Dangers of commingling business and personal assets | TLR Law

Dangers of commingling business and personal assets

Dangers of commingling business and personal assets

I receive requests from organizations from time to time to present to a group of business owners and/or managers. I typically cover the topics found in this blog, such as the importance of employment contracts, the Canadian Anti-Spam Law (CASL) , or small business taxation. While I briefly mention the dangers of commingling business and personal assets, I rarely spend much time on the topic. Most people seem to understand that you can’t treat your  business’ money as your own….

Or do they?

How many small business owners expense personal items from the company general account? I suspect quite a few. If you do, this amounts to commingling business and personal assets.  As this impacts all small business owners, I thought it was time to address the issue more fully.

The Law

The Income Tax Act of Canada (ITA) is the law that governs the collection of income tax, both personal and corporate. The Excise Tax Act of Canada  governs the collection and remittance of GST. Both of these acts apply. If a court finds that someone inappropriately claimed a business expense, the person must repay the personal income tax that should have been paid.  Additionally, the company will have to pay the GST that it claimed.

S. 18 of the ITA imposes limits on company deductions. I reproduce excerpts of the act below:

18 (1) In computing the income of a taxpayer from a business or property no deduction shall be made in respect of:

General limitation

(a) an outlay or expense except to the extent that it was made or incurred by the taxpayer for the purpose of gaining or producing income from the business or property;

(h) personal or living expenses of the taxpayer, other than travel expenses incurred by the taxpayer while away from home in the course of carrying on the taxpayer’s business;

This means, essentially, that business owners cannot deduct expenses unless they incur the expenses for the “purpose of gaining or producing income”. Sub para (h) states that a business owner cannot deduct personal living expenses. In addition to these rules, s. 67 establishes that expenses must also be reasonable.

67 In computing income, no deduction shall be made in respect of an outlay or expense in respect of which any amount is otherwise deductible under this Act, except to the extent that the outlay or expense was reasonable in the circumstances.

R. v. Alberta Hot Oil Services Ltd.

Background and facts

In 2003, CRA audited Alberta Hot Oil Services Ltd, a company providing services to the oil industry around the town of Wainwright, Alberta. Ryan and Liberty Rinas each owned 50% of the shares of the company. From the court case, we know the company had employees, but we don’t know how many nor do we know the company’s revenue. However those details are not important for my purpose in this article.

Following the audit, the investigative division of CRA obtained warrants and searched the company’s office, the owners’ residence, the company’s accountant office, and its lawyer’s office. The Crown attorney’s office then initiated a prosecution in provincial court for 18 counts of tax evasion. You guessed it, commingling business and personal assets amounts to tax evasion.  They prosecuted  the company and the 2 shareholders. The crown relied on the documents seized and oral evidence from a variety of witnesses. The court case started on November 28th and ended on December 22nd 2005.

Scheme 1

The facts of the case were not complicated. The crown alleged that the accused (the 2 shareholders and the company) engaged in three schemes. Under the fist scheme, the business owners expensed items that should not have been expensed. In particular, the crown relied on two expenses: one expense of $104.50 for graduation photographs and $600.00 for a deposit on a wedding dress. They made both of these expenses for the benefit of their children.

Scheme 2

The Rinas’ entered false expenses in their financial records. For example, one of them entered an expense of $842.06 payable to Edmonton Kenworth for parts. However, Edmonton Kenworth never received the payment nor had they issued an invoice. Rather, the company issued the cheque to Liberty Rinas who never provided any supporting receipt.

Scheme 3

Finally, the crown alleged that the company improperly claimed more expenses than justified. For example, the company paid the Rinas’ entire personal residence electrical bill. While Joe Rinas claimed a home office, he was only entitled to claim the percentage of the overall square footage used for his office.

Under each scheme, the crown alleged that the company and shareholders recorded anywhere from 100 to 120 improper items over a 2 year period.

Decision

Judge Fuller of the Alberta provincial court found the company and shareholders guilty of all 18 counts. The judge ordered the company and shareholders each to pay a fine worth 125% of the taxes evaded (for a total of 375%). He also ordered a 6 month jail sentence for both shareholders which they served under house arrest.

In addition to receiving fines and sentences, CRA would have undoubtably pursued them in tax court as well. The parties would be liable for unpaid taxes and associated penalties. The crown alleged that the accused parties evaded a total of $73,406.83.

Conclusion

I am unable to determine how much tax the court determined had been evaded. However, as the judge found them guilty on all counts, I can only assume that the amounts were significant. Even if the court determined the parties evaded half the taxes (about $36,500.00), the total fines would have amounted to $136,875.00.

Factor these costs, with the cost of a month-long trial, the taxes and penalties owing, and one can easily estimate the total cost to the Rinas’ amounting to $500,000.00 or more.

When you consider the nature and amount of the expenses ($600.00 for a deposit on a wedding dress), I doubt the Rinas’ ever thought they may get caught for commingling business and personal assets. They claimed one small impermissible expense at a time.  In their case, the accused did so regularly and with apparent gusto.  However, I’m sure many small business owners are also guilty of fudging the rules, albeit less blatantly.

Philippe Richer is President of TLR Law Group. TLR has been located in the St. Boniface neighbourhood, in Winnipeg, since 1996. The office serves the middle class and small business within the province. With a focus on estates, wills, real estate, and corporate law, he leads his team in providing accessible legal services. Philippe also authored the business law course for the Knowledge Bureau and instructed the français juridique class at the faculty of Law at the University of Manitoba.



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