The Importance of Tracking Your Adjusted Cost Base from an Inheritance

From an income tax perspective (I am obviously ignoring the emotional issues) receiving an inheritance provides two tax related benefits. The receipt of the inheritance is typically tax-free and you may also receive a “bump” (increase) in the adjusted cost base (“ACB”) of any capital property inherited.

However, over the years, I have seen cases where people pay unnecessary income tax and/or have disputes with the CRA because they (1) forget or are not aware of the cost base bump (2) have misplaced documentation or never obtained documentation (3) have switched accountants (or the original work was prepared by their parent’s accountants and is no longer accessible).

Today, I want to remind those of you who have inherited capital property, to ensure you have in place the documents (easily accessible) to support the ACB of any inherited property when you sell the property in the future.

Taxation on Death

I think to provide context for my comments, I first need to explain how the Income Tax Act works when someone passes away.

In Canada, where you receive cash or a cash like inheritance, there are no income tax implications. Where you inherit capital property, such as stocks and real estate, you will have no immediate income tax implications, plus you will inherit the “bumped-up” cost base of the capital property to the deceased.

By “bumped-up” I mean the following. When a person passes away there is a deemed disposition of the deceased persons capital property at the fair market value ("FMV") of the property right before the person's death (this is typically the last spouse or common-law partner to die, as the income tax allows a tax-free transfer of property to a surviving spouse or common-law partner).

For example; say your mother passed away in 2015 and she owned 1,000 shares of Royal Bank (ignoring stock splits) that were worth $80 a share at her passing, that had been purchased for $12,000 in 2001. (Note: The Royal Bank shares could have been transferred to your mother as a tax-free spousal transfer from your father on his passing or the shares could have been purchased directly by your mother, it is the same tax result).

Your mother’s estate would have filed a final (terminal) income tax return reporting a deemed capital gain of $68,000 (FMV at death of $80,000-$12,000 original cost). This deemed capital gain is known as a deemed disposition on death and occurs despite the fact the Royal Bank shares were not sold. This is because your mother was the last surviving spouse and owned the shares at her date of death. Your mother’s deemed disposition FMV of $80,000 becomes the new cost base of your inherited shares. So, if you sell the Royal Bank shares in the future, the gain would be equal to your sales proceeds less your bumped-up cost base of $80,000. 

The same thing would occur if your father/mom owned real estate. The fair market value at your mothers passing would become your new ACB, although there would be an allocation between land and building. The rules relating to the inheritance real estate can get tricky for a non-arm’s length decedent. You should speak to your accountant to get an accurate understanding of your cost base and allocation between land and building.

While I use parents in the above example, the same result occurs if you inherited the capital property from a relative or friend etc.

A totally separate but interrelated ACB tax issue, is the 1994 Capital Gains Election. In 1994, the $100,000 capital gains exemption was phased out. However, individuals were eligible to make an election on their 1994 personal tax return to bump the value of their capital properties by up to $100,000. Where you inherit capital property, if possible, before the accountant files the terminal return of the deceased, you should ask them if they have the 1994 election on file, or if not, see if you can find the deceased's 1994 return to determine if an election was made in 1994. If the election was made, it will likely have no impact on your inherited ACB, but it may reduce the tax on the terminal tax return of your parent or relative etc.

Supporting Your "Bumped- Up" Adjusted Cost Base

Now that I have provided the income tax context, I can discuss the importance of documentation, as without the documentation, you will not know the inherited cost base of your capital property.

The key documents you hopefully already have on hand or can dig up from a box in storage are:

1. The terminal income tax return of your last surviving parent. This return will reflect the deemed disposition of any capital property held on your parent’s passing on Schedule 3 -Dispositions of Capital Gains (or Losses). The proceeds of disposition on this form will form the new ACB of the inherited property to you. Using my prior example, Schedule 3 would reflect proceeds of disposition of $80,000 for the 1000 RBC shares held on death and the $80,000 would become your new ACB.

2. It is possible a parent who pre-deceased their spouse left property directly to you. If that is the case, you would need their terminal tax return to review their schedule 3.

3.  Tax reorganization memos from your parent’s accountants if they undertook any post-mortem tax planning for your parent(s) private corporations. Depending upon the reorganization, there could be ACB increases, although in many cases, the key planning is creating tax-free promissory notes.

An interesting capital asset is the principal residence (“PR”) of your parents or anyone else you inherited property from. If the house was inherited and not sold immediately (say you kept the PR as a rental property), then the FMV of the PR on the death of your parent becomes important. However, prior to 2016, when the sale of a PR had to start being reported on Schedule 3 (and from 2017 onwards when it had to be reported on Schedule T2091) administratively the CRA did not require you to report the sale of your PR if it had always been your PE and the sale was exempt from tax as your PR. 

Thus, you may need to obtain a real estate valuation for the value of the PR at the deceased's passing, since there may be no record of the FMV on death.

If you have inherited capital property from your parent’s or any other person, hopefully you already have the documentation discussed above in place. If not, it would be a very useful project to try and obtain the documents before you decide to sell the asset and are forced to scramble to find information that can be twenty or thirty years old.

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.

Claiming the Principal Residence Exemption

Having reviewed my 600 plus Blog posts, I was shocked to realize I never directly wrote about the Principal Residence Exemption (“PRE”). I discussed the PRE from a tax reporting perspective, the tax implications of the PRE upon divorce, how the PRE works when you are constructing a new home, and how a Principal Residence (“PR”) is taxed upon death amongst a few other mentions.

So, I thought no better time than the present to discuss some of the technical considerations in claiming the PRE and how to decide whether to claim the PRE on your home or cottage.

The Tax Benefit of the PRE

The PRE typically provides homeowners with a tax-free exemption on the capital gain realized when you sell a property designated as your PR. It is one of the few remaining tax breaks for individuals and many Canadians consider the PRE a sacred cow for tax purposes. This is because many people plan to use the tax-free proceeds from the sale of their PRE to (1) cover in whole or part their retirement needs or (2) leave some or all of the proceeds from the sale of their PRE to their estate.

Over the years, there has been concern a government would look at eliminating or restricting the PRE (for example, in the U.S., the PRE is restricted to $500,000 on a joint return) to raise tax revenue. Liberal Finance Minister Chrystia Freeland in this interview (https://tgam.ca/3spnTFw) with The Globe and Mail Report on Business Magazine in the March, 2022 edition, said the following: “I want to be very clear that our government has absolutely no intention of altering the position on capital gains on the principal residence of Canadians. That is a very important part of how Canadian society works”. Hopefully, the Liberals and any future other governments, continue with this position.

The History of the PRE and Prior Elections

I assume this will apply to very few people, but if you purchased your home before 1971, you only pay tax on the increase in value from the December 31, 1971 (V-Day Value).

Another rule, which may apply to a few more people, is that prior to 1982, the PRE election was available to each spouse where title was held individually. That generous treatment stopped in 1982 and for any property purchased after 1981, it is no longer possible to claim two PRE’s for the same family. If you still have a property purchased prior to 1982, you can still make a separate PR designation between you and your spouse, but only for the years of ownership prior to 1982, and only if the properties were owned wholly by you or your spouse.

An election that may be relevant to many people is the 1994 Capital Gains Election. In 1994 the CRA eliminated the $100,000 capital gains exemption; however, they allowed taxpayers to elect to bump the adjusted cost base (“ACB”) of properties such as real estate (many people elected on their cottage property) to the lessor of the fair market value (“FMV”) of their real estate property or a $100,000. Many Canadians filed the T664 form to take advantage of this election and increased the adjusted cost base (“ACB”) of their real estate.

You should review your files or your 1994 tax return to confirm if you made an election.

The PRE-Formula and Calculation

According to the CRA, the calculation of the PRE is as follows:

A × (B ÷ C)

The variables in the above formula are as follows:

A is the taxpayer’s gain otherwise determined, as described above.

B is:

• if the taxpayer was resident in Canada during the year that includes the acquisition date, 1 + the number of tax years ending after the acquisition date for which the property was the taxpayer’s principal residence and during which he or she was resident in Canada; or

• if the taxpayer was not resident in Canada during the year that includes the acquisition date, the number of tax years ending after the acquisition date for which the property was the taxpayer’s principal residence and during which he or she was resident in Canada.

C is the number of tax years ending after the acquisition date during which the taxpayer owned the property. 

If you prefer “plainer math,” the formula is: the Number of Years Designated as your PR + 1) / Number of Years Owned x Capital Gain on Sale.

You will notice the PR +1 in the above formula. This +1 allows for two PR’s to be eligible for the PRE in the year one is sold and a new one is subsequently purchased.

So practically, the formula works as follows: Say you owned your PR for 25 years and sold it for a capital gain of $1,500,000 (but you only wish to designate it for say 20 years, as you want to save 5 years for your cottage-see discussion below), the PRE would be calculated as follows:

(20+1)/25 x 1,500,000 = $1,260,000. So out of your capital gain of $1,500,000, your PR exemption is $1,260,000 and you are taxable on the remaining $240,000 taxable capital gain.

Qualifying a Property as a PR

Under the Income Tax Act, in order for a property to qualify as your principal residence for a particular tax year, four criteria must be satisfied: the property must be a housing unit; you must own the property (either alone or jointly with someone else); you or your spouse or kids must “ordinarily inhabit” the property; and you must “designate” the property as a principal residence.

The CRA states that “Even if a person inhabits a housing unit only for a short period of time in the year, this is sufficient for the housing unit to be considered ordinarily inhabited in the year by that person.” So, it is a low threshold to achieve ordinarily inhabited. In addition, the CRA does not consider incidental or occasional rental of a property sufficient to prevent it from qualifying as a principal residence.

Only one-half of a hectare of land plus the home generally qualifies for the PRE. Any remaining acreage will typically be subject to capital gains tax. If you have a property that exceeds one-half hectare, there are some exceptions to the rule, but you will want to engage a professional to review the situation as the CRA administrates this area strictly. I have been involved a couple times in these situations and the issue is very complex based on tax law and legal precedents.

Which Property do you Claim the PRE on when you own a Home and Cottage

One of the more common issues in relation to claiming the PRE is when you own both a home and a cottage property and you have sold one of them. For ease of this discussion, I am going to presume the 1971 and pre-1982 rules are not applicable.

Assume you sold your cottage in 2022 and you are trying to determine if you should claim your cottage as your PR or pay tax on the capital gain and save the PRE for your home. How do you make the decision?

The answer is not necessarily simple, but in general, where you own a house and cottage, it will often make sense for any overlapping years of ownership to designate the property with the highest average gain per year of ownership for the PRE.

To be clear, I am talking about the property with highest yearly gain, not the largest gain per property. For example, if you have owned your cottage 10 years and it went up $500,000, the average yearly gain is $50,000. If your house has gone up $1,000,000 but you have owned it 30 years, the average yearly gain is only $33,333. So, while the house has a larger overall gain, the cottage has a larger average gain per year and you would likely designate the cottage for the 10 years you owned (or maybe 9 years plus one) as your PR.

In the above example, the answer is likely fairly clear-cut, as you sold the cottage and it has a significantly larger gain per year. But what if the cottage only had a $25,000 ($250,000 gain/10 years) yearly gain and the house had a $29,000 yearly gain. From a gain per year perspective, you should save the PRE for the house and pay tax on the cottage. However, from a cash flow and time value of money perspective, do you want to pay current tax on the $250,000 gain, or not pay any tax by designating the cottage as your PR for the 10 years and know you will pay tax whenever you sell your house (because you will have already designated 10 years)?

The answer is not clear and I have seen different people make different decisions. In addition to cash flow and the time value of money, you would also need to consider whether the 1971, pre-1982 rules and 1994 election would have any impact on your decision. A further consideration is do you think the house value will grow significantly in the future (for example the area is being developed), so that your yearly gain will increase significantly going forward.

In general, where you have multiple properties, you would start with the determination of which property has the largest yearly gain, but you would then need to consider various other factors (this should be done with your accountant) before making a final determination as which property to designate.

Reporting the Sale of a PR for Tax Purposes

In the good old days, administratively, the CRA did not enforce the reporting of the sale of your PR. But starting in 2016 (there was a one-year transition rule), the CRA made it mandatory for you and your spouse to report the disposition and designation of a PRE sold on your tax return or they will not allow you and/or your spouse to claim the PRE. You are now required to complete the PR designation section on Schedule 3 of your income tax return and complete Form T2091(IND), Designation of a Property as a Principal Residence by an Individual (Other Than a Personal Trust). If you forget to make this designation in the year of the disposition, you must request the CRA to amend your income tax return for that year. The CRA will be able to accept a late designation in certain circumstances, but a penalty may apply.

As discussed above, there are many issues to consider from a tax perspective when selling your home. In addition, there are strict reporting rules to which you should adhere.

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 Best (Most read all-time) of The Blunt Bean Counter - Transferring Property Among Family Members - A Potential Income Tax Nightmare

This summer I am posting the "best of" The Blunt Bean Counter while I work on my golf game. Today, I am re-posting my most read blog post of all-time (over 200,000 page views); a post on transferring property amongst family members. As you will read, there is potential for some strange income tax results and care must be taken when transferring property to family members. I thus strongly suggest you obtain professional advice before undertaking any such transfer.

Transferring Property Among Family Members - A Potential Income Tax Nightmare

In today’s blog post, I will discuss the income tax implications relating to the transfer of property among family members. These transfers often create significant income tax issues and can be either errors of commission or errors of omission. Over my 25 years as an accountant, I have been referred some unbelievably messed up situations involving intra-family transfers of property.

Transfers of Property - Why They Are Undertaken

Many individuals transfer capital properties (real estate and common shares, being the most common) in and amongst their families like hot cakes. Some of the reasons for undertaking these transfers include: (1) the transferor has creditor issues and believes that if certain properties are transferred, the properties will become creditor protected (2) the transferor wishes to reduce probate fees on his or her death and (3) the transferor wishes to either gift the property, transfer beneficial title or income split with lower-income family members.

I will not discuss the first reason today because it is legal in nature. But be aware, Section 160(1) of the Income Tax Act can make you legally responsible for the transferor's income tax liability and there may be fraudulent conveyance issues amongst other matters.

Transfers of Property - Income Tax Implications

When a property is transferred without consideration (i.e. as gift or to just transfer property into another person's name), the transferor is generally deemed to have sold the property for proceeds equal to its fair market value (“FMV”). If the property has increased in value since the time the transferor first acquired the property, a capital gain will be realized and there will be taxes to be paid even though ownership of the property has stayed within the family. For example, if mom owns a rental property worth $500,000 which she purchased for $100,000 and she transfers it to her daughter, mom is deemed to have a $400,000 capital gain, even though she did not receive any money.

There is one common exception to the deemed disposition rule. The Income Tax Act permits transfers between spouses to take place at the transferor’s adjusted cost base instead of at the FMV of the capital property.

This difference is best illustrated by an example: Mary owns shares of Bell Canada which she purchased 5 years ago at $50. The FMV of the shares today is $75. If Mary transferred the shares of Bell Canada to her brother, Bob, she would realize a capital gain of $25. If instead Mary transferred the shares of Bell Canada to her husband, Doug, the shares would be transferred at Mary’s adjusted cost base of $50 and no capital gain would be realized. It must be noted that if Doug sells the shares in the future, Mary would be required to report the capital gain realized at that time (i.e. the proceeds Doug receives from selling the shares less Mary’s original cost of $50) and Mary would be required to report any dividends received by Doug on those shares from the date of transfer.

When transfers are made to spouses or children who are minors (under the age of 18), the income attribution rules can apply and any income generated by the transferred properties is attributed back to the transferor (the exception being there is no attribution on capital gains earned by a minor). The application of this rule is reflected in that Mary must report the capital gain and any dividends received by Doug. If the transferred property is sold, there is often attribution even on the substituted property.

We have discussed where property is transferred to a non-arm’s length person that the vendor is deemed to have sold the property at its FMV. However, what happens when the non-arm’s length person has paid no consideration or consideration less than the FMV? The answer is that in all cases other than gifts, bequests and inheritances, the transferees cost is the amount they actually paid for the property and there is no adjustment to FMV, a very punitive result.

In English, what these last two sentences are saying is that if you legally gift something, the cost base and proceeds of disposition are the FMV. But if say your brother pays you $5,000 for shares worth $50,000, you will be deemed to sell the shares for $50,000, but your brothers cost will now only be $5,000; whereas if you gifted the shares, his cost base would be $50,000. A strange result considering he actually paid you. This generally results in “double taxation” when the property is ultimately sold by the transferee (your brother in this case), as you were deemed to sell at $50,000 and your brothers gain is measured from only $5,000 and not the FMV of $50,000.

Transfers of a Principal Residence - The Ultimate Potential Tax Nightmare

I have seen several cases where a parent decides to change the ownership of his or her principal residence such that it is to be held jointly by the parent and one or more of their children. In the case of a parent changing ownership of say half of their principal residence to one of their children, the parent is deemed to have disposed of ½ of the property. This initial transfer is tax-free, since it is the parent’s principal residence. However, a transfer into joint ownership can often create an unforeseen tax problem when the property is eventually sold. Subsequent to the change in ownership, the child will own ½ the principal residence. When the property is eventually sold, the gain realized by the parent on his or her half of the property is exempt from tax since it qualifies for the principal residence exemption; however, since the child now owns half of the property, the child is subject to tax on any capital gain realized on their half of the property (i.e. 50% of the difference between the sale price and the FMV at the time the parent transferred the property to the child, assuming the child has a principal residence of their own).

An example of the above is discussed in this Toronto Star story that outlines a $700,000 tax mistake made by one parent in gifting their principal residence to their children.

I have been engaged at least three times over the years by new clients to sort out similar family transfer issues.

Transfers for Probate Purposes

As noted in the first paragraph, many troublesome family transfers are done to avoid probate tax. Since I wrote on this topic previously and this post is somewhat overlapping, I will just provide you the link to that blog post titled Probate Fee Planning - Income Tax, Estate and Legal Issues to consider.

Many people are far too cavalier when transferring property among family members. It should be clear by now that extreme care should be taken before undertaking any transfer of real estate, shares or investments to a family member. I strongly urge you to consult with your accountant or to engage an accountant when contemplating a family transfer or you may be penny wise but $700,000 pound tax foolish.

 

Note: I will not be answering any questions on this "best of" post. The original post has 268 comments. Please scan those comments; it is likely your question has already been addressed.

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.

How much do you need to retire in Canada? (Part 4)

In the first three parts of this series, the focus was on the safe-withdrawal rate for retirement. Today, in the final installment of this series, I revisit factors I discussed in my 2014 retirement series that can impact both the funding of your retirement nest egg and your withdrawal rate in retirement. The randomness and unpredictability of these factors can derail even the most detailed retirement plans.

How long am I going to live?

In Canada, depending upon which study you utilize, the average male will now live to approximately 80 years old and the average female to around 84 years old. There is also around a 50% chance that one spouse will live to age 90 if both are alive at 65 years old and a 20% chance one spouse will reach 95, again depending upon which study you review. These numbers are not intended to provide absolute actuarial accuracy but to reflect your planning needs. Bottom line: There is a good chance one spouse will still be alive at 95 years old.

The fact that we don’t know how long we’ll live creates the ultimate dilemma of retirement: do you scrimp in the early years of retirement, when you are likely healthier and full of energy, to ensure you have money to support yourself if you live longer than average?

I have seen far too many people die without spending their nest egg and enjoying their retirement (and as the Michael Kitces studies noted earlier in this series reflect, most people’s nest eggs seem to last longer than expected). I am in the camp that values those early retirement years, without being reckless about saving. Based on the studies, I would consider erring slightly on the side of early-retirement spending.

Interest Rates

We have been in an unprecedentedly low-interest environment for many years, and it’s now been exacerbated by COVID. This has weakened the benefit of GICs, term deposits and similar investments to fund and keep funding retirement. Bonds have been a bit of a buffer, but if rates turn upward, bonds may not provide the backstop they have over the last few years.

There is no consensus answer for this issue. Many investment advisors are suggesting a higher allocation to equities, but this involves far more risk than many people are willing to assume. So, this is a current-day quandary that has no clear answer.

Inflation

In addition to being in a low-interest rate environment, we have also been in a period of low inflation. Post-pandemic, it is unclear if inflation will rear its ugly head again, but a strong recovery could be problematic. An economic environment of low market returns and high inflation can severely impact the funds you accumulate to fund your retirement and the real returns you achieve in retirement.

Sequence of returns risk

Sequence-of-returns risk for purposes of retirement planning refers to the random order in which investment returns occur and the impact of those random returns on people who are in retirement. In plain English, it relates to whether you are the unlucky person that retires into a bear market or the lucky person who retires into a bull market. This is important because if your returns are poor early on, your retirement nest egg will not last as long as someone who had good returns early in retirement.

The sequence of returns phenomenon is illustrated very clearly on page 7 of this report by Moshe Milevsky and by W. Van Harlow of Fidelity Research Institute. In this example, two portfolios have the same return over 21 years but in inverse order. The portfolio with the positive returns initially ends up worth $447,225 in year 13, while the portfolio with the negative returns was depleted in year 13.

If you are looking for solace about retiring at a market peak, read this blog I posted in 2019. There I discuss an article by Norman Rothery on the sustainability of the 4% rule even when you start your retirement in a poor market.

Michael Kitces, whom I referenced in my blog post a couple weeks ago, has also written extensively on the sequence of return phenomenon. As noted in the prior posts in this series, Mr. Kitces has used the worst years in history as his floor for the 4% rule, and the rule held up. Here are a few helpful links on his sequence of returns articles:

• The extraordinary upside potential of sequence of return risk
• Understanding Sequence Of Return Risk – Safe Withdrawal Rates, Bear Market Crashes, And Bad Decades
• Retirement Date Risk – The Impact Of Sequence Of Returns Risk On Those Still Accumulating For Retirement

Can you solve for the sequence of returns?

Finally, Mr. Kitces and Wade Pfau, whom I noted in Part 2 of the series, both seem to agree that people can reduce the impact of sequence of returns near to or early in retirement by using something called a rising equity glidepath in retirement.

This strategy has you starting retirement with a lower equity component in your portfolio—30%, for example—and increasing it throughout retirement to, say 65% or 70%. The advice is counterintuitive, since consensus advice has always been to reduce equity as we age. But as Mr. Kitces and Mr. Pfau point out here and here (at the 6:12 mark), the glidepath actually reduces losses in your nest egg when you most need it (at the beginning of your retirement) and allows for recovery in later years as your equity increases. You may lessen your child’s inheritance, but you may protect yours.

I am not saying yeah or nay on the glidepath alternative but rather providing you with some alternative thoughts.

Your principal residence

While most of us would love to ignore the value of our home for purposes of our retirement planning, the reality is that for most Canadians, our homes will in small or large part fund our retirements. For some, their home will just backstop any retirement shortfall; for many, their retirement funding includes at least the incremental capital benefit of downsizing their home; and for most, retirement can only be fully funded by selling their home at some point in their retirement.

Parenthetically, the same applies to business owners, who often consider selling the business to support their retirement plans. Business owners do need to add several factors when planning their retirement.

The scary thing about relying upon your home is that its reliability for retirement funding depends on a key variable: its value upon sale (and continued tax-exempt status).

What will my house be worth?

Over the last 10 years, house prices have skyrocketed in most Canadian cities. The million-dollar question is whether these increases in value will continue. Interest rates may increase. Government policy may change. And baby boomer sellers may eventually outnumber younger buyers.

What can I do?

Almost all the factors discussed in this post are impossible to plan for. However, you can adapt and compensate in two ways.

Work Longer

While the old retirement ideal was to sit back and sip cocktails in retirement, many now believe in finding part-time work during the victory lap period of life—or even full-time work doing something you enjoy that pays less. People often say it makes them feel more alive and keeps them mentally sharp, while providing the added benefit of not dipping into their capital. Remembering this may provide comfort if you need to work after you retire to account for the factors above.

Reduce your yearly withdrawal rate

Although possibly challenging, if your nest egg takes a hit due to any of the above factors, you can reduce your yearly withdrawal rate from, say, 4% to 3%, by some dollar value, or the future inflation withdrawal rate as suggested earlier in the series. It’s a tough pill to swallow, but you may need to forgo some short-term plans, perhaps travel for a year or two. As we learned this year, we can all adapt far better than we ever thought if we absolutely need to.

Life is hard enough to plan when things are status quo. It really gets challenging when random economic factors impact your life or retirement planning. The best we can do is recognize these factors exist and adapt and adjust when they arrive.

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.

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Gifting and Leaving Money to Your Grandchild

Many grandparents ask me about the tax and practical ramifications of gifting or bequeathing money or assets to their grandchildren. Some wish to make gifts while they are alive, others choose to make gifts upon their passing, and still others give both while alive and after passing.

I wrote the first draft of this blog post prior to COVID -19, but it is more relevant than ever, given many people have been laid off, lost their jobs or been set back financially, and many grandparents want to help them until they regain their financial footing. Today I will discuss some of the tax and other planning considerations for grandparents wishing to make these gifts or transfers.

Please note for brevity, I will use “grandparent” in lieu of “grandparent/grandparents” and “child” in lieu of “child/children” where applicable.

Tax Considerations

In Canada, unlike the United States, there is currently no gift tax. (Here’s hoping this remains the case.) While there may not be a gift tax, a grandparent may need to take specific steps for effective tax planning. Remember, you should never make a gift that puts your own retirement finances at risk.

Deemed Disposition

The deemed disposition rules are one of the tax issues that apply to gifts. A grandparent will be subject to a deemed disposition tax where they gift or transfer an asset (other than cash) that has appreciated in value to a grandchild, as the CRA will tax the capital gain.

For example, Grandma Johnson is very tech savvy and purchased 100 Shopify shares at $250, which are now worth $1,200 or so a share. She decides to gift the shares to her grandson Tom. Grandma Johnson will have a deemed disposition, resulting in a capital gain of $95,000 ($1,200-250 x 100 shares). 

In English, this means she will have to report a capital gain on her personal tax return of $95,000, even though she gifted the shares and did not sell them. If she is a high-rate taxpayer, she will owe approximately $25,000 in tax on shares she did not receive any money for. Thus, she potentially has a cash flow issue.

The folly of gifting a principal residence

Occasionally a grandparent thinks they will save money on tax and probate by transferring or gifting their principal residence (PR), or a part of it, to their grandchildren.

In truth, a grandparent generally should not gift a principal residence, as any gain on disposition of the PR will be tax-free as long as they continue to own and live in the PR (in addition, typically, a grandparent will need most if not all the value of their home to fund their retirement). While the deemed disposition of their PR in most cases will be tax-free, the grandparent will lose their principal residence exemption going forward on the portion of their PR that they transferred to the grandchild. Not only that - the grandchild will be taxable on any future growth of their share of the PR, assuming the grandparent continues to live in the home and the grandchild does not move into the house.  

Appreciated assets left in a will 

If a grandparent leaves appreciated assets in their will to a grandchild, the grandparent will again have a deemed disposition (this time triggered by their death as opposed to a gift) that must be reported on their terminal tax return (January 1 to date of death).

Takeaway #1 - You will generally want to gift cash. If you wish to gift assets with appreciated values, ensure you have enough excess cash to pay the income tax on the deemed disposition and you do not put your own retirement lifestyle at risk. You should also speak to your financial advisor or accountant before undertaking any substantial gift.

Takeaway #2 - Never transfer your home without first obtaining professional tax advice.

Attribution

Where a gift of money or assets is made during a grandparent’s lifetime to a minor child (under 18 years old), the grandparent will be subject to attribution on the gift, as well as the tax on the deemed disposition (on appreciated assets other than cash) discussed above.

This means that the grandparent reports the income – dividends or interest, for example – and pays the tax at the grandparent’s marginal rate, not at the grandchild’s tax rate. For example, if you gift marketable securities that pay a dividend of $500 a year, you pay tax on the $500 dividend.

In summary, capital gains realized by a minor child are not subject to attribution, but income such as interest and dividends is subject to attribution. There is no attribution if your grandchild is 18 and over. 

Attribution on assets left in a will 

Where a grandparent passes away and assets are bequeathed to a grandchild, there is no future attribution of income.

Takeaway #3 – If you intend to gift marketable securities to your minor grandchild, it may make sense to gift non-dividend paying stocks to avoid the attribution rules on dividends. This is not a rule, but an option to consider.

Attribution – RESPs, TFSAs and RRSPs

For children 18 years old and over, there is no attribution if you contribute to their Registered Education Savings Plan (RESP), Tax-Free Savings Account (TFSA) and Registered Retirement Savings Plan (RRSP). A minor child (under 18) cannot have a TFSA, so attribution is a moot point. However, assuming they have contribution room, a minor can have an RRSP and there is attribution on gifts for RRSP contributions. There is no attribution on RESP contributions on behalf of a minor.

See the detailed discussion in Part 2 of this post (in two weeks) for traps and tax considerations before making these contributions.

Avoiding attribution – Prescribed rate loans

A grandparent can avoid the attribution rules by making a prescribed interest rate loan (the current rate is 1%) to a family trust. Prescribed rate loans are not subject to the Tax on Split Income (TOSI) rules.

Note, when I say trust above, I mean a properly set-up legal trust, not an informal “in-trust” account in the grandparent’s name. Informal in-trust accounts are not legal trusts and can cause unintended income tax and family issues and should be avoided.

Family Law

Grandparents (and parents) should always obtain family law advice for significant gifts. The laws are different for each province. In general, most gifts or inheritances are excluded property when the funds are not co-mingled or used for a matrimonial home; however, always first check with your family lawyer.

Grandparents often lend or gift grandchildren money to assist them in buying a house. There are various trips and traps when the loan is not legally documented and the interest on the loan not paid.

Takeaway #4 – Each province has its own Family Law Act and you should obtain family law advice for any significant gift or loan of cash made to a grandchild. Doing so will hopefully avoid your grandchild losing part of the value of that gift upon a marital break-up because the gift or loan was not property set up or the grandchild did not understand how to keep the property excluded.

That's all for Part 1 of this key topic that I get asked about a lot. In Part 2, we'll cover gifting by grandparents using a Registered Education Savings Plan (RESP), Tax-Free Savings Account (TFSA), or Registered Retirement Savings Plan (RRSP). We will also briefly discuss estate planning considerations for grandparents.

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.

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Renting Your Property as an Airbnb - Beware of the Income Tax Issues

In the last few years, more and more people have begun to rent out all or part of their residence through

online services such as Airbnb or other rental vacation sites such as Tripping.com or FlipKey. Some will say it is for the unique opportunity to host people from a variety of backgrounds, others that it helps to cover the cost of the skyrocketing real estate/rental market.

Regardless of the reason, there are potentially detrimental tax consequences that can impact you in both the short- and long-term that I would suggest are unexpected to those renting.

Today, I discuss some of these tax consequences. Before I start, I would like to acknowledge the substantial assistance of Christopher Bell CPA, a senior tax accountant with BDO Canada LLP, in writing this post.

Sales Tax

The first thing that you will want to consider (which most laypeople would not) is whether your rental income is subject to GST/HST. You are required to register your business for GST/HST when your gross revenues from all of your commercial activities surpass $30,000 in revenue in a 12-month period. As a result, even if you only make $5,000 from renting your residence, if other commercial activities total $25,000 or more, you will be required to register to collect and remit sales tax. There is an important distinction to keep in mind when considering rentals. Long-term rentals (think of the rent you pay to your landlord) are exempt from GST/HST, while short-term housing rentals for periods of less than 30 continuous days are taxable for GST/HST purposes. There is a clear distinction here and Airbnb rentals, like hotels, are generally considered taxable for GST/HST purposes once you surpass $30,000 in a year.

You can claim back portions of the GST/HST you pay on expenses that are incurred related to the rental of the space in your home. Some items you might be able to recover GST/HST on are:

•  Housekeeping expenses
•  Professional/accounting fees
•  Advertising expenses

Note that there are some potentially significant impacts of improper planning when it comes to GST/HST. If you rent out your property for 90% of the time for rental periods of under 60 days, the property could lose its “residential complex” status, which would result in any future sale of the property to becoming subject to GST/HST. Good luck trying to explain that to any potential buyers!

If you decide to reduce or eliminate the rental of the property in the future, it may change status again, to either an exempt long-term rental or back to a personal residence. When this change occurs, you would need to pay GST/HST on the fair market value of the house at the time of this change. In some cases, you may be eligible to apply for a rebate on these taxes.

As you can see, the GST/HST issues of renting as an Airbnb are very complex. I strongly urge you to seek professional advice before you start renting. Note: I will not answer any questions on GST/HST as I am not an expert in this area. I am just making you aware of the issues you must consider.

Income Tax

Any income you earn from renting your home needs to be reported on your tax return and can be classified in one of two ways: rental income or business income. It is very important to always consider the impact renting can have on your Principal Residence Exemption. This is discussed in greater detail below. The characterization of your rental income is largely determined by the number and kinds of services that you provide to your customers. If you rent your home to someone and they only receive the “bare-minimum,” such as light, heat, parking, laundry, etc., this income would typically be deemed as rental income. If, however, you are offering additional services, such as meals, cleaning, or entertainment, you are more likely to be deemed to be carrying on business activities. As Chris told me, "if you want to keep the green, keep it lean".

You can deduct related expenses from the income earned on your tax return. Some of those items include the following:

1. Utilities (light, heat, water, etc.)
2. Maintenance (painting, small repairs, cleaning*)
3. Property taxes and condo fees
4. Internet and cable
5. Home insurance
6. Mortgage interest

*Note: you cannot clean or do repairs yourself and pay yourself $50 an hour for your hard work. Cleaning and repairs are typically only deductible if done by external service providers.

These expenses will need to be prorated based on the number of days of the year in which you hosted guests in the year against the total amount of time you’ve owned the home. Similarly, if you only rent out a portion of your home, you would need to prorate the expenses further to account for the proportion of the home that is used for rental purposes. The space can be prorated based on either the square metres/feet of the home you are renting or based on the number of rooms you rent out. I suggest you base the pro-ration on the square area to avoid any conflict with CRA, so get the measuring tape out!

Impact of renting as Airbnb on your Principal Residence

There are sometimes more significant amounts that you want to claim, such as large repairs or maintenance costs. Given the capital nature of these expenses, you may want to claim Capital Cost Allowance ("CCA"- you may know CCA as depreciation) on these repairs, or maybe on the property itself. While it is tempting to reduce your annual income by making a CCA claim, there are some long-term implications of doing so.

First of all, renting out your property regularly may result in you being considered to have changed the use of the property, which could result in some significant tax consequences. There is a deemed disposition of the property upon the change in use at the fair market value, and the property is no longer considered a principle residence.

Furthermore, claiming CCA against your income will potentially limit or outright prevent you from claiming the principle residence exemption on your home when you decide to sell it. Something to note would be that if you make significant structural changes and there is a significant change in use, CRA will deem the property as income generating.

Final Comments

It is vital that you understand the various complex income tax implications discussed above. I strongly urge you to obtain professional advice before you start renting in order to avoid some costly pitfalls.

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.

Sacred Tax Cows

We are all aware that almost every level of government is strapped for funds and consequently, they often look at how they can raise additional monies through taxation. As funding needs become more desperate, a couple of my clients have asked me if they think any of the “sacred tax cows” will be sacrificed. Today I consider the political and tax risks a government would take if they attacked these “sacred tax cows”.

What tax cows am I talking about? I would suggest in Canada we have two “sacred tax cows” and one “tax cow” which is important but has been sacrificed in the past and will likely be in the future.

In my opinion, these tax cows are as follows:

The sacrificial tax cow:

1. The 50% tax inclusion rate for capital gains

The two sacred cows are:

1. The tax-free nature of your principal residence

2. No estate tax on death

The Capital Gains Rate

The capital gains rate prior to January 1, 1972 was nil. Aw, the good old days! From 1972 to 1988, the government only taxed 50% of any capital gains. For 1989 and 1990 the inclusion rate was changed to 2/3 of your capital gains. For the years 1990-1999, 3/4 of your capital gain was taxed. From 2000 onward, we have been at the current 50% inclusion rate (except for 8 months in 2000).

The above clearly reflects various governments do not see a 50% inclusion rate as a sacred tax cow. In fact, in 2017 I had a few clients sell stocks to lock in the 50% rate because there were rumours the Federal Liberals would increase the inclusion rate to 3/4. However, the inclusion rate was not changed.

I think no one would be surprised if the capital gains inclusion rate is increased in the future and I don’t think there is huge political risk in doing so, since most people paying capital gains have already been hit with higher personal and corporate taxes and are numb to various tax hits. In addition, a change in inclusion rates has been floated multiple times by different governments, so the shock component would not be high.

Tax-Free Sale of Your Principal Residence

Currently, when you sell your principal residence (“PR”) it is tax-free. Each family unit is only entitled to one PR exemption. In 2017, the Liberal government issued legislation that requires you to report the sale of your PR, even if it is exempt (see the second paragraph of this post). This measure was implemented to prevent some of the abuse in respect to the non-reporting related to PR (especially house flips) and situations where taxpayers thought the sale was exempt and in fact it was not exempt.

I would suggest the tax-free nature of a home is clearly a sacred cow to most Canadians and the political risk in making your home taxable would be immense. However, I can envision a government trying to move to a U.S model. In the U.S. the first $250,000 gain on the sale of a house is exempt from tax for U.S. citizens or $500,000 for spouses who are both U.S. citizens. The exemption mentioned is applicable when the following two conditions are met:

Ownership test: the taxpayer owned the property as his/her main home for a period aggregating at least two years out of the five years prior to its date of sale.

Use test: the property was used by the taxpayer as his/her main home for a period aggregating at least two years out of the five years prior to its date of sale.

These two tests can be met during different two- year periods. Also, for married couples filing joint returns, each spouse needs to meet the ownership and use tests individually in order to qualify for the $500,000 exemption jointly. The taxpayer would not be eligible for the exclusion if he or she excluded the gain from the sale of another home during the two-year period prior to the sale of his/her home.

Ignoring the technicalities of the U.S. rule, one ponders whether such a measure could possibly work in Canada if say the numbers increased to $500k and $1mill respectively, since that would likely eliminate the gains for most provinces other than maybe B.C and Ontario. Although, losing a significant number of voters in those two provinces would probably still not be smart politics. But if the exemptions moved to $1,000,000 and $2,000,000 the blow-back would likely be more muted. However, IMHO, I think in the end, a government would risk re-election if they put forth such legislation.

Estate Tax

The United States has levied estate tax for many years. The tax has been a political football with the exclusion amount from estate tax varying from $675,000 to $11,180,000. The tax was even repealed for one year in 2010, known as the year to die in the U.S. The estate tax has varied from 35% to 55%.

In most U.S. states, the annual personal income tax burden is substantially less than in most provinces. In addition, the U.S. has many more significant tax deductions such as mortgage interest; so, for U.S. taxpayers, they typically pay far less than Canadians in yearly tax but will typically pay substantially more on death. So the U.S. model is pay me less now and possible a whole bunch later.

In Canada, an estate tax would be pay me now and pay me later and the effective tax rate could end up being a ridiculous amount. For example, if you made a million dollars at the highest marginal rate in Canada you would have $460,000 left. Imagine a 40% estate tax on your $460,000 estate if you died. Your net estate would be only $276,000; so a total tax burden of 75% if the estate tax was 40%. Of course, this is simplistic and not necessarily realistic, but I use the example to demonstrate how massive the tax burden could be with a Canadian estate tax. In my opinion, I can see a government taking a huge political risk and imposing an estate tax with a large basic exemption; since they seem to feel, mid to high earning Canadians are a never ending source of tax dollars. 

In summary, I think we will see an increase in the capital gains inclusion rate at some point in the next five years. As for the two other sacred cows, I really hope no government is willing to eliminate the PR exemption or quantify the amount of the PR exemption and definitely not impose an estate tax. Let’s hope such taxes never see the light of day.

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.

How the Principal Residence Exemption Works When You Construct a New Home

Several provinces have experienced booming real estate markets the last few years and some people have used the increased equity in their home to buy land and construct their dream home. In some cases, people sell their current home and rent until the new home is ready to occupy, while others continue to own and live in their present home and then sell it before they move into their new home.

In both these situations, people are often surprised at how the Principal Residence Exemption (“PRE”) must be calculated. Today, I will review what the possible tax consequences are under these scenarios.

Construction of a Home on Vacant Land

Where you acquire vacant land for the purpose of constructing a home for you and your family in a future year, the property cannot be designated as your principal residence until you and your family commence to ordinarily inhabit the newly constructed home.

Consequently, if the newly constructed home goes up significantly in value prior to you moving in, those years while the home was under construction may be problematic for purposes of the PRE. I review the details below.

The Principal Residence Exemption

As you may be aware, the PRE is a formulaic calculation that determines the amount of the gain on the sale of your principal residence that is exempt. I set forth the formula below:

The capital gain on the sale of your home multiplied by:

The number of years you have lived in your home & designated the property as your PR, plus 1 divided by the number of years you have owned the property

The one-year bonus is meant to ensure that you are not penalized when you move from one home to another in the same year. Thus, where you live in your home the entire time you owned it, you are typically not subject to tax on the sale of the home (don’t forget, you are now required to report the sale of your principal residence on your personal income tax return as I detailed in this recent blog post titled Reporting the Sale of Your Principal Residence). 

Income Tax Folio S1-F3-C2 Principal Residence

Income tax folio S1-F3-C2 sets forth a great example of how the PRE works where you have constructed a new home. The example (2.29) is as follows:

“In 2002, Mr. A acquired vacant land for $50,000. In 2005, he constructed a housing unit on the land, costing $200,000, and started to ordinarily inhabit the housing unit. In 2011, he disposed of the property for $300,000. Mr. A’s gain otherwise determined on the disposition of the property is equal to his $300,000 proceeds minus his $250,000 adjusted cost base = $50,000 (assume there were no costs of disposition). Mr. A can designate the property as his principal residence for the years 2005 to 2011 inclusive, but not for the years 2002 to 2004 inclusive because no one lived in a housing unit on the property during those years. The principal residence exemption formula cannot, therefore, eliminate his entire $50,000 gain otherwise determined, but rather can eliminate only $40,000 of that gain, as shown in the following:

Applying the formula A × (B ÷ C):

A is $50,000

B is 1 + 7 (being tax years 2005 to 2011)

C is 10 (being tax years 2002 to 2011)

= $50,000 x (8 ÷ 10)

= $40,000”

How the Principal Residence Exemption Works When You Continue to Own Your Current Home While You are Constructing a New Home

So, what the heck happens when you have a home and build a new one? Essentially two things:

1. As noted in the CRA example above, for the years you did not ordinarily inhabit the new home while it was under construction you will at most only be able to protect one year of those years you did not inhabit the home from being taxable when you eventually sell.

2. If your old home had a yearly gain smaller than the yearly gain on the home under construction before you move in, you cannot save (not designate) those years with the larger gain on the newly constructed home.

What this means is the following. Typically, you would suspect the result would be similar to where you owned say a home and a cottage. In those circumstances (since you ordinary inhabit both properties) where you sell your home, if your home went up $5,000 a year in value and your cottage for example went up $25,000 a year, you would likely not designate all the years to your home, since you would want to save as many years as possible of your PRE exemption for when you sell the cottage (since you would be saving $25k a year versus $5k a year) and pay some tax on the sale of your home.

However, where you had a home under construction for say three years that goes up in value $25,000 per year, you will not have the option to not designate all three years on your home sale and you can at best only protect one year, because you did not ordinarily inhabit the home under construction. Yes, I know, clear as mud.

Clearly this is a very fact specific situation, but the income tax result is often an unexpected tax hit. In any case, I strongly suggest you obtain income tax advice if you are in this situation, since it is obviously extremely complex.

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.

Confessions of a Tax Season Accountant - Late T-slips and Reporting the Sale of Your Principal Residence

In today's tax season confession, I will provide an update on the required reporting when you sell your principal residence. I also include my annual rant, about the fact many of my clients must wait until late March or early April to receive their final T-slips.

Condensed Tax Season

Just to be consistent with the prior 7 years, I will again complain about the condensed nature of tax season. I receive about 65% of my clients returns after March 31st, causing a crazy April. The delay is typically caused by clients waiting for their T3 and T5013 tax slips (you would not believe the amount of emails and faxes I received last week with just arrived T3's and T5013's). I ponder why, with current technology, that all filing deadlines for T4’s, T5’s, T3’s and T5013’s cannot be moved up by 15-30 days, so everyone has adequate time to file their tax returns. I guess this is one of life’s little mysteries.

Principal Residence Exemption Rules

As discussed in this October 2016 blog post on the new Principal Residence (“PR”) reporting requirements, you must now report the sale of your PR (typically your house but can also be your cottage) on your tax return.

For 2016, you just had to report the sale on schedule 3, unless the gain was not fully exempt, in which case you had to file Form T2091 (IND) Designation of a Property as a Principal Residence by an Individual (Other Than a Personal Trust). However, for 2017 and any future years, you must now file schedule 3 and Form T2091 in all cases.

If you designate your home/cottage as your PR for all the years you owned it on schedule 3 (box 1), other than the free plus 1 year, (you may recall the formula to determine the exempt portion on the sale of your PR is the capital gain on the sale of your PR, times the ratio of the number of years you have lived in your home [i.e. designated the home as your principal residence] plus 1, divided by the number of years you have owned the property) the form is fairly simple to complete. You just need to fill out the first page of the T2091 form. You will need to include the following information:

• the year of acquisition of the property you sold
• the proceeds of disposition 
• the address of the property being designated as a principal residence 
• the years you owned the property and are designating as your principal residence.

Penalty

There are stiff penalties for not filing the PR designation on time. New paragraph 220(3.21)(a.1) will allow for late-filed forms subject to certain time restrictions. The penalty will be the lesser of the following amounts:

• $8,000; and

• $100 for each complete month from the original due date of the relevant income tax return to the date that your request for a late-filed designation is made in a form satisfactory to the CRA.

The CRA says on their website that a penalty may apply where the PR election is late-filed. I would work on the assumption the penalty is applicable and you will need the CRA to be merciful to have the penalty removed.

It is also important to note that if you do not file the T2091 form, your return can be re-assessed at any time. This means the usual statue barred period of 3 years is not applicable and your return remains open until the end of time or three years from when your return is assessed, when you finally file the form.

If you sold your principal residence in 2017, simply put, complete schedule 3 and file Form T2091, or there may be punitive repercussions.

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 New Principal Residence Reporting Requirements – Large Implications for the Average Canadian

On October 3, 2016, the Government announced administrative changes to the reporting requirements for the sale of a principal residence (“PR”) and the designation of the principal residence exemption (“PRE”), which provides for the tax-free sale of your home. The changes were premised on closing a tax loophole that allowed non-residents to buy homes and later claim a tax exemption on the sale by using family members or trusts. While I think the changes in reporting requirements were made in part to close this loophole, a skeptical person may think the government used the “foreign-buyer loophole” issue, to remedy lax reporting requirements for the sale of a PR by all Canadians.

In fact, I suggest the Government will get significantly more revenue from resident Canadians who have been misreporting the sale of their PR, than they will from foreign buyers. I see three (there are more than three, but these are the most obvious) potential areas the new rules will catch the average Canadian:

1. Misunderstanding of the rules where you own both a home and a cottage 
2. Divorce
3. Flipping of houses

The New Reporting Requirements

Starting with the 2016 tax year, the new rules will require you to report the sale of your PR on Schedule 3 - Capital Gains or Losses, of your personal tax return. You will now be required to designate the property as your PR on Schedule 3. Previously, the administrative position of the Canada Revenue Agency (“CRA”) was that you were not required to report the sale of your PR if the property was your PR for every year you owned it.

If you do not designate the property as your PR for all the years you owned the property (such as where you had sold your cottage in a prior year and claimed the PRE for certain years), you are required to also file Form T2091.

I would not be surprised, if in the future, the CRA has follow-up information requests on PR sales, requesting the history of any prior PR sale that was not reportable under the old system to ensure there has been no duplication of the PRE.

History and Rules

Prior to 1982, a taxpayer and their spouse could each designate their own PR and each could claim their own PRE. Therefore, where a family owned a cottage and a family home, each spouse could potentially claim their own PRE, one on the cottage and one on the family home, and accordingly the sale or gifting of both properties would be tax-free.

However, for any year after 1981, a family unit (generally considered to be the taxpayer, his or his spouse or common-law partner and unmarried minor children) can only designate one property between them for purposes of the PRE. Although the designation of a property as a PR is a yearly designation, it is only made when there is an actual disposition of a home. For example, if you owned and lived in both a cottage and a house between 2001 and 2016 and sold them both in 2016, you could choose to designate your cottage as your PR for 2001 to 2003 and your house from 2004 to 2016 or any other permutation +1 (see formula calculation and discussion of the +1 rule below).

In order to decide which property to designate for which years after 1981, you must determine whether there is a larger gain per year on your cottage or your home in the city. Once that determination is made, in most cases it makes sense to designate the property with the larger gain per year as your personal residence for purposes of the PRE.

As if the above is not complex enough, anyone selling a cottage and claiming the PRE must also consider the following adjusted cost base adjustments:

1. If your cottage was purchased prior to 1972, you will need to know the fair market value (“FMV”) on December 31, 1971; the FMV of your cottage on this date became your cost base when the CRA brought in capital gains taxation.

2. In 1994 the CRA eliminated the $100,000 capital gains exemption; however, they allowed taxpayers to elect to bump the ACB of properties such as real estate to their FMV to a maximum of $100,000 (subject to some restrictions not worth discussing here). Many Canadians took advantage of this election and increased the ACB of their cottages.

3. Many people have inherited cottages. When someone passes away, they are deemed to dispose of their capital property at the FMV on the date of their death (unless the property is transferred to their spouse). The person inheriting the property assumes the deceased's FMV on their death, as their ACB.

4. Most people have made various capital improvements to their cottages over the years. For income tax purposes, these improvements are added to the ACB you have determined above. Examples of capital improvements would be the addition of a deck, a dock, a new roof or new windows that were better than the original roof or windows, new well or pump. General repairs are not capital improvements and you cannot value your own work if you are the handyman type.

The Actual PRE Formula

The actual calculation to determine your principal residence exemption is equal to:

The capital gain on the sale of your home multiplied by:

The number of years you have lived in your home plus 1 
The number of years you have owned the property

The one year bonus is meant to ensure you are not penalized when you move from one house to another in the same year.

The Three Potential Issues for Resident Canadians

Misunderstanding of the Rules Where You Own a Home and a Cottage

As noted above, the PRE rules are extremely complex and the formula is often misunderstood. Many Canadians have simply understood or pretended to understand that any sale of a home or a cottage was tax-free if it was used by you and your family. Since there were no reporting required on your tax return until these changes, the CRA could not track whether you were properly reporting the sale of your PR. The new reporting will now allow the CRA to track overlapping ownership periods (i.e. you bought your home in 1990 and your cottage in 2000 and sold your cottage in 2016 and claim the PRE for 16 years. The CRA will now have a record that you have used 16 years of your PRE and you cannot claim those 16 years when you sell your home). This required filing will also force you to consider any prior PRE claims that may have occurred during the 16 years above (say for example you had sold the home you purchased in 1990 in 2010 and purchased a new home that same year. Under this circumstance you could not claim 16 years PRE on your cottage).

As noted above, I would expect at some point in the future, to see information requests and audits of reported gains by the CRA, specifically asking about prior PRE claims to ensure there was no overlapping of of PRE claims.

Divorce

In June of this year, I wrote a post on the income tax implications of divorce where you owned a home and a cottage and the various misunderstandings of how to claim the PRE exemption that arise on divorce. You can read this post if it is of interest to you, but some of the key points I made were as follows:

1. A couple can only claim one PRE during the marriage (other than when a spouse who was throughout the year living apart from and was separated under a judicial or written separation agreement). This one PRE rule per couple is clearly noted in this interesting case, Balanko v The Queen.

2. It is vital that the right to the PRE or the allocation of the PRE must be accounted for in any marriage settlement, for both purposes of the actual claim, and the related income tax one of the spouses may incur. If the use of the exemption is not addressed in the separation agreement, it is then a first-come, first-served claim.

I would suggest that many divorced couples have inadvertently double claimed the PRE.

Flipping of Houses & Condominiums

The CRA has been going after “house and condominium flippers” for the last few years. However, since there has been no reporting requirement for the sale of a PRE, if a “flipper” felt or considered the sale to be of their PR, the CRA was constrained in tracking these house flips. While prior sales may be hard to audit, the new rules force someone flipping a house to report the gain as a PRE and I am sure any sale of homes and condominiums that are of short duration will be subject to follow-up or audit.

Assessment and Penalties

For the sale of a PR in 2016 or later years, the CRA will only allow the PRE if you report the sale and designation on your tax return. If you fail to report the sale, you will have to ask the CRA to amend your return. Under the proposed changes, the CRA will be able to accept a late designation but a penalty may apply, equal to the lesser of $8,000 and $100 for each month you are late from the original required filing. This is a potentially fairly large penalty for non-compliance. The period of re-assessment will also be extended where a disposition has not been reported.

Wow, what some may have seen as a fairly innocuous change to catch non-residents, will certainly have substantial implications on resident Canadians going forward and in some cases, on previous non-filings related to PRE claims.

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.