The Two Certainties in Life: Death and Taxes - The Impact on Small Business Owners

In my two prior blog posts in this series on death and taxes, I discussed with you the general income tax rules as they relate to the death of an individual. Today, I am going to discuss the income tax issues that arise on death, where you own shares in a private Canadian corporation (“CCPC”).

Note:You may own shares in a private corporation (typically a Canadian company controlled by non-residents) as opposed to a CCPC  or shares in a private foreign corporation. Although the general deemed disposition rule will apply upon death, for purposes of this blog post, I am not considering any issues related to these type entities. Please seek specific advice if you own such shares.

It has been my experience that some owner-managers of CCPC’s are surprised to find out that their shares are subject to the general deemed disposition rules upon death. The rule being: that upon your death, the shares of your CCPC (assuming the shares are not transferred to your spouse) are deemed to have been disposed of for proceeds equal to the fair market value (“FMV”) of those shares and a capital gain results to the extent that FMV (which is often difficult to determine for a CCPC) exceeds the adjusted cost base (“ACB”) of those shares.

There are two reasons I typically hear as to why the private company owner-manager does not think their shares are subject to the deemed disposition rules:

(1) They thought the corporate taxes they paid each year took care of that issue.

(2) They thought if they left the company to their children, their kids would be the ones who pay the tax (as per my blog on estate freezes, this tax can be mitigated, but not eliminated by undertaking an estate freeze).

The owner-manager may also be surprised to hear that their shares are potentially subject to double taxation if proper steps are not undertaken to alleviate this liability. Double taxation can occur where the estate pays tax on the deemed disposition reported on the owner-manager’s terminal tax return, and then the estate pays further tax when it removes the assets from the corporation in the form of dividends to the estate.

There are two tax planning strategies that can generally eliminate any double tax; however, both techniques have some potential restrictions:

(1) The first is known as a subsection 164(6) loss carryback. In simple terms a loss is created on a share redemption by the estate that reduces or eliminates the capital gain that arose as result of the deemed disposition on death. It should be noted that new legislation related to the changes to “graduated rate estates” could impact this planning in the future, as the loss carryback may be restricted.

(2) The second, known as the pipeline strategy allows the estate to remove the corporate funds tax-free by in very simple terms, transferring the deceased owner-manager’s shares to a new corporation and using redemptions and a netting of promissory notes to remove those funds tax-free.

However, a pipeline strategy can be problematic in certain circumstances.

Capital Gains Exemption

In many cases the owner-manager can avail themselves to the $800,000 capital gains exemption ("CGE") to utilize against any deemed capital gain. However, as discussed in this post, it can be problematic to access the exemption where the corporation has excess cash or the owner-manager dies suddenly without implementing the proper planning.

In summary, as morose as this sounds, if you own shares of a private corporation, you and your tax advisor should be proactively planning for your death, which includes monitoring on an ongoing basis, whether your shares will qualify for the CGE.

The planning process would in general start with a determination of your potential income tax liability on death, including an estimate of the liability related to your private company shares. This will lead to a discussion of whether or not your estate will have enough liquidity to cover that anticipated liability or if you need to consider purchasing life insurance to cover any taxes potentially owing upon your death. The discussion should then morph into a succession planning discussion, and whether or not an estate freeze/sale to family member would make sense in your situation, or what plans you have in regard to an exit strategy.

This site provides general information on various tax issues and other matters. The information is not intended to constitute professional advice and may not be appropriate for a specific individual or fact situation. It is written by the author solely in their personal capacity and cannot be attributed to the accounting firm with which they are affiliated. It is not intended to constitute professional advice, and neither the author nor the firm with which the author is associated shall accept any liability in respect of any reliance on the information contained herein. Readers should always consult with their professional advisors in respect of their particular situation. Please note the blog post is time sensitive and subject to changes in legislation or law.

The $800,000 Capital Gains Exemption

A couple of weeks ago I wrote a blog post on how the $800,000 Capital Gains Exemption ("CGE") Isn't a Gimme for Corporate Small Business Owners and how many private small business owners incorrectly assume they will automatically be entitled to the CGE should they sell the shares of their corporation.

Last week I was interviewed on the contents of the aforementioned blog by Promod Sharma for his Tea at Taxevity series. Promod, is an actuary by trade and insurance advisor. He is also the writer behind the blog Riscario Insider. The interview can be found  here. If you own shares in a Canadian non-public corporation, you should probably watch this interview.

The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs. Please note the blog post is time sensitive and subject to changes in legislation or law.

Should You Transfer Your Sole Proprietorship into a Corporation?

To minimize costs and test the economic waters, many Canadians start their own business as a sole proprietorship. If your business proves successful, you are then faced with the decision of whether

or not to incorporate. Today’s post discusses the income tax and business issues you must consider before deciding to move from a sole proprietorship to a corporate structure.

Legal Liability

As a business grows, sales tend to become larger and the consulting engagements more complex. Consequently, the risk of a product flaw or error becomes greater. As a proprietor, any legal action taken against your business places all your personal assets at risk, including your home (if it is in your name and not your spouses). Therefore, the decision to incorporate often makes sense just to ensure your personal assets are protected.

Until you incorporate, it is vital to ensure you maintain adequate business insurance and minimize the assets held in your own name.

Profitability and Tax Rates

As a proprietor, you must report your business income on your personal income tax return. As such, your profits are taxed at your marginal income tax rate. If you require all your business profits to fund your lifestyle; it does not make sense to incorporate your business (subject to other issues I will discuss below). However, if your business has become profitable enough that you do not need all the income generated, incorporation begins to make some sense as a tax deferral mechanism.

For example: In Ontario, the first $500,000 of active business income is taxed at only 15.5%. If you need $80,000 to live on and can leave the rest of the money in the corporation, you would defer at minimum 20% in income tax by utilizing a corporation (The marginal rate of income tax in the $80k range is approximately 35.5% vs. 15.5% corporate rate). If you are in the highest Ontario personal marginal rate you could be deferring upwards of 34%. By the way, active business income means what it sounds like: running a real business - manufacturing, wholesale, consulting, etc. A passive business earns income from stocks, rental properties, etc.

Capital Gains Exemption

One of the main advantages of incorporating is potentially being able to access the capital gains exemption for qualified small business corporation shares. The exemption is currently $750,000 per shareholder, but is scheduled to rise to $800,000 beginning January 1, 2014. Based on the 2014 exemption, a husband and wife who are 50/50 shareholders could sell their business for $1,600,000 and not pay any income tax, subject to the criteria discussed below. If you think your company may be worth millions in the future, you may even want to consider utilizing a family trust that would provide an exemption of $800,000 for every family member you include in the trust.

The criteria to determine whether shares qualify for the capital gains exemption are very complicated. The rules look back at the last twenty-four months prior to a sale and at the company on the date of the sale. In addition, the more successful you are, the harder it is to qualify. If you have excess cash and investments in the company you may fall offside the rules. I will discuss these confusing and complicated rules in a separate blog post in the future; but keep in mind, tax planning is imperative to ensure you qualify for the capital gains exemption.

Income Splitting

Income splitting opportunities for a corporation are often over-estimated. However, if you include your spouse as an owner, there may be significant income splitting benefits through the use of dividends. Dividends may be based on pure ownership (i.e.: Mr. A and Mrs. A each own 50%, so they each get 50% of any dividend paid) or you may be able to structure the corporation with discretionary shares that allow the dividends to be paid in any proportion to either Mr. A or Mrs. A (i.e.: 100% of the dividends are paid to Mrs. A and none to Mr. A). This type of structuring is complex and again you need to ensure you get proper tax and legal advice before utilizing a discretionary share structure.

How Do I Go from a Sole Proprietorship to a Corporation?

There are specific rollover provisions contained in Section 85 of the Income Tax Act that allow for you to transfer your sole proprietorship to a corporation on a tax-free basis. Shares of the corporation must be received on the transfer. The rollover is undertaken by filing Form T2057. Although this is a standard transfer provision, it is fraught with landmines.

The combined legal and accounting fees to undertake this transaction can range from $5,000 to $10,000 depending upon the complexity of the transfer. As such, many people decide to forgo this step, especially when they consider their main proprietorship asset to be personal goodwill (you are  the business and without you, it is worthless) as opposed to business goodwill (the portion of the business value that cannot be attributed to business assets such as inventory and equipment. i.e. The value of your business name, customer list, intellectual property etc). However, if you ignore filing Form T2057, you do so at your own risk.

This is because when you transfer your assets and goodwill from your proprietorship to a corporation, you are deemed to have sold or disposed of these assets at their fair market value. In order to avoid this deemed sale and to ensure you do not create any income or capital gains upon the transfer of these assets, I always suggest filing the tax-free rollover under Section 85.

As noted above, I have had clients argue they have no business goodwill and that all their goodwill is personal in nature. While in some cases there may be some validity to this argument, I think it is penny wise and pound foolish to take the risk that the CRA will deem a large gain on the transfer of your proprietorship goodwill when you can just make the election and eliminate that concern.

Once you have decided to rollover your goodwill to the corporation, it needs to be valued for purposes of the T2057 form, which can be a costly exercise. While not recommended, if you will be issued all the shares of the corporation, accountants may accept a client’s estimate of their goodwill for purposes of the election if it is reasonable and supportable. However, where other family members will become shareholders, a professional valuation is required. For example, if John transfers his proprietorship to a corporation and a valuator determines his shares are worth $500,000, John must be issued special shares worth $500,000 to ensure he has not conferred a benefit on his spouse or children. Once the special shares are issued to John, his spouse, family and/or trust subscribe for new common shares at $1.

It is important to note that I am glossing over several complex attribution rules here and you should not consider including any family member in the new corporation until you obtain proper income tax and legal advice. It is crucial to understand the ramifications of either decision and whether dividends must be paid to you in order to avoid the attribution rules.

Cost and administrative considerations

The cost of maintaining an incorporated company is far more expensive than operating a proprietorship. You must file financial statements with the CRA and the corporate income tax returns are complicated. You require annual legal resolutions and the administration is far more costly. Thus, I would not recommend the use of a corporation (subject to the other factors such as creditor proofing and the capital gains exemption discussed above) unless you could leave approximately $50,000 at minimum, but more like $75,000 of taxable income in the corporation after any salary you require.

Proprietors sometimes have difficulty separating their corporate funds from their personal funds as they are used to taking draws and simply paying tax on their business income. The corporate structure is more formal and personal drawings must be paid in the form of salary with income tax withheld and/or dividends. Both require filing of government forms (T4/T5).

The income tax benefits of a corporation can be significant. However, the transfer of a proprietorship to a corporation is very complex, especially when introducing family members as shareholders. It is thus vital that you engage an accountant and a lawyer to explain all the income tax issues to you before undertaking the transfer.

The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs. Please note the blog post is time sensitive and subject to changes in legislation or law.

You put it off Long Enough- Time for your Annual Financial Check-up

Hopefully, most readers of this blog go to their doctor for an annual check-up; although unfortunately for many guys, annual seems to mean once every five to ten years. However, I digress from the topic at hand.

Another check-up many people tend to avoid like the plague is their financial check-up. Below I provide a simple checklist of financial items, that is intended to make your financial check-up relatively painless.

1. Is your will up-to-date? 
2. Do you have a second will if you have shares in a private corporation? (a second will in certain provinces may reduce probate taxes) 
3. Does your will integrate into your income tax and estate planning, or are they in conflict?
4. If you have re-married and have a second family, does your will address the potential complications?
5. Are your executors still the correct people to administer your will? Have you informed them/asked them about this appointment? 
6. Do you have an up-to-date power of attorney for health? 
7. Do you have an up-to-date power of attorney for finances? 
8. Where is your safety deposit key, and does anyone else know where it is? 
9. Have you prepared an information checklist for your executor(s)/spouse?  
10. Do you have a net worth statement? You should prepare an updated statement every December 31st for comparative purposes (so get cracking on December 31, 2011, which I assume was not done).
11. Do you have a financial plan? If not, consider engaging an advisor to prepare one. If you have a plan, it should be updated every few years or at least reviewed for any significant life changes or changes in assumptions. 
12. If you are over fifty, you should at minimum determine your expected yearly cash requirements in retirement and compare that with your expected income inflows.
13. Can you accelerate the repayment of your debt? 
14. Can you convert any non-deductible debt into deductible debt?
15. Can you consolidate any credit card debt?
16. If you are single or widowed, or god forbid you and your spouse died in a car crash tomorrow, do you have enough liquid assets and insurance to cover your anticipated income tax liability? 
17. Who is/are the beneficiary(ies) of your RRSP and insurance policies? Are they the correct people (ie: not your ex-spouse).
18. Do you own US real estate or stocks? If so, have you considered your US estate exposure if the US estate tax rates return to the higher rates of prior years? 
19. If you are a shareholder of a private Canadian company, have you undertaken planning to access the $750,000 Qualifying Small Business Corporation ("QSBC") exemption?
20. If you have a corporation, have you considered a family trust to income split and possibly  multiply the QSBC exemption? 
21. If you own a corporation, do you have a succession plan?
22. Do you have life insurance? Is it sufficient given changes in your life such as the birth of a child or a recent marriage?
23. Is your level of insurance too high given your life situation (ie: children are now in the work force)? 
24. Do you have disability insurance at work or personally? 
25. Do you have critical illness insurance or have you considered such?
26. If you have excess investable assets, have you considered a Universal insurance policy? 
27. How many different investment accounts do you have? Is it time to consolidate your accounts and/or investment advisors if you have more than one? 
28. If you have children do you have an RESP? 
29. Have you discussed with your high-school aged children your expectations of them in helping fund their education?
30. Have you opened a TFSA?
31. Have you considered how your citizenship may affect your income tax and pension situation? For example, if you are a US citizen, have you been filing US 1040 tax returns? For citizens of other countries who will receive a pension, have you researched the income tax treaty implications of receiving such pensions in Canada?
32. Where you have an investment advisor, do you have any idea of your investment returns for the last year, five years or ten years? If not, how do you evaluate their performance?
33. Does your current portfolio reflect your appropriate risk profile?
34. If you or your spouse has capital losses, have you considered any planning to ensure they are utilized?
35. Would the purchase of a flow-through share be beneficial from a tax perspective, assuming it fits your investment criteria?
36. If you have charitable intentions, do you have a plan in place for achieving those goals?
37. Have you set-up a filing system to ensure you capture all your income tax receipts?
38. If you can deduct employment expenses, have you created an Excel file to track expenses?
39. Do you have an emergency cash fund in case of sickness or job loss?
40. Do you have a family budget?

The above list, although long in length, is far from exhaustive, but should provide a nice kick-start to your financial check-up. More importantly, unlike the doctor, this check-up does not require gloves.

If you want to review a blog post with less detail, but a broader perspective, check out this post by the Million Dollar Journey on giving Yourself a Financial Checkup. 

The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs.