Canada: MT Federal Budget Review - Business Income Tax Measures

Small Business Tax Rate

Currently, as a result of the small business deduction, the first $500,000 per year of qualifying active business income of a Canadian-controlled private corporation ("CCPC") is subject to a federal income tax rate of 11%.

Consistent with speculation in the media ahead of Budget Day, to further assist small businesses in Canada, the Budget proposes to reduce the taxes paid by small businesses by 2%, with the 2% decrease being made gradually over the next 4 years and ultimately taking full effect on January 1, 2019, as follows:

1. effective January 1, 2016, the rate will be reduced to 10.5%;
2. effective January 1, 2017, the rate will be reduced to 10%;
3. effective January 1, 2018, the rate will be reduced to 9.5%; and
4. effective January 1, 2019, the rate will be reduced to 9%.

The gradual reduction in the small business tax rate will be pro-rated for corporations with non-calendar year-ends.

As a result of the proposed 2% reduction in the small business tax rate, the Budget also proposes to adjust the gross-up factor and the dividend tax credit ("DTC") rate that apply to non-eligible dividends. Non-eligible dividends are, in general, dividends that are paid by a corporation in respect of income which was taxed at the small business tax rate. In percentage terms, the effective rate of the DTC and the gross-up factor in respect of non-eligible dividends will be as follows:

Small Business Deduction: Consultation on Active versus Investment Business

The small business deduction is available on up to $500,000 of active business income of a Canadian-controlled private corporation. If it applies, the small business deduction has the affect of lowering the effective rate of taxation on a corporation's income for a year.

Active business income does not include income from a "specified investment business". A specified investment business is generally a business with a principal purpose of deriving income from property and the business does not have more than five full-time employees.

The Federal Government reports that certain stakeholders have voiced concerns regarding the rules used to determine whether income qualifies as active business income. The Federal Government is willing to listen to these concerns and appears willing to consider extending the small business deduction to businesses that may not currently qualify as it is unclear whether such businesses earn active business income. Such businesses appear to include storage facilities and campgrounds which may be considered specified investment businesses. The Federal Government plans to conduct a consultation and review of the active business income rules for purposes of the small business deduction.

Quarterly Remitter Category for New Employers

The Budget proposes to decrease the required frequency of source deduction remittances for the smallest new employers by allowing eligible new employers to remit on a quarterly, as opposed to a monthly, basis. The new measure will apply to source deduction obligations that arise after 2015 and will be available to new employers with source deductions of less than $1,000 in respect of each month (which generally corresponds to one employee at an annual salary of up to $43,500, depending on the province of residence).

Presently, the Tax Act, the Employment Insurance Act and the Canada Pension Plan require employers to remit source deductions to the Federal Government in respect of employees' income taxes payable, as well as the employer and employee portions of Canada Pension Plan contributions and Employment Insurance premiums on either a weekly, twice-monthly, monthly or quarterly basis. Under the current rules, new employers are required to remit source deductions on a monthly basis for at least one year. After the one-year period, new employers may apply to remit on a quarterly basis, provided they have an average monthly withholding amount of less than $3,000 and have demonstrated a perfect compliance record over the preceding 12-month period.

Only employers with a perfect compliance record in respect of their Canadian tax obligations will be eligible for the new quarterly remittance measure. In addition, employers whose source deductions rise above the $1,000 monthly level will be classified by the Canada Revenue Agency (the "CRA") as a weekly, twice-monthly, monthly or quarterly remitter, in keeping with the existing remittance rules.

Synthetic Equity Arrangements

Inter-Corporate Dividend Deduction

Under subsection 112(1) of the Tax Act, a corporation is generally entitled to deduct dividends received from taxable Canadian corporations, subject to certain exceptions. The purpose of the inter-corporate dividend deduction is to prevent multiple levels of corporate tax on earnings distributed from one corporation to another.

Dividend Rental Arrangements

Subsection 112(2.3) of the Tax Act denies the inter-corporate dividend deduction where the dividend is received as part of a dividend rental arrangement – an arrangement where it can reasonably be considered that the main reason for entering into the arrangement was to enable the shareholder to receive a dividend on a particular share (with some exceptions) and some other person bears the risk of loss or enjoys the opportunity for the gain or profit with respect to that share. Typically the shareholder in a dividend rental arrangement must make a payment to that other person to provide the other person with the economic benefit of the dividend. This is referred to as the "dividend-equivalent payment".

While the recipient of a dividend in a dividend rental arrangement cannot take an inter-corporate dividend deduction under subsection 112(1) for the dividend received, the dividend recipient will generally be entitled to a deduction for the dividend-equivalent payment.

Proposed Amendments to Dividend Rental Arrangement Rules

The Federal Government is concerned with transactions where a shareholder retains legal ownership of the shares, but transfers substantially all of the risk of loss and opportunity for gain to a counterparty using an equity derivative. As with a dividend rental arrangement, these so-called "synthetic equity arrangements" involve the receipt of dividends by a person who does not have substantially all of the economic risk/benefit of ownership and dividend-equivalent payments by the legal owner of the share to a counterparty.

Some taxpayers believe these synthetic equity arrangements are not subject to the dividend rental arrangement rules described above, with the result that the dividend recipient is entitled to an inter-corporate dividend deduction under subsection 112(1) for the dividend received and a deduction for the dividend-equivalent payment. There is an erosion of the Canadian tax base if the counterparty in the synthetic equity arrangement is not subject to Canadian tax on the dividend-equivalent payment, e.g., a tax-exempt entity (like a pension plan) or a non-resident person who is not carrying on business in Canada.

Although the Federal Government believes that these arrangements could be challenged using existing rules in the Tax Act, it has chosen to introduce specific legislative measures to target these arrangements. The Budget proposes to amend the definition of dividend rental arrangement to specifically include "synthetic equity arrangements". The result will be that the dividend recipient in a synthetic equity arrangement will be entitled to a deduction for the dividend-equivalent payment, but will not be entitled to an inter-corporate dividend deduction.

Synthetic Equity Arrangement

A "synthetic equity arrangement" exists where the taxpayer (or a person or partnership that does not deal at arm's length with the taxpayer) enters into agreements or arrangements with one or more persons or partnerships (the counterparty) that have the effect, or would have the effect, if entered into by the taxpayer instead of the non-arm's length person, of providing all or substantially all of the risk of loss and opportunity for gain or profit (includes rights to, benefits from and distributions on a share) in respect of a share to the counterparty or to a group of affiliated counterparties.

If the agreements or arrangements are entered into by a person or partnership that does not deal at arm's length with the taxpayer, a synthetic equity arrangement exists if it can reasonably be considered that the agreements or arrangements were entered into with the knowledge, or where there ought to have been knowledge, that the transfer of all or substantially all of the risk of loss and opportunity for gain or profit as described above would result.

There is also an anti-avoidance provision which includes as a dividend rental arrangement agreements or arrangements that have the effect of eliminating all or substantially all of the taxpayer's risk of loss and opportunity for gain or profit in respect of a share if one of the purposes of the series of transactions that includes these agreements is to avoid the proposed measure.

No Tax-Indifferent Investor Exception

The proposed amendments define a "tax-indifferent investor" generally as:

• a tax exempt entity under section 149 of the Tax Act (e.g., a charity or pension plan),
• a non-resident person unless the dividend-equivalent payments to the non-resident may reasonably be attributed to a business carried on in Canada by the non-resident through a permanent establishment,
• a Canadian resident discretionary trust (other than a specified mutual fund trust), or
• a partnership or Canadian resident trust (other than a discretionary trust or a specified mutual fund trust) if more than 10% of the fair market value of all interests in the partnership or trust are held directly or indirectly by tax-indifferent persons.

The inter-corporate dividend deduction will not be denied for dividends received under a synthetic equity arrangement if the taxpayer can establish that, throughout the relevant period, no tax-indifferent investor or group of affiliated tax-indifferent investors has all or substantially all of the risk of loss and opportunity for gain or profit in respect of the share because of a synthetic equity arrangement or certain specified synthetic equity derivatives. Note that the burden of proof is clearly on the taxpayer.

The taxpayer is presumed to qualify for this above-noted exception if the taxpayer, or the non-arm's length person involved in the transaction, obtains certain accurate written representations from the relevant counterparty or counterparties. The proposed rules on what are satisfactory representations are lengthy and detailed. The required representations are generally designed to provide assurance that the counterparty is not a tax-indifferent investor and won't pass on the economic risk/benefit and consequential Canadian tax burden to a tax-indifferent investor.

In very general terms, the representations must confirm that:

• the counterparty is not a tax-indifferent investor and does not expect to become a tax-indifferent investor during the period during which the synthetic equity arrangement is in place, and
• either:
  
  
  • the counterparty has not and does not expect to eliminate all or substantially all of its risk of loss and opportunity for gain or profit in respect of the relevant share during which the synthetic equity arrangement is in place, or
  • the counterparty has transferred all or substantially all of its risk of loss and opportunity for gain or profit in respect of the share to another counterparty and has obtained the similar representations from that other counterparty.

Interestingly, the representations must be "accurate". If the representations are later determined to be inaccurate, the arrangement will, the Budget says, be treated as a dividend rental arrangement, presumably retroactively to the beginning of the arrangement. This means that obtaining the required representations does not protect the taxpayer from the adverse tax consequences of having a dividend rental arrangement (although they would presumably provide recourse against the counterparty). And, there is no due diligence defence. This seems rather harsh and impractical because the taxpayer initiating a synthetic equity arrangement is unlikely to be able to control what the counterparty does later.

Other Exceptions

There are a number of other exceptions. The following are not synthetic equity arrangements:

• Recognized Derivatives Exchange – An agreement trade on a recognized derivatives exchange recognized or registered under the securities laws of a Canadian province, unless, at the time the agreement is executed, the taxpayer or the non-arm's length person involved in the transaction, knows or ought to know the identity of the counterparty.
• Certain long/short arrangements.
• Certain stock index based contracts – The index must, among other things, reference only long positions, be maintained by arm's length persons and the value of the Canadian stocks reflected in the index cannot be more than 5% of the value of all stocks reflected in the index.

Application Date

This proposed measures will apply to dividends that are paid or become payable after October 2015.

Consultation

The Federal Government is launching a public consultation on whether these proposed measures should be further broadened. From a tax policy perspective, the Federal Government suggests that a shareholder should always be required to bear the risk of loss and enjoy the opportunity for gain or profit on a Canadian share in order to take advantage of the inter-corporate dividend deduction. Accordingly, the Budget includes an alternative proposal that would deny the inter-corporate dividend deduction on dividends received by a taxpayer on a Canadian share in respect of which there is a synthetic equity arrangement, regardless of the tax status of the counterparty.

According to the Federal Government, this broader proposal would eliminate some of the complexities of the measure described above.

The Federal Government invites stakeholders to submit comments by August 31, 2015 regarding this alternative broader measure. Such a proposal, if adopted after the consultation, would not apply before the results of the consultation process are announced.

Tax Avoidance of Corporate Capital Gains

Anti-avoidance Rule under subsection 55(2) of the Tax Act

Subsection 55(2) of the Tax Act contains an anti-avoidance rule whose effect is to convert inter-corporate dividends, otherwise deductible under subsections 112(1) or 112(2), into taxable capital gains. The provision is designed to address the stripping of capital gains through a conversion of taxable capital gains into tax-free inter-corporate dividends. It is generally applicable where a corporation receives inter-corporate dividends as part of a transaction or series of transactions that includes a disposition of shares by the dividend recipient and such dividends reduce the capital gain that would otherwise have been realized on the disposition of the shares.

Existing subsection 55(2) generally applies where a corporation resident in Canada receives a taxable dividend in respect of which it is entitled to a deduction pursuant to subsections 112(1) or 112(2), one of the purposes of which (or in the case of a dividend under subsection 84(3) of the Tax Act, one of the results of which) is to effect a significant reduction in the portion of the capital gain that, but for the dividend, would have been realized on a disposition at fair market value of any share immediately before the dividend and that could reasonably be considered to be attributable to anything other than income earned or realized by a corporation after 1971 (referred to as "safe income") and before the safe-income determination time for the particular transaction, event or series. Where it applies, the dividend is deemed not to be a dividend and is re-characterized as proceeds of disposition of the share or a gain from the disposition of capital property. Section 55 contains rules that provide for exceptions to the application of the anti-avoidance rule in subsection 55(2), including where the inter-corporate dividend can reasonably be attributed to safe income (i.e., after-tax earnings) of a corporation.

Proposed Broadening of Scope of Subsection 55(2) of the Tax Act

Background

The Budget includes a proposal to broaden the scope of subsection 55(2) of the Tax Act in order to prevent a double counting of safe income arising from the notion that the language of the provision allows a corporation to pay a stock dividend that is partially attributable to its subsidiary's safe income without a corresponding reduction of such subsidiary's safe income (the dividend payor's safe income would be reduced by the amount of the dividend).

The Federal Government is of the view that the policy rationale underlying the anti-avoidance rule in subsection 55(2) is equally applicable where dividends are paid on a share to cause the fair market value of the share to fall below its cost or a significant increase in the total cost of properties. The articulated concern is that the particular shareholder could attempt to use the unrealized loss created by the payment of the dividend to shelter an accrued capital gain in respect of other property.

The following example of the transactions targeted by this proposed measure is included in the Budget:

Corporation A owns all of the shares of Corporation B, which has only one class of shares issued and outstanding. These shares have a fair market value of $1 million and an adjusted cost base of $1 million. Corporation A contributes $1 million of cash to Corporation B in return for additional shares of the same class, with the result that Corporation A's shares of Corporation B have a fair market value of $2 million and an adjusted cost base of $2 million.

If Corporation B uses its $1 million of cash to pay a tax-deductible dividend of $1 million to Corporation A, the fair market value of Corporation A's shares of Corporation B is reduced to $1 million although their adjusted cost base remains at $2 million.

At this point, Corporation A has an unrealized capital loss of $1 million on Corporation B's shares. If Corporation A transfers an asset having a fair market value and unrealized capital gain of $1 million to Corporation B on a tax-deferred basis, Corporation A could then sell its shares of Corporation B for $2 million and take the position that there is no gain because the adjusted cost base of those shares is also $2 million.

Proposed Changes

In the Budget, the Federal Government is proposing to target situations similar to those in D & D Livestock Ltd. v. R., 2013 DRC 1251 (TCC), where the Tax Court of Canada held that subsection 55(2) did not apply to a taxable dividend in kind (consisting of shares of another corporation) that gave rise to an unrealized capital loss on shares which was then used to reduce taxes otherwise payable on capital gains realized on the sale of another property.

The Budget proposes to amend subsection 55(2) to ensure that it applies where one of the purposes of a dividend is to effect a significant reduction in the fair market value of any share or a significant increase in the total cost of properties of the recipient of the dividend (such that the total cost amount of all properties of the dividend recipient immediately after the dividend is significantly greater than the total cost amount of all properties immediately before the dividend). The provision is also amended to ensure its application to stock dividends where the fair market value of such dividend exceeds the amount by which the paid-up capital of the corporation that paid the dividend is increased because of the dividend (even if the amount of the dividend does not exceed safe income).

Any dividends caught by these proposed amendments will be treated as a gain from the disposition of capital property.

Consequential changes are also proposed to address the cost amount of a stock dividend when received by a shareholder that is not an individual and additions to the adjusted cost base of a share.

The measures above will apply to dividends received by a corporation on or after Budget Day (April 21, 2015).

Proposed Narrowing of the Scope of Paragraph 55(3)(a) of the Tax Act

The Budget also includes a proposal to narrow the scope of paragraph 55(3)(a) of the Tax Act. This paragraph previously applied in certain circumstances where a dividend was received, with the effect that subsection 55(2) of the Tax Act did not apply. The proposed changes will make paragraph 55(3)(a) available only in situations where the previous requirements are met and the dividend is received by virtue of a redemption of shares.

Manufacturing and Processing Machinery and Equipment: Accelerated Capital Cost Allowance

Currently, machinery and equipment acquired by a taxpayer after March 18, 2007 and before 2016 primarily for use in Canada for the manufacturing or processing of goods for sale or lease qualifies for a temporary accelerated capital cost allowance ("CCA") rate of 50%, calculated on a straight-line basis under Class 29 of Schedule II to the Regulations under the Tax Act. Were it not for this temporary accelerated CCA rate, the machinery and equipment in question would otherwise fall under CCA Class 43 and be subject to a CCA rate of 30%, calculated on a declining-balance basis.

The Budget proposes to create a new CCA Class 53, which would provide an accelerated CCA rate of 50% on a declining-balance basis for machinery and equipment acquired by a taxpayer after 2015 and before 2026 primarily for use in Canada for the manufacturing and processing of goods for sale or lease. As such, assets that would currently be included in Class 29 will now be eligible to be included in new Class 53.

Equipment and machinery that is subject to being included in new CCA Class 53 will be subject to the "half-year rule", which allows half the CCA deduction otherwise available in the taxation year in which an asset is first available for use by a taxpayer. In addition, the assets in question will be considered "qualified property" for the purpose of the Atlantic Investment Tax Credit.

Equipment and machinery acquired in 2026 and subsequent years will no longer qualify for the accelerated CCA rate of 50% under new Class 53 and will instead be subject to the 30% declining-balance rate under Class 43.

Agricultural Cooperatives: Deferral of Tax on Patronage Dividends Paid on Shares

In order to support the capitalization of agricultural cooperative corporations, the 2005 Budget introduced a temporary measure to provide a tax deferral that applied to patronage dividends paid to members by an eligible agricultural cooperative in the form of eligible shares. To be eligible for this tax deferral, the 2005 Budget provided that a share must be issued after 2005 and before 2016.

The Budget proposes to extend this tax deferral measure to apply in respect of eligible shares issued before 2021. Without an extension of this tax deferral, a patronage dividend paid by an agricultural cooperative corporation would have been taxable to the recipient member of the cooperative in the year received. In addition, the cooperative corporation paying the dividend would have been required to withhold an amount from the dividend and remit it to the Canada Revenue Agency on account of the recipient's tax liability. Before the introduction of the tax deferral as part of the 2005 Budget, a portion of the dividend was commonly paid in cash to fund the recipient's tax liability. The cash portion of this dividend was understood to constitute a significant capital outlay for agricultural cooperative corporations.

The extension of the tax deferral measure for dividends paid in the form of eligible shares should be welcome news for members of agricultural cooperative corporations. The extension will permit eligible members to defer the inclusion in income of all or a portion of any patronage dividends received as eligible shares until the share is actually disposed of or deemed to have been disposed of for the purposes of the Tax Act. There is no withholding obligation in respect of a patronage dividend issued in the form of an eligible share; however, there is a withholding obligation when the share is redeemed. In addition, an eligible share must not (other than in the case of death, disability or ceasing to be a member) be redeemable or retractable within five years of its issue.

Consultation on Eligible Capital Property

Budget 2014 announced a public consultation on the proposal to repeal the eligible capital property regime and replace it with a new capital cost allowance class. The Budget confirms that the public consultation is continuing and the Federal Government will consider all public representations in the development of the rules relating to the new capital cost allowance class as well as the transitional rules. The Federal Government intends to release detailed draft legislative proposals for stakeholder comment before their inclusion in a bill.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.