“Changes to strategies that have been the basis
for shareholder remuneration planning for decades
will be eliminated”
On July 18, 2017 the Department of Finance issued draft legislation which, if passed into law, will limit many of the advantages of using private corporations. The changes are fundamental and will have widespread impact.
The changes fall into four basic categories as follows:
- Income splitting
- Capital gains exemption
- Capital gains within a corporate group
- Deferral of tax using private corporations
Income Splitting
Beginning in 2018, the kiddie tax rules will be extended substantially. Instead of being limited to persons under the age of 18, they will now apply to all Canadian resident individuals where a person receives income from a related private corporation, unless the amount is reasonable in the circumstances having regard to certain criteria. These criteria include the labour contribution of the individual and the capital committed. A more stringent test applies for persons between the ages of 18 and 24. Essentially the idea is to determine the amount of compensation (in whatever form) that would be reasonable in the circumstances, and any amount in excess of this would become part of the individual’s “split income” taxable at the top personal tax rate.
Obviously rules such as these are complex, and require detailed study. They will also create a great deal of uncertainty and subjectivity as to how they are applied.
Capital Gains Exemption
Three changes are proposed to the capital gains exemption. Individuals under the age of 18 would no longer be able to claim the capital gains exemption. More precisely, gains accrued during a taxation year before the individual attains the age of 18 will not be eligible. Secondly, any amount of a taxable capital gain which is included in split income will not be eligible for the capital gains exemption. Lastly, gains accrued during the time that property was held by a trust will no longer be eligible.
These new rules will come into effect in 2018. An election will be available to realize gains on hand in order to provide transitional relief. Curiously a date in 2018 may be selected for this purpose.
We anticipate that this election will be widely used, and that valuations will be required in an enormous number of cases in 2018 to support the value used.
Capital Gains within a Corporate Group
It has become popular to realize capital gains within a corporate group, and pay out the proceeds, particularly via the capital dividend. This is because the tax rate on a capital gain (realized within the corporate group and distributed to shareholders) is lower than the tax rate on taxable dividends. As a result of this becoming widespread, steps are being taken to close down this planning approach.
The draft legislation will extend the scope of section 84.1 which results in a dividend rather than a capital gain where the section is triggered. Because the capital gain will be recharacterized as a dividend, no amount will be added to the capital dividend account. There may also be a denial of an increase in the adjusted cost base, potentially resulting in double taxation which, according to the materials, is consistent with the intent of the provisions. Unfortunately, no distinction is made between the application of this provision to post-mortem and pre-mortem planning.
An additional anti-avoidance rule will be inserted to deal with surplus stripping via capital gains, in the event that new section 84.1 is not sufficient, on its own, to deny the benefit.
This change is to be effective from announcement date (i.e. July 18, 2017).
Accumulating Funds in Private Corporations
While the first three items above are dealt with in 27 pages of draft legislation, the issue of accumulating funds in private corporations is dealt with conceptually, explaining the issues, and outlining two possible approaches. In simple terms, the Department of Finance has identified that a significant tax deferral arises where active business income is retained within a corporate group. Because corporate tax rates are so much lower than personal tax rates, there has been a continuing trend to retain excess funds within the corporate group and make passive investments, thereby deferring the tax that would be paid if the excess funds were distributed as a dividend. Nobody should be surprised at this. Indeed, one should be surprised if anyone is surprised!
This tax deferral is considered to give owners of private corporations an advantage over their counterparts who do not have such opportunities (for example a person who receives a salary). The starting point for accumulating investment assets is clearly different when a corporate tax rate of 15% or 25% is applied to the income rather than a personal tax rate of 53%. How to design a system to deal with this is conceptually very difficult. Whether or not taking action is appropriate is another very relevant question.
In this, the Department of Finance has asked for input from interested parties, perhaps in part because there is no simple solution to this issue.
Implications
The implications of these potential changes are significant. Not only will they limit income splitting opportunities, multiplication of the capital gains exemption, and other tax strategies, they will also add very significant complexity to the taxation of private corporations and their shareholders. Given the additional complexities created in recent years with changes to section 55 (Safe Income and Intercorporate Dividends) and the changes to the Small Business Deduction (expansion of circumstances where the $500,000 small business limit must be shared), this will clearly compound upon what is already a very difficult area.
Introducing a reasonableness test, failing which dividends from private corporations will be taxed at the top tax rate, is a sweeping change, which will confer a huge amount of discretion onto CRA. Limiting the capital gains exemption to natural individuals, and preventing its use where shares are held through trusts, will alter the landscape considerably.
While the Department of Finance has indicated that it wishes to conduct a consultation on these issues, with a deadline for submissions in early October, our experience in recent years indicates that once proposals are at the draft legislation stage, little in the way of substantial change can be brought about.
We will be reviewing these rules in greater detail, and issuing further notes on various aspects of the proposals, as well as any changes to them which may arise.
