What is CRA's current policy regarding the disclosure of a nominee agreement? CRA responded:
Article 1451 of the C.C.Q. allows parties to modify or even annul the provisions contained in an ostensible contract, called an apparent contract, by means of a secret contract called a counter letter.
Failure to disclose to the CRA the terms or existence of a counter letter could be considered neglect, carelessness, wilful default, or fraud, and the CRA could assess at any time pursuant to subparagraph 152(4)(a)(i). In addition, reporting the tax obligations arising from the apparent contract rather than the actual agreement contained in the counter letter or failing to disclose the existence of the counter letter could result in the application of the penalty under subsection 163(2) if the taxpayer does so knowingly or in circumstances amounting to gross negligence.
To avoid the application of these provisions, in accordance with the CRA's long-standing position, the parties to a counter letter must therefore disclose its existence and determine the implications, of any nature, under the Income Tax Act in light of the true legal relationship it reflects.