In 1970, the futurist Alvin Toffler wrote his landmark book entitled "Future Shock." In his book, Toffler argued that society was undergoing an enormous structural change, a revolution from industrial society to a "super-industrial society." This change overwhelms people, he believed, with the accelerated rate of technological and social change leaving people discontented and suffering from "shattering stress and disorientation" – future shock.3 Mr. Toffler, in many discussions about this concept, stated that the term future shock is a personal perception of "too much change in too short a period of time." As a youngster in elementary school in the 1970's, I recall studying the concept of future shock in a social studies class. Although I did not fully appreciate the concept back then, as a small-firm practitioner growing up in the tax world, I can fully appreciate what Mr. Toffler, I believe, described in his book.
Heraclitus, the ancient Greek philosopher stated: "Everything changes and nothing remains still. You cannot step twice into the same stream." How wise. Given the fast pace of change in society and in particular the world of the tax professional, the purpose of this paper is to discuss current challenges that small-firm practitioners face when dealing with the taxation aspect of their practice and offer some suggested strategies to cope. This paper comes with a caveat...I am not an expert in change management but after 20 years of professional practice I do know something about managing change. The following observations are based on my experience coping with rapid change and the shock that it can create. I hope you find it helpful. If you are expecting a technical paper or an authoritative "how-to" guide, please stop reading now...you will be disappointed.
A. AN INTRODUCTION TO THE SMALL-FIRM PRACTITIONER IN CANADA
In Canada, there is an abundance of small-firm practitioners.4 As an example, in Alberta, 62 percent of lawyers work either as a sole practitioner or at a small law firm.5 In Alberta, of the 782 registered offices of practicing Chartered Accountants ("CAs"), 98 percent of such firms have 10 or less partners.6 In Canada, approximately 44 percent of CAs practicing in public practice work in a small-firm environment.7 In the U.S., approximately 453,000 lawyers, or 59 percent, work in a small-firm practitioner environment.8
During my lifetime, it is doubtful that the phenomena of practicing in a small-firm environment will disappear. Anyone who has the luxury of practicing in a small-firm environment knows the advantages. The primary advantage deals with control and the ability to dictate one's day-to-day work environment to the extent possible. Bureaucracy can be minimized. Clients can be selected or de-selected. Close personal relationships can be forged with clients. Notwithstanding the obvious benefits, "solo and small-firm practitioners occupy the mid-to-lower rungs of the legal professions hierarchy. Lawyers who practice in these settings tend to receive significantly less income and substantially more discipline from their big firm colleagues."9 The immediately prior statement refers to lawyers but I would submit that it is equally applicable to accountants. Why? I think it is a fair statement to suggest that small-firm practitioners generally do not have the resources or bench strength to service very profitable service lines and instead will often revert to providing the general services that many other practitioners provide thus resulting in an ample supply of these services. Such robust supply leads to the inevitable commoditization of the services provided by the professional which in the worst result leads to price competition amongst professionals.
Notwithstanding, small-firm practitioners play a critical role in the delivery of professional services, including taxation. Clients often seek out small-firm practitioners (as opposed to their larger firm cousins) since they feel that they will receive better, or more personalized, services. I believe this is often true. It is also probably fair to say that clients often seek out small-firm practitioners since they believe that the cost of the services will be less expensive. That, I believe, is also often true...but not always.
B. PRACTICE CHALLENGES FOR THE SMALL-FIRM PRACTITIONER IN TODAY'S ENVIRONMENT
Most of the challenges listed below are obvious. If one were to simply spend some time observing and thinking about the challenges that exist, all of the following would come "top of mind" very quickly. Accordingly, the list below is based upon my impressions and not that of empirical research.
1. An Overview of Today's Working Environment
I invite you, to the extent that you have been practicing as long as I have, to think back roughly twenty-five years ago. The internet, in its current form, did not exist in 1987 and the use of personal computers in the context of delivering professional services was in its infancy. I recall the day in February 1987 at my firm, a large Big 8 CA firm, when new "laptop" computers were delivered. What an exciting day! The orange screen computers represented a significant day in the history of technological advancement for that particular firm. Now, instead of sending out personal tax returns to be prepared and printed based upon key-punch cards that were delivered to the printer, actual income tax returns could be prepared on screen. In those days, tax research was conducted in the professional firm library (to the extent one existed) and pouring through books that you hoped were up-to-date because most of them were updated from loose leaf services. Most business was conducted face to face or by telephone calls.
Fast forward to 2012. Today's work environment is dominated by fast, easy to access information. One cannot imagine practicing in the tax area without use of the internet, email, instant messages, "apps", video conferencing, virtual data rooms, and social media that delivers valuable information. When The Department of Finance releases proposed legislation, it is instantly available. When a Court releases a decision, it too is instantly available. This is all to say that there is no shortage of tax information that one can instantly access in order to assist with their tax research.
Twenty-five years ago, as previously mentioned, most business was conducted face to face or by telephone calls. Today, with emails, instant messages, social media and mobile technology being the norm, clients may be annoyed to the extent that you do not respond quickly to their ability to "touch you." Future shock.
2. Talent Shortages
Most employers know that finding great talent is a challenge. Finding "bodies" is easy. However, as a small-firm practitioner, client management and high quality delivery of services is a must. Given such, it is obvious that more than just a body must be found in order to compliment and assist the small-firm practitioner in delivering their services. It goes without saying that geography can place a tremendous challenge in attracting great talent. A surging economy can also cause a strain on finding talent. For example, with the Alberta economy growing at a tremendous rate, the province expects that there will be 114,000 more jobs than people in the province by 2021.10 Future shock.
3. Technology Changes
It should be obvious to the reader that technology changes very rapidly. Hardware, software, "cloud computing" and mobile technology changes faster than most people can keep up. Of course, all these changes come with challenges and economic costs. Future shock.
4. Professional Changes
Changes in society, the economy, the need for new services, technology and many other factors all influence how the professions react to the delivery and management of services. As an example, the Canadian accounting profession is currently exploring the possible unification of the various accounting bodies.11 The various professional bodies, as they should, are always analyzing the current environment and implementing or suggesting change for the perceived benefit of the public and its members.12 Such changes can have a great impact on the small-firm practitioner. Future shock.
The new small-firm practitioner will quickly realize that there is a tremendous amount of competition in the delivery of professional services. Accordingly, for the accountant or lawyer who wants to hold to the old adage that they first are a professional and second a business person or entrepreneur, such a belief may not bode well for that particular small-firm practitioner in today's very competitive environment. Some writers believe that at some point, all people will need to become entrepreneurs in order to survive in today's competitive and fast changing society.13 If you subscribe to that theory, are you ready? How will you deal with the inevitable competition?
Very obvious examples of competition in the tax profession would be in the tax preparation industry. There are numerous non-professional tax preparers in Canada. Similarly, in the legal profession there are numerous competitors that provide "will kits" and other "form documents" that profess to being a cheaper alternative to legal services. As mentioned earlier, competition can ultimately lead to the commoditization of services that were once thought to be the sole dominion of the professions. Future shock.
Most small-firm practitioners do not have large marketing budgets that they can draw from in order to differentiate themselves from their peers. Accordingly, small-firm practitioners usually need to be creative in other ways (while still being in compliance with their professional ethic requirements with respect to marketing). I think it is fair to state that the professions have historically frowned on the use of marketing to obtain work. While this attitude has certainly diminished over the years, the unfortunate truth is that there is still a large number of professionals who view marketing in a negative way. This is a challenge that the small-firm practitioner needs to embrace. In other words, the professional is challenged to use marketing methods that assist in obtaining new work but at the same time ensure that the marketing strategies are employed in such a way that they are in compliance with professional standards and enable them to maintain the respect of their peers. Challenging indeed. Future shock.
7. Increasing Compliance
Being a small-firm practitioner comes with all the usual compliance of being in business (such as income tax and sales tax filing, business tax, insurance reportings, etc.) but includes another burden... professional compliance obligations. Some of the compliance standards are rather mundane (like ensuring that your firm is properly registered with the professional body) but some are not. For example, the small-firm accountant must keep meticulous files that are subject to regular practice review. In addition, professional continuing education requirements for most provinces require both the completion of such courses and the proper documentation of such completion. The small-firm practitioner lawyer faces identical challenges but also a unique additional challenge that most accountants do not face. A lawyer's trust accounts are subject to strict rules involving documentation and handling. In addition, such trust accounts are subject to annual audit requirements and possible review by the applicable provincial Law Society. Future shock.
C. TAX CHALLENGES
1. The Ability to Keep Up
As mentioned earlier in this paper, there is no shortage of new tax information being released. Tax practitioners are constantly bombarded with new case law, new legislation, and new administrative practices.
For small-firm practitioners who practice tax, the above observation is obvious. The commercial tax research databases14 do a great job of "pushing information" to their subscribers. The challenge, however, is to digest such information while still fulfilling client and business obligations. Often times, the client load is the primary responsibility which may leave little time to study the new information being released. Future shock.
2. Very Complex Legislation Being Introduced
For tax practitioners, one of the greatest challenges that exist in practice is the ability to keep up with and understand new legislation.
Former Chief Justice Bowman of the Tax Court of Canada had his own view on this difficulty. In 2008, he had the following to say in a question and answer session where he reflected on his many years on the bench in anticipation of his impending retirement from the Tax Court of Canada:
Scott Wilkie: There are many these days who would say that the law and how it is being formulated contribute to making it impenetrable, and that one often needs a head start to know where one is going in order to be able to navigate many of the rules. Do you think that that's a common problem?
Chief Justice Bowman: It is a common problem. If you are asking me whether I think that a lot of legislation is incomprehensible, yes, I think that it is a very common problem, and it started back in 1971. The old Income Tax Act, before tax reform, was written rather broadly, stating broad propositions and leaving it to the good sense of administrators or the courts to figure out what it meant. By 1971, however, a new philosophy came along that was one of specificity. In other words, reduce these things to algebraic formulae, and try to turn that into legislative language. It becomes incomprehensible, and every time somebody finds a loophole – and of course there are lots of loopholes – you fill it up with some more specificity.
Some practitioners believe that the continuing release of incomprehensible tax legislation has reached a tipping point and advocate for an entire re-write of the Income Tax Act (the "Act"). I personally do not subscribe to that theory. As the world continues to become smaller and as business transactions become more complicated, more "loopholes" will be found and taken advantage of. Given such, it is my belief that specificity will continue to be the ultimate end result of new tax legislation thus leading to the "incomprehensible challenge" alluded to by Former Chief Justice Bowman. My belief is that interpreting very complex tax legislation will continue to be the norm and a challenge long into the future. Future shock.
3. Continuous Delivery of Case Law That Impacts the Interpretation of the Act and Other Statutes
Again, this is an obvious challenge for any small-firm tax practitioner. For example, the residency of a trust for tax purposes was once thought to be rather straightforward. Given old case law15 and Canada Revenue Agency ("CRA") administrative positions,16 it was generally viewed that the residency of a trust was determined by establishing where the majority of the trustees of the trust resided. However, recent case law has caused a significant re-think of that principle.17 The result is that small-firm tax practitioners will have to review their current files in a major way to see if proper advice has been given to their clients as a result of such a decision. While this challenge is also faced by their larger firm colleagues, the small-firm practitioner may not have sufficient resources to aggressively keep up-to-date on new case law that may impact their practice and clients. Future shock.
4. Administrative Changes
The tax administrator, the CRA, is constantly updating their administrative views and practices in order to better serve the public. The release of advance tax rulings, technical interpretations, and Technical News are all examples of administrative changes occurring at a rapid pace. The small-firm tax practitioner is therefore challenged to keep up-to-date. Future shock.
5. Draft Tax Legislation Not Being Passed
In Canada, tax policy and the implementation of tax legislation is under the purview of the Department of Finance. Much of Canada's new tax legislation arises from the annual Federal Budget. However, there are also technical amendments released in draft form (often for public comment) throughout the year. Such draft or proposed legislation may be further amended to correct for errors, provide clarification and address public submissions before it is finally released into a Bill. The Bill is then put before Canada's House of Commons and the Senate for debate and eventually receives Royal Assent and becomes law (unless for some reason the Bill fails to pass). The proposed legislation will often contain detailed "coming into force" provisions that establish the date from which a specific proposed provision will have legal application. Often, but not always, the application of the proposed legislation will be effective from a date earlier (i.e. retroactive effect) than the date that the provision is actually passed into law. Given such, the process to convert draft legislation into law can often take a long period of time. In recent years, there has been a tremendous amount of draft legislation and comfort letters that have been released and have not yet been passed into effective law.
Accordingly, what is a small-firm tax practitioner to do when they are dealing with a tax matter that might be the subject of proposed legislation? For example, if a taxpayer granted a restrictive covenant in 2011, should the tax practitioner advise his or her client to file his tax return on the basis of existing law or under the basis of the proposed legislation18 (which will generally be very complicated to deal with and may not have favourable tax results in comparison to existing law)? Are clients willing to pay to deal with this issue? Challenging questions and a difficult one for the tax practitioner to deal with in practice.19 Future shock.
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* I acknowledge the very helpful comments of Roy Berg JD, LLM (US Tax) and Dale Franko CA, CPA (IL, USA), TEP (both of Moodys LLP Tax Advisors). Similar thanks to Phillip Friedlan of Friedlan Law and Paul R. Lebreux, LL.B., LL.M. (Tax), TEP of Globacor Tax Advisors PC for their very insightful comments. All errors are mine.
* Kim G C Moody CA, TEP is a partner in Moodys LLP Tax Advisors in Calgary, AB.
4 In this paper, I will only discuss accountants and lawyers given that it is those two professions that practice taxation in Canada. In addition, I generally refer to small-firm practitioners as meaning firms that practice outside of a national firm.
5 As disclosed in the Advisory, Volume 9, Issue 1, March 2011, Page 7, The Law Society of Alberta.
6 Thank you to the Institute of Chartered Accountants of Alberta for their assistance with obtaining this information.
7 There are approximately 81,000 CAs in Canada with approximately 40 percent, or roughly 32,000, of such members who work in public practice. With 14,000 out of 32,000, or 44 percent, of such members working in small-firms, that is a significant proportion of CAs in public practice who are small-firm practitioners. Thank you to the CICA for their assistance in obtaining these approximate figures.
10 See http://www.edmontonjournal.com/business/Looming+labour+shortage+haunts+Alberta+employers/5959485/story.html and numerous other articles that describe this.
11 See www.cpacanada.ca for information on the efforts that are being undertaken in attempt to unify the Canadian accounting profession.
12 For example, the long standing debate of whether non-lawyers should be allowed to be investors in U.S. law firms has recently resurfaced in the U.S. See http://online.wsj.com/article/SB10001424052702304750404577317761468323458.html for an example of the reporting on this matter.
14 CCH, Carswell and Knotia are all examples of the commercial tax databases available in Canada.
15 Thibodeau Family Trust v. R. (1978), 78 DTC 6376 (Fed. T.D.).
16 See Interpretation Bulletin IT-447 dated May 30, 1980.
17 See the case of Garron Family Trust (Trustee of) v. R., 2009 TCC 450; Garron Family Trust v. R., 2010 FCA 309; and Garron Family Trust (Trustee of) v. R., 2012 SCC 14.
18 See proposed section 56.4 of the Act.
19 Our firm recently wrote on this issue and challenge. See http://www.moodystax.com/blog/28-personal-tax-planning/183-filing-on-the-basis-of-proposed-tax-legislation.html
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