Tomorrow Taxing for Estate Trustees

On May 12, 2011, the Better Tomorrow for Ontario Act (Budget Measures), 2011, S.O. 2011, c. 9 (the “Act“) received Royal Assent. Schedule 14 to that Act contains a number of revisions to the Estate Administration Tax Act, 1998, S. O. 1998, c. 34, Sch. (“EATA”), which revisions came into force upon the Act receiving Royal Assent. Beginning on January 1, 2013, applicants for Certificates of Appointment of Estate Trustee (with or without a Will) will need to deliver to the Minister of Revenue such information about the deceased person about whom the application is subject as may be prescribed by the Minister of Finance. To date, no regulations have been enacted, and it remains to be seen what information the Minister might seek. Additionally, the Minister of Revenue now has the power to assess an estate in respect of its tax payable under the EATA. Assessment or reassessment may occur at any time within four years after the day the tax first became payable. However, the Minister may also assess or reassess an estate’s tax under theEATA if the Minister establishes that any person failed to provide the prescribed information required by the Minister of Finance, or the Minister establishes that any person made a misrepresentation that is attributable to neglect, carelessness or wilful default, or has committed any fraud in supplying any information regarding an estate or in omitting to disclose any information regarding the estate. The Minister of Revenue may now appoint one or more inspectors who are authorized to exercise any of the powers and perform any of the duties of a person authorized by the Minister of Finance under subsection 31(1) of the Retail Sales Tax Act, R.S.O. 1990, c. R.31 for any purpose relating to the administration and enforcement of the EATA. The Act also imposes an obligation upon estate trustees to keep at their residence or place of business records or books of account in the form and containing the information that will enable the accurate determination of tax payable under the EATA. Offences for non-compliance with the Act have been created, which include fines ranging between $1,000.00 and twice the amount of tax payable by the estate, imprisonment for under two years, or both. It seems apparent that the changes to the EATA are meant to address the under-reporting of Estate Administration Tax, both before and after Certificates of Appointment of Estate Trustee are issued. It will be interesting to see if the Act will have any chilling effect, and whether Estate Trustees will renounce probate more frequently. While tomorrow may be better for Ontario under the new Act, tomorrow is clearly not better for Estate Trustees.