By the end of 17 years, your Education IRA will have accumulated to just over $86,000. Contrast this with your fully taxable non-IRA account which would have grown to only $50,000. That is a $36,000 difference!

Today, the average 4-year cost of education at a public college in the country is around $38,000. In 18 years it is projected to be close to $86,000. Costs for private education are even higher.

This example illustrates that, by funding your child's education using an Education IRA earning 14% with after-tax contributions of $2,000 in each of the first 8 years of your child's life, you can put an extra $36,000 into your child's future rather than Uncle Sam's pocket!

There would be enough in the IRA account to pay for the entire projected 4-year education costs.

Now, when your child begins their college education, as you draw from the account each year to pay for expenses, and re-invest the remaining funds, at the end of your child's 4th year of college, an extra $27,000 would remain in the IRA that can be transferred to another child's account.

If you have a fully taxable Non-IRA account, you'd have to come out of pocket in your child's 3rd year of college because the account didn't have enough to cover the entire education cost.

By using a Tax-Free Education IRA account, this allows the contributions to accumulate at a much fast rate than the fully taxable investment vehicle.

Requirements To Produce Tax Information (Whats Up With That?)

"What we've got here is a failure to communicate."
--Strother Martin in Cool Hand Luke

Statutory Law

Governments pass laws, it's what they do. It is the job of others to interpret the laws that Parliament has made.

Statutory Construction

It is "presume[d] that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose": Tower v. M.N.R., [2004] 1 F.C. 183 (F.C.A.) per MALONE J.A. per curium at para. 15.

Also Communities Economic Development Fund v. Canadian Pickles Corp., [1991] 3 S.C.R. 388, per IACOBUCCI, J. at page 408 Interpretation of the Canadian Income Tax Act ("ITA") in practice is primarily done by the Canada Revenue Agency ("CRA"); followed closely by tax accountants and lawyers with the tying vote going to the Courts.

The Legislative Purpose

To raise money and implement federal policies.

The Accounting/Legal Purpose

To assist taxpayers to legally structure their affairs so as to minimize the taxes they must pay: IRC v. Westminster, [1936] A.C. 1 (H.L.), at p. 19 and Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536 (S.C.C.), at p. 540.

It is not difficult to foresee that the legislative objective and private sector tax adviser will frequently disagree. While CRA wins many such arguments by default (e.g., the taxpayer can't, or won't, fight) for those that do contest a restrictive or erroneous interpretation of the ITA, there is a heartening rate of success.

A caveat should be interjected here, this presumes challenges where have been made thoughtfully; that is, were CRA "got it wrong" and the taxpayer has called them on it. Frivolous challenged or specious arguments (i.e., R. v. Klundert) are not going to succeed.

Legislative Tools

In order to expedite the collection of taxes Parliament has given CRA broad powers to enforce the ITA, some require taxpayers to cooperate under a compulsion of law.

While such compulsion may be permissible in the civil context (R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627), the same is not true if the information sought or seized by CRA will be used to prosecute the taxpayer for an offence under the ITA (R. v. Jarvis [2002] 3 S.C.R. 757; s. 7 of the Canadian Charter of Rights and Freedoms).

Thus the following material assumes a CRA civil audit, but if you believe that in your situation CRA abused these provisions while you were under a criminal prosecution (e.g., s. 239(1)(d) ITA for evasion) then obtain immediately legal advice.

S. 230(1) ITA: Books & Records

Every "person" carrying on business or required to pay, or collect, taxes under the ITA is required to keep records and books of account at their place of business or residence. What books? Enough to enable you to calculate the taxes and for CRA to see that you did it correctly. "Person" includes corporations (s. 248(1) ITA).

This ties into with the obligation on each Canadian taxpayer to estimate the amount of the taxes payable in any taxation year under s. 151 ITA.

S. 231.1(1) ITA: Inspect, Audit & Examine Books

Someone from CRA may, enter your place of business to inspect, audit or examine your books and records, or those of another taxpayer, to see you fulfilled your obligation under s. 151, above. They may not enter your home without a search warrant, unless you invite them in.

Although the wording of this provision is broad, it is not unlimited: the person has to be authorized, their approach has to be at a reasonable time(s), the request has to be related to enforcement of the ITA and it is restricted to "inspect[ing], audit[ing] or examination[s]."

If you are subject to such a "compliance audit" you will want to have your accountant involved as soon as possible in the process.

If, however, you are audited and shortly thereafter charged with an offence under the ITA speak with your lawyer as this "audit," it may have violated s. 7 of the Charter and the Jarvis principles.

S. 231.2(1) ITA: Requirements To Provide Information and Documents ("RPIDs")

If CRA wants you (or a third party) to produce (a) information or (b) any document the Minister of National Revenue ("MNR") may, for any purpose related the ITA, give notice served to you, or that third person, personally requiring production, within a reasonable time, of stipulated materials listed in the notice: Tower, above, s. 17.

Like you, CRA must follow the wording of s. 231.1(1) ITA (Ludmer v. Canada, [1995] 2 F.C. 3 (F.C.A.), CHEVALIER D.J. at p. 17).

CRA does get this wrong from time to time. Just how serious their error is you can discuss with your lawyer. An irregular RPID doesn't necessarily mean the evidence will be excluded, but the mere possibility is sufficient to justify your lawyer thoroughly reviewing the memoranda, RPIDs and related materials for errors.

Only the MNR (or his delegate) can issue RPIDs. RPIDs must be subject to prior approval and the delegate must act in a quasi-judicial manner; or in other words, if they don't act unreasonably.

The Supreme Court of Canada has held that a taxpayer may have substantive defences to successfully attack RPIDs and any resulting prosecution (McKinlay Transport), defence which include:

1) unauthorized fishing expeditions by CRA (James Richardson & Sons, Ltd. v. M.N.R. [1884]1 S.C.R. 614 at p. 623), and

2) there is no a genuine and serious inquiry into a taxpayer's liability (relying on Canadian Bank of Commerce v. A.G. Canada (1962), 35 D.L.R. (2d) 49).

The court ruled that the test is objective, which means that what's important is statutory compliance not CRA's good faith.

If the Requirement power was used improperly and all of the resulting information was obtained in violation of the Charter then your lawyer may ask the Court to exclude the evidence: Charter s. 24(2).

If search warrants were obtained "based solely on information gleaned in violation of the Charter [those warrants] are invalid": R. v. Evans, [1996] 1 S.C.R. 8 at para. 26.

S. 231.2(2) ITA: Unnamed Persons

The MNR shall not impose on any third party a RPID to provide information or any document relating to any one, or more, unnamed persons without prior judicial authority.

The Supreme Court of Canada has held that warrantless searches are prima facie a violation of s. 8 of the Charter: R. v. Collins, [1987] 1 S.C.R. 265 per LAMER, J. at para. 22 and it then becomes a question of fact whether that violation was "reasonable."

To rebut this presumption the onus will be on the Crown/CRA; but normally a "search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable" (Collins, at para. 23).

In other words, an RPID will be legal if:

* the ITA was followed, exactly (Tower);

* if it was done in the civil context (McKinlay Transport);

* if there was a genuine and serious inquiry into a taxpayer¡¦s liability (Canadian Bank of Commerce); and

* the taxpayer was named (s. 231.2(2) ITA; Artistic Ideas Inc. v. Canada (CRA), 2004 FC 573 (F.C.T.D.) per SNIDER, J.);

And, an RPID will not be valid and enforceable if:

* the ITA was not followed;

* if the MNR¡¦s delegate didn¡¦t act quasi-judicially;

* if the RPID was used as part of an investigation (Jarvis);

* if CRA was "fishing" (Richardson & Sons); and

* if CRA didn't obtain prior authorization for the RPID (Hunter v. Southam Inc., [1984] 2 S.C.R. 145 DICKSON J.)

This is a simplified version of the law, only your lawyer can give you advice about your particular situation.

S. 231.3(1) ITA: Search Warrants

CRA can apply to a judge for a search warrant ("SW") without notice to you.

A CRA officer must swear an Information to Obtain (s. 231.3(2) ITA) and under s. 231.3(3) ITA a judge may issue the search warrant if they are is satisfied that there are reasonable grounds to believe:

(a) an offence under the ITA was committed;

(b) a document or thing that may afford evidence of the offence; and

(c) the building to be searched is likely to be contain such a document.

S. 231.3(3) ITA now reads "may issue" rather than "shall" because the Baron v. Canada, [1993] 1 S.C.R. 416 declared the former invalid as a violation of s. 8 Charter because it unduly restricted judicial discretion in refusing to issue search warrants. So you can see judicious challenges can change not only the results, but the law as well.

S. 487 Criminal Code

Provides an alternative procedure for applying for SWs, similar to the foregoing; which in practice, CRA uses regularly; as you might imagine s. 487 has been extensively litigated and it is generally well understood by the criminal bar.

S. 231.5(1) ITA

Where any document is seized, inspected, examined or provided under ss. 231.1 to 231.4 ITA the CRA officer my make copies. Such copies, when certified, have the same probative force as the original.

S. 231.5(2) ITA

No person shall hinder, molest or interfere with any person doing anything he is authorized to do under ss. 231.1 to 231.4. If you think that CRA has violated your rights or otherwise failed to comply with the ITA ¡V then call your lawyer. Don't try to stop them yourself.

S. 238(1) ITA

Provides that every "person" who has failed to file a return as and to comply with the sections of the ITA listed therein is guilty of an offence and in addition to any other penalty (e.g., s. 162(1) ITA). If convicted a taxpayer is subject to a fine and imprisonment

The Bottom Line

Although the CRA uses these provisions frequently, they don't always do so correctly.

Some CRA officers have testified that they followed CRA "practices" rather than the ITA per se (e.g., s. 231.2(2) ITA), but as only the statutory provisions that are binding this may give your lawyer grounds to challenge CRA use or reliance on any materials found.

Parliament has spoken, but sometimes CRA hasn't listened; that "failure to communicate" may, if your lawyer decides circumstances warrant it, may justify challenging CRA on their use of their requirement powers.

About Income Taxes; Tidbits

1812

The first attempt to impose an income tax on America occurred during the War of 1812. After more than two years of war, the federal government owed an unbelievable $100 million of debt. To pay for this, the government doubled the rates of its major source of revenue, customs duties on imports, which obstructed trade and ended up yielding less revenue than the previous lower rates.

And to think that the Revolution was started because of Tea Taxes in Boston?

Excise taxes were imposed on goods and commodities, and housing, slaves and land were taxed during the war. After the war ended in 1816, these taxes were repealed and instead high customs duties were passed to retire the accumulated war debt.

What is Taxable Income?

The amount of income used to arrive at your income tax. Taxable income is your gross income minus all your adjustments, deductions, and exemptions.

Some specific taxes:

Estate Taxes:

One of the oldest and most common forms of taxation is the taxation of property held by an individual at the time of death.

The US still has Estate Taxes, although there are proposals to do away with them.

Such a tax can take the form, among others, of estate tax (a tax levied on the estate before any transfers). An estate tax is a charge upon the deceased's entire estate, regardless of how it is disbursed. An alternative form of death tax is an inheritance tax (a tax levied on beneficiaries receiving property from the estate). Taxes imposed upon death provide incentive to transfer assets before death.

Canada no longer has Estate Taxes.

Most European countries have Estate Taxes, one prime example is Great Britain which has such high Estate Taxes that it has just about ruined the financial well-being of most of Britain's Nobility which has been forced to sell vast Real Estate holdings over time.

. Such a tax can take the form, among others, of estate tax (a tax levied on the estate before any transfers). An estate tax is a charge upon the decedent's entire estate, regardless of how it is disbursed. An alternative form of death tax is an inheritance tax (a tax levied on individuals receiving property from the estate). Taxes imposed upon death provide incentive to transfer assets before death.

Capital Gains Taxes

Capital Gains are the increases in value of anything (including investments or real estate) that makes it worth more than the purchase price. The gain may not be realized or taxed until the asset is sold.

Capital gains are normally taxed at a lower rate than regular income to promote business or entrepreneurship during good and bad economic times.

State Tax Information

All states also have their own tax system. Typically there is a tax on real estate, and there may be additional income taxes, sales taxes, and excise taxes. Oil and mineral producing states often have a severance tax, which is similar to an excise tax in that tax is paid on products produced, rather than on sales. Taxes on hotel rooms are common, and politically popular because the taxpayers usually do not vote in the jurisdiction levying the tax.

These states do not levy an individual income tax: Alaska, Florida, Nevada, South Dakota, Texas, Washington, and Wyoming. New Hampshire and Tennessee only tax interest and dividend income. Delaware, Oregon, Montana and New Hampshire have no state or local sales tax. Alaska has no state sales tax, but allows localities to collect their own sales taxes up to a state-specified maximum. California has all the mentioned taxes, with the result that tax liability often exceeds 51% of income for many California residents.

Many states also levy personal property taxes, which are annual taxes on the privilege of owning or possessing items of personal property within the boundaries of the state. Automobile and boat registration fees are a subset of this tax; however, most people are unaware that practically all personal property is also subject to personal property tax. Usually, household goods are exempt; but virtually all objects of value (including art) are covered, especially when regularly used or stored outside of the taxpayer's household.

States permit the creation of special assessment districts (typically for provision of water or removal of sewage, or for parks, public transit or schools) whose boundaries may be independent of other boundaries and whose income may be from one or more of service assessments, property taxes, parcel taxes, a portion of road or bridge tolls, or an additional increment upon sales taxes in addition to the non-tax fees for services provided (such as metered water). State government is financed mainly by a mix of sales and/or income taxes and to a lesser extent by corporate registration fees, certain excise taxes, and automobile license fees.