CRA’s “Policy Review Project” for SR&ED has reached its final phase. Twenty new policy documents have been posted on the CRA website, to cover all aspects of the program. The papers are mostly financial or financial/technical, with a single paper on eligibility. While in draft, each paper was posted briefly for public comment - on style, not on policy interpretation.
While the familiar guidance material, such as Application Paper 86-4R3, is to remain on the CRA website until June 2013, the new documents take effect immediately. Aside from the paper on eligibility, which is brief and high-level, the only other guidance on technical matters available to program users is now Part 2 of the Guide to Form T661, the Guide for Claimants, and the redacted version of the reviewers’ Claim Review Manual.
As there has been no change in the definition of SR&ED in the legislation, any perceived policy differences in the new documents are to be regarded as clarifications rather than changes. This means no delay in implementation is required, and the new guidelines may be applied to existing claims that were prepared in accordance with the old guidelines, and to claims already under review.
Although CRA guidelines do not have the force of law, they are binding on CRA reviewers, and so for practical purposes these are the policy interpretations now in effect. They are as yet untested by the courts, and in the past the courts have endorsed CRA directives only to the extent that they were developed through consultations with program stakeholders; it will be interesting to see whether there are any legal challenges.