Can you rely on archived CRA communications?

One of the marquee sessions at the annual Society of Trusts and Estates Practitioners’ national conference, held in May this year, is always the CRA roundtable.

The CRA representatives are provided the questions months in advance, and are able to discuss their answers internally before sharing the agency’s views publicly.

On this year’s panel, the final question addressed the extent to which we may rely on past income tax interpretation bulletins (ITs) and technical news (ITTNs) releases that have been archived.

Tax folios project and archiving

The CRA representative acknowledged that there is a lot of confusion about archived bulletins.

For context, CRA is in the midst of a multi-year project to reorganize its materials into online folios grouped by subject matter. CRA describes folios as web-friendly technical publications that update and may broaden past IT and ITTN content. The agency’s plan is to cancel those past publications as their content is replaced by a folio.

In 2012, CRA cancelled and removed 140 IT bulletins from its website, as it was going to take too much time and effort to bring them up to date. In 2013, CRA archived all remaining materials that no longer met the government’s requirements for publishing online. Those archived materials will not be updated.

So what does that mean in terms of their reliability?

Difference between cancelled and archived

The CRA representative made it clear that archived and cancelled do not mean the same thing. Archived items are current up to the date of their publication, but will not be updated going forward.

Cancelled means that the material is out of date in terms of technical content, that there are statements that are patently wrong or that the law has changed. In sum, CRA will cancel an IT when it’s no longer valuable.

Can one rely on an archived IT?

As CRA has said before, yes—but with caveats.

ITs and ITTNs are only current up to the stated effective date when they were first published, and they are not a substitute for the law. In that last respect, ITs, ITTNs and now folios are statements of CRA’s interpretation of the law, not an assertion of the law itself.

The representative then shared a few questions we should ask ourselves when looking at an archived item:

• Are there any relevant provisions of the law that have changed since its publication?
• Are there any court decisions that would vary the views expressed in the document?

Crucially, if the subject matter is one for which a folio was subsequently published, then do not use the old material; use the folio instead.

Two of the leading tax accountants in the country sat on the panel with the CRA representatives and endorsed the value of tax folios as “helpful, useful and easy to follow.” It’s good to know that even top tax professionals use these as guidance.

But again, be aware that a judge may see things differently if a dispute comes before the courts.

Doug Carroll

Tax & Estate

Doug Carroll, JD, LLM (Tax), CFP, TEP, is a tax and estate consultant in Toronto.