T'IS THE (TAX PLANNING) SEASON

Just as the days and weeks seem to have flown by since the lockdowns started in March 2020, another tax year has flown by as well, and it is time to consider some year-end tax planning.

The good news is that the Government has not yet raised the inclusion rate in respect of capital gains. Currently, only 50% of a capital gain is taxable. There has been much speculation that this would increase to 75%, a rate that we have not seen since February 2000. But it is a very real possibility in the new year and may affect some of your year-end planning.

The usual planning steps still need to be considered and are set out in my Newsletter of November 18th, 2020:

• Selling assets with accrued losses to trigger the deduction in the current year. Note that for 2021, publicly traded securities must be sold before December 29th to be effective this year. The Settlement Date is supposed to be 2 days after the trade. Those who are more cautious might consider completing any necessary trades on or before December 29th.
  

• Accelerate the recognition of deductible expenses
  

• Postpone the receipt of taxable income
  

• If your tax rate will be higher next year, the usual acceleration of expenses and postponement of income might not be efficient – get professional advice
  

• Make charitable donations before the end of the year to get the charitable tax credit in 2021
  

• Given the uncertainty of businesses in this Pandemic perhaps thought should be given to an estate freeze. Many businesses are now worth less than before Covid. Although this is beyond the scope of this Newsletter, I would suggest that you look at my Newsletter Estate Freezing in Trying Times
  

• Remember that if the capital gains inclusion rate increases next year, so does the amount included for capital losses. Usually, it is good to sell losers before year-end to get the deduction, but if the loss will be worth more next year, everyone needs to assess their own situation.

Gifts to Employees

As we approach Christmas, it is important to note the Canada Revenue Agency (CRA) administrative policy regarding non-cash gifts to employees. Years ago, the CRA policy was that one non-cash gift per year could be given to an employee on a non-taxable basis, as long as the gift had a value of less than $100.00 and the employer could not deduct the value of the gift. This changed effective 2001.

Employers can give their employees up to two non-cash gifts per year, on a tax-free basis, for special occasions such as Christmas, Hanukkah, birthdays, and marriages. As long as the total cost of the gifts to the employer, including taxes, is not more than $500 per year, the employer can deduct the cost of the gifts, even though the employee is not taxable on the value of the gift.

This does not apply to cash or near-cash gifts and awards. The value of such gifts and awards will be considered a taxable employment benefit. Near-cash gifts and awards may include such things as gift certificates, gift cards, or any items that can easily be converted to cash.

The gift could, however, be in the form of additional technology or office equipment. BUT it is important, for this purpose, that the employer purchase the item and then make a gift to the employee, and not give the employee cash or near cash amounts to pay for the expenditure.

Unlike a work-from-home reimbursement, where the cost of the gift or gifts exceeds $500, the total fair market value of the gift(s) will be included in the employee's income. There is no exemption for the first $500. If the cost of the gift exceeds the $500 limit, the gifts are deemed to form part of the employee's remuneration package.

For employers who want to give employees gifts at this time of year, as opposed to cash bonuses, the benefit of being able to deduct the value of the gifts while allowing the employees to receive the gifts tax-free can be significant.

Income Splitting with Low Prescribed Rate Loans

This isn’t really a year-end issue but is an important consideration in one’s overall planning. I have written about this many times, most recently in January, 2020.

At that time, the prescribed rate was 2% and then dropped to 1%, making it even more attractive. My Newsletter Low-Interest Loans to Family Members was written with a 1% prescribed rate in effect.

There is a reasonable chance that the rate will increase in the second quarter of 2022, so be prepared, and consider making loans now or in the first quarter of 2022.

Aside from the need to have the proper paperwork to document the loan, in order to avoid the attribution of income on the loaned funds and any property purchased with the loaned funds, the interest has to be payable, and actually be paid, no later than 30 days after the end of the taxation year. No matter how insignificant, this interest must be paid by January 30th, not January 31st.

Not only should paperwork be kept to show the payment, but the lender should be including the interest received in his or her tax return for the year of receipt of the interest. A lot of good, and expensive, tax planning could go out the window because the interest was paid 1 day too late, or because the lender neglected to include the interest payment in his or her income.

Once the loan is in place, the prescribed rate at the time of the loan will continue to be applicable to the outstanding balance of the loan, even if the prescribed rate increases in the future.

Bill C-208; Intergenerational transfers

A Private Members Bill, Bill C-208, was introduced to reduce the tax cost of transferring one’s business to one’s children. I have written about this in June, 2021 and again in July.

For those who are contemplating a transfer of the business to the next generation, the time to do it is now. Although even Trudeau and Freeland wouldn’t have the fortitude to repeal these provisions, they will no doubt tighten them up. It is easier to do the transfer before the rules get tightened.

Retained Earnings Strip

Many taxpayers are engaging in a transaction to allow them to extract retained earnings from their corporations at capital gains rates. There are debates among professionals as to whether there is any risk that CRA will seek to attack such transactions, even though they don’t break any of the rules, as opposed, perhaps, to the spirit, of the Income Tax Act.

Currently, in Ontario, the combined top tax rates are as follows:

This makes the extraction at capital gains rates particularly attractive, now that

there has been no increase in the capital gains inclusion rate.

These transactions are particularly helpful for taxpayers who owe large amounts to their corporations and would otherwise have to write a cheque to repay the amount due from shareholders.

Although such transactions did not arise as a result of Bill C-208, we can expect new anti-avoidance rules to stop these transactions by the time of the next Budget.

If you are inclined to look at a strip of Retained Earnings, the time to do it is now.

As always, I would be pleased to work with your advisors on any of these issues.

I hope everyone has a safe holiday season.

- Chuck