Over the past year, there have been a few professionals equating outright a tax amnesty with the Government voluntary disclosure program. The reasons for this vary but they all have something in common. They all deal with tax evasion on an administrative rather than legal basis. Simply put, they are all sounding boards and promoters of Government policy and lack any legal analysis or content in what they say and represent to the public. They forget, particularly those of combined accounting and legal training, what matters above all for a lawyer, is their client’s rights under law. They forget the differences between a voluntary disclosure POLICY and the protection of the client’s rights in the legal sense. Most importantly, they forget that they are dealing with criminal activity.

The voluntary disclosure program/policy is essentially a system of procedures and protocols adopted by Government. It is easily cancelled by the administrators who put it in place. It is a policy to entice the surrender of tax evaders and/or individuals who have failed to file. It is an administrative device with little regard paid to legal questions such as the individual’s right against self-incrimination or the privilege between a client and his lawyer. It is left to the individual’s lawyer to position his client so that the information provided during the process with the Agency is subject to legal rights. Those lawyers that do not regularly deal with such legal questions will find this an arduous task.

Many professionals dealing with voluntary disclosure as POLICY forget that tax evasion and failure to file are criminal offences under the Income Tax Act. An individual can be imprisoned for either offence. Everything an individual or his representative say or deliver to the CRA can be used against a taxpayer should it decide to prosecute. Unquestionably, the lawyer is best equipped to deal with tax evasion and failure to file at any stage. However, should there be little or no legal content to the process employed by the “lawyer” and it simply mirrors CRA’s administrative policy, it can be argued that the client has waived all legal rights and privilege, among other things. Succinctly, the client’s only recourse in Court would be the “stupidity” of the “lawyer”. Not much of a defense in any case!

The individual and “lawyer” need to remember that the CRA has a mandate to collect as much money as possible and/or prosecute. Obviously, there is a need to understand policy at the Government level to fully represent the client. However, there is a more important need for “lawyers” to act as such and fully appreciate the client’s rights under law. Those who equate a tax amnesty with a voluntary disclosure POLICY act at their client’s peril. They are dealing with a criminal matter in administrative fashion and risk their client’s personal liberty and wealth.