The underused housing tax (the "UHT") is a new 1% federal tax aimed at taxing vacant or underused housing owned by non-Canadians. Specifically, the UHT affects "owners" (except "excluded owners") of "residential property" located in Canada. While many Canadian and non-Canadian individuals and corporations may have a filing obligation, there are several exceptions that may exempt owners from paying the tax. The terms "owner," "excluded owner," and "residential property" are all defined in the Underused Housing Tax Act (Canada) (the "UHTA").
The penalty for failing to file a UHT return by April 30 every year is steep – $5,000 (for individual owners) or $10,000 (for corporate owners) per residential property. However, the Canada Revenue Agency (the "CRA") announced on March 27, 2023 that "no penalties or interest will be applied for UHT returns and payments that the Canada Revenue Agency receives before November 1, 2023," effectively extending the first filing deadline to October 31, 2023.
How the UHTA may apply in certain situations is not always clear and may result in unexpected outcomes. Amongst this uncertainty, a recent publication from the CRA provides welcome guidance regarding the CRA's interpretation of the UHTA.
Initial guidance from the Canada Revenue Agency
At the beginning of 2023, the CRA published 14 underused housing tax notices ("UHTNs"). UHTN1 – UHTN14 cover a wide range of topics and include a general introduction to the UHT, information about how to calculate the UHT and how to file a UHT return, and interpretive guidance regarding the many exceptions from paying the UHT.
While generally very helpful, there were several gaps in the information included in UHTN1 – UHTN14. Further, some of the comments in the UHTNs raised additional questions and uncertainty. Importantly, the UHTNs are only the CRA's interpretation of the UHTA and do not replace the UHTA or its regulations.
Additional guidance released and initial publications updated
To address commonly asked questions from tax practitioners and the public about the UHTA, UHTN15, "Questions and Answers About the Underused Housing Tax" – was published. UHTN15 is very welcome. This publication addresses several interpretive questions raised by the tax community and provides more comfort than the verbal responses previously given by the CRA. UHTN15 will be updated to cover additional questions and answers as they become available and should be continually monitored.
Interestingly, the CRA also appears to be reviewing UHTN1 – UHTN14. For example, UHTN1, "Introduction to the Underused Housing Tax" was recently updated "to clarify situations where a bed and breakfast may not be a residential property for purposes of the underused housing tax." Bed and breakfasts, while listed as an example of a building that is not "residential property" for purposes of the UHTN, may be considered to be a "residential property" where they are structured like a detached house rather than hotel or motel.
The clarification in UHTN1 highlights the highly technical nuances of the UHTA. It is very important to not solely rely on the UHTNs, or other CRA publications, and to always refer back to the legislation.
Final thoughts
The UHTA is complex and far reaching. It touches on several areas of the law, such as tax, immigration, partnership, estate, trust, and real estate, and may require collaboration between several advisors. Further, while the number of owners of residential property in Canada that are required to pay the tax may be relatively narrow, the number of owners that are required to file a UHT return is very broad and may catch many unaware.
It is expected that the CRA will provide additional information and clarification though updates to the UHTNs. We will continue to monitor developments and engage in direct conversations with the CRA.
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.
