As lawyers, we are often contacted when a dispute arises amongst members of an association. Inevitably, the dispute will devolve into a review of the legality of the actions of one or both sides. Given that most associations are corporations, there are, in fact, laws which must be followed in order that the authority of the corporation is properly wielded. So, when there is a dispute, it does not take long for a suggestion that ...
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Does your organization send out information about an issue? Does it have a position on that issue? Might that issue become a hot topic in the 2019 Federal election? If so, your organization might unknowingly be election advertising once the writ drops in September 2019. Yes, even if the position is presented in a non-partisan manner. And there are penalties for failing to register as a third-party and follow the rules in the recently amended ...
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Readers of the business news are often treated to headlines that CEOs receive compensation in the multi-millions of dollars. A large portion of this may be cash but, generally when the compensation goes from the absurd to the ludicrous, stock options are involved. Stock options are often given by start-up business to incentivize employees to work in a cash poor business in the hope that it will ‘hit it big’. The drafters of the Income ...
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A recently published CRA memorandum, which despite redactions, appears to refer to a proposed financing scheme at the provincial level will be some substantial interest to secondary educational institutions and may open the door to some private or charitable planning.[1] It has been edited to try to make it somewhat clearer. “This memorandum is in reply to your request for our views on the proposed program for student loans. It is our understanding that the ...
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As of June 1, 2019, the Canada Revenue Agency offers new digital services for charities through their platform, My Business Account (“MyBA”). You, your employee, or your Authorized Representative can do the following tasks online: apply to become a registered charity, a registered Canadian amateur athletic association (RCAAA), or registered national arts service organization (RNASO)Note the online platform is replacing the paper applicationscomplete and file your annual T3010 Registered Charity Information ReturnPaper returns are currently ...
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One of the most common questions asked by the lay taxpayer is for how long they need to keep their tax records. And while there is a legislated answer for this, one wonders whether it is ever safe to destroy records. Paragraph 27 of IC 78-10R5 summarizes the retention periods as follows: for a corporation, two years from the date of the dissolution of the corporation (in the case of corporations that amalgamate or merge, ...
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Social Impact Bonds (SIBs) are an interesting part of the larger trend of ‘impact investing’ that has been rising in Canada and around the world in recent years. An SIB is essentially an investment model that allows a government to fund innovative social programs without having to risk its own assets up-front. The concept is fairly simple but rather ingenious. The government chooses a new social program, partners with an appropriate civil organization, and then ...
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By: Lex Klombies Part II: The Nitty-Gritty on the Canada Elections Act Amendments for Non-Profits and Charities The next Canadian federal election is on October 21st, 2019, and many of our readers are curious about what they need to be mindful of if they engage in public policy dialogue and development activities near election time. Part I of this series was dedicated to helping our readers get a sense of what kinds of charitable activities ...
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Part I: Will My Charity Be Affected by the Canada Elections Act? The next Canadian federal election is on October 21st, 2019, and many of our readers are curious about what they need to be mindful of if they engage in public policy dialogue and development activities near election time. Two major changes to the field of political participation received royal assent on December 13th, 2018: changes to the charities’ political activities rules in the ...
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 By: Arthur Drache More and more often we have been seeing significant payments by businesses to charities, not just modest support of annual campaigns but often payment in the tens of thousands of dollars. The fundamental question which must be understood by both the business and the charity is whether the transfer of funds is in fact a donation or whether it is, to use the common but imprecise term, a sponsorship. In the past ...
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Every so often the media reports that there are people in the world who do not have access to banking services, the so-called “underbanked”. For those of us in Canada, it is almost impossible to imagine such a situation, given the ubiquity of our banks and the plethora of services that they offer. However, for registered charities and for Canadian not-for-profits operating overseas this situation is becoming an everyday reality. Many, if not most, governments ...
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Gifts of Cultural Property – Undoing Heffel By: Karen Cooper As part of a package of measures intended to increase support for Canadian artists and cultural events, Budget 2019 included aimed at ending any lingering uncertainty around gifts of cultural property arising from the Federal Court of Justice’s decision in Heffel Gallery Limited v. The Attorney General of Canada, 2018 FC 605 (“Heffel”).  An appeal of this decision was heard recently by the Federal Court ...
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Supporting Non-Profit Journalism By Arthur Drache As had been promised last year, the Government has moved on it undertaking to support non-profit journalism…a promise which had been viewed as contentious in some circles. But as we had predicted, the mechanism to implement this scheme was to create a new category of qualified donees. The key elements of the plans are: allowing journalism organizations to register as qualified donees; a refundable labour tax credit for qualifying ...
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Another Run at the Social Finance Fund  By Alexandra Tzannidakis The 2019 Budget confirms the creation of a Social Finance Fund, which will make investments of federal capital into organizations that are working to remedy Canada’s social challenges. This project has been in the works for a while, beginning with the 2017 creation of a Social Innovation and Social Finance Strategy Co-Creation Steering Group. This Group, mainly comprised of charitable and non-profit sector experts, delivered ...
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Budget 2019: Housing strategies Lex Klombies Budget 2019 was heavy on housing strategies. Among other things, it claims to modernize the Home Buyer’s Plan, which went 10 years without being increased or even adjusted for inflation. Budget 2019 also proposes to introduce the First-Time Home Buyer Incentive, and to start a $100 million fund for third-parties providing shared equity mortgages. The much discussed stress test for insured mortgages hasn’t gone anywhere. Shared Equity Mortgage Fund ...
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Retail Therapy for Governments by: Adam Aptowitzer Pre-election budgets can be predictable in their spending, but in certain circumstances budgets are predictable because they spend. Budget 2019 falls into this unusual class of retail therapy because government revenues are pouring in yet this is a pre-election budget (and this is a Liberal government). Consequently, extra revenues did not result in tax cuts. but rather in more spending and there are a number of interesting proposals on ...
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Nothing is More Opaque than Absolute Transparency[1] By: Adam Aptowitzer It is no secret that Canada often legislates on the basis of its international commitments. What Canadians often do not realize is that Canada also legislates on the basis of international pressure on it. Such is the case with recent amendments to the Income Tax Act and the Canada Business Corporations Act, which require the disclosure of the otherwise hidden beneficiaries of assets or transactions. We ...
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On April 1, 2018, Ontario Regulation 112/18 came into effect amending O. Reg. 4/01 (Approved Acts of Executors and Trustees, hereinafter “Regulation”) [i] under the Charities Accounting Act (the “CAA”).  The new provisions modify the existing Ontario common law rule that prohibited a charity from making payments to a director (or any person related to him/her) for any reason (other than reimbursement of expenses) without first obtaining a court order. Prior to this charities in ...
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The economic statement tabled by Finance Minister Morneau on November 22 had a couple of welcome announcements which will touch on at least certain parts of the sector. But there was very little detail available about implementation and we suspect that we’ll have to await the next federal Budget to get those details. The Social Finance Fund To encourage innovative approaches to persistent and complex social challenges, the Government is creating a Social Finance Fund ...
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There has been a lot of concern over whether Canadians are saving enough for retirement. One reaction to this is the gradual enhancement of the Canadian Pension Plan, which starts in 2019. Another is the new defined benefits pension plan for the Ontario nonprofit sector, OPTrust Select, which was launched April 2018. OPTrust Select is run by a legal trust which exists at arm's length from both the Ontario Public Service Employees Union (OPSEU) and ...
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Those that have been following the political activities saga will be happy to know that after years of promises, a court case, a blue ribbon Panel, and some annoying dithering the Federal Government has finally tabled legislation in Parliament to allow charities to engage more fully in  ‘Political Activities’. In a previous article on this topic Political Activities…Revisited … Again we explored the history of the issue up to the release of proposed legislation in ...
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One of the clearest items of charity law is that action for the relief of poverty are considered to be charitable.[1] But the ongoing problem for many charities is to try to identify an income level which can be used as a measure of who is poor. This is not always an easy task as most guides dealing with this issue are simplistic in the extreme, not usable in many situations. For example, some years ...
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Much has been written about the recent court case and the subsequent proposed Income Tax Act amendments concerning political activities of registered charities.  Organizations that are not registered charities but just non-profit organizations, may have not given the issue much thought as all, except perhaps, pause to consider if the perceived relaxation of political activities for charities might open the door for charitable registration to non-profit organizations that would not have qualified before.  The answer ...
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Along with tax professionals all over Canada, Drache Aptowitzer LLP has noticed the increasing processing delays in every department of the Canada Revenue Agency (CRA). The backlog can be extreme. In the last three years, the processing time for charitable applications may have as much as doubled. And there have been similar delays in resolving even minor tax disputes. We know this backlog at the CRA is frustrating to our clients. Many of our clients’ ...
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One of the most important aspects of operating a non-profit is to have a board which can give direction to the organization. Without being comprehensive in terms of board duties, it must set policy, manage investments, handle personnel issues, raise funds and make strategic decisions, both long term and short term. But it should be pointed out that every board need not deal with every issue. A fully funded organization need not worry about fundraising ...
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Readers of a certain age will recall the damage and the aftermath of Hurricane Katrina.  Hurricane Katrina hit the Gulf Coast of the United States in August 2005.  In the aftermath of the Hurricane the levees in New Orleans broke and flooded much of the city.  The damaged areas were primarily the poorer parishes of New Orleans which mean that those most affected by the hurricane were of low income. There was a great deal ...
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Kids are expensive. There’s no doubt about that. The Canadian government provides a small subsidy by allowing a limited amount of child care expenses to be deducted from income taxes. In 2016, Mr. Kwan had a 10-year-old and a 12-year-old. He and his spouse enrolled their kids in a large number of activities, including chess programs, math tutoring classes, Chinese language classes, a ski class, and a summer camp. The couple also hired multiple babysitters ...
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A recent Court decision and the response to the decision by the Canadian Cultural Property Export Review Board (“CCPERB”) have significantly impacted the criteria that certain donations have to meet in order to qualify as cultural gifts within the meaning of the definition in subsection 118.1(1) of the Income Tax Act (“ITA”). In mid-June, the Federal Court of Justice issued its decision in Heffel Gallery Limited v. The Attorney General of Canada, 2018 FC 605 ...
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The issue of charities engaging in political activities has been a hot item since 2012. In that year the Harper Government gave $8 million to the CRA Charities Directorate to begin what has been termed the “political activity audits”. Budget 2012 also tightened up the political activity rules which were already in place. It is important to remember that this discussion begins with the Scarborough Legal Services case in 1985 which held that activities intended ...
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By:  C. Yvonne Chenier, Q.C. Recent Court cases have reinforced my belief in the importance of the wording of governing documents of charities and not-for-profits organizations. Whether it is trying to ascertain what the members have agreed to in the rules of membership, the specific procedures contained in bylaws or the actual wording of the often outdated charitable purposes of a registered charity, the words used (or not used) are in focus when a dispute ...
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By: Adam Aptowitzer A recently released decision of the Tax Court of Canada illustrates some of the problems with donations of gifts in kind and their valuation. Donors typically accept the valuation on receipts as accurate. For donations of cash this is not a problem - particularly where the donation is one of cash. However, where the donation is a gift in kind (i.e. a gift of an item rather than cash) the valuation of ...
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By: Arthur Drache In mid-July, Mr. Justice Ed Morgan of the Ontario Superior Court of Justice determined that the Income Tax Act legislation and the CRA’s administrative practices relating to political activities of charities was contrary to the Charter of Rights when restrictions were applied to the (non-party partisan) political activities of charities.[1] The decision creates some huge problems for the federal government which is now faced with (a) lodging an appeal or (b) amending ...
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 By: Alexandra Tzannidakis With the Ontario general election coming up on June 7, registered charities should take a moment to review the restrictions on political activities. It is key to remember that registered charities are totally prohibited from engaging in partisan political activities. They can only engage in non-partisan political activities, and only to a limited extent. The CRA’s Advisory on partisan political activities[i] is a succinct refresher on the existing policy[ii], and in fact expands on it ...
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By: Adam Aptowitzer For many years tax and charity professionals calculated the after tax cost of a donation based on certain principles. One of those principles was that, at the top brackets both Federally and Provincially, the credit for the donation offset the tax owing for a dollar of income earned and then donated. As the so-called 1% movement became more vocal, governments felt they had a license to tax higher income earners (although they ...
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By: C. Yvonne Chenier The title for the mid-day address of the Canadian Bar Association Charity Law Annual Symposium is usually the “CRA Comes to Lunch”. Lunch is served before we hear from the Director General, Charities Directorate, Canada Revenue Agency. At the May 11, 2018, Symposium, the morning sessions focussed on revisiting the meaning and impact of the case of Vancouver Society of Immigrant and Visible Minority Women v. M.N.R., [1999] 1 S.C.R. 10, ...
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The following question was asked of the CRA by the Tax Executive Institute in connection with its December 5, 2017 liaison meeting with CRA representatives.  If the CRA is ultimately unwilling to provide the administrative concession described in the question below[1], would the Department of Finance be willing to consider a legislative amendment to the same effect? “An employer is generally required to withhold and remit tax on stock option benefits realized by an employee ...
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Floods and fires and tragic accidents keep hitting close to home in the West. Ice storms and power outages and horrific weather causing vehicle pile-ups are happening in the East. Any of these terrible events could involve volunteers, staff or service users of a charity or not-for-profit organization. As these incidents play out on national television and newspapers and infiltrate social media, I am reminded that planning for a crisis and responding to a crisis ...
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Last week, 14 environmental charities met with Finance Minister Bill Morneau to discuss promised changes to the political activities restrictions on charities, and they appear to have come away worried. The federal Liberals campaigned in 2015 on a promise of reforming the stringent political activity limitations that had led to widespread audits of charities under the previous federal government. We wrote previously about the details of the restrictions and how the new Minister of National ...
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By:  Adam Aptowitzer For many years the Income Tax Act contained a method by which certain foreign universities could attain ‘qualified donee’ status in Canada. That standing effectively amounted to being a Canadian registered charity. This allowed Canadian donors a tax credit for donations to these schools, and for Canadian charities to transfer funds directly to the foreign university. Mostly, these universities were treated differently than registered charities, but new changes to the Income Tax ...
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By:  Adam Aptowitzer In our review of Budget 2018, we made some comments related to the concept of prescribed universities. Readers may recall that the Income Tax Act has, for many years, contained an allowance that certain foreign universities would be considered as qualified donees in Canada (akin to registered charities) if they met certain requirements. Several years ago, Parliament effectively created a secondary registration mechanism for these types of foreign universities. And in the ...
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By: Kara Johnson Receipt Requirement Change In our January (2018) newsletter, we highlighted the importance of charities producing receipts for charitable donations that conform to the requirements of the law for proper receipting. Justice Campbell Miller reiterated the seriousness of a failure to comply with the Regulations of the Income Tax Act in Madamidola v. the Queen 2017 TCC 245. One element that must be present on an official receipt is the name and website ...
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By:  Arthur Drache A recently published technical interpretation from the CRA [1] gives some answers to always vexing questions about the tax treatment of gifts to charities made by executors under a will.  It deals with three possible scenarios. The querying letter described a basic scenario whereby a taxpayer (the “deceased”) died in 2016. His Will named his three sons as equal beneficiaries and co-executors, with no designation of amounts to be given to charitable ...
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By: Alexandra Tzannidakis Whether you have suddenly inherited a bank account overseas, or have owned foreign real estate for years, Canada requires you to report your foreign assets and income on your annual federal tax returns. Many people are wary of this portion of their return, thinking to themselves: why do they want to know? Are they going to tax me even more? The truth is that most people won’t owe any additional tax as ...
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By: Arthur Drache Now that budget leaks are not a sin punishable by political death, it has become the norm that a lot of carefully planted “hints” from the government side give us a preview of what is to come. This year the focus of the “leaks” was to address social issues, not the economy. But it was also clear that many of the approaches would be incremental. For example, a national Pharmacare programme will ...
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By: Adam Aptowitzer From the perspective of the charity and not-for-profit sector Budget 2018 was a relatively quiet affair dealing mostly with technical matters. However, in enacting changes to the regime which deals with donations to foreign universities the Budget has created an immediate issue for anybody that donates to these schools. What is unknown is whether this was intentional. For many years the Income Tax Act contained special provisions which allowed foreign universities that ...
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By: Alexandra Tzannidakis The federal government’s 2018 Budget, tabled a little early this year on February 27, has few proposals that will affect charities and non-profits. But the ones it has are interesting and in some cases quite helpful. They are a combination of technical fixes, new investments, and indicators of future developments. Political Activities Remain to be Clarified The federal government previously convened an expert panel to make recommendations on the topic of reforming ...
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By: Arthur Drache The recent melt-down of the world-wide equity markets may have a negative impact on charities which are (were?) fortunate enough to have substantial investments, particularly where income from those investments is used to fund the charitable activities on an ongoing basis. But if there is a cash squeeze, directors should be aware that there are limits as to what can be done to conserve cash. Those readers who have followed the subject ...
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By:  Adam Aptowitzer Readers of this newsletter will easily recall that charities must maintain control and direction over all of their funds, particularly on projects outside of Canada’s borders. Typically, where the Canadian charity is supplying 100% of the funds, yet working with a foreign intermediary, the relationship is structured as a principal/agent relationship. However, it is unreasonable for the Canadian charity to demand control and direction over the entire project if they are only ...
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by: Sylvie Lalonde Recent litigation relating to an insurer’s obligation to defend an additional insured under a Commercial General Liability (CGL) policy serves as a useful reminder that organizations should carefully review how they transfer or allocate risk when entering into service agreements with subcontractors. A common way for organizations to mitigate risk when retaining the services of a third party is to include clauses in the subcontracting agreement that impose obligations on the service ...
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