Canada: Directors fiduciary duty in a pandemic: You need a protocol!
COVID-19 has had and will continue to have impacts on virtually every corporation in Canada and globally.
The 2018-2019 Federal Budget (Budget 2018) was tabled in the House of Commons by the Minister of Finance on February 27. Key themes in the budget included growing the economy, innovation and gender equality. Budget 2018 acknowledged the significance of the recent US federal income tax reform and current renegotiation of the North American Free Trade Agreement, including a statement that the Department of Finance (Canada) (Finance) will conduct a detailed analysis of the US federal income tax reforms to assess any impacts on Canada; however, Budget 2018 did not contain any proposals or specific measures to respond to these items.
In keeping with the theme in the consultation paper on tax planning involving private corporations released in July 2017 and subsequent announcements in October 2017 following the completion of a consultation process, Budget 2018 includes two proposed measures to address passive income earned by a private corporation. The first measure is a reduction in the amount of income eligible for the small business deduction where a private corporation earns passive income in excess of a threshold, and the second measure is a limit on the ability to claim certain refunds resulting from the payment of eligible dividends. The passive income measures contained in Budget 2018 are, however, more targeted and simpler than might have been expected given the consultation paper and subsequent announcements.
These private corporation measures and the other significant business income tax measures contained in Budget 2018 as well as certain proposed international tax, personal tax and sales tax measures contained therein are discussed in this update.
Check our website in the coming days for additional updates, including commentary on income tax measures that are expected to affect businesses and individuals.
Private Corporation Passive Investment Income Proposals
Budget 2018 proposes the following two measures to limit the perceived tax-deferral advantage of retaining surplus funds from active business in a private corporation for passive investment purposes instead of distributing them to the shareholders, through taxable dividends, salary or otherwise, for the shareholders to invest personally.
Budget 2018 proposes to reduce on a straight-line basis the $500,000 business limit available to Canadian-controlled private corporations (CCPCs) having between $50,000 and $150,000 of investment income. For example, a CCPC with $100,000 of investment income would have its business limit reduced to $250,000. The new business limit reduction will operate alongside the business limits based on taxable capital in excess of $10 million and the associated corporation rules.
For the purposes of this reduction, a CCPC’s investment income will be computed by reference to a new concept of Adjusted Aggregate Investment Income, which generally will: (a) exclude taxable capital gains and losses from the disposition of property used principally in an active business carried on primarily in Canada or from the disposition of a share of another eligible connected CCPC, (b) exclude net capital losses carried over from other taxation years, and (c) include dividends from non-connected corporations (which generally include dividends received from public corporations) and income from savings in a non-exempt life insurance policy.
This new measure will apply to a CCPC’s taxation years that begin after 2018.
Refundability of Taxes on Investment Income
Budget 2018 also proposes to limit refunds of refundable dividend tax on hand (RDTOH). The current concept of RDTOH (to be referred to as non-eligible RDTOH account) will be modified, and a concept of eligible RDTOH will be introduced.
A corporation’s non-eligible RDTOH account will track refundable taxes paid under Part I of the Income Tax Act (Canada) (the Tax Act) on investment income as well as under Part IV of the Tax Act on non-eligible dividends received from non-connected corporations. Refunds from this account will be obtained only upon payment of non-eligible dividends by the corporation. The eligible RDTOH account, on the other hand, will track refundable taxes paid under Part IV on eligible dividends received. However, an ordering rule will require a corporation to obtain a refund from its non-eligible RDTOH account before it obtains a refund from its eligible RDTOH account. Subject to the ordering rule, taxable dividends, whether eligible or not, will entitle the corporation to a refund from its eligible RDTOH account.
A corporation receiving a dividend will continue to pay an amount of Part IV tax equal to the refund obtained by the payor corporation. However, the amount paid will be added to the RDTOH account of the recipient corporation that matches the RDTOH account from which the payor corporation obtained its refund. A transitional rule will allocate existing RDTOH between the eligible RDTOH account and the non-eligible RDTOH account.
This new measure will apply to a private corporation’s taxation years that begin after 2018.
Artificial Losses Using Equity-Based Financial Arrangements
Budget 2018 proposes to clarify and expand the scope of the current dividend rental arrangement (DRA) and securities lending arrangement (SLA) rules in the Tax Act. These proposed amendments are intended to further limit the ability of taxpayers to realize tax losses through certain equity-based lending arrangements.
The DRA rules generally serve to deny the deduction of inter-corporate dividends in certain circumstances where a dividend is received by a particular corporate taxpayer on a share of a Canadian corporation, where the economic benefits (or risks of loss) associated with that share are held by a counterparty. In such circumstances, the particular corporate taxpayer may be required to make payments to the counterparty equal to dividends that are received by the corporate taxpayer (a dividend compensation payment). Absent the DRA rules, the corporate taxpayer that has received a dividend on the share may be entitled to a deduction for the dividend received, plus a further deduction for the dividend compensation payment it makes to the counterparty, thereby generating a loss.
Among the arrangements that are caught by the DRA rules are synthetic equity arrangements, which generally involve circumstances where the risk of loss and opportunity for gain or profit in respect of a share have been transferred to a counterparty through an equity derivative. The Tax Act provides an exception to the DRA rules in the context of a synthetic equity arrangement where no “tax-indifferent investor” has all or substantially all of the risk of loss and opportunity for gain or profit in respect of the share because of a synthetic equity arrangement or a specified synthetic equity arrangement. Budget 2018 proposes to limit this exception by requiring that no tax-indifferent investor may have all or substantially all of the risk of loss and opportunity for gain or profit in respect of the share in any way. This measure will apply to dividends that are paid, or become payable, on or after February 27, 2018.
The SLA rules generally apply in circumstances where a particular taxpayer has borrowed or received a share from a counterparty and it is reasonably expected that the taxpayer will be required to return or transfer the share back to the counterparty, and during the period while the taxpayer holds the share, the counterparty retains risk of loss and opportunity for gain with respect to the share and is entitled to dividend compensation payments. In these circumstances, the DRA rules will generally apply to a corporate taxpayer making a dividend compensation payment and deny a deduction in respect of the dividend received by such taxpayer. Budget 2018 indicates Finance has identified certain arrangements that are designed to “fail the requirements” under the SLA rules and thereby avoid application of the SLA and DRA rules.
Budget 2018 proposes to expand the scope of the SLA rules to ensure they apply to arrangements that are “substantially similar” to arrangements caught by the current SLA rules, thereby also expanding the scope of the DRA rules. Budget 2018 also proposes to amend the Tax Act to clarify that the two existing rules in the Tax Act that provide for a deduction for dividend compensation payments do not both apply to the same payment. These measures will apply to dividend compensation payments that are made on or after February 27, 2018, unless the securities lending or repurchase arrangement was in place before February 27, 2018, in which case the amendments will apply to dividend compensation payments that are made after September 2018.
Stop-Loss Rules on Share Repurchases
In 2011, the dividend stop-loss rules in the Tax Act were expanded to prevent financial institutions from realizing artificial tax losses by claiming a double deduction of the deemed dividend resulting upon a repurchase of shares held as mark-to-market property and a loss arising from the disposition of the shares. However, the formula under which the allowable loss was calculated was not changed at that time with the result that, even when applicable, the dividend stop-loss rule generally denied only the portion of the tax loss realized on a share repurchase equal to the excess of the original cost of the shares over their paid-up capital (PUC). As a result, the taxpayer could continue to claim a loss to the extent of the mark-to-market income previously recognized on the share on the premise that the institution paid tax on the income. In most cases, the repurchased shares were fully hedged and mark-to-market income realized on the shares would be fully offset by the hedge.
Budget 2018 proposes to amend the provisions of the Tax Act pertaining to shares held as mark-to-market property so that the loss otherwise realized on a share repurchase is generally decreased by the dividend deemed received on that repurchase where that deemed dividend is eligible for the inter-corporate dividend deduction.
This measure applies to share repurchases occurring on or after February 27, 2018.
At-Risk Rules for Tiered Partnerships
Under the Tax Act, the income or loss of a partnership is allocated to its partners who, in turn, are required to include (or deduct) those amounts in calculating their own income. In the case of a limited partner of a partnership, under the “at-risk” rules in the Tax Act, any losses allocated to the partner may generally only be deducted to the extent the partner has invested capital that is at risk in the partnership. Where an allocated loss is not eligible to be deducted by the limited partner, the partner may generally carry forward the loss.
Budget 2018 proposes to amend the Tax Act to clarify that the at-risk rules apply to a partnership that is itself a limited partner of another partnership. This will mean, in particular, that for a partnership that is a limited partner of another partnership, the losses from the lower-tier partnership that can be allocated to the partnership's members will be restricted by that partnership's at-risk amount in respect of the other partnership. Budget 2018 also proposes to confirm that, consistent with the Canada Revenue Agency's interpretation of the at-risk rules, limited partnership losses of a limited partner that is itself a partnership will not be eligible for an indefinite carry-forward. Such losses will be reflected in the adjusted cost base of the partnership's interest in the limited partnership.
The proposed measures will apply to taxation years that end on or after February 27, 2018, including in respect of losses incurred in taxation years that end prior to such date.
Accelerated Capital Cost Allowance for Clean Energy
Under the capital cost allowance regime, accelerated capital cost allowance rates are available for certain investments in specified clean energy generation and conservation equipment. Currently, clean energy generation and conservation equipment that is described in Class 43.2 and is acquired before 2020 is eligible for accelerated capital cost allowance at a rate of 50% per year (on a declining balance basis). Budget 2018 proposes to extend eligibility for accelerated capital cost allowance to property acquired before 2025, where such property would otherwise qualify for inclusion in Class 43.2 as investments in clean energy generation and conservation equipment.
Health and Welfare Trusts
Budget 2018 proposes that health and welfare trusts will have to be converted into employee life and health trusts before 2021. To facilitate the conversion, transitional rules will be added to the Tax Act. Stakeholders may submit comments on transitional issues by June 29, 2018.
Base Erosion and Profit Shifting (BEPS)
Budget 2018 did not contain any specific changes relating to BEPS. However, Budget 2018 confirmed the government’s commitment to safeguard Canada’s tax system and its active participation in the Organisation for Economic Co-operation and Development/G-20 BEPS project, and reiterated Canada’s intention to continue to work with its international tax partners to improve international dispute resolution and to ensure a coherent and consistent response to fight cross-border tax avoidance.
Budget 2018 also noted Canada’s important role in developing additional guidance on several issues identified as part of the BEPS project and indicated that additional guidance in these areas is due to be published during 2018. Finally, Finance stated that Canada will be taking steps to enact and ratify the Multilateral Instrument in 2018.
Cross-Border Surplus Stripping Using Partnerships and Trusts
Generally, the PUC of shares of a Canadian corporation can be distributed to shareholders tax free, including where the shareholder is not resident in Canada. The Tax Act contains rules that prevent a corporation's non-resident shareholders from achieving a tax benefit by extracting (or “stripping”) a Canadian corporation's surplus in excess of its PUC on a tax-free basis, or by artificially increasing the PUC of the shares. In certain cases these anti-surplus stripping rules may be circumvented by using a partnership or a trust in an internal reorganization. Budget 2018 indicates that the government has similar concerns with respect to planning regarding corporate immigration to Canada.
Budget 2018 proposes to amend the cross-border anti-surplus stripping rule and corporate immigration rule to address this issue. Specifically, the Tax Act will be amended to “add a comprehensive 'look-through' rule for partnerships and trusts.” Assets, liabilities and transactions of a partnership or trust will be allocated to its members or beneficiaries, as the case may be, based on the fair market value of the interest held. The wording and precise scope of the look-through rule was not contained in the Notice of Ways and Means Motion included with Budget 2018.
This measure will apply to transactions that occur on or after February 27, 2018. Budget 2018 notes that transactions occurring before February 27, 2018, that are abusive of the anti-surplus stripping rules or the corporate immigration rules may be challenged under the general anti-avoidance rule, as would transactions that circumvent the proposed allocation mechanism.
Foreign Affiliates and Investment Businesses – FIE redux?
Budget 2018 proposes to amend the foreign affiliate rules in order to prevent the use of tracking arrangements to avoid attribution of what would otherwise be foreign accrual property income (FAPI). Under existing rules, while income from an investment business carried on by a foreign affiliate is included in FAPI, an investment business does not include a business that satisfies certain conditions, including the employment of more than five full-time employees in the active conduct of the business. A foreign affiliate may have multiple businesses and the investment business applies on a business-by-business basis. Certain taxpayers have entered into arrangements where, in order to meet the test, several taxpayers combine their investment assets in a common affiliate such that the activities are significant enough to require six full-time employees. Budget 2018 indicates that in such arrangements, the investments are not truly pooled, the participating taxpayers will typically retain control over their investments and returns from a taxpayer’s assets will accrue exclusively to that taxpayer.
The changes proposed to address such tracking arrangements are two-fold. First, where income attributable to specific activities carried on by the affiliate accrues to the benefit of a specific taxpayer, those activities are considered to be a separate business such that the six-employees test (and other conditions in order to qualify as an active business) will apply to those specific activities separately. Second, in order to ensure income from such a separate business that does not satisfy those conditions is subject to FAPI attribution to the applicable Canadian taxpayer, the foreign affiliate will be deemed to be a controlled foreign affiliate.
These measures will apply to taxation years of a taxpayer’s foreign affiliate that begin on or after February 27, 2018.
Regulated Foreign Financial Institutions - Minimum Capital Requirements
A business carried on by a foreign affiliate of trading or dealing in indebtedness or that is from an investment business is generally included in FAPI, subject to an exception in respect of certain regulated foreign financial institutions. In the context of the investment business rules, that exception only applies if certain minimum capital requirements are satisfied. Budget 2018 proposes to extend those minimum capital requirements to the trading or dealing in indebtedness rules.
This measure will apply to taxation years of a taxpayer’s foreign affiliate that begin on or after February 27, 2018.
Foreign Affiliate Reporting
A corporate taxpayer is generally required to file its income tax return within six months after the end of its taxation year. However, the taxpayer’s information returns in respect of its foreign affiliates are not due until 15 months after the taxation year-end. Budget 2018 proposes to bring the foreign affiliate information return deadline in line with the taxpayer’s income tax return deadline, by requiring information returns to be also filed within six months after the taxpayer’s year-end. This measure will apply to taxation years that begin after 2019.
Requirements for Information and Compliance Orders
In administering and enforcing the Tax Act, the Canada Revenue Agency may issue requirements for information or request compliance orders from the Federal Court in order to obtain documents and information from taxpayers. Currently, where the Canada Revenue Agency issues a requirement for foreign-based information and that requirement is contested in court by the taxpayer, a “stop-the-clock” rule provides that the period open for reassessment by the Canada Revenue Agency be extended by the amount of time during which the requirement is contested.
Budget 2018 proposes to amend the Tax Act to introduce a “stop-the-clock” rule for requirements for information generally and for compliance orders. The “stop-the-clock” rule would therefore not be limited to foreign-based information requests. The proposed rule will extend the reassessment period of a taxpayer by the period of time during which the requirement or compliance order is contested.
This measure will apply in respect of challenges to requirements instituted after the enacting legislation receives royal assent.
Foreign Affiliates and Loss Carry-Backs
Generally, the Canada Revenue Agency has four years after its initial assessment to reassess a taxpayer. A three-year extended reassessment period currently exists in respect of assessments made as a consequence of a transaction involving a taxpayer and a non-resident with whom the taxpayer does not deal at arm’s length. Although this three-year extension applies to many transactions involving foreign affiliates, it does not encompass all foreign-affiliates structures. Budget 2018 proposes to extend the reassessment period for a taxpayer by three years in respect of income arising in connection with a foreign affiliate of the taxpayer. This measure will apply to taxation years beginning on or after February 27, 2018.
Furthermore, if a taxpayer incurs a loss in a taxation year and carries the loss back to a prior taxation year, the Canada Revenue Agency has an additional three years to reassess that prior year. The loss carry-back reassessment period does not take into account the fact that an extended three-year reassessment period exists in respect of reassessments made as a consequence of a transaction involving a taxpayer and a foreign affiliate.
Budget 2018 proposes to amend the Tax Act to provide the Canada Revenue Agency with an additional three years to reassess a prior taxation year of a taxpayer to the extent that the reassessment reduces the taxpayer’s loss carried back to a prior taxation year and the loss involved a transaction with a foreign affiliate. This measure will apply for taxation years in which a carried-back loss is claimed where the loss is carried back from a taxation year that ends on or after February 27, 2018.
Canada Workers Benefit
Budget 2018 proposes to increase the benefits provided to low-income workers under the former Working Income Tax Benefit. Along with renaming the program the Canada Workers Benefit, Budget 2018 proposes to raise the maximum benefit under the plan to $1,355 for single individuals without dependants and $2,335 for families (i.e., couples and single parents). This measure will apply to the 2019 and subsequent taxation years. Individuals who are eligible for the Disability Tax Credit may also receive a disability supplement with a maximum benefit of $700. Phase-out thresholds have also been increased to $24,111 for single individuals without dependants, and to $36,483 for families.
Medical Expense Tax Credit – Eligible Expenditures
Budget 2018 proposes to extend the Medical Expense Tax Credit to include expenses that are incurred in respect of an animal specially trained to perform tasks for a patient with a severe mental impairment in order to assist the patient in coping with the impairment. This measure will apply to eligible expenses incurred after 2017.
Registered Disability Savings Plan – Qualifying Plan Holders
Budget 2018 proposes to extend a temporary measure that allows a qualifying family member (i.e., a parent, spouse or common-law partner) to be a plan holder of an adult individual's registered disability savings plan where the capacity of the adult individual to enter into a contract is in doubt. Budget 2018 proposes to extend this measure by five years, to the end of 2023.
Deductibility of Employee Contributions to the Enhanced Portion of the Quebec Pension Plan
Budget 2018 proposes to provide a deduction for employee contributions, and the “employee” share of contributions made by self-employed persons to the enhanced portion of the Quebec Pension Plan. This measure will apply to the 2019 and subsequent taxation years.
Budget 2018 proposes to retroactively amend the eligibility requirements for the predecessors to the current Canada Child Benefit (i.e., the Canada Child Tax Benefit, National Child Benefit Supplement and the Universal Child Care Benefit) from the 2005 taxation year to June 30, 2016. In the prior legislation, foreign-born status Indians residing legally in Canada who are neither Canadian citizens nor permanent residents were not eligible for the benefit. Budget 2018 also proposes to allow the federal government to share information with the provinces and the territories related to the Canada Child Benefit as of July 1, 2018.
Mineral Exploration Tax Credit
Budget 2018 proposes to further extend the 15% Mineral Exploration Tax Credit to flow-through share agreements entered into on or before March 31, 2019 (from March 31, 2018). This credit is intended to help junior mineral exploration companies raise capital by providing an incentive to individual investors in flow-through shares issued to finance “grassroots” mineral exploration.
GST/HST and Limited Partnerships
Budget 2018 confirmed that the government will proceed with the draft proposals released on September 8, 2017, relating to the application of GST/HST to investment limited partnerships, subject to the following changes that will cause certain measures to be applicable prospectively as of September 8, 2017.
GST/HST will apply to management and administrative services rendered by the general partner to an investment limited partnership after September 7, 2017, and not to those services rendered before September 8, 2017, unless the general partner charged GST/HST in respect of those services before that date (the September 8, 2017, proposals had applied to management and administrative services if the consideration had become due or paid after September 7, 2017);
GST/HST will generally be payable on the fair market value of management and administrative services in the period in which these services are rendered; and
an investment limited partnership can make an election to advance the application of the special HST rules as of January 1, 2018 (the September 8, 2017, proposals had extended the special HST rules that currently apply to investment plans to investment limited partnerships effective January 1, 2019).
Consultations on GST Holding Corporation Rule
Budget 2018 indicates that Finance intends to release consultation documents and draft legislative proposals to address certain aspects of the holding corporation rule. This rule generally allows a parent corporation to claim input tax credits to recover GST/HST paid in respect of expenses that relate to another corporation and does not, for example, apply to a partnership. Specifically, the government intends to consult with respect to the limitation of the rule to corporations and the required degree of relationship between the parent corporation and the commercial operating corporation. At the same time, Budget 2018 indicated that the government intends to clarify which expenses of the parent corporation that are in respect of shares or indebtedness of a related commercial operating corporation qualify for input tax credits under the rule.
The consultation documents and draft legislative proposals are expected to be released for public comment in the near future.
Budget 2018 proposes a new federal excise duty framework for cannabis taxation, to be effective when non-medical cannabis sales become legal in Canada. The duty will be imposed under the Excise Act, 2001 (Canada) and will apply to all cannabis products available for legal purchase (e.g., fresh/dried, oils, seeds and seedlings). Cultivators and manufacturers will be required to obtain a licence from the Canada Revenue Agency and remit the duty as applicable. The Canada Revenue Agency will begin accepting applications for cannabis licences and will issue excise stamps in advance of the legalization date.
GST/HST will apply to cannabis products and seeds/seedlings. Budget 2018 indicates that the Excise Tax Act (Canada) will be amended to ensure cannabis products are not exempted or zero-rated under relieving sections related to basic groceries or agricultural products.
The excise duty framework for cannabis taxation is proposed to be in place by the time cannabis for non-medical purposes becomes accessible for legal retail sale. Duties will be payable by cannabis licensees on any cannabis products they have already delivered in advance of the legalization date for eventual retail sale. On or after the date of cannabis legalization for non-medical purposes, all cannabis products delivered through the mail in accordance with the Cannabis Act (Canada) will be subject to the appropriate duty.
Municipalities as Eligible Donees
Currently, when the registration of a charity has been revoked, the revoked charity must pay a 100% revocation tax on the net value of its assets. One way to reduce or avoid that tax, and keep assets within the charitable sector, is for the revoked charity to make gifts to eligible donees, being arm’s length registered charities. It can be difficult for a revoked charity to find an eligible donee that is willing and able to acquire the assets. Budget 2018 proposes to allow revoked charities to make gifts to municipalities as a means of reducing or avoiding the revocation tax, subject to the approval of the Minister of National Revenue on a case-by-case basis. This measure will apply to gifts made on or after February 27, 2018.
Universities Outside Canada
Canadians may claim charitable donation tax credits or deductions for gifts to a university outside Canada if that university is listed in the regulations to the Tax Act. Since 2011, those universities have been required to register with the Canada Revenue Agency and to be listed on the Government of Canada website. Thus, the universities are listed on two separate, identical lists. Budget 2018 proposes to remove the requirement that universities be listed in the regulations. This measure will apply as of February 27, 2018.
Reporting Requirements for Trusts
Some trusts do not have to file income tax returns. Even for trusts that do, there is no requirement to report the identity of all the trust’s beneficiaries. Budget 2018 proposes to require express trusts (as compared to resulting or constructive trusts), that are resident in Canada or are not resident in Canada but are required to file an income tax return, to file a tax return and report the identity of all trustees, beneficiaries and settlors of the trust and persons who have the ability to exert control over trustee decisions regarding the appointment of income or capital of the trust.
Failure to comply with these reporting requirements will attract penalties of $25 per day, with a minimum penalty of $100 and a maximum of $2,500. If the failure was made knowingly or due to gross negligence, there will be an additional penalty equal to 5% of the maximum fair market value of property held by the trust during the year, with a minimum penalty of $2,500.
These measures will come into effect starting with the 2021 taxation year, but will not apply to:
mutual fund trusts, segregated funds and master trusts;
trusts governed by registered plans;
lawyers’ general trust accounts;
graduated rate estates and qualified disability trusts;
trusts that are non-profit organizations or registered charities; and
trusts that have been in existence for less than three months or that hold less than $50,000 in assets throughout a taxation year.
COVID-19 has had and will continue to have impacts on virtually every corporation in Canada and globally.
As business resumes in the workplace and circumstances change, American companies must be ready.