The Small Business Deduction ("SBD") is a mainstay in
the Canadian taxation of small-to-medium sized Canadian-controlled
private corporations' ("CCPC") business profits. The
SBD reduces a CCPC's tax rate on its first $500,000 of business
profits to a rate of between 10.5% to 15% depending on the province
or territory (Quebec being the outlier at 18.5%). This lower tax
rate enables small businesses to reinvest more profits. It also
provides an opportunity to split income with family members by
paying dividends from after-tax profits to individuals that
otherwise have low income, which results in them paying minimal
These benefits make accessing multiple SBDs an attractive
business goal. The Income Tax Act contains rules that prevent SBD
multiplication by restricting each "associated" group of
corporations to one shared $500,000 Small Business Limit
("SBL"). A corporation's association status is
determined by a number of rules that look at family ownership.
Not directly restricted under the existing rules is the payment
of fees between non-associated corporations. The 2016 Federal
Budget proposed a new set of rules intended to restrict perceived
abuses of the ability to multiply the SBD. The new rules apply for
corporate taxation years starting on or after March 22, 2016.
How will the new rules impact non-associated corporations?
The changes also impact partnerships with corporate partners but
the following comments focus on the payment of fees between two
The new rules will impact any situation where fees are paid from
one private corporation to another when there is even a minimally
direct or indirect ownership connection between the two
corporations. "Direct or indirect interest" is not
defined but it is a very broad term that may not only refer to
share ownership. These rules go far beyond the reach of the current
association rules. For example, take the following scenario.
Aco and Bco are not associated. Therefore they each are entitled
to a $500,000 SBL under the existing rules. However, under the new
rules, if Aco pays fees to Bco, Bco is not able to claim a SBD with
respect to that income.
Are there any relieving provisions?
The restriction on claiming the SBD does not apply if at least
90% of recipient corporation's income is derived from unrelated
parties. So, in our example, if Bco generates 90% of its income
from unrelated parties and 10% from Aco, the restriction will not
apply and Bco will not be restricted from claiming the SBD on all
of its income, including the income generated from Aco.
But what if we are not trying to multiply the SBD?
The new rules will apply regardless of whether or not the intent
is to multiply the SBD. If we assume, in our example, that Aco has
$500,000 of active business income prior to paying a $100,000 fee
to Bco (Bco's only income), Bco will not be entitled to claim
the SBD on the $100,000 income.
In this situation, relief can be found when the payor
corporation assigns some of its SBL to the recipient corporation.
In our example, Aco could assign $100,000 of its SBL to Bco
reducing Aco's SBL to $400,000 and allowing Bco to use the
$100,000 against its income derived from Aco.
The ability to assign the SBL is subject to a number of
restrictions and both corporations must report the amount assigned
on a form included with their tax returns.
In summary, the new rules could represent a significant change
for some corporate structures.
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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With the 2017 federal budget likely due to be released in late February or March, there is speculation that the government may curtail the preferential tax treatment afforded to gains on the disposition of capital property
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