Life Insurance for High-Net-Worth Individuals and Corporate Business Owners - Podcast and Blog

I was recently a panelist on a video podcast titled Life Insurance for High-Net-Worth individuals (“HNW”) and Business Owners. The link to the podcast can be found here. 

The panel was moderated by Simon Kay of IPS Insurance. Simon specializes in Life Insurance for HNW individuals and corporate business owners and is the pioneer of Private Underwriting.

Private Underwriting is a very exhaustive process, but in simple terms, it allows people with underlying health and lifestyle concerns to have all underwriting requirements collected independent of any insurance company. IPS can then identify any areas that might place upward pressure on premiums and work with the client and their doctors to clarify or address any areas of concern. IPS can then set forth a position and advocate solely for their client with the insurers on a no names basis, protecting their clients' privacy. Simon can be contacted at this email: simon.kay@ipsinsurance.ca

The other panelist was Jay Hershfield. Jay is a highly regarded tax and estate specialist with an insurance expertise (which you will undoubtedly agree with once you watch the podcast) and is currently a director with Scotia Wealth Management. Jay has a wide range of experience from working with the Tax Policy Branch with the Federal Department of Finance, a Life Insurance company and with several large Financial Institutions.
 

The title of the podcast is self-descriptive and discusses in fairly simple terms why you as a HNW individual or corporate business owner would want to consider permanent insurance even if you have no need for insurance based on your financial resources.

Simon is in the midst of editing a second podcast on some of the hard questions to ask when you are considering entering into a life insurance policy. I will post that podcast in the near future. I think it is excellent and a must watch if you are considering purchasing a permanent life insurance policy, if I do say so myself :)

As the podcast focuses on permanent insurance, I below provide a brief written summary on what is permanent insurance, some of the reasons to use it and where permanent insurance is typically used by HNW individuals and corporate business owners.

What is Permanent Insurance?

Unlike term insurance which typically covers temporary needs, permanent insurance provides lifelong insurance and is often used for longer term needs. The two most common types of permanent insurance are Whole Life and Universal Life, and most policies combine a death benefit and savings component to the policies.

Why Use Permanent Insurance?

Permanent insurance can provide liquidity and efficiency for an estate. This liquidity and efficiency together with the ability to equalize an estate, can help facilitate family harmony after the passing of a parent.

Where a corporation is the beneficiary of permanent insurance, the Return on Investment is in many cases greater using insurance than where you create your own investment or sinking fund; because the insurance proceeds are credited to the capital dividend account (see this prior blog post on the capital dividend account) and can typically be paid out tax-free (subject to certain tax rules discussed in the second podcast).

Uses of Permanent Insurance?

The following are some potential uses of permanent insurance:

1. Estate planning – On death (typically upon the last spouse to pass-away), the value of your estate will be allocated in some combination to the CRA in taxes, your family or charity. Permanent insurance can be used to provide the liquidity for paying your estate tax liability, estate equalization with your family, charitable purposes or simply estate growth/maximization by leaving a larger estate to your family from the insurance pay-out.

2. Business or partnership agreements – Permanent insurance can be a very tax effective way to buy out a deceased partner or shareholder under the terms of a partnership or shareholder agreement, especially for corporate shareholders by utilizing the capital dividend account.

3. Legacy Assets – For HNW individuals, insuring the tax liability related to legacy assets such as residential or commercial real estate, cottages or a small business seems somewhat counter intuitive, as you would assume the estate can just sell those assets or others to pay the tax liability related to the legacy assets. However, on numerous occasions I have had parents express a desire to have their estate keep legacy assets after they pass away, for sentimental reasons or because they think the future appreciation will be significant. They therefore purchase permanent insurance to cover the legacy asset tax liability, to alleviate the income tax pressure on the estate.

4. Passive Income rules- Permanent insurance can shelter income tax-free within a policy, which effectively reduces taxable passive income for a corporation and therefore can potentially reduce the small business claw back for corporations.

5. Charitable – You can name a charity as beneficiary of a policy or make a bequest of the death benefit from a permanent policy to a charity of your choice and your estate will receive a charitable tax credit upon your death. You can also purchase or transfer a policy (this may result in a taxable deemed disposition, so speak to your accountant first) to a charity and you would receive a tax credit on the yearly premium payments.

This is my last blog post of 2022, so Merry Christmas and/or a Happy Holiday and a Happy New Year to you and your family.

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.

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

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

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

Financial concerns

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

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

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

Individuals

I have been asked two questions in particular by individuals:

1. Should I reduce my equity exposure to limit my stock losses?
2. I am near retirement - should I delay my plans?

Equity Exposure

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

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

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

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

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

Retirement Plans

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

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

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

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

Small Business Owners

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

Short-term concerns

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

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

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

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

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

Longer term concerns

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

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

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

Tax considerations for difficult and uncertain times

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

A final note on the personal side of coronavirus

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

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

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

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

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

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

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

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

The Results Are In From The Financial Survey!

Earlier this year, I wrote about a survey BDO Canada LLP was conducting to assess the impact of financial and wealth trends. Many of you took part in this study – thank you very much for your tremendous participation and input. Some of you received a free copy of my book Let’s Get Blunt About Your Financial Affairs for participating. I hope you enjoyed the book and found some useful financial tidbits.

The survey results are now in and they provide exactly the type of perspective I had hoped to glean. Almost 1000 Canadians contributed to provide a trove of valuable insights on how we deal with family, finances and retirement planning. Very interestingly, a significant number of the survey respondents were small business owners. As such, BDO decided to create two reports:

• one for small business owners, which was just released on November 21st titled "From Plan to Retirement: How Business Owners Manage Their Wealth, Lives and Legacies
• a second report, for non-business owners which will be released in early 2018.

The current report, which is very timely given the recent Liberal tax proposals for private business owners, focuses on the challenges they face in managing their wealth. If you are a business owner, I suggest you download the report which can be found here.

While this report centers on business owners, it delivers some great tips and strategies for all Canadians. Jonathan Townsend, the National Wealth Advisory Services leader for BDO Canada LLP provides a synopsis of the report in his guest post below. 

From Plan to Retirement: How Business Owners Manage Their Wealth, Lives and Legacies  By Jonathan Townsend

Business owners occupy a unique space in Canadian society. On the one hand, they share concerns with most hard-working Canadians who receive a paycheque from their employer. They strive to get ahead. They balance current-day spending with future financial needs. They worry about their family. Sometimes they worry about their health.

But business owners are also a tribe to themselves, lacking workplace standards like employer-sponsored pension plans and paid vacation allotments. The entrepreneurial tendencies that initially called them to business ownership only deepen when faced with the reality of “eating what they kill.” As their business moves through the business life cycle, their independent experience affects all aspects of their lives.

This is where this new report by BDO Canada excels: in contrasting business owners with non-business owners. Using survey results provided by almost 1000 Canadians of both groups, the report analyzes key points along the retirement/wealth management journey for business owners, from speed bumps to roadblocks to open roads under clear skies.

Among the key findings from our study:

• Preparedness - Business owners plan more for retirement than non-business owners but feel less on track

• Work in retirement - Almost one-third of business owners plan to work part-time after retirement — compared to 12 percent of the general population

• On succession - More than one in three business owners in our study plans to retire in the next five years. Without the right succession planning, these businesses are at risk of adversely affecting the owners, their families, employees and the wider Canadian economy

• On family - Financial support for children was more common among the business owners we surveyed than among non-business owners

These results — and strategies highlighted in the report — provide takeaways to fold into your own successful planning. I invite you to download the report here.

Jonathan Townsend is the National Wealth Advisory Leader at BDO Canada LLP. If you have any questions, please contact him at 519-432-5534 or jtownsend@bdo.ca

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 material is time sensitive and subject to changes in legislation or law.

The Trials and Tribulations of an Infant Business

A few weeks ago, you may have read my blog post on the new Ontario Retirement Pension Plan. The post discussed who would be considered an employee (required to join the plan) vs self-employed (excluded from the plan). One of my readers, we will call him Joe Business commented as follows:

"I'm not sure what makes me angrier. That I'm forced to incorporate to get contract jobs with Canadian banks (otherwise I'm not considered) or:

• that I've been over-saving since I was 19 years old and will have more than enough saved for retirement when I turn 62

• that I'm losing $3,420 to the government for a program I do not want or need

• that my self-employed one-employee corporation is not exempted (though others are), clearly pushing me to pay myself dividends only (which puts me at risk of being labelled a PSB which I'd rather avoid).

I will refrain from submitting any comments until I can do so politely."

Joe voiced many of the various frustrations small business owners’ face, so I half-jokingly suggested to him; "maybe you can write me a guest blog on the travails of a one person corporation; you are off to a good start :)".

Surprisingly, Joe took me up on this offer and below he writes about the trials and tribulations of an infant business. As someone who deals with small business owners on a day to day basis, I found his post candid and representative of what I often hear.

I hope you enjoy his post. However, first the obligatory caveat. Joe's views are his own and not necessarily representative of mine nor any firm I am affiliated with.

The Trials and Tribulations of an Infant Business 

by Joe Business

I believe every corporation’s birth story deserves to be told. Every company started as someone’s baby with the most honourable goal of creating something pure, something new, or possibly to avoid taxes/personal liability. So when Mark suggested I write a few words on my baby’s first steps, it was a father’s dream.

It all started with a Kickstarter campaign in February 2014. I had the optimistic goal of getting free money from strangers to create an innovative product. As any Kickstarter funds I received would be included as income at my highest personal tax rate, I decided to incorporate to access the small business deduction. Thirty minutes and $200 later, the corporate entity was born.

For the Kickstarter campaign, I needed a corporate (non-personal) chequing account to receive all those oodles of money these strangers were going to send me. I wanted to find the cheapest corporate account I could find, as I did not expect to have that many transactions, save the sweet glorious cash Kickstarter would deposit into the account (less the 15.5% in small business taxes). Despite some hesitancy, RBC account managers confirmed they offered a free eBusiness account though that was clearly not their preferred option. By the way, going with one of the big 5 banks makes it much easier to pay the CRA later on (though I didn't know this yet).

Within minutes my Kickstarter campaign had begun! And then it ended. Prematurely; because I was embarrassed no one but my wife had pledged after a month. You might even say it was a dismal failure.

Months later I still owned this worthless corporate legal entity, but as it happened, a recruiter found me on LinkedIn and offered me a contract position as a consultant. There was a clear preference to deal with a corporation rather than a sole proprietor and all invoicing had to go through a third party. Rather than pay a lawyer, I read the forty pages of legalese and determined it was mostly written to shield the client from any and all liability. I decided then that if I was going to go down this path, I had to believe the client found value in my services.

My wife wasn't happy with this new arrangement since I was giving up a perfectly adequate full time position. But with all my coworkers getting laid off, it did seem like an optimal time to jump ship. And so my foray into self-employment had begun!

I hired an accountant right away based on a localized Google search. I picked the second one I found because he had fewer online reviews than the first and I assumed I’d get more focused attention with him. This sounds unwise in hindsight. Despite my lack of due diligence, he easily saved me several headaches and avoided a 30% kiddie tax on dividends in our first meeting, so I guess I got lucky.

My new job started and to date has worked out. That part was easy.

But recently, the CRA has been auditing IT contractors calling them “Personal Service Businesses ("PSB")” or basically, incorporated employees. As I understand, where the CRA reassesses your business as a PSB, you are essentially allowed no deductions other than salary and as result, your ultimate tax rate can approach 59%.

I know of a family friend who fought and ultimately won against the CRA in a similar disagreement; but it had dragged out for almost 10 years in delays and appeals. Even winning can result in a severely weakened company.

I met other contractors in a similar boat but found that their accountants had never even mentioned the problems with the PSB designation.

At least three contractors only paid themselves dividends and no salary at all! Another contractor who knew of the PSB designation chose to pay himself only a salary and a large bonus if he hits his "sales" target. His repeated phrase to me was “it’s going to be really expensive when those guys get caught.”

I recently added a simple Health Spending Account (HSA) to my corporation, but even this came with headaches. The first HSA suggested by another contractor used their services and showed me an email where the administrator indicated that any money added to his HSA would never expire.

This appears to contravene the CRA who specifies some risk must be incurred to be a taxable benefit (I actually had to look through CRA archives to find out about this distinction). In this case, you might as well just pay yourself extra salary to cover the health benefits - regardless of whether it’s a valid health expense or not. Later the administrator corrected herself and said they do expire after 2 years. But by then I had gone with someone else.

The HSA I went with does something strange - any health benefits you submit must then be paid for directly by your company (plus a premium charge) and then it’s paid to your personal account (tax free). This also looks like it contravenes the CRA’s rules, except the HSA also includes a high deductible health care over $10,000 dollars. I’m not an expert but I guess this is the “risk of loss” that the health spending account requires to qualify for the CRA’s rules.

Recently, the Ontario government has introduced a new Ontario Retirement Pension Plan (ORPP) because the government does not feel the middle class can save enough on their own for retirement. This plan will guarantee retirement for the middle class at a cost of $1,720 for the employee each year, and another $1,720 you must match as an employer. For self-employed incorporated employees this will result in a $3,420 added tax on top of the $4,900 in CPP they already pay each year. Unlike other savings vehicles, the money is not accessible when the small business might need it and can't be used as loan collateral. I have no wish or need for this retirement plan. I've always saved greater than 15% of my salary since I was 19 and I have a pretty good idea what my expenses are. I've begged my MPP to allow people like me to opt out (or be exempt). At least he'll think twice before riding the Go Train again.

As I understand, I can simply pay myself dividends instead of salary to avoid this new ORPP - but that introduces a substantial risk of a 59% tax on that whole PSB label above. I'd also be forced to avoid the CPP as well.

My corporation turned one year old on February 6th. And like the little human infants who take their first steps, there are a few falls along the way. Hopefully it will grow and mature and become self-sustaining, old enough one day to leave the nest and be out on its own.

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.

Corporate Small Business Owners: Beware; the Capital Gains Exemption is not a Gimme

One of the biggest misconceptions small business owners have is that they have automatic access to the $800,000 capital gains exemption (“CGE”) upon the sale of the shares of their corporations (Note: beginning in 2015, the $800,000 will be indexed for inflation). Nothing can be further from the truth. There are three complex tests that must be met in order to qualify for the exemption and something as innocuous as imposing a holding company (with significant cash and investment assets) between you and your operating company may disqualify the shares.

Warning!!! Before I move forward, please note that I am “dumbing down this post”. You may think it complex, but I am leaving out significant issues, definitions and details to make it somewhat readable. Do not rely upon this blog for your capital gains planning, use it only to gain an understanding of the issues and please contact your tax advisor before undertaking any planning discussed in this post. In fact, to emphasize the complexity of this issue and how intricate and fact related the planning is, I will not answer questions and respond to comments on this post. Sorry about that.

The Capital Gains Exemption

In order to access the CGE, the shares you sell must meet the definition of a "qualified small business corporation share” (“QSBC shares”). Sounds simple, but this provision and the related provisions often prove to be a tax quagmire for many practitioners.

The shares must meet three tests to be considered QSBC shares and become eligible for the CGE.

Small Business Corporation Test

At the time you sell your shares, they must be shares of a Small Business Corporation (“SBC”). A SBC, amongst other criteria, must be a Canadian-controlled private corporation whereby all or substantially all (meaning 90% or greater) of the fair market value (“FMV”) of the assets of which at that time is attributable to assets that are used principally in an active business carried on primarily in Canada.

In plain English: at the time of the sale, the company must be using a minimum of 90% of its assets in carrying on an active business in Canada. In other words, if you have more than 10% of the FMV of your corporation in passive assets such as cash, stocks, rental real estate, you may be offside the rule.

It is important to note that the Goodwill (which is often the largest asset) of a business will count as an asset used in an active business. However, generally cash, portfolio investments and intercompany loans will not qualify as active assets.

Holding Period Ownership Test

This test requires that the shares cannot have been owned by anyone other than the individual or a person or partnership related to the individual, throughout the 24 months immediately preceding the disposition time. The two year test is very confusing. It is a rule that at its core is intended to prevent anyone not related to you from holding the shares within the last two years. However, on one hand the 24 month rule provides for exceptions such as if you transfer a proprietorship or partnership to a corporation, yet if you incorporate a new company and hold the shares less than 24 months, you will be disqualified.

In plain English: in most cases you will be required to have held the shares two years prior to the sale.

Holding Period Asset Test

If you thought the above rules were complicated, this test makes the other rules seem simple.

This test requires that throughout the 24 months immediately preceding the sale, more than 50% of the FMV of the corporation's assets must have been attributable to assets used in an active business. For this purpose, assets considered to be used in an active business consist of:

1) Assets used principally in an active business carried on primarily in Canada by the corporation or a related corporation;

2) Certain shares or debt of connected corporations; and

3) A combination of active business assets or certain shares or debt of connected corporations

In plain English: at least 50% of the company’s assets must have been used in an active business throughout the two-year period prior to sale.

Where you have a holding company ("Holdco") or stacked companies (Holdcos owning Holdcos) ultimately owning the shares of an operating company, the threshold percentage for meeting the Holding Period Asset Test may become 90% instead of 50%. These rules are far too complicated to discuss, suffice to say, if you have a chain of companies, at least one of the companies in the chain must meet the 90% threshold percentage over the two-year period.

As you can see, the CGE is no gimme. You need to ensure you hold the shares 24 months, at the time of sale 90% of the assets are used in an active business and over the prior 24 months, 50% (in some case 90%) of the FMV of the assets were used in an active business.

Traps and Obstacles

Holding Companies

Many small business owners utilize a Holdco for creditor proofing, which is often recommended. However, over years the Holdco may end up owning substantial investment assets. These assets may be problematic for the following reasons:

1. Since Holdco owns your operating company ("Opco"), you have to sell your holding company shares to a buyer to qualify for the CGE and if you have substantial assets, you need to remove them prior to a sale. This may trigger a substantial tax liability and/or cause the shares to fall offside the QSBC rules.

2. Many people use their Holdco to hold the shares of other corporations. This is very problematic when you want to sell your shares of Company A, but your Holdco not only owns Company A, but also owns shares of Company B and Company C. How do you get the shares of Company B and C out of your Holdco prior to the sale? The answer is - not easily.

As I have written in prior blogs, I often suggest rather than automatically interposing a Holdco between you and your Opco, you may wish to consider using a family trust with a corporate beneficiary (a Holdco typically owned by you). Thus, instead of the cash being plugged up in your Holdco and potentially putting you offside the QSBC rules, your Opco pays a dividend of the excess cash to your family trust which in turn allocates a tax-free dividend (in most cases) to the holding company beneficiary of the family trust.

This is a very subtle point, but now instead of having the dual problem of your Holdco company potentially having too many investment assets and/or you needing to sell your Holdco shares to access the capital gains exemption, you can now just sell the Opco shares, as the operating company is owned by the trust. The Holdco company even if it has accumulated substantial assets, is not part of the three CGE tests as it has no direct interest in the company being sold.

Safe Income

I have no desire to get into this complicated issue. However, where a Holdco or Opco has other assets such as excess cash, shares in other corporations or real estate that a purchaser does not require, it is often necessary to transfer these assets out of Opco or Holdco (known as purification). This is often done by cross share redemptions that result in dividends. All you need to know for purposes of this post is that if an operating company pays a dividend to another corporation in contemplation of a sale and the dividend exceeds the recipient’s proportionate share of safe income (in very simple terms, retained earnings of the dividend payer) the excess portion becomes a taxable capital gain. This can be very problematic when you are trying to purify your corporation of excess assets prior to the sale to qualify for the CGE and you definitely require your tax advisor's assistance.

Cumulative Net Investment Loss

The Cumulative Net Investment Loss (“CNIL”) account tracks an individual’s net historical investment income. Essentially it is the sum of your investment income, such as interest and dividends, less investment expenses such as interest expense, carrying charges, losses from limited partnerships and resource deductions from flow-through shares. If the cumulative balance is negative, this balance restricts access to the CGE. The negative balance can in many circumstances be eliminated by having your company pay you a dividend prior to any sale, subject to the safe income rules noted above.

Allowable Business Investment Losses

An Allowable Business Investment Loss (“ABIL”) typically results from capital losses on shares and debt in private Canadian corporations. If an individual has realized an ABIL in a prior year, it will reduce his or her CGE available to claim. Thus, you need to confirm if you have ever made such a claim prior to utilizing your CGE.

Insufficient Dividends

This issue is way beyond the scope of this article, however, where it is reasonable to conclude that a significant portion of the gain is attributable to the fact that a minimum amount of dividends has not been paid annually on any class of shares in the corporation, other than classes of "prescribed shares”, the CGE can also be restricted. Ask your accountant if this is an issue for you.

Planning

Prudent planning would suggest that you and your advisor consider these rules far in advance of any potential sale, so you can monitor whether your corporation is onside the rules. Where the corporation falls offside you can “purify” the corporation of any offending assets. Purification should be ongoing, because if you have to purify at the last minute, there is a good chance you will not meet the various criteria to qualify for the exemption.

If you are still with me, I am sure you will agree that you should never assume your corporation’s shares will qualify for the CGE. The morass of rules requires you and your advisors to carefully navigate the rules to ensure your shares will qualify when you decide to sell your corporation.

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.