In Canada, the directors of a corporation may be the subject of significant personal liability in the event that the corporation becomes insolvent and cannot repay all of its creditors. One of the most common creditors to assess the corporation’s directors is the Canada Revenue Agency (“CRA”).
Directors of corporation in Canada may be assessed personally by the CRA in the event that the corporation is not able to pay its HST and/or payroll source deductions liabilities. The director assessment usually renders the director personally insolvent and can have significant implications on their personal financial situation. So, why not make a deal with the CRA at the corporate level which would allow the corporation to continue as a going concern and potentially alleviate all of the personal exposure of the director(s).
Let us explain using an example.
When a corporation in Canada is unable to repay all of its debts, including those owing to the CRA, it may file a proposal to its creditors. The process of filing a proposal involves negotiating with creditors to come to an agreement for the corporation to pay back a portion of its debt, usually over a period of time. The agreement is legally binding on all parties. Now, lets say that a corporation owes the CRA $1,000,000 for unpaid HST and is unable to pay the full amount owing. If the corporation shuts down, the CRA will likely assess the directors for the $1,000,000 which they will then be personally liable to repay. However, what happens to the directors if the corporation files a proposal and is able to come to an agreement with the CRA to pay back a portion of the liability over an extended period of time? In our experience the CRA is usually willing to negotiate with the corporation in order to prevent the corporation from closing its doors and terminating its employees. In this case, CRA will also likely acknowledge, in writing, that they will not pursue the directors of the corporation if the terms of the proposal are fulfilled.
To sum it up, many corporations have been able to successfully negotiate with the CRA to pay back a portion of their HST liability and, when this has happened, the CRA has often agreed not to pursue the corporations directors personally.
Author: Tom McElroy, CPA, CA, CBV, CIRP, LIT
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Albert Gelman Inc.’s corporate and consumer insolvency group has over 100 year of combined experience assisting individuals and businesses who are experiencing financial difficulty. Please feel free to call us to discuss your client’s financial situation.
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