Personal Income Tax Measures - Capital Gains Tax

Adoption Expense Tax Credit

The Adoption Expense Tax Credit ("AETC") under section 118.01 of the Tax was first introduced in 2006, effective for the 2005 and later taxation years. The AETC provides a 15% non-refundable tax credit for certain eligible adoption expenses incurred by adoptive parents who adopt a child under the age of 18. The credit may be claimed in the taxation year in which the adoption is finalized. The maximum annual expense per child was $10,000 when the credit was first introduced, but has been indexed since 2005 such that it would have been $11,774 per child for 2014.

The Budget proposes to increase the maximum eligible expenses to $15,000 per child for 2014, which will continue to be indexed for inflation for taxation years after 2014. The expansion of the AETC's scope is intended to recognize the unique costs of adopting a child including fees paid to provincially licensed adoption agencies and legal costs incurred in relation to the adoption.

Medical Expense Tax Credit

The Medical Expense Tax Credit ("METC") recognizes the effect of significant medical and disability-related expenses on the taxpayer and provides a tax credit in respect of eligible expenses. The list of eligible expenses is continually reviewed and updated in light of disability or medically-related developments and new technologies.

The METC provides a 15% tax credit for eligible medical and disability-related expenses (e.g., nursing home care, ambulance fees, and certain medical devices) incurred by a taxpayer in excess of a threshold that is the lesser of:

3% of the taxpayer's net income; and
$2,171 (the indexed amount for 2014).

The METC currently provides relief for amounts paid for therapy for an individual with one or more severe and prolonged impairments in physical or mental functions who is eligible for the disability tax credit ("DTC") under section 118.3 of the Tax Act. The therapy must be prescribed by and administered under the general supervision of a medical practitioner or occupational therapist or, in the case of a mental impairment, a medical doctor or psychologist. In some instances, effective therapy requires the development of a plan designed to meet the specific needs of the individual, such as applied behaviour analysis therapy for a child with autism. Such plans may need to be updated and adjusted from time to time.

The Budget proposes to add, as an expense eligible for the METC, amounts paid for the development of an individualized therapy program ("ITP") if the cost of the therapy itself would be eligible for the METC and each of the following conditions are satisfied:

an ITP is required to access public funding for the individualized therapy, or a medical doctor or an occupational therapist prescribes an ITP (or, in the case of mental impairment, a medical doctor or psychologist prescribes an ITP);
the ITP is designed for an individual with a severe and prolonged impairment in physical or mental functions who is, because of the impairment, eligible for the DTC; and
the expenses are paid to persons ordinarily engaged in a business that includes the design of ITPs for unrelated individuals.

In addition, the Budget proposes to expand the list of eligible medical expenses to include certain expenses incurred for service animals specifically trained to assist diabetic individuals, including the cost of the service animal, costs for its care and maintenance, and reasonable travel expenses to allow the individual to attend a facility that trains eligible individuals to handle such service animals. These changes would apply to expenses incurred in 2014.

Search and Rescue Volunteers Tax Credit

In 2011, the Federal Government introduced the Volunteer Firefighters Tax Credit ("VFTC") in section 118.06 of the Tax Act. The VFTC generally allows volunteer firefighters who perform more than 200 hours of eligible services in a taxation year to claim a tax credit of 15% based on an amount of $3,000.

The Budget proposes to add a new Search and Rescue Volunteers Tax Credit ("SRVTC") allowing eligible ground, air and marine search and rescue volunteers (e.g., members of the Search and Rescue Volunteer Association of Canada, the Civil Air Search and Rescue Association, and the Canadian Coast Guard Auxiliary) to claim a 15% non-refundable tax credit based on an amount of $3,000. To be eligible for the SRVTC, an individual must perform at least 200 hours of eligible search and rescue volunteer services consisting primarily of:

responding to and being on call for search and rescue and related emergencies;
attending meetings of the organization; and
participating in required training relating to search and rescue services.

The 200 hours do not include services provided by an individual otherwise than as a volunteer, and any volunteer hours provided to a particular organization will be disqualified if the individual also provides non-volunteer search and rescue services to that organization.

Individuals who are eligible for both the VFTC and the SRVTC may claim one tax credit or the other, but not both. Individuals who claim either the VFTC or the SRVTC will not be eligible for an existing tax exemption under subsection 81(4) of the Tax Act for up to $1,000 for honoraria paid by a government, municipality or public authority to an emergency services volunteer. Individuals claiming the SRVTC may be required by the Minister to provide written certification from a team president (or similar individual) of an eligible organization confirming the number of eligible hours performed. The SRVTC will be available in the 2014 and subsequent taxation years.

Extension of the Mineral Exploration Tax Credit for Flow-Through Share Investors

Under flow-through share agreements, corporations that incur certain expenses in connection with mineral exploration work undertaken in Canada may renounce or "flow" such expenses through to their shareholders. The shareholders may generally claim a deduction from their income for the renounced expenses. A 15% federal tax credit is also available for specified mineral exploration expenses once renounced. This is in contrast to the general prohibition on the ability of corporations to flow-through such expenses, and provides an additional incentive for investors to provide equity to exploration corporations.

The Budget proposes to extend the mineral exploration tax credit for one additional year to flow-through share agreements entered into, on, or before March 31, 2015.

The Tax Act contains a one-year look-back rule, which enables funds raised in one calendar year that receive the benefit of the mineral exploration tax credit to be spent on eligible exploration up to the end of the following calendar year. The Budget proposals allow funds raised with the credit during the first three months of 2015 to support eligible exploration until the end of 2016.

Farming and Fishing Businesses

The lifetime capital gains exemption under section 110.6 of the Tax Act (the "LCGE") currently provides for a lifetime exemption of $800,000, indexed for inflation, for capital gains incurred by individuals on qualified small business corporation shares, qualified farm property and qualified fishing property. In addition, the Tax Act allows for a deferral of capital gains (plus any recaptured depreciation) on intergenerational transfers by an individual to his or her child of farming property and fishing property.

The Budget proposes to simply the tax rules relating to the LCGE and intergenerational rollovers in respect of taxpayers involved in a combination of farming and fishing by amending subsection 248(29) of the Tax Act .

Tax Deferral for Farmers

Farmers who dispose of breeding livestock as a result of drought, flood or excess moisture conditions in prescribed regions (as prescribed on an annual basis based on recommendations made by the Minister of Agriculture and Agri-Food) may defer up to 90% of the sale proceeds from such livestock until at least the taxation year following the year or sale, or a later year if the adverse conditions persist. Farmers can then use the full amount of the tax-deferred proceeds to acquire replacement livestock, resulting in an expense that may offset the deferred income from the earlier sale.

For example, the deferral is currently available for cattle, goats and sheep that are over 12 months of age and are kept for breeding, as well as horses that are over 12 months of age and are kept for breeding in the commercial production of pregnant mares' urine. The Budget proposes to extend the tax deferral to bees as well as to all types of horses that are over 12 months of age and are kept for breeding by amendments to section 80.3 of the Tax Act. The change will apply to the 2014 and subsequent taxation years.

Amateur Athlete Trusts

Amateur athlete trusts ("AATs") are trusts established for the benefit of amateur athletes who are members of a registered Canadian amateur athletic association and who are eligible to compete in international sporting events as a Canadian national team member. AATs are designed to hold endorsement income, prize money, and income from public appearances and speeches. Such amounts may be contributed to an AAT if they are received in connection with the athlete's participation in international sporting events. The contributed amounts are excluded from the athlete's income in the year in which the contribution is made, and no tax is payable by the AAT on such income (including investment income). The property in an AAT is included in the beneficiary's income and subject to income tax on the earlier of:

the distribution of the property to the athlete; and
8 years after the last year in which the athlete competed as a Canadian national team member (at which time, any property that has not yet been distributed is deemed to have been distributed to the athlete).

An individual's annual contribution to an RRSP is limited to 18% of the previous year's earned income up to a contribution limit ($24,270 in 2014), minus a pension adjustment for the previous year's savings in a Registered Pension Plan ("RPP"), plus unused RRSP contribution room from prior years. Currently, income contributed to an AAT does not count towards determining an athlete's RRSP contribution limit, which can result in a reduction of RRSP room that would otherwise have been available if the amount contributed to the AAT was considered earned income in the year received.

The Budget proposes to allow income contributed to an AAT to qualify as earned income of the athlete who is the beneficiary of the AAT for the purposes of determining the RRSP contribution limit of such beneficiary. The change will apply to contributions made to AATs after 2013, but an election will also be available for income contributed to an AAT in 2011, 2012 and 2013 to qualify as earned income in each of those taxation years. Additional RRSP contribution room arising out of such election will be added to the athlete's contribution room for 2014. The election must be made in writing and submitted to the CRA on or before March 2, 2015.

Pension Transfer Limits

The Tax Act permits individuals who are leaving defined benefit RPPs to transfer a portion of a lump-sum commutation payment to an RRSP on a tax-free basis. Generally, if the commutation payment is reduced because the RPP is underfunded, the amount that can be transferred tax-free to an RRSP is based on the reduced amount. The portion of the commutation payment that exceeds the transferable amount must be included in the taxpayer's income in the year in which it is received.

The Federal Government introduced a special rule in 2011 whereby an individual leaving an RPP can in certain circumstances disregard the reduction in a commutation payment due to underfunding in calculating the amount that can be transferred tax-free to an RRSP. The transferable amount would instead be calculated based on the commutation payment that would have been received if the RPP were fully funded. The special rule currently applies to RPPs that are sponsored by an insolvent employer, have broad membership and are being wound-up. In addition, the CRA must approve the application of the rule. The Budget proposes to expand the rule to situations where the commutation payment to a plan member who is leaving an RPP has been reduced due to plan underfunding and either:

the plan is an RPP other than an individual pension plan, and the reduction of the estimated pension benefit resulting in the reduced commutation payment is approved under pension benefits standard legislation; or
the plan is an individual pension plan, and the commutation payment is the last payment made out of the plan.

In both of these situations, the application of the rule must still be approved by the CRA. The expansion of the rule will be effective in respect of commutation payments made after 2012.

GST/HST Credit Administration

Currently, individuals apply for the GST/HST Credit (a non-taxable benefit paid to individuals based on their adjusted family net income) by checking a box on their personal income tax return. When this box is checked, the CRA is required to determine the applicant's eligibility for the credit and send that individual a notice of determination. The Budget proposes to eliminate the application process and allow the CRA to automatically determine each individual's eligibility to receive the GST/HST Credit.

A notice of determination will be issued only to those who are eligible to receive the credit. However, ineligible individuals may request a notice of determination, thus preserving their right to object. In the case of eligible couples, the GST/HST Credit will be paid to the spouse or common law partner whose return is assessed first. This measure will apply in respect of the 2014 and subsequent taxation years.

Tax on Split Income

The rules governing tax on split income, informally known as the "kiddie tax" rules, are designed to prevent higher-income individuals (whose income would be subject to a higher marginal tax rate) from reducing income tax by splitting taxable income with lower-income minors. The rules operate by causing "split income" to be subject to the highest marginal tax rate in the hands of the lower-income minor, thereby negating the tax benefit of transferring the income to the minor. "Split income" paid or payable to a minor is generally defined as:

taxable dividends and shareholder benefits received directly, or through a partnership or trust, in respect of unlisted (i.e. private company) shares of Canadian and foreign corporations (other than shares of a mutual fund corporation);
capital gains from dispositions of such shares to persons who do not deal at arm's length with the minor; and
income from a partnership or trust that is derived from providing property or services to, or in support of, a business carried on by a person related to the minor or in which the related person participates.

The kiddie tax rules do not currently apply if income is allocated to a minor from a partnership or trust that derived the income from business or rental activities conducted with third parties. This allows taxpayers engaging in those types of activities to split business and rental income with minors by, for example, providing services to clients through a partnership of which a minor child is a member.

The Budget proposes to expand the definition of split income to include income that is, directly or indirectly, paid or allocated to a minor from a trust or partnership if:

the income is derived from a source that is a business or a rental property; and
a person who is related to the minor, at any time in the taxation year:
- is actively engaged on a regular basis in the activity of the partnership or trust of earning income from a business or the rental of property; or
- in the case of a partnership, has an interest in the partnership directly or indirectly through another partnership.

This change will apply to the 2014 and subsequent taxation years.

Graduated Rate Taxation of Trusts and Estates Eliminated

Currently, testamentary trusts and "grandfathered" inter vivos trust (certain inter vivos trusts created prior to June 18, 1971) are subject to special treatment under the Tax Act whereby they are permitted to take advantage of the graduated tax rates applicable to individuals. This benefit is not available for other personal trusts, which are generally subject to Canadian income tax at the highest marginal personal tax rate on all income earned by the trust. In order to avoid the high rate of tax, trust income is generally allocated out to the beneficiaries and taxable to them.

In the 2013 Budget, the Federal Government announced that it was considering the elimination of graduated tax rates for testamentary trusts and grandfathered inter vivos trusts. The Federal Government released a consultation paper on June 3, 2013, which proposed, among other things, the application of the highest marginal tax rate to all income earned by estates for taxation years ending more than 36 months after the death of the relevant individual and to all grandfathered inter vivos trusts and trusts created by will. A number of organizations made submissions to the Minister of Finance during the consultation period that ended on December 2, 2013. (See, e.g., STEP Canada's submission, the Wills, Estates and Trusts Section of the Canadian Bar Association and CALU's submission.)

The Budget proposes to implement most of the proposals set out in the June 3, 2013 consultation paper beginning in 2016. As set out in the consultation paper, there will be an exception for estates in respect of taxation years ending within the first 36 months after the individual's death. This exception is assumes that the period required for the administration of an estate is typically 36 months from the date of death. In any estate with litigious matters, the administration can last significantly longer. Hopefully the legislation will include an ability for executors to apply for an extension of the 36 months in certain situations.

An important exception to the new tax rules that will be included is for testamentary trusts for the benefit of disabled individuals. Concerns were raised during the consultation period that such testamentary trusts were important in allowing disabled individuals to access income-tested benefits such as provincial social assistance benefits. Under the exception, graduated rates will continue to be provided for testamentary trusts having as their beneficiaries individuals who are eligible for the Disability Tax Credit. The Federal Government plans to release further details concerning the scope of this exception within the coming months. Hopefully, this exception will be integrated with the provincial rules for disability benefits to ensure that individuals receiving such benefits are not disadvantaged, not all of whom are eligible for the Disability Tax Credit.

In addition, the Budget proposes to eliminate the following additional tax benefits for testamentary trusts (subject to the 36-month estate exception) and grandfathered inter vivos trusts:

the exemption from the income tax installment rules;
the exemption from the requirement that trusts have a calendar year taxation year and fiscal periods that end in the calendar year in which the period began;
the basic exemption in computing alternative minimum tax;
preferential treatment under Part XII.2 of the Tax Act;
classification as a personal trust without regard to the circumstances in which beneficial interests in the trust have been acquired;
the ability to make investment tax credits available to a trust's beneficiaries; and
a number of tax administration rules that otherwise apply only to ordinary individuals.

Existing testamentary trusts that do not currently have a calendar year taxation year will have a deemed year-end on December 31, 2015. For estates falling within the 36-month exception where the 36-month period ends after 2015, such estates will have a deemed year end on the day on which the 36-month period ends, and will thereafter have a year-end of December 31^st of each year. The changes with respect to the deemed year ends generally come into force on December 31, 2015, with the remainder of the changes applying to the 2016 and subsequent taxation years.

Budget Introduces Significant Welcome Changes in Treatment of Estate Gifts

Budget introduces a significant change in the tax treatment of charitable gifts made under a Will or beneficiary designation.

Under the current rules, where an individual makes a donation by Will, the donation is treated as having been made by the individual immediately before the individual's death. Thus, the tax credits arising from the gift are applied to the donor's final tax return. Where the full credit cannot be used on the donor's final return, the excess credit can be carried back and used against the previous year's income. The tax credits that arise on gifts made by Will are available only against the individual's last two years' income – they cannot be used to reduce tax that arises in the estate following the donor's death.

By contrast, where a gift is directed to be made by the donor's estate, the gift is available only against the tax that would otherwise be payable by the estate. Such gifts cannot be used to reduce the donor's income in the year of death or the prior year. Distinguishing between gifts by Will and gifts by an estate requires an analysis of the terms of the Will and the extent of discretion that is afforded to the executors. As we have discussed in past issues of this Newsletter [see, for example Miller Thomson's Charities and Not-for-Profit Newsletter on Gifts by Will-Section 118.1(5) ], determining whether a particular gift is a gift by Will or a gift by the estate is not always easy, and the tax implications can vary significantly depending on the answer.

The Tax Act also applies similar rules where an individual designates a qualified donee as the beneficiary of proceeds on death under an RRSP, RRIF, TFSA or life insurance policy. Under these circumstances, the tax credit is available only against the individual donor's income tax otherwise payable in the year of death. Excess tax credits can be carried back and used in the individual's previous year's returns, but not against tax incurred by the estate.

The Budget proposes to provide flexibility with respect to the tax treatment of such charitable gifts, where they occur as the result of a death after 2015. Rather than deeming gifts by Will and gifts by direct designation to have been made immediately before the individual's death, these gifts will be treated as having been made by the estate. The gift will be deemed to occur when the property is actually transferred to the charity. Executors will then have the discretion to allocate the available tax credits against any of the following:

the taxation year of the estate in the year the gift was made;
any earlier taxation year of the estate; or
the last two taxation years of the individual prior to death.

The Budget confirms that the current requirements for determining whether a gift is a direct designation will continue to apply. Generally, this means that the transfer of property to the estate must occur as a consequence of the death of the donor, and must occur within 36 months of death.

This change is welcome in that it provides significant flexibility to executors and trustees when dealing with the taxes incurred by a deceased individual and the individual's estate upon death. While the Budget does not include specific legislative language to implement this change, it appears that the executors and trustees will be able to allocate tax credits between the estate and the deceased individual.

The new rules also reduce the significance of the distinction between gifts by Will and estate gifts. To be sure, they do not eliminate this issue. It appears from the Budget document that the new flexibility to allocate tax credits to either or both of the estate and the individual is only available where the gift constitutes a gift by Will. Thus, where the ability to allocate is significant, it will be necessary to determine whether the gift constitutes a gift by Will. However, the increased flexibility will mean that the trustees can use either type of gift against the estate's tax, thus avoiding the need to analyse the nature of the gift where it is sufficient that it can be used against the taxes arising in the estate.

This measure will apply to the 2016 and subsequent taxation years. It will be interesting to review the details of the legislation that is drafted to implement this proposal; this will allow us to determine the scope of the new flexibility more definitely. Although the proposal as announced is one that will be welcomed by the charitable sector and estate planners, it is not clear whether the Budget proposals will deal with issues that can arise with the availability of tax credits for donations made from a spousal testamentary trust on the death of the spouse beneficiary (See, for example Miller Thomson's Wealth Matters Spring 2012.) It is hoped that the legislation in its final form will also address this issue.

Non-Resident Trusts

The rules under section 94 of the Tax Act (the "NRT Rules") apply to deem certain non-resident trusts to be resident in Canada for Canadian income tax purposes. The current NRT Rules were enacted in June, 2013, after first being introduced in the 1999 Federal Budget and revised some ten times. (Though enacted in 2013, the NRT Rules are retroactive to January 1, 2007.) The NRT Rules are designed to preclude the use of non-resident trusts by taxpayers to avoid Canadian income tax. The NRT Rules may apply when a person resident in Canada contributes property to a non-resident trust. However, the NRT Rules presently provide an exception for non-resident trusts where the contributor to the trust is an individual who has not been resident in Canada for a period exceeding 60 months.

This exception allows for the creation of so-called "immigration trusts" by individuals immigrating to Canada. The exception permitted an individual immigrating to Canada to establish a non-resident trust (i.e. a trust with non-resident trustees, with the central place of management and control remaining outside of Canada) for his or her benefit, together with that of his or her family members, prior to or at the time of immigrating to Canada. The immigration trust's foreign-source income was not subject to Canadian tax until the new immigrant or immigrants who made contributions to the trust were resident in Canada for a period of 60 months. (Often, the immigration trust would be established in a low-tax jurisdiction.) The immigration trust could be dissolved or transferred to Canada just prior to that time, with a step-up in the cost base of the assets held within the trust during the 60-month period.

Although the newly-implemented NRT Rules were designed specifically to provide a 60-month exception for immigration trusts, the Federal Government states in the Budget that the exception raises "tax fairness, tax integrity and tax neutrality concerns" by providing benefits to certain persons that are not available to Canadian-resident persons who earn similar income directly or through a Canadian trust. Accordingly, the Budget proposes to eliminate the 60-month exemption from the application of the NRT Rules and related rules applicable to non-resident trusts. The changes will apply in respect of trusts for taxation years ending after 2014 if:

at any time after 2013 and before Budget Day, the 60-month exception applies in respect of the trust; and
no contributions are made to the trust on or after Budget Day and before 2015.

In any other case, the changes apply in respect of trusts for taxation years ending on or after Budget Day.

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.

Canada: Personal Income Tax Measures