May 10th - 2007

Merv’s Column: Aren't tax laws just super?

The owner gives a first mortgage at a time when he owes money to Canada Revenue Agency (CRA) for GST and source deductions.

The owner gives a first mortgage at a time when he owes money to Canada Revenue Agency (CRA) for GST and source deductions. He goes into default and the mortgagee/lender starts legal proceedings. The lender then discovers that the mortgagor has this debt to CRA who also files a lien. Under the legislation the Minister has a statutory lien that takes precedence over the mortgage to the extent of the amount owing to it as of the date of the advance of the mortgage money. The lender did not in fact get a "first" mortgage.

MCAP Services v Hunter 2006 RPR(4th)89

Merv's Comments
This "super priority' can create practical problems for lenders, lawyers, REALTORS® and others particularly since the CRA will not disclose information without written authorization from the taxpayer/mortgagor. However, once the creditor begins official proceedings to recover the secured amount the CRA can communicate the details of the claim that it might have. Some practical questions when dealing with someone who may owe money to CRA and you are involved in a mortgage transaction: Does anyone request a CRA clearance before advancing funds? Should a signed consent to obtain this information be a part of every mortgage application? Should there be similar consent clauses in an offer in which a seller is taking back a mortgage (VTB) so that you protect your seller? How long will it take to get a clearance letter from CRA? How might this super priority impact your transaction?

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