Concerned about the hike? Read This!
In the April 16, 2024 Federal Budget, the Government included a proposal to increase the one-half capital gains inclusion rate to two-thirds for capital gains realized on or after June 25, 2024 by corporations and trusts. The inclusion rate will also apply to individuals subject to a $250,000 annual threshold below which the one-half inclusion rate will continue to apply. The $250,000 annual threshold will apply to capital gains realized by individuals indirectly through a trust or partnership.
Several of our clients owning capital properties (i.e., shares of private or public companies, real estate etc.) with accrued gains asked me whether they can crystallize those capital gains at one- half inclusion rates in non-arm’s length transactions/reorganizations. This question was particularly relevant for clients planning to sell those properties within the next year (or if it is anticipated that a family member will pass in the next year), since the two-thirds capital gains inclusion rate would otherwise apply to third-party sales (or deemed disposition) on or after June 25, 2024.
In technical interpretation dated April 29, 2024 Document Number 2024-10160111E5 “General Anti-Avoidance Rule”, the Canada Revenue Agency (the “CRA”) ruled on whether the crystallization of an accrued capital prior to the increase in the capital gains inclusion rate is subject to general anti-avoidance rule (“GAAR”).
?The CRA stated that the crystallization of accrued gains on the transfer of capital properties, solely to take advantage of the current one-half inclusion rate and avoid the higher two-thirds inclusion rate, would not in itself be subject to GAAR. In other words, a crystallization would not in itself constitute a misuse and abuse of the provisions of the Income Tax Act (Canada)(the “Tax Act”).
?The CRA explained that the Budget did not contain any limits on the eligibility of capital gains for the current inclusion rate for sales before June 25, 2024 and the government's conscious decision to delay the implementation of the increased inclusion rate is a deliberate policy choice.
?The caveat added by the CRA in the technical interpretation is that the crystallization of an accrued capital gain as part of a series of transactions, one of the main purposes of which is to obtain a tax benefit (other than, or in addition to, the taxation of an accrued gain at the current inclusion rate) would not be immune from scrutiny under the GAAR. However, the only example given is a “surplus strip” – the extraction of corporate surplus other than in the form of a dividend.
?A crystallization is not a sophisticated strategy-it could be as simple as exchanging one class of private company shares for another class of shares pursuant to Section 85 of the Tax Act or a transfer of (private or public company) shares to a holding company or a spouse. In the real estate context, a crystallization could be as simple as an intercorporate beneficial interest transfer or spousal transfer (electing out of a tax-free rollover). Depending on the circumstances, land transfer tax may also be avoided on the transfer.
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About the Authors
Marc Weisman practice focuses on tax law, business law and estate planning. He has extensive experience advising on the purchase, sale and structuring of domestic and international businesses, debt and equity financings, private placements, private equity transactions, management buyouts, corporate reorganizations, commercial and business arrangements including shareholders' agreements, partnership agreements, equity participations plans and succession and estate planning.
Apoorva is a foreign trained lawyer. She is a Corporate and Tax law clerk at the Firm. Apoorva will be called to the Ontario Bar this month.
About Steinbergs LLP
?Steinbergs LLP is a full service, boutique law firm with offices in Toronto. We offer our clients a wide range of services and expertise in all areas of law including corporate/ commercial, mergers & acquisitions, tax, estate planning and administration, banking and financing, real estate, commercial litigation, estate litigation, employment, and securities law. We provide sophisticated counsel to various business interests, from small owner-operated businesses and their owners to large multinational corporations including private and public corporations, limited partnerships, private equity firms and real estate syndications-in both domestic and cross-border transactions. While we represent financial institution, securities dealers and publicly- traded corporations our focus is representing family-owned and managed businesses and their owners.
Great info!