CRA sending details of bank accounts to IRS that don't have to be reported

The Canada Revenue Agency has been reporting hundreds of thousands of Canadian bank accounts to the Internal Revenue Service, despite the fact that they fall below the mandatory reporting level set in an agreement between Canada and the United States.

According to information released by the CRA in response to an access to information request, the account balances in 615,000 of the 901,000 records the agency transferred to the IRS in 2019 were below $50,000 U.S. The year before, 610,000 of 900,000 accounts the CRA reported to the IRS fell below that threshold.

Under the agreement reached by the two countries after the U.S. adopted the Foreign Account Tax Compliance Act (FATCA) to go after offshore tax evasion, Canadian banks and other financial institutions are obliged to send the CRA information about accounts held by individuals who could be subject to U.S. tax law that have balances over $50,000 U.S. The CRA then forwards that information to the IRS once a year.

The agreement does not oblige the CRA to send details about accounts that hold less than $50,000 U.S.

Taxation by citizenship

Unlike most other countries, the U.S. imposes income tax based on citizenship rather than country of residence. While some Canadian residents subject to U.S. tax law are American citizens, many others are dual citizens, or people who were born in the U.S. but have lived their entire lives in Canada.

According to an analysis by the U.S. Federal Voting Assistance Program, there were 825,620 people with U.S. citizenship living in Canada in 2016, 622,492 of them of voting age.

While opponents of the agreement have long suspected that the banks and the CRA were sending the IRS information about more accounts than necessary, this is the first time the CRA has stated publicly how many accounts shared with the IRS fell below the mandatory reporting threshold.

Conservative MP Philip Lawrence, the party's critic for national revenue, said he would like to see a parliamentary committee investigate why the number of records the CRA transfers to the IRS has been rising over the years.

"If, in fact, we are giving more than we are required to through FATCA or other negotiated settlements, that's something we need to understand ... because we are giving away precious private information of Canadians to another country," he said.

The NDP's revenue critic, MP Matthew Green, also questioned the CRA's track record on protecting data about Canadian citizens.

"We have a duty first to our citizens and we have to take seriously the protection of personal information," he said. "We should never be sharing this information unnecessarily."

Green said Canadian residents also should be told when their private bank record information is being shared.

Privacy commissioner still worried

Testifying before a parliamentary committee in 2016, Privacy Commissioner Daniel Therrien said he was concerned that details about accounts that fell below the reporting threshold would be turned over. His office says he is still concerned.

"Our office has consistently recommended that the CRA notify impacted individuals when their data is provided to the IRS," wrote spokesperson Vito Pilieci. "Doing so would allow individuals to be informed about how their personal information has been used and disclosed by the CRA."

The CRA says the decision to report an account lies with each Canadian bank or financial institution.

"The reporting financial institutions have the discretion to apply, or not apply, the dollar thresholds negotiated in the agreement and as provided by domestic legislation," wrote CRA spokesperson Christopher Doody in an email response.

"Once accounts are reported to the Canada Revenue Agency (CRA) ... these are U.S. reportable accounts and the CRA is, under the agreement, expected to exchange that information on that account with the Internal Revenue Service."

Doody said the mandatory reporting threshold applies to the combined balance of all of the Canadian accounts held by someone who could be subject to U.S. tax law.

"Since accounts should be aggregated across a taxpayer's holdings (whether jointly held or not)," he wrote, "a single account below the threshold does not mean the cumulative balances for a given taxpayer are below the threshold."

Doody said the CRA provides financial institutions with feedback about the quality of their data and reporting. He said it also works with the privacy commissioner's office to ensure the agreement is managed in a way that respects privacy law.

Mathieu Labrèche, spokesperson for the Canadian Bankers Association, said their members are simply following the law.

"Financial institutions provide information to the Canada Revenue Agency in accordance with Canadian tax law," Labrèche wrote. "They comply with the intergovernmental information sharing agreement between Canada and the U.S. because it's the law."

Allison Christians, chair in tax law at McGill University, said banks are reporting more accounts than necessary in order to protect themselves.

"Banks are not going to police a line at $50,000 U.S. because there's risk to banks being wrong about that," said Christians. "Why would you bother?"

While the mandatory reporting threshold is $50,000 U.S., there's nothing to stop banks from voluntarily reporting accounts with balances under that level to the CRA and IRS, Christians said.

She questioned why the CRA is even collecting the information on behalf of the IRS.

"I think it's absolutely ridiculous that the CRA is helping the U.S. do this," Christians said, adding that the information could also be used by the CRA.

Going after the 'little fish'

While FATCA and the intergovernmental agreement were adopted to crack down on offshore tax evasion, Christians said, it is hitting average Canadian residents.

"I warned that it would be the little fish that would be caught up at volume, it would not be the big fish," Christians said. "And now we see that's exactly what's happening."

Toronto lawyer John Richardson, who specializes in cross-border issues and has been active in fighting FATCA, said far more accounts have to be reported under the agreement than many people realize.

"A large number of accounts that are under $50,000 U.S are reportable," Richardson said.

On top of that, banks can decide to protect themselves by reporting accounts below the threshold, he said.

Richardson said the CRA should be doing more to protect Canadian residents.

"I think the government of Canada should be taking what steps it can to protect individuals," said Richardson. "They certainly bent over backwards to protect the banks."

Elizabeth Thompson can be reached at [email protected]