My name is Mark Goodfield. Welcome to The Blunt Bean Counter ™, a blog that shares my thoughts on income taxes, finance and the psychology of money. I am a Chartered Professional Accountant and a partner with BDO. This blog is meant for everyone, but in particular for high net worth individuals and owners of private corporations. My posts are blunt, opinionated and even have a twist of humour/sarcasm. You've been warned. Please note the blog posts are time sensitive and subject to changes in legislation or law.

Monday, March 23, 2020

COVID-19: Finances, Retirement, and the Impact on Small Business Owners

Not to assume I speak for all my readers, but my guess is that many of you are feeling like I do, knocked off kilter by limited social interaction, restricted working conditions and the disconcerting feeling of watching your retirement savings dwindle and finances sag.

I have not even mentioned the most serious issue: health. You or a family member may have contracted the new coronavirus. And if you have managed to avoid it, you may still be concerned for yourself and your loved ones, some of whom may be especially vulnerable.

Financial concerns


The financial concerns because of this virus are real. Whole industries such as travel, entertainment and oil have been hit extremely hard. Financial transactions have slowed or ground to a halt in certain industries. Many if not all businesses will be impacted by the economic consequences to fight this virus. Some will bounce back quickly, others more slowly.

We are impacted as employees, small business owners or retirees vis-a-vis the security of our jobs, the stability of our businesses and how we fund our retirement (with retirement funds down 10-30% depending upon your asset mix, in a matter of weeks). The anxiety we all feel is rooted in a reality that will not be fully measurable until the virus recedes and normal life resumes. But normal life will eventually resume, and we can take action now and in the future, to put us in the best position to rebound from the financial challenges of coronavirus.

I have received various questions from individuals and business owners. I will address those questions in this post.

Individuals


I have been asked two questions in particular by individuals:
  1. Should I reduce my equity exposure to limit my stock losses?
  2. I am near retirement - should I delay my plans?

Equity Exposure


In a perverse way, COVID-19 has forced many of us to learn about our risk tolerance and ability to handle the volatility of our current investment allocation; that volatility is often correlated to the level of equity we hold. If you cannot sleep at night with your current equity or investment allocation mix, then maybe you have too much investment risk and you need to speak with your investment advisor.

This discussion should revolve around whether your equity allocation truly suits your investment objectives and whether the potential volatility of your equity holdings is appropriate for your risk tolerance, now that you have been on the roller coaster ride and can quantify your risk aversion.

You will have noticed I have not directly answered the "should I reduce equity" question. That is because (1) as an accountant I cannot provide investment advice and (2) the answer is really based on your risk tolerance and other factors specific to your own situation. 

As a side commentary, while a requirement of the investment industry is to determine a client’s risk profile and create a portfolio that suits that profile, I would suggest this risk determination is often superficial. Most of us do not understand our true risk tolerance until a situation such as the markets’ rapid reaction to the virus knocks your portfolio down 25% in a matter of days.

The better investment managers I deal with, not only determine your risk tolerance through an interview process but also back-test your tolerance for that risk over the markets for the last 30 years or so. They do this before they invest your money. It would be interesting to see who has been more stressed recently, those with risk tolerances determined purely by questionnaire and discussion and those who also back-tested before they invested. I would guess the latter.

Retirement Plans


It may or may not be too early in this ordeal to alter your retirement plans. We have previously discussed how the sequence of returns can affect your retirement. While sequence of returns technically deals with your investment returns when you start retirement, the reality is that whether practically or psychologically, this significant drop in our retirement savings could impact when we start our retirement.

There is no one-size-fits-all answer to this issue as it will be very fact specific. If you have a pension from your job or some other anticipated flow of funds in retirement, a stock market decline may not be a large longer-term issue assuming the market bounces back at some point like it has done historically.

However, if you were going to draw on your retirement funds immediately upon retirement, the reduction in your nest egg in this bear market could severely impact your retirement plans.

My suggestion is that once things settle down, you review your plans (including the preparation of an actual financial plan or a review/update of an existing plan) with your financial planner, financial advisor or accountant. You will then have objective valuation of whether your retirement date may need to be pushed back a year or two.

Small Business Owners


Small business owners face a whole bunch of concerns sparked by COVID-19 that employees don’t need to manage. These fall into both short- and long-term buckets.


Short-term concerns


Short-term practical concerns include items like how you manage your cash flow, will insurance cover any of the lost profit or expenses and what are business owners’ employment responsibilities.

Many small business cash flow issues are addressed in this document.

I have been informed by colleagues at my firm who deal with preparing insurance claim reports and the related costs that there is no standard answer to whether a company’s insurance coverage will cover any of their losses due to COVID-19. Each claim will come down to the specific wording of the policy and how that policy deals with such terms as “pandemic,” “infectious disease” and “business interruption.” A legal interpretation may be required in many cases.

The employment law questions are complex and unique in this current situation, and unfortunately, I tell my clients they need to talk to their employment lawyer.

Clients are also asking if Ottawa or provincial governments will provide aid to help keep their businesses afloat. This is a fluid situation. The feds have announced a robust stimulus package, with many details still to follow. [ Note: after publishing this post, the Emergency Care Benefit and Emergency Support Benefit were subsequently rolled into the Canada Emergency Response Benefit (see details here)]. The provincial and territorial governments may also chip in to help their constituents.

Longer term concerns


As discussed earlier, certain industries and businesses have been hard hit by the economic slowdown caused by the virus, and almost all businesses will suffer to some degree – Netflix and Amazon are likely two of the high-profile exceptions. For a couple of the business owners I work with who have been considering selling their business, this sobering event has crystalized the risk of having their retirement concentrated on one major asset: their business. This is known as concentration risk.

They have now come to realize that almost any type of business could be severely impacted by a black swan event such as COVID-19. The risk to their retirement is significant if the concentrated business asset loses value due to an unanticipated event, especially close to their retirement date.

I think once the dust settles, some business owners may get very serious about the process of getting their business ready for a sale, whether in a year or over a couple years. As part of that process, they may undertake a value enhancement process to increase the sale price, by taking the necessary management, technological and other steps to become more attractive for a buyer (unashamed plug, BDO has specialists that assist you in achieving this value enhancement and others that can then take your business to market once the enhancement has been accomplished).

Tax considerations for difficult and uncertain times


Here is a link to a BDO publication released on March 16 about tax considerations for difficult and uncertain times. It is a good read.

A final note on the personal side of coronavirus


This was not a blog post I expected to write. Typically, at this time of the year, I write about how tax season is going. Coronavirus has disrupted our lives, sometimes in small areas that punch way above their weight.

Let me say upfront, I understand restricted social interaction including the cancellation of most sporting events is a minor inconvenience to help slow down the spread of the virus. In comparison to those who have fought wars or escaped warzones or been subject to other horrific issues, social distancing does not compare.

That being said, as most readers are likely aware, I am a big sports guy and I follow the Leafs, Raptors, Blue Jays, NFL football (sorry, CFL fans, I used to love the Argos, but that was many moons ago) and golf, among others. Like many of my friends, I have been shocked by the void of not having sports available to take our minds off the coronavirus as we have had during other economic downturns or communal crises, like SARS or even 9/11. The social distancing that is saving lives has also taken away a diversion that could help sustain everyone’s mental health.

I had never given it much thought, but when I went to my computer to surf and get my mind of the virus issues, I quickly realized the majority of my internet favourite list is made up of sports and investment sites. With no sports to write about and no desire to hear more bad investment news, my internet surfing has ground to a halt. Amazon is now the beneficiary of my increased Kindle book downloads. Probably a better thing intellectually, but I still have a sports void.

For those of you who expected this week to see Part 2 of the excellent series on Alter Ego and Joint Partner Trusts by Katy Basi, I hope to bring that to you in two weeks or when current events dictate. We are living in strange times, and I’ve always taken pride in The Blunt Bean Counter being a living blog, one that responds to events in the market and in our lives. It’s not business as usual for any us, but together we will get through this. I wish you and your families the best of health and a quick financial recovery.

The content on this blog has been carefully prepared, but it has been written in general terms and should be seen as broad guidance only. The blog cannot be relied upon to cover specific situations and you should not act, or refrain from acting, upon the information contained therein without obtaining specific professional advice. Please contact BDO Canada LLP to discuss these matters in the context of your particular circumstances. BDO Canada LLP, its partners, employees and agents do not accept or assume any liability or duty of care for any loss arising from any action taken or not taken by anyone in reliance on the information on this blog or for any decision based on it.

Please note the blog posts are time sensitive and subject to changes in legislation.

BDO Canada LLP, a Canadian limited liability partnership, is a member of BDO International Limited, a UK company limited by guarantee, and forms part of the international BDO network of independent member firms. BDO is the brand name for the BDO network and for each of the BDO Member Firms.

Monday, March 9, 2020

Alter Ego Trusts and Joint Partner Trusts – A Primer

Readers have offered me several suggestions for topics over the last few months. The three most popular requests have been: (1) an update on Tax On Split Income (“TOSI”), which was covered off in late February; (2) a discussion on gifting and leaving money to grandchildren, which you can look forward to in the next month or two; and (3) a discussion on what exactly Alter Ego and Joint Partner Trusts are and the benefits of these trusts.

Your requests are my direction and today I present a primer on Alter Ego and Joint Partner Trusts, by Katy Basi. In two weeks, I will post another blog by Katy, which uses a sample situation to reflect when these types of trusts may be helpful. It will also discuss some of the income taxes associated with these trusts.

If you are a reader of this blog, Katy needs no introduction. If you are a new reader of the Blunt Bean Counter, check out Katy’s past guest posts, including Power of Attorney for Personal Care – Mental Capacity and Medical Assistance When Dying, Estate planning for Extended Families, New Will Provisions for the 21st Century - Your Digital Life, and Cottage Trusts.

I thank Katy for her assistance with this blog post.
_________________

By Katy Basi

Alter Ego Trusts (“AETs”) and Joint Partner Trusts (“JPTs”) are relative newcomers to the estate planning scene, having been introduced into the Income Tax Act (Canada) (the “ITA”) effective January 1, 2000. As the popularity of AETs and JPTs has increased over the last few years, we thought it would be helpful to provide a simplified description of these trusts and some of the circumstances in which they can be useful.

An AET is generally set up for the benefit of one person: a JPT, for the benefit of spouses or common law partners. (In this post when we refer to “spouse” we mean “spouse or common law partner.”) These are inter vivos trusts, meaning that they are set up during a person’s lifetime, unlike testamentary trusts, which are created as a result of the death of a person, generally by being incorporated into the person’s will. (For more on trusts in general, see this great explainer piece.)

The conditions


AETs and JPTs allow a transfer of capital assets to the trust on a tax-deferred basis. In order to obtain this deferral, the ITA sets out a number of conditions.

Some of the key conditions are:
  1. The settlor, meaning the person who transfers assets to the trust, must be at least 65 years of age at the time the trust is created. A JPT sometimes has two settlors being the two spouses.
  2. For an AET the settlor must be entitled to receive all of the trust’s income before death.
  3. For a JPT, the settlor and/or their spouse must be entitled to receive all the trust’s income prior to the surviving spouse’s death.
  4. No one apart from the settlor or, for a JPT, the settlor and their spouse, is entitled to receive any assets from the trust prior the settlor’s death (or the death of surviving spouse in the case of a JPT).
  5. The settlor(s) must be Canadian.
  6. A majority of the trustees must be Canadian, as the trust must be a Canadian resident trust.

Why use an AET or JPT?


AETs and JPTs are not income splitting vehicles and are subject to income attribution. Hence when spouses both contribute assets to a single JPT, it is important to track the income derived from each spouse’s contribution, in order to ensure that the tax reporting is accurate. (In the case of contributed investments, often a JPT would have separate investment accounts for the purpose of tracking the income attributable to the assets originally belonging to each spouse.)

However, AETs and JPTs offer some other important benefits, including the following:
  1. Probate is not required for assets held by AETs and JPTs. For several provinces — notably Ontario, British Columbia, and Nova Scotia — this can save an estate thousands of dollars in probate fees or taxes. Other provinces, such as Quebec and Alberta, have minimal to no probate fees or taxes, and thus AETs or JPTs would not generally be used to avoid these fees.
  2. Wills that are probated are documents available in the public domain; however, an AET or JPT is not submitted for probate and remains private (provided that no litigation ensues requiring production of the AET or JPT deed in court).
  3. These trusts can save substantial professional costs that can be associated with probating and administering an estate, such as legal fees and executor compensation.
  4. As probate is not required for assets owned by an AET or JPT, upon the settlor’s death these assets are available to the trustees on a fairly quick timeline (it is critical to ensure that the settlor is not the only trustee named in the trust deed).
  5. The settlor is often one of the trustees of an AET or JPT. If the settlor becomes incapacitated, the trust deed is usually drafted to permit the other trustees to manage the trust assets. These trusts can therefore be viewed as an alternative to a financial power of attorney.

The downside of AETs and JPTs


You should watch out for several challenges when using an AET or a JPT:
  1. There are upfront legal setup costs and ongoing accounting and tax administration expenses.
  2. There are issues where U.S. persons or U.S. assets are involved or there are potential U.S. estate tax concerns.
  3. AETs and JPTs can restrict the tax benefits of charitable giving, both during a settlor’s lifetime and upon their death.
  4. Losses realized by a settlor personally may not be able to be utilized against gains realized by an AET or JPT, and vice versa.
  5. Capital gains exemptions may be left unclaimed as capital gains realized on assets in the trust will not qualify for the exemption.
If this blog has piqued your interest, check out our next AET/JPT blog in a couple of weeks, which will set out a sample fact situation where an AET or JPT could be a helpful planning tool.

Katy Basi is a barrister and solicitor with her own practice, focusing on wills, trusts and estates. Katy practised income tax law for many years with a large Toronto law firm, and therefore considers the income tax and probate tax implications of her clients' decisions. Please feel free to contact her directly at (905) 237-9299, or by email at katy@basilaw.com. More articles by Katy can be found at her website, basilaw.com.


The above blog post is for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Readers are advised to seek specific legal advice regarding any specific legal issues and for their specific province.

The content on this blog has been carefully prepared, but it has been written in general terms and should be seen as broad guidance only. The blog cannot be relied upon to cover specific situations and you should not act, or refrain from acting, upon the information contained therein without obtaining specific professional advice. Please contact BDO Canada LLP to discuss these matters in the context of your particular circumstances. BDO Canada LLP, its partners, employees and agents do not accept or assume any liability or duty of care for any loss arising from any action taken or not taken by anyone in reliance on the information on this blog or for any decision based on it.

Please note the blog posts are time sensitive and subject to changes in legislation.

BDO Canada LLP, a Canadian limited liability partnership, is a member of BDO International Limited, a UK company limited by guarantee, and forms part of the international BDO network of independent member firms. BDO is the brand name for the BDO network and for each of the BDO Member Firms.