Directors’ Liability
Typically in Canada, your debts are your own. However, where corporations are involved that is not always the case. The Canada Revenue Agency (CRA) can assess directors of a corporation for certain kinds of corporate debts. The most common are unpaid source deductions, and GST/HST.
There are defenses available to fight the imposition of director’s liability. A director may attempt a due diligence defense which is found in subsection 227.3 of the Income Tax Act.
The due diligence defense argues that appropriate efforts were made to ensure the corporation complied with the law (i.e. remits properly), and the directors should not be blamed for what occurred. It is an incredibly difficult argument to make and one should seek proper legal advice before attempting to do so.
Another defense available is that there is a time limit for the CRA to assess a director for director’s liability. That time limit is two years from the time the director resigned, or two years from the date of dissolution.
Who is a Director?
There are two types of directors, “De Jure directors”, and “De Facto directors”. A de jure director is someone who is formally recognized as a director through government filings and with the corporate registry. De facto directors are individuals who are acting like directors, but who have not been officially recognized.
The CRA may assess either a de jure director, or a de facto director for director’s liability.
It should also be known that the CRA will assess every director they possibly can so that the odds of recovering the unpaid amounts increase.
Joint and Several Liability
Director’s liability is considered to be joint and several. This means the debt is shared by all those who have been assessed. If two directors have been assessed, and the corporation is still active, a payment by any party reduces the amount owed by the other two parties.
Being Assessed
If a director is assessed for director’s liability they may object by drafting and filing a defense to the assessment. Not only can the director attempt to argue the time limitation or due diligence defense found above, but they can also argue against the original assessment that created the liability for the corporation.
If you have been assessed with director’s liability, please seek legal assistance to properly inform yourself of the defenses available by giving us a call today.
Income Tax Act
Excise Tax Act
CRA Resources
Directors’ Liability Information Circular
Case Law
Attila v. The Queen, 2014 TCC 46 – Medical Impairment and Directors’ Liability for HST/GST
Madden v. The Queen, 2014 TCC 277 – Degree of Care, Diligence and Skill – Corporate Directors
McDonald v. The Queen, 2014 TCC 315 – Unpaid GST – Director Liability of Persons Carrying Out Duties of Director
MacDonald v. The Queen, 2014 TCC 308 – De Jure versus De Facto Directors of Corporations
Detailed case law analysis may be found here.
**Disclaimer
This article provides information of a general nature only. It does not provide legal advice nor can it or should it be relied upon. All tax situations are specific to their facts and will differ from the situations in the articles. If you have specific legal questions you should consult a lawyer.
