NEW TAX RULES EFFECTING PRIVATE CORPORATIONS

On July 18, 2017, the Liberal government and the Department of Finance issued draft legislation which significantly alters the tax planning available for private corporations. The following is a brief summary of each of the proposed new rules. We strongly suggest you consult your Segal advisor to discuss how these rules affect you and your business.

Income Splitting

It has been common tax practice to set up a structure whereby a trust owns shares in an operating company with both minor and adult beneficiaries. Alternatively, family members owned shares directly in the operating company. In the past, dividends could be paid to the adult family members who would pay tax at their graduated tax rate. For those adult family members who earned no other income, such as a student, the tax owing could be low on those dividends.

The new legislation proposes to tax those dividends at the highest tax rate. As well, the new rules propose to tax other kinds of income paid to related adult family members. There is relief if the adult family member contributes to the corporation by way of capital or involvement. CRA will have discretion to determine if the amounts paid to the related adult family member are reasonable in the circumstances. These rules are effective in 2018.

Multiplication of the Capital Gains Exemption

In the structure noted above, if a trust owns shares in an operating company, it is possible that a capital gain realized by the trust could be allocated to the beneficiaries and the beneficiaries could claim the capital gains exemption. The new rules would eliminate the ability for a trust to have a capital gain subject to the exemption. Moreover, any gain on a share owned by a trust would not be eligible for the capital gains exemption. This would also apply where family members acquired shares for a nominal amount without the use of a trust. If shares were owned by a minor, and the shares were ultimately disposed when that individual became an adult, the gain that would have accrued while the individual was a minor could not be sheltered by the capital gains exemption. The capital gains exemption will not be available to family members who are subject to the income splitting rules noted above.

There is a rule that will allow for trusts and family members to make an election to crystallize the capital gains exemption in 2018. However, this crystallization will only be available to adult beneficiaries and adult family member shareholders. These rules are effective in 2018.

Conversion of Dividend Income to Capital Gains

There is a significant difference in the tax rate of a dividend (39.34 or 45.30%) and capital gains (26.76%). Historically, with tax planning, one could convert what otherwise might have been a dividend into a capital gain. The new rules propose to convert the capital gains realized between non-arm’s length parties into a deemed dividend. This would mean that the tax-free portion of the capital gain would not be added to the capital dividend account. Moreover, it appears that there would not be an increase of the cost base of the shares that were received as consideration which could possibly result in double taxation.

There are also new rules that propose treating payments out of the capital dividend account as a taxable dividend where the capital dividend account was created by transactions whose goal was to reduce the personal income tax of the shareholder.

These rules could also affect post-mortem planning. These rules are effective for transactions and amounts paid or payable after July 18, 2017.

Making Investments in an Operating Company

While still in the public consultation phase, the government has proposed to increase the tax burden on an active corporation investing surplus funds. Those investments would no longer enjoy preferential tax treatment and access to the refundable tax regime and capital dividends. The government appears to be concerned that an active company subject to low tax rates would have significantly more to invest than if the funds were paid to the individual shareholder and all taxes were paid.

This issue gets complicated in terms of tracking which investments are from surplus funds and what the actual income related to those surplus funds are. The government has asked for input on how to apply their proposals.

Summary

These proposals are significant on their own and collectively will change the tax planning landscape for all privately held businesses and their shareholders. Every situation where a trust owns shares in a private corporation must now be evaluated to determine what the best tax planning is on a go forward basis.

Please contact your Segal advisor as soon as possible so that planning can start now.

Segal LLP | Tax Advisory

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