The last few months have been a very tumultuous time for Canadian tax practitioners and taxpayers. Proposals were made by the federal Liberal government on July 18, 2017 that had some of the most significant changes to the taxation of Canadian private corporations since the early 1970’s.
The government promoted these changes as “tweaks”, however, as details emerged, they revealed themselves as fundamental changes to how income was taxed for private corporations. There was a dramatic and strong negative reaction to these proposals from tax practitioners, taxpayers and the business community. In response to the mounting concerns directed to Finance Minister Bill Morneau’s proposals, the government has since made pronouncements by news release that will adjust the original proposals.
The original proposals from July 18th, 2017 are summarized below with updates from the most recent news releases from the federal government including discussion of those that are still on the table. For clarity – there has been no new draft legislation since the July 18, 2017 proposals. There remains a great deal of uncertainty as to what the actual rules will be as of January 1, 2018.
The July 18 amendments can be summarized under the following headings:
In the initial proposals, there were rules that would eliminate the ability for family members to claim the capital gains exemption on shares of a private corporation where those family members were not active in the business. By way of news release, these proposed rules have been removed.
There were a number of rules that proposed to re-characterize capital gains into income. As well, they affected the ability to pay out a capital dividend account when assets were sold to a related corporation. Both of these proposed rules have been removed by way of news release.
These rules are some of the most detailed and far ranging rules that we have ever seen.
The goal of these rules is to tax family members at the highest marginal tax rate on dividends or income received from certain private corporations. In the past, dividends to minors were taxed at the highest tax rate. The new proposals are to tax family members up to 24 years old as well as all family members who have not worked in the business or contributed capital to the business.
These new rules propose a “reasonableness” test to determine if the amounts paid to the family members should be taxed at the highest tax rate or not. This concept is called tax on split income (“TOSI”).
If an individual is subject to the TOSI then that individual will pay tax at the highest marginal tax rate and will not be allowed any deductions against that income.
Previously, this tax was only applied to dividends, shareholder benefits, and certain partnership and trust income. The rules are now being expanded to include income from loans to certain corporations, partnerships and trusts and the disposition of shares in private corporations. Moreover, there is now a proposal to tax investment income earned on the initial income that was taxed at the highest tax rate. That is, if an individual earned $100 and was taxed at the highest tax rate and then invested that $100, the income earned on that investment would still be subject to the TOSI rules and be taxed at the highest marginal tax rate.
The notion of reasonability is being proposed to include all sources of income from the corporation to determine if the dividend income or interest income would be reasonable with regard to the entire remuneration. This obviously is very subjective and we have many concerns about how these rules would be applied.
In the draft legislation, these rules were to be effective January 1, 2018. As a result, we are suggesting that clients consider paying larger than usual dividends to any family member that is over 18 years old in order to maximize the funds available to the family members as of December 31, 2017. The actual amount of dividends should be determined in consultation with your Segal tax advisor.
In the past, an active business could accumulate funds after paying corporate tax and invest those funds in whatever manner decided upon by the shareholders. The new rules are proposing to set a limit on the amount of investment income that can be earned using active business income. At present, the government has proposed a $50,000 annual limit. It must be stressed, that there has been no draft legislation on this matter. As well, the government has indicated that they will table the draft legislation in their 2018 budget. The date of this is unknown.
The general concept is that the income on any assets owned before the rules come out would not be subject to these new rules. At this point, there is no clarity from the government on what the cutoff time will be. We are suggesting that clients maximize their retained earnings and assets as of December 31, 2017 to maximize the amount of investment income that can be earned on these assets in the future. This suggestion is in contradiction to the suggestion above of paying larger than normal dividends to family members. An analysis must be done to determine what the actual dividends should be and what the maximum amount of assets that should be retained in the corporation.
The details of how the income will be taxed are not available. The general idea is that if capital has been injected into the company from personal assets, then these rules would not apply. However, if the capital to invest in the business has been accumulated because the company or its subsidiaries engaged in an active business then these rules will apply.
The proposed rules would be that there is a tax of approximately 50% in the corporation and then full personal dividend tax upon payment out of the corporation. The difference between the proposed rules and the current rules is that under the current rules, the corporation would get a refund of a portion of the corporate taxes paid when dividends are paid. The net effect is that an individual taxpayer would be indifferent to earning investment income in a corporation versus personally. Each province has different tax rates and therefore there is not perfect integration. However, under the new rules the effective tax rate in Ontario, would go from 56% to 73% when considering the corporate and personal taxes.
Given the extremely high tax rate noted above, there has been a significant response to the government about changing these rules. However, there is currently no draft legislation and there is no effective date.
As of now we are waiting for the rules on dividend/income splitting in “the fall” from the government. The passive income rules may not be released until March or April 2018.
The federal and the Ontario government have both announced corporate tax rate reductions for small business corporations. The Ontario rate will decrease by 1%, effective January 1, 2018. The federal rate will decrease by 0.5% effective January 1, 2018 and by an additional 1% effective January 1, 2019. Although these tax cuts will benefit small business corporations, they will have a detrimental effect to the shareholders. To maintain integration, there will be a corresponding increase in the personal tax rates on dividend income. Consequently, individual shareholders receiving dividends after 2017 will be facing a higher personal tax rate.