Canada: Federal Budget 2013: How Will It Impact Your Business? - Integrity Measures

As noted, Budget 2013 contains a large number of "integrity" measures, including "tightening" measures and reporting and penalty measures. It also proposes consultations in respect of several other potential integrity measures.

Synthetic Dispositions

Budget 2013 addresses "synthetic disposition arrangements," also commonly known in the market as "forward sales" or subsection 39(4) "transactions", which were used to defer capital gains or to obtain other tax benefits (such as avoiding the stop-loss rules) by allowing a taxpayer to economically dispose of a property while continuing to own it from a legal perspective and for income tax purposes.

Generally, a "synthetic disposition arrangement" will include an arrangement under which the taxpayer eliminates its future risk of loss and opportunity for gain or profit in respect of a property and acquires another property (or a right to acquire another property) for a value which approximates what the taxpayer would have received as proceeds of disposition.

Such arrangements will generally include forward contracts, put-call collars, total return swaps, exchangeable indebtedness or other mechanisms used to eliminate the future risk of loss and opportunity for gain or profit in respect of a property. Although the Supplementary Information states that the measure generally will not apply to ordinary hedging transactions, securities lending arrangements or ordinary commercial leasing transactions, the wording of the proposed legislation does not explicitly provide a carve out for such transactions.

Proposed section 80.6 of the Income Tax Act (Canada) (ITA) deems a taxpayer (or a non-arm's length person) that has entered into a "synthetic disposition arrangement" to have disposed of and reacquired the property for an amount equal to its fair market value. This measure will apply to agreements and arrangements entered into on or after March 21, 2013 and to agreements and arrangements entered into before March 21, 2013 if their term is extended on or after March 21, 2013.

Character Conversion Transactions

Since only 50 per cent of capital gains are included in taxable income, it is not surprising that Canada's financial sector has developed sophisticated structured transactions for the purpose of converting what would otherwise be fully taxable investment income into capital gains. These transactions generally involve an agreement to buy or sell a capital property at a specified future date for a price determined by reference to a portfolio of income producing investments. These character conversion transactions have the effect of converting notional investment income (or losses) from the reference portfolio into capital gains (or losses) realized when the derivative forward agreement is settled.

Budget 2013 proposes to eliminate any tax advantages from these types of derivative forward agreements. For example, if the transaction includes a "forward sale", the taxpayer will have an income inclusion at the time of settlement equal to the amount by which the amount paid for the property under the forward sale agreement exceeds the fair market value of the property on the date of the agreement. Similarly, if the transaction involves a "forward purchase" the taxpayer will have an income inclusion at the time of settlement equal to the amount by which the fair market value of the property delivered on settlement exceeds the amount paid for the capital property. Any losses realized by a taxpayer under these character conversion transactions will also be treated as being on income account.

Budget 2013 proposes to treat the income (or loss) portion of a character conversion transaction as being distinct from the gain (or loss) realized on the disposition of a capital property that is purchased or sold under the derivative forward agreement. To avoid double taxation (or doubling of losses) the proposals provide that the adjusted cost base of the capital property will be increased by the amount of resulting income and reduced by the amount of any resulting loss.

The proposed measures will only apply in circumstances where any return under a derivative forward agreement is not determined by reference to the performance of the capital property being purchased or sold and only where the duration of the agreement exceeds 180 days. The measures will only apply to derivative forward agreements entered into after March 20, 2013 or to prior agreements if the term of the agreement is extended after March 20, 2013.

Loss Trading by Trusts Restricted

Over the past several centuries, trusts have proven to be a creative yet safe and flexible method for families to hold assets and facilitate estate planning. Increasingly, however, trusts have been used as business vehicles. As the use of business trusts has increased, the discrepancy between the income tax rules which apply to trusts and the rules which apply to corporations has become more noticeable.

Budget 2013 continues the steps aimed at addressing these discrepancies (the most significant of which, in the past, was the introduction of the so-called "SIFT Tax" in response to the income trust phenomenon) by extending to trusts both the thin capitalization rules (discussed below in this summary, under "General Tightening Measures") and the loss trading restrictions that now apply to corporations.

Presently, if a trust incurs a loss in a year that it is unable to use in the year, the unused loss may be carried forward or back to be used in other taxation years, within certain limits. Nevertheless, it might not be feasible for a trust to fully utilize its losses if it is not able to earn sufficient income. Accordingly, transactions have been developed which allow a trust to provide other taxpayers with access to its unused losses and other tax attributes. These are usually referred to as "loss trading transactions." In a typical loss trading transaction, a taxpayer who wishes to use the trust's losses will acquire an interest in the trust and the trust will acquire a new business or income-producing asset. This provides the trust with an opportunity to earn income that can be offset by its losses, and the taxpayer who acquires an interest in the trust can benefit by receiving distributions from the trust out of the resulting tax-sheltered profits. More complicated loss trading transactions have also been developed.

For a corporation, loss trading transactions are subject to significant restrictions if there is an acquisition of control of the corporation. The acquisition of control rules do not readily apply to trusts because of the significant differences between trusts and corporations. Therefore, Budget 2013 proposes to apply the existing corporate restrictions on using losses to trusts where there is a "loss restriction event." Such an event will arise when a person who previously was not a "majority-interest beneficiary" of the trust becomes a majority-interest beneficiary or when a group of persons become a "majority-interest group of beneficiaries".

A beneficiary of a trust will be considered to be a majority-interest beneficiary for this purpose if the beneficiary holds more than 50 per cent of the fair market value of all income interests or more than 50 per cent of all capital interests in the trust. Since there can be separate income and capital beneficiaries, a trust may have more than one majority-interest beneficiary at the same time. Further, in a discretionary trust the tax rules assume the discretion is fully exercised in determining the value of a beneficiary's interest in the trust. Therefore, in a discretionary trust it is possible that every beneficiary will be a majority-interest beneficiary.

Unless specifically excluded by one of the proposed exempting rules, every change in the make-up of the beneficiaries of a trust or the trust terms that results in a person becoming a majority-interest beneficiary of the trust will result in a loss restriction event for the trust which, in turn, will result in restrictions on the ability of the trust to use its losses and other tax attributes. Certain limited exemptions to the rules have been proposed. The Department expects these exemptions will apply to many of the typical transactions involving changes in the beneficiaries of a family trust by permitting certain transfers of income or capital interests in a trust. However, many trusts allow beneficiaries to be added or changed in other ways without necessarily requiring a transfer of a trust interest. The birth of a child or the addition of a spouse or other beneficiary could result in the trust having a new majority-interest beneficiary without any transfer of a trust interest occurring. If the intent is to prevent the new restrictions from applying to typical changes to a family trust, the proposed rules will require further modification. The Government has invited comments, but has indicated that additional exemptions will not likely be considered for commercial trusts.

The proposals include a number of new anti-avoidance rules to ensure these restrictions on loss trading transactions trusts will be effective. The proposed rules are complex and will have broad application. Any trust with losses should carefully review the proposed rules.

Corporate Loss Trading

Budget 2013 continues the attack on corporate loss trading with the introduction of a new specific anti-avoidance rule aimed at transactions structured to facilitate the use of the tax losses and other tax attributes of a corporation (LossCo) by an arm's length profitable corporation (ProfitCo).

The ITA already contains various restrictions on the use of tax losses and other tax attributes (referred to as "attribute trading restrictions") after an acquisition of control of LossCo by an arm's length party. However, transactions have been structured to avoid the attribute trading restrictions by avoiding an acquisition of control of LossCo. In these transactions ProfitCo would transfer a profitable business or an income-producing asset to LossCo in exchange for LossCo shares which would represent a significant equity interest in LossCo. However, the LossCo shares issued to ProfitCo would not give ProfitCo voting control of LossCo thereby avoiding an acquisition of control and avoiding the attribute trading restrictions in the ITA.

Effective March 21, 2013, a person or group of persons will be deemed to have acquired control of a corporation for purposes of the attribute trading restrictions if they acquire shares that causes the person or group to have more than 75 per cent of the fair market value of all shares of the corporation, but only if it is reasonable to conclude that one of the main reasons that the person or group does not have voting control of the corporation is to avoid the attribute trading restrictions.

Non-Resident Trusts

The ITA contains rules deeming non-resident trusts to be resident in Canada for tax purposes if a Canadian resident person directly or indirectly contributes property to the trust (NRT Rules).

The ITA also contains a broad and punitive attribution rule (subsection 75(2)) that applies to attribute income and capital gains from property held in a trust (including a non-resident trust) to the transferor of the property in circumstances where the property is held by the trustees on condition that: (i) the property (or substituted property) can revert to the transferor; or (ii) the transferor has direction or control over the transfer or disposition the property.

In response to the Sommerer decision (in which the FCA held that subsection 75(2) did not apply to a transfer of property by a Canadian resident to a non-resident trust, of which he was a beneficiary, in exchange for fair market value consideration), Budget 2013 proposes to amend the NRT Rules to clarify that such an attribution rule will apply to any direct or indirect transfer or loan of property from a Canadian resident to a non-resident trust, regardless of the consideration received on the exchange, where the non-resident trust holds property on the conditions described above.

Where this attribution rule applies, a related rule is triggered to prohibit a tax-deferred distribution of the trust property to any beneficiaries other than a distribution of the problematic property to the transferor of such property. Budget 2013 proposes an amendment to clarify that non-resident trusts will also be subject to this related rule.

Stop International Tax Evasion Program

Budget 2013 announces that the CRA will launch the Stop International Tax Evasion Program under which it will pay rewards to individuals of up to 15 per cent of the federal tax collected as a consequence of information leading to additional assessments or reassessments exceeding $100,000 in federal taxes. Awards will be paid only where the non-compliant activity involves foreign property or property located or transferred outside Canada or transactions conducted partially or entirely outside Canada. The CRA will announce further details on the program in coming months.

International Electronic Funds Transfers

Budget 2013 proposes to require certain financial intermediaries to report to the CRA international electronic funds transfers (EFTs) of $10,000 or more. This requirement will apply to the same financial intermediaries that are currently required to report international EFTs to the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.

Foreign Reporting Requirements – Form T1135

Form T1135 currently only provides for general information regarding where the specified foreign property is located and what income it generates. Budget 2013 announces that the CRA will revise Form T1135 to require more detailed information to be reported. The CRA will also help taxpayers meet their filing obligations with respect to Form T1135 by improving the filing instructions for the Form and reminding taxpayers, on their notice of assessments, of their obligation to file this form. The CRA will also be developing a system to allow electronic filing of Form T1135.

Extended Reassessment Period – Form T1135

After a taxpayer files an income tax return and the CRA raises its initial assessment, the ITA provides the CRA with a limited amount of time to audit and reassess the tax liability. The normal reassessment period is three or four years, depending on the type of taxpayer. The current rules provide the CRA an additional three years beyond the normal reassessment period to raise an assessment where it is made as a consequence of a transaction involving the taxpayer and a non-resident person with whom the taxpayer does not deal at arm's length. These rules recognize the difficulty CRA has in reviewing foreign transactions in a timely manner.

Budget 2013 proposes to extend the normal reassessment period by three years if the taxpayer fails to report income from a specified foreign property and Form T1135 was not filed on time, or a specified foreign property was not identified, or was improperly identified, on Form T1135. This proposal seems to indirectly modify the existing rule described above by extending its application to all taxpayers, whether arm's length or non-arm's length, but in the former case, only to those taxpayers not complying with Form T1135.

Treaty Shopping

Canada has an extensive system of bi-lateral tax treaties intended to facilitate trade with Canada's treaty partners and to reduce tax evasion and avoidance. The Department has expressed its concern that residents of third countries may establish entities in treaty countries for the purpose of accessing the benefits of particular bi-lateral tax treaties – so-called "treaty shopping". The Department has also expressed its concern that existing anti-abuse provisions are not sufficient to counter such practices, particularly given the Government's lack of success in challenging these practices in the tax courts.

Budget 2013 announces the Government's intention to consult on possible measures to combat treaty shopping. A consultation paper describing these measures will be publicly released to provide stakeholders with an opportunity to comment.

Scientific Research and Experimental Development

Budget 2013 proposes a relatively modest change to the SR&ED program aimed at enhancing compliance. For SR&ED claims filed after January 1, 2014 (or after Royal Assent, if later), it will be necessary to include details about the SR&ED claim preparer, including their Business Number and details about fee arrangements (including contingency arrangements). A new penalty of $1,000 will apply to SR&ED claims which include missing, incomplete or inaccurate information about the taxpayer's SR&ED claim preparer. In the Budget 2013 papers, the Department states that this information will facilitate the identification of SR&ED claims with a higher risk of non-compliance, although no rationale or details are provided to support this view.

On the spending side, Budget 2013 includes substantial investments in innovation, consistent with certain key recommendations to enhance direct funding of research and development as set out in the October 2011 "Jenkins Report". However, Budget 2013 indicates that there is less momentum at this time to adopt the significant reductions and fundamental changes to the SR&ED program as recommended in the Jenkins Report.

Extended Reassessment Period for Tax Shelters and Reportable Transactions

Budget 2013 proposes to extend the usual limitation period for the CRA to reassess a taxpayer, until three years after the date information returns are filed for tax shelters or tax avoidance transactions, instead of the usual limitation period that runs from the date of the initial notice of assessment. These information returns are required to be filed to assist the CRA to identify and audit inappropriate claims. Where those returns are filed late, the current limitation period may prevent the CRA from having adequate time to review the claims. Applying to 2013 and subsequent years, this change will afford the CRA additional time to reassess.

Combating Charitable Donation Tax Schemes by Reduced Stay on Collections

The CRA has been combating aggressive charitable donation tax shelters for years, with protracted and extensive group litigation. The typical "buy low-donate high" schemes result in a charitable donation receipt being issued to a taxpayer in an amount many times greater than their cash outlay. Despite the Courts' consistently upholding the CRA's disallowance of these deductions, these schemes have continued to proliferate. Effective for assessments for 2013 and subsequent years, Budget 2013 proposes to permit the CRA to immediately collect half of the disputed tax, interest or penalties, instead of the usual stay on collections of the entire amount of the assessment, while it is under objection or appeal to the Tax Court of Canada. The CRA's enhanced collection ability will discourage participation in these schemes and enhance the CRA's ability to collect.

Procedural Streamlining for Information Requirements Regarding Unnamed Persons

Both the ITA and the Excise Tax Act (Canada) (ETA) currently enable the CRA to seek a Court order against a party, without notice to the party, requiring it to provide information or any document relating to unnamed persons. The ability to seek the order without notice to the party was supposed to expedite the CRA's ability to get the information and documents. The CRA has deployed this tool to commence audits of various groups of individuals, including customers, donors, investment brokers and real estate agents. However, the ITA and the ETA currently allow the party to challenge the order, on bases including that the Minister failed to act in utmost good faith and ensure that full and frank disclosure was made to the Court in obtaining the order. When such a challenge is made, the CRA's ability to get the information and documents is delayed. Budget 2013 proposes to change this procedure, by requiring the CRA to seek the order with notice to the party. This should enable the CRA to obtain the information sooner and avoid being challenged later for not meeting its obligations to the Court.

Leveraged Life Insurance Arrangements

Budget 2013 proposes measures that are intended to render '10/8' insurance planning and leverage insured annuity (LIA) planning obsolete or nearly obsolete. This type of planning has been of concern to the CRA for a number of years and has been the focus of audits and litigation, including the recently decided Federal Court of Appeal decision in MNR v RBC Life Insurance Company (February 12, 2012).

There are a number of variations in this planning. In a typical LIA plan, a private corporation purchases a life insurance policy (on the life of the principal shareholder) and an annuity contract from an insurer, simultaneously with entering into a borrowing arrangement with the same insurer or with a third party lender working in conjunction with the insurer. The insurance policy and the annuity are used as security for the borrowing. Properly planned, the interest payments and a portion of the premium payments would be deductible, the capital would accumulate in the policy tax free, the value of the shares (on death) would be reduced by the borrowing, and the corporate surplus would be transformed on death into an addition to the capital dividend account.

Under a typical 10/8 plan, the taxpayer funds a life insurance policy in a way that builds up the cash surrender value quickly, then borrows from or against the policy and uses the borrowed funds for some business purpose. Under a proverbial "10/8" plan, the investments inside the policy would earn a return of 8 per cent, which would be exempt from tax, and the taxpayer would pay interest at a rate of 10 per cent on the borrowing, which would be deductible. Properly planned, with a deductible interest rate of 10 per cent, together with an exempt policy return of 8 per cent, the economics of this planning can by quite advantageous to the taxpayer.

The central concepts of the proposed provisions in Budget 2013 are the defined term "LIA policy" and "10/8 policy". Where a life insurance policy falls under the definition of an "LIA policy", Budget 2013 proposes to subject the policy to accrual basis taxation, deny deductibility to the premium payments, deny the addition of the death benefit to the capital dividend account and deem the annuity to be worth, on death, the total amount of premiums paid for it. Existing plans are grandfathered.

Where a life insurance policy falls under the definition of a "10/8 policy", Budget 2013 proposes to deny deductibility to the premium payments and interest payments and deny the addition of the death benefit to the capital dividend account. There are no grandfathering rules. Instead, Budget 2013 proposes transitional arrangements intended to facilitate the termination of existing 10/8 plans and alleviate the tax consequences of policy withdrawals to repay the borrowing.

"Zapper" Software

Budget 2013 introduces new monetary penalties into the ETA and ITA for acquiring, possessing or using so-called "zapper" software, which is more formally known as "electronic suppression of sales" software. As the name suggests, the software can be used by a business to suppress or "zap" sales from its records with a view to evading tax compliance. The penalties are $5,000 for a first infraction and $50,000 for a subsequent infraction. The monetary penalties are double for manufacturing, developing or selling such software, with accompanying new criminal offence provisions providing for additional fines of between $10,000 and $1 million, as well as imprisonment of up to five years.

In recent years, Revenu Quebec has led the way in countering "zapper" software by imposing similar offences, as well as requiring the installation of sales recording devices into restaurant cash registers and requiring restaurants to issue a copy of the bill to every customer. These efforts alone have reportedly increased annual revenues by $160 million and resulted in fines of $1.3 million.

Consultation on Graduated Rate Taxation of Trusts and Estates

Budget 2013 proposes a consultation to review the graduated rate system that applies to testamentary trusts. Inter vivos trusts are subject to a flat rate of federal tax of 29 per cent. Testamentary trusts are subject to graduated or progressive rates, with the consequence that income earned in a testamentary trust can be retained by the trustees in the trust and subjected to a lower aggregate rate of tax than if it had been distributed to a beneficiary. Budget 2013 suggests that this result is anomalous and leads to planning, such as the artificial creation of multiple testamentary trusts that might be inappropriate.

Testamentary trust planning is such a common feature of Canadian estate planning, it is not hard to see why the Government is proposing a "trial balloon" consultation paper approach. It will be interesting to see how the Canadian estate planning industry will respond, and whether this balloon can fly.

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.

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