In the news | Espace | Vincent De Angelis and Sarah Benammar | The new passive income tax regime and its impact on real estate investments: Simplicity and certainty at last

By: Sarah Benammar & Vincent De Angelis

Original, as it appears on Espace Montréal magazine – Vol. 27

Income tax is a cost of doing business and that cost carries over into the business of real estate ownership and operations. In July 2017, in the depths of the summer, the Federal Department of Finance (“Finance”) announced drastic changes that would have changed that cost of doing business for those owning shares of a Canadian controlled private corporation (“CCPC”). When ultimately distributed to the individual shareholder in the form of a dividend, investment income earned on the retained earnings generated from an active business would have cost the shareholder an ultimate income tax rate equal to 73% of the investment income. These proposed changes to the “passive income” rules were very complex and would have had the potential to shift the after-tax return for CCPCs while leaving the tax burden of public corporations, foreign corporations and tax-exempt entities unaffected.

As a matter of background, Finance wanted to address the alleged tax loophole benefit of using a CCPC for retaining income to simply build investment portfolios not used in the business. To illustrate this benefit, let’s assume that Ms. Shareholder owns all the shares of a CCPC. That CCPC employs a large group to manage real estate property and earns $100 of what the tax law perceives as active income. The earnings for the corporation would be subject to a combined federal and Quebec income tax rate of 26.7% (assuming the small business deduction is not applicable in this instance). If in place of the CCPC, the same individual hired employees herself, the $100 of active income she would earn would be subject to a combined federal and Quebec personal top marginal rate of 53.53%. This difference in tax rates provides the corporation with approximately $26.83 of tax deferral than that earned by the individual.

Finance was concerned that notwithstanding protective provisions in the law to safe guard against this tax deferral, professionals and other groups were using corporations exclusively for the purposes of gaining this benefit. This platform of concern for politically correct fairness and equity however did not address the fact that the after-tax profits of a corporation distributed to the individual are subject to a second layer of tax when the individual is paid a dividend from the company. As such, when Ms. Shareholder ultimately receives a dividend from the CCPC of its retained earnings, she will have paid a combined corporate and personal tax of approximately 56%, which is about 3 points higher than the top marginal rate applicable to individuals. The objective of the second layer of tax is to achieve what historically was called the principle of integration.

Despite the anger expressed by the tax community and business owners across the country, the government reiterated in October 2017 its intention to move forward with the proposed passive income rules and promised that further details will be revealed as part of the 2018 budget. February 27, 2018 was the date that the so anticipated federal budget was released and to the surprise of tax practitioners and private business owners, the government completely abandoned its July 2017 passive income proposals. The 2018 budget instead proposes to further restrict the access to the small business deduction (which will not be discussed here) and to refine the refundable taxes regime applying to CCPCs. The proposed new refundable taxes regime is less complex and less costly than the framework suggested by the July 2017 proposals, however, Finance proposes to limit another type of tax deferral allowed prior to the budget as discussed in more details below.

Passive income, interest, taxable capital gains and certain rents as examples, earned by a CCPC is subject to a high corporate income tax rate of approximately 50%, a portion of which is accumulated in a notional account called the Refundable Dividend Tax On Hand (“RDTOH”). The RDTOH account is a mechanism that is used to simulate for the corporation the highest individual tax rate. In effect, the company “pre-pays” taxes to the federal government and is credited an amount in this pool. The CCPC is therefore entitled to a refund of its RDTOH of $38.33 for every $100 of dividend it pays to its shareholder, regardless of whether the dividend is sourced from the income it has generated from its active business or from its passive income. The refund is triggered at the time the dividend is paid since at this point the shareholder herself will now pay income taxes on that dividend earned. The RDTOH account is therefore used to achieve the integration at the corporate level by taxing passive investment income at roughly the top personal tax rate while it’s retained within the corporation.

Where a CCPC has a RDTOH balance, since it has earned passive income, yet has also earned income that is active not subject to the small business deduction, there is an opportunity to benefit from additional deferral. The income that was taxed at the active tax rate of 26.7% would be eligible to be paid to the shareholder as an eligible dividend (“Eligible Dividend”). When an Eligible Dividend is paid that generates a tax refund from the RDTOH pool of the company, there is a 4% tax savings than if the dividend was not an Eligible Dividend. Profits from passive income do not need to be paid as a dividend that is not an Eligible Dividend to the shareholder for the corporation to recover its RDTOH pool. There is currently no ordering rule or tracking system forcing corporations to declare and pay a dividend that is not an Eligible Dividend taxed at a higher rate in the individual’s hands in order for it to recover its RDTOH.

With the objective of circumventing this 4% tax deferral, the 2018 federal budget proposes, with certain exceptions, to limit the access to the RDTOH pool in circumstances where the dividend paid by the corporation is a dividend that is an Eligible Dividend. The idea here is to align the refundable tax paid on passive income with the payment of dividends sourced from that passive income. The new measures apply for taxation years starting after 2018 and will require the tracking of two RDTOH pools for CCPCs.

How will this new framework for refundable taxes impact the real estate environment? Well, given that refundable taxes apply in respect of CCPCs only, this new regime will not affect the foreign pension funds, public corporations or tax-exempt entities investing in real estate in Canada. The new regime will also not impact CCPCs that retain their profits within the corporation instead of distributing them to their individuals nor will it impact CCPCs that earn pure active business income or pure passive investment income. Instead, these measures will affect CCPCs accumulating profits from both active business income and passive income and paying these profits out to their individual shareholders.
Take for example a situation where a CCPC earns rental income from its real estate properties which for this example qualifies as passive investment income and provides, at the same time, property management services that are characterized as active income. Under the current regime, a portion of the high corporate income tax paid by the corporation of 50% on its rental operations is accumulated in its RDTOH and will be refunded by the government only upon the payment of a dividend by the corporation to its individual shareholder. Given that an Eligible Dividend paid out of the property management services are taxed at a lower rate than would be a dividend paid out of the rental income, being a dividend that is not an Eligible Dividend, the company would decide to pay the Eligible Dividend and recover the RDTOH generated from its passive income. The profits generated from the rental operations could be paid to the shareholder the following year or two for example as a dividend that is not an Eligible Dividend, thus providing for a deferral of that additional 4% personal income tax.

Now, under the regime proposed by the 2018 federal budget, the same corporation would not be eligible for a refund of its RDTOH upon the payment of the Eligible Dividend. Instead, the corporation will obtain its RDTOH back only if the dividend paid is a dividend other than an Eligible Dividend. This will therefore eliminate the deferral of the additional 4% income tax.

The same analysis would apply to a situation where a CCPC carrying on a real estate property realizes a capital gain upon the sale of one of its rental properties. The RDTOH generated from the capital gain, would now be refunded to the corporation only upon the payment of a dividend that is not an Eligible Dividend sourced from the passive income. As a result, the additional 4% personal income tax cannot be postponed at the individual level while having at the same time the corporation benefit from the RDTOH refund.
The 2018 federal budget includes grandfathering rules for corporations that will have both accumulated RDTOH and profits sourced from active income upon the entry in force of the new measures. Tax planning is available to optimize the grandfathering rules where the RDTOH and the accumulated active income exist in separate corporations.