Litigation, Taxation law

Transparency and the Voluntary Disclosure Program: entrapment for the wary

Nov 7th, 2018

By David H. Sohmer

In a recent report on the international tax gap[1], the Canada Revenue Agency (“CRA”) described the revised voluntary disclosure program (“VDP”) as follows:

Under the new VDP policy, there are two tracks for income tax disclosures. The Limited Program provides limited relief where the facts suggest that there is an element of intentional conduct. While these individuals may avoid criminal prosecution and gross negligence penalties, they will be charged other penalties and interest. In other cases, the General Program would generally apply. The revised VDP came into effect on March 1, 2018.

By making the relief offered through the VDP less generous in certain circumstances, the CRA anticipates that use of the VDP will decline, particularly for taxpayers who have engaged in aggressive offshore tax avoidance.[2]

The description implies that there are three levels of generosity: the Limited Program – least generous; the General Program – less generous; the “old” program – most generous. In order to facilitate comparing the three levels of generosity, we have used the example contained in paragraph 32 of Information Circular 1R6 to determine the cost of disclosing under each of the programs.

32. A taxpayer’s VDP application must be made for all relevant taxation years where there was previously inaccurate, incomplete or unreported information regarding their tax affairs, including any non-arm’s length transactions and circumstances. In cases where books and records no longer exist, the taxpayer should make all reasonable efforts to estimate the income for those years.

For example: A taxpayer opened an offshore bank account in 2000 with an initial deposit of $400,000. Books and records only exist for the years 2007 to 2015. As of January 1, 2007, the balance in the bank account was $2,500,000. In this case, the taxpayer should make all reasonable efforts to estimate all the unreported pre-tax earnings that were deposited to the account during that time, as well as the interest income that would have been earned in the years where books and records are no longer available (2000 to 2006) in order for the VDP application to be considered complete.

In a letter dated October 4, 2018, CRA Assistant Commissioner, Ted Gallivan, clarified the CRA policy with respect to estimated income.[3]

In other words, using the example set out in paragraph 32 of the IC, the taxpayer would be required to make an estimate of the income earned in the offshore account for the years where no books and records are available (2000 to 2006). Upon submitting their VDP application, the taxpayer should include payment of the estimated taxes owing for all years (2000 to 2015).

Sections 5 and 6 of the Form RC199, Voluntary Disclosures Program (VDP) Application, support this position by requesting that taxpayers identify the relevant tax years, the gross amount of income being disclosed and the associated estimated tax owing. The relevant tax years on Form RC199 include those where no books or records are available. In such cases, the taxpayer would estimate the amount of gross income attributable to each year and then calculate the estimated taxes owing. The amount of taxes owing would depend on the taxpayer’s taxable income bracket for that year.

The versions of IC 1R6 which applied to the “old” VDP did not require income to be estimated in cases where no books or records exist. The “old” policy is described in a paper by John A. Sorenson delivered to the 2015 Annual Conference of the Canadian Tax Foundation.

Consequently, the CRA’s practice of accepting voluntary disclosures limited to taxation years for which records exist and can be located is reasonable and in accordance with common sense. Viable estimates of income, gains, and losses for historical taxation years are essentially impossible if no records exist.[4]

Based on the foregoing, James Morrisey, retired Ernst & Young partner, calculated the combined federal and provincial cost of disclosing under each of the programs.[5]

Old VDP                                       General Program                         Limited Program

$900,000                                        $3,400,000                                      $6,800,000 

Given the cost disparity between the “old” and “new” programs, the use of the term “generous” by the authors of the report on the tax gap indicates that they were either ill-informed or not transparent. The fact that no published comment on the proposed revisions (including the submission by the Joint Committee[6]) detected an intention to tax estimated income speaks volumes to the lack of transparency.

Since it was well known for several years prior to the effective date of the new VDP that the CRA would begin to receive offshore account information in 2018 through the OECD Common Reporting Standard, most taxpayers with offshore accounts disclosed under the “old” VDP. While such taxpayers will not be directly affected by the “new” VDP, there are indications that the CRA Offshore Compliance Division is attempting to apply ex post facto the new position with respect to estimated income to accepted disclosures under the “old” VDP. Years for which books and records were no longer in existence are being reassessed based on the position that the failure to report estimated income constitutes a misrepresentation. Not only is this position wrong in law[7], it is unconscionable entrapment.[8] The CRA report on the tax gap indicated that from 2011-12 to 2016-17 there were 42,700 completed offshore disclosures. Until the Federal Court decision in Gauthier v. MNR in 2017[9], there was nothing in the public domain to indicate that the CRA had changed its policy. It appears that the change in the policy is attributable to an attempt by the Offshore Compliance Division to repair the damage to its reputation from the KPMG / Isle of Man fiasco. Thumbing its nose at the Taxpayer Bill of Rights only aggravates the damage.

David H. Sohmer, a frequent contributor to the Canadian Taxpayer, is a shareholder of Spiegel Sohmer Inc., a Montréal law firm, and can be reached at


This publication is of a general nature, is as of the date indicated and is not intended to constitute an opinion or legal advice.  The facts and circumstances of your particular situation should be specifically identified and addressed before appropriate legal advice may be given.


[1] International Tax Gap and Compliance Results for the Federal Personal Income Tax System

[2] Ibid paragraph 5.4

[3] Letter from CRA, October 4, 2018, TaxnetPro 2018-10-17 Commentary

[4] A comprehensive review of penalty and interest relief under the Income Tax Act, Sorenson, J., 2015 CR 41:22

[5] Detailed calculations can be viewed at

[6] Proposed changes to the VDP announced on July 9, 217 – dated August 8, 2017

[7] « Regard critique sur l’application de la méthode de l’avoir net rétrospectif au-delà de la période normale de cotisation » L'honorable Gerald J. Rip, et al. (2017, Vol. 36, numéro 4, revue de planification fiscale et financière 511-528

[8] It may also constitute a fault for which damages may be awarded – see Ludmer v. Canada (Attorney General) 2018 QCCS3381 at paragraph 702

[9] 2017 FC 1173 (Federal Court)