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Enhanced Lifetime Capital Gains Exemption - Small Business Corporate Shares

Although the $100,000 lifetime capital gains exemption that applied to all capital property was eliminated in 1994, the enhanced exemption for qualifying shares of small business corporations still exists. this exemption is only available if the shares of a corporation meet the very specific and detailed definition of "qualified small business corporation share" ("QSBC share") in the Income Tax Act. The definition must be met at the time the share is disposed of, either through a transfer during lifetime or on death. This exemption can shelter lifetime gains on the disposition of qualified small business corporation shares up to a maximum of $850,000 in 2018.

I. Definition of a QSBC Share

Without going into all of the technical requirements of the definition, essentially the tests that must be met relate to:

1. The percentage of the fair market value of the corporation's assets that are used to carry on an active business in Canada at various times during the 24 months preceding the disposition of the shares.

2. The shares must have been held by the individual or by non-arm's length parties for the 24 month period preceding disposition of the shares.

3. Special rules apply where multi-tiered corporations exist. Expert tax advice is warranted if this exemption will be relied upon.

II. Crystallizing the Enhanced Lifetime Capital Gains Exemption.

(i) Advantages of Crystallization

If the full 850,000 (to be indexed for inflation in years subsequent to 2014) exemption is claimed, the potential tax savings, assuming an effective tax rate of 24.77% applies to a capital gain, can be as much as $210,545. By staging a disposition of capital property and triggering a gain which is sheltered by the exemption, one can increase the adjusted cost of the capital property. On a subsequent disposition, either through an actual sale or as a result of a deemed disposition on death, the gain will be minimized and the tax savings will be achieved.

Since the requirements for eligibility for the exemption are quite technical and often difficult to meet, if one waits until shares are actually sold, there may not be enough time to take the steps necessary to meet the requirements. This is certainly the case when the shares are disposed of on death. It is often necessary to "purify" the corporation prior to crystallization. One of the tests that must be met to qualify for the exemption is that 90% of the fair market value of the corporation's assets must be used to carry on the active business in Canada at the time the shares are disposed of and the exemption is claimed. Purification involves removing assets which are not used to carry on the active business and transferring them elsewhere. if purification is necessary, it needs to be done in a planned and orderly fashion and must b done prior to the disposition of the shares. Therefore, on death, purification is not possible to ensure the capital gain triggered by death is eligible for the exemption.

There is also the concern about whether the exemption will be repealed. If it is not used now, the opportunity to use it may be lost. There are various pitfalls which need to be avoided. A carefully planned transaction presents the opportunity to avoid them or at least minimize them. If one waits until a real sale takes place, the opportunity for advance planning is lost.

(ii) Mechanics of Crystallization

To crystallize a capital gain, there must be a disposition of QSBC shares by an individual. The shares may be transferred either to a family or an inter vivos trust or to a holding company. It is also possible to trigger a disposition be reorganizing the share capital and exchanging some or all of the shares for other shares with different characteristics.

(iii) Transfers to a Spouse

A transfer to a spouse will automatically take place on a rollover basis. Therefore, it is necessary to elect to trigger the gain. If one wants to take advantage of the transferee spouse's exemption, it is essential to structure the transfer to that attribution will not apply on a disposition by the transferee spouse. This will involve payment by the transferee spouse of consideration equal to fair market value. If debt is taken back on the sale, interest must be charged at a rate not less than the lesser of (1) the prescribed rate set by Canada Customs and Revenue Agency that was in effect at the time the debt was incurred; or (2) the commercial rate that would have applied at the time the debt was incurred and the interest is paid within 30 days after the end of each year that the debt remains unpaid.

(iv) Transfer to Family Members

Transfers among family members raise valuation issues because non-arm's length transfers are deemed to take place at fair market value. Unless the transfer is a gift, the transferee's adjusted cost base will be the price actually paid, while the transferor will be taxed on proceeds equal to fair market value. This raises the potential for double tax. The attribution rules must be considered where there is a transfer to a family member and debt is taken back as part of the consideration. The same rules apply as are described above with respect to a transfer to a spouse which involves debt as part of the consideration. A transfer to a family member will also raise the issue of loss of control.

(v) Transfer to a Holding Company

If the accrued gain on the shares exceeds the value of the exemption which can be claimed, or if the value of the shares cannot be ascertained with certainty so that the accrued gain may also be greater than anticipated, it is best arrange a transfer of the QSBC shares to a holding company. On a transfer of capital property to a taxable Canadian corporation it is possible to file an election to limit the amount of the gain triggered. The balance of the gain can be deferred. There are several anti-avoidance provisions that can apply on a transfer to a corporation, which is applicable can trigger undesirable tax consequences. Expert tax advice is essential to structure the transaction effectively.

III. Pitfalls to be Avoided When Crystallizing the Exemption

(a) Clawback of Old Age Security Payments

When Capital Gains are triggered by a crystallization transaction, the gains, although sheltered from tax by the capital gains exemption, will increase the net income of the taxpayer. Entitlement to old age security is based on net income, as are other benefits and tax credits such as the age credit, the pension credit, and the spousal amount. The taxpayer must consider the impact of triggering the capital the capital gains on these benefits and tax credits before implementing a crystallization transaction.

(b) Alternative Minimum Tax ("AMT")

Where the capital gains exemption has been claimed there is an add-back for AMT purposes. The impact can be reduced or eliminated by staging the crystallization over a period of years so that AMT is kept at a level below regular tax. Alternatively, debt can be taken back as consideration (keeping in mind the attribution rules discussed above) and the capital gains reserve can be claimed for a period of up to five years to spread the gain over a period of years to minimize the impact of AMT.

(c) Allowable Business Investment Losses ("ABILs")

Losses in respect of an investment in shares or debt of a small business corporation receive special treatment. They can be claimed against other income in the year incurred rather than being restricted to offsetting other capital losses. However, if a taxpayer has claimed ABILs in previous years, they will reduce the amount of capital gains exemptions that can be claimed.

(d) Cumulative Net Investment Losses

The cumulative net investment losses of a taxpayer are running account of investment losses against income from investment since 1988. If losses exceed income from investment, the net losses will reduce the amount of capital gains eligible for the exemption.

(e) Legal and Accounting Costs

The legal and accounting costs involved in purification and crystallization can be significant. One would only incur them if the tax savings warranted the cost involved. If the taxpayer has no plans of selling the shares in the foreseeable future, a crystallization may not generate any tax saving until many years down the road, and perhaps not at all. Taxpayer must weigh the cost against the likelihood that the tax savings will be realized. Expert advice must be obtained to implement a crystallization so that the many pitfalls can be avoided.