Bill C-208 (Historical)

An Act to amend the Income Tax Act (transfer of small business or family farm or fishing corporation)

This enactment amends the Income Tax Act in order to provide that, in the case of qualified small business corporation shares and shares of the capital stock of a family farm or fishing corporation, siblings are deemed not to be dealing at arm’s length and to be related, and that, under certain conditions, the transfer of those shares by a taxpayer to the taxpayer’s child or grandchild who is 18 years of age or older is to be excluded from the anti-avoidance rule of section 84.‍1.

[Dustin Mansfield]

Bill C-208 would work to level the playing field in that situation.

[Tamara Jansen, Conservative, Cloverdale—Langley City, BC]

Bill C-208 would just level the playing field, is what you're saying.

[Dustin Mansfield]

I think the provisions that are in place are there for anti-avoidance reasons. Obviously, there are many ways in many sections of the act in which anti-avoidance reasons exist. The section 55 one is an interesting one. Bill C-208 tries to tie it to the status of the shares themselves, which creates a protection from that level, which is positive.

You are exactly right. It creates an awkwardness when you're unrelated for these purposes but related for those purposes, so it just becomes very confusing in an already confusing situation.

[The Chair, Liberal, Wayne Easter]

Basically, you're suggesting Bill C-208 go as is and that Finance, as soon as possible, amend 84.1 to deal with the concerns you have.

[Kevin Wark, Tax Advisor, Conference for Advanced Life Underwriting]

We struck a committee in 2016 because of our members' concerns with section 84.1. We recognized at the time that 84.1 was an anti-avoidance rule. It's there for a specific purpose. If Finance was going to consider an amendment to that, to allow an exception for family business transfers, our members still needed to be confident that the underlying purpose of 84.1 would be protected.

Fundamentally, we think there needs to be a change to 84.1, but we also think there's a need for some “guardrails” by this committee, or some limitations put in place. Our submission is based on the work that was done three or four years ago, making recommendations to Finance on how they could allow the exception but eliminate any potentially abusive planning transactions that otherwise should be caught by 84.1.

Bill C-208 has some of those guardrails already incorporated. We are supporting Bill C-208 as is, recognizing that Finance may still have some concerns with whether there are enough guardrails or not, and we assume they could, at some point in time, if they feel it's appropriate, amend the provisions to implement those additional guardrails.

We're very concerned that if Bill C-208 doesn't proceed, we'll be back here three years from now still debating this. We would like to see this provision go through. If it can be easily amended before it gets through, that's fine, but otherwise we think Finance always has the prerogative to amend legislation once it's in place to correct any problems that it perceives exist.

[The Chair, Liberal, Wayne Easter]

Thank you very much to you both.

The question lineup will start with Mrs. Jansen, then Ms. Dzerowicz, Mr. Ste-Marie and Mr. Julian.

Before you start, Mrs. Jansen, I'll take the chairman's prerogative for a moment.

Mr. Janzen and Ms. David, you talked about section 84.1 of the act. We're working at a bit of a disadvantage here, Ms. David, in that because the submission isn't translated, we haven't seen it yet.

You said there needs to be an amendment. Are you suggesting there needs to be an amendment to Bill C-208, or is the amendment that's in Bill C-208 enough to cover your concern?

[Robyn Young, President-Elect, Insurance Brokers Association of Canada]

Thank you, Peter.

Thank you to the committee members for the invitation to speak today.

I am here to speak in support of Bill C-208 because of my experience purchasing the family business from my parents.

When my parents decided to sell their business, they received an offer from a large direct writer. They ultimately chose to sell the business to me and my brother, because it was important to them to keep the business they had built within the family. They also wanted to ensure that their clients would continue to receive the same expert advice and personal touch they had come to expect.

Family-run brokerages are the pillars of the community and the lifeblood of the economy. They serve and support their communities in good times and bad by creating employment and donating time, money and other resources.

Many third parties purchasing family businesses are large companies with no connection to the community. Rather than supporting local organizations and sports programs, they tend to sponsor professional teams and events.

I sit on the board of a local children's charity, and our brokerage actively supports and volunteers for numerous community-based charities and children's sports teams.

Bill C-208 will not only support the family succession of brokerage firms and ensure stability for customers, but also help to maintain the social and economic contributions the insurance brokers provide to their communities.

In closing, this is an issue of equity and fairness. Business owners should not be penalized for selling their business to a family member. Tax implications should never be a consideration when making the decision to sell a business to a family member.

We should make every effort to support and encourage the intergenerational transfer of these businesses.

Thank you for your time.

[Peter Braid, Chief Executive Officer, Insurance Brokers Association of Canada]

That's excellent.

Thank you, Mr. Chair.

Please let me begin by thanking all committee members for their service to their constituents and communities during this past challenging year.

I am Peter Braid, CEO of the Insurance Brokers Association of Canada, also known as IBAC. Joining me today is IBAC's president-elect, Robyn Young. Robyn is also the president and CEO of Excel & Y, based in Calgary.

We are here today to provide our support for Bill C-208 on behalf of IBAC's 11 member associations and 38,000 insurance brokers.

Our member associations represent approximately 3,400 brokerage firms located in every riding across the country. Many committee members will know an insurance broker in their community, and have likely met with them during our annual Hill Day.

Insurance brokers work for their clients, not for insurance companies. They provide consumers with choice, advice and advocacy, while directly serving the best interests of their customers.

Insurance brokerages make an important contribution to the Canadian economy. Member brokerages are primarily small enterprises that employ between one and 15 people. They contribute $5.4 billion to the national GDP, and are responsible for over 58,000 full-time jobs. Many of these businesses are family owned and operated.

In provinces such as Ontario, Quebec and British Columbia, up to 25% of member brokerages are family owned. In smaller provinces and more rural parts of Canada, this number is much higher. In Nova Scotia and Newfoundland and Labrador, for example, the number of family-owned brokerages is 40% and 50% respectively. The changes proposed in Bill C-208 would have a direct benefit for brokerage owners who want to keep the business in the family.

I will now turn it over to Robyn. In addition to serving as IBAC's president-elect, Robyn has experience purchasing and running a family-owned brokerage and will be able to speak to the importance of the intergenerational transfer of businesses.

[Brian Janzen, Senior Tax Manager, Deloitte]

Thank you.

Section 84.1 has been a thorn in my side for 25 to 30 years. I was pleased when I saw the Liberal bill in 2015—which did not get passed—and I'm just ecstatic to see what's transpiring so far. There was a brief example given in the earlier session, but I want to quickly highlight what would happen in Manitoba with and without section 84.1 on a sale to your kids versus a sale to arm's-length parties.

Right now, if you have a $1-million business and you sell your shares—in a restaurant, let's say—to your neighbour, you will walk away with after-tax proceeds from a $1-million sale of about $971,000. That's only $29,000 of leakage.

If you turn around and.... There are various ways to sell your shares to your kids under the current regime of section 84.1, but I'll just use the worst-case scenario. The worst-case scenario is that your kid sets up a holding company, or holdco, and buys your shares from you. In Manitoba, that will cost you $466,000 because of the deemed dividend. That's a difference, between the two scenarios, of $437,000. That's just crazy.

There are various other ways to reduce that difference, but there is always a difference when you sell the shares of a small business corporation. I'll just concentrate on the small business corporation during my discussion, because we've talked a lot about farms.

I understand why section 84.1 was introduced. It was introduced to stop internal surplus stripping when there wasn't a real third party sale or any kind of sale. That's totally understandable, but section 84.1 went too far, and Bill C-208 really goes a way to correcting that.

There are a couple of other things. As I said, it really encourages you to sell to a third party and not your kids. I've seen so many cases of that. I have current clients now, and even family members, who are looking at sales. They're pursuing the third party because it's too expensive to sell to their kids. An American company or a multinational is more attractive than their kids. As we've heard from CALU and from everybody, that is not the way to build a great economy.

On the first example I mentioned, where the person retains $970,000 on a $1-million sale, there's been a lot of commentary that it's a loophole and that it shouldn't be: Why should they pay that little? Well, small business people and farmers should be treated differently, because this person who sold their business for $1 million probably had little or no RRSP. First of all, they probably took little salary out. That's their retirement. If they lose half of it to the government.... I don't lose half of my pension when I retire. This is their RRSP. This is why it's so important to retain as much as they can.

I have a couple of other quick comments. In the earlier session, there was commentary that corporations and holding companies are loopholes. Those are not loopholes. A corporation, as somebody was saying, is mostly required by the bank. Even in Manitoba, if you're a small business manufacturer, you need a corporation to take advantage of Manitoba's investment tax credits. A corporation is not a loophole.

The other thing I want to reiterate is that after the sale—let's say a dad sells to his kid and they paid more tax because of section 84.1—that kid is also left in a worse position on an ongoing basis. Depending on how they structured it, he now has to use his after-tax corporate profits to pay personal tax, or pay his dad off, as opposed to reinvesting. The third party who bought from your neighbour gets to reinvest his 90¢ on the dollar. The guy who bought from his dad does not. That puts him at a disadvantage on an ongoing basis as well.

This bill is a great start. It has some caps on value, which is great. This bill is helping the lower end of the small business community. It is not helping the huge, rich companies, even if they're family owned. The impact of section 84.1on them is a drop in the bucket. This is helping the smaller families.

I didn't think I needed to get technical, because Dustin did a great job on that. These are my comments. As I said, I've worked with small businesses for 34 years, so this is a great help.

Thank you.

[Cindy David, Chair of the Board, Conference for Advanced Life Underwriting]

Thank you, Mr. Chair and committee members, for the opportunity to appear today.

In addition to being an independent financial advisor located in Vancouver, I'm chair of the board for the Conference for Advanced Life Underwriting, or CALU. CALU and our partner organization, Advocis, represent approximately 13,000 insurance and financial advisors who, in turn, provide advice to millions of Canadians and small businesses across the country.

We are of the opinion that Bill C-208 will have a positive impact for small business owners looking to transition their business to the next generation of family entrepreneurs. We have provided a brief to the committee that outlines the reasons CALU believes it's critical to amend section 84.1 of the Income Tax Act. I understand it's still in translation; you should be getting that by Friday.

Our brief highlights how recent tax changes have made the application of these rules to family business transfers even more punitive since the provision was first introduced. Once you get the brief, I draw your attention to pages 4 and 5 in particular, which provide examples. Our brief also outlines various methods the government could use to limit any potential tax abuses that might arise from relaxing the rules to section 84.1.

We believe there's some urgency around the need for the government to act in amending 84.1. I know all committee members are aware of the importance of small businesses to the Canadian economy, but I will highlight that small businesses employ 70% of the private sector and have been major contributors to employment growth over the past decade. A vast majority of those businesses have fewer than 20 employees. They play a significant role in supporting the economies of smaller communities across Canada.

We believe a recovery from the current economic crisis will once again be led by the growth of small businesses. It's not surprising that a number of owners who are at or nearing retirement age have been worn down by the stresses of the past year and are accelerating their plans to retire. Fortunately, many owners have children working in their businesses who have been groomed and are ready to assume control of the operations.

However, we're finding that section 84.1 remains the major impediment to a successful transition of these businesses within the family. This provision can deny the capital gains exemption that has been spoken about quite a lot. Alternatively, it can force new family owners to assume potentially high levels of debt to pay off the purchase price above and beyond what a third party would have to assume.

Accordingly, business owners are often faced with a difficult decision. They can sell their businesses outside of the family to preserve more after-tax proceeds to fund their own retirement, or they can receive less money from their children in order to pass on their businesses, so they can afford to pay the additional taxes that are currently required of them. We don't think it's fair. I've seen several examples of these impacts from my own personal experience with my clients.

To address these issues, CALU is urging the committee to support moving forward with the intent of Bill C-208, but we ask that you recommend that section 84.1 be amended to permit the transfer of incorporated small businesses to the next generation of family owners on a more tax-neutral basis.

This clearly fits within the recommendation made as a part of your pre-budget report to the Department of Finance, which was released in February. We strongly believe this action will facilitate the successful transfer of family businesses and, in turn, protect local jobs and local economies.

Thank you for your time and attention. I will be pleased to respond to any questions you have on this subject matter along with our CALU tax advisor, Kevin Wark, who is here with me today.

[Dustin Mansfield, Chartered Professional Accountant, BDO Canada]

Good afternoon, Mr. Chair and committee members. Thank you for the opportunity to speak to you today regarding the transition of family businesses in Canada.

My name is Dustin Mansfield. I'm a tax professional with BDO Canada, from Boissevain, a vibrant rural farming community in southwestern Manitoba. BDO Canada is a leading professional services firm in the Canadian market, providing tax services to Canadian private businesses and to the families and individuals who own these businesses.

My father and uncle ran a successful small business in Manitoba for about 49 years, and my grandfathers and uncle were also farmers for many decades. My grandfather's farm was in our family for 96 years before it was successfully sold to long-time neighbours, who are also successful multi-generational family farmers. I take pride in my career and the fact that I can help people like my father, my uncle or my grandfather transition their business to the next generation.

I will start by saying that there are many provisions that are helpful in assisting a tax-efficient transfer of these businesses. Bill C-208 seeks to adjust two specific provisions that can create problems in transitioning ownership of a family business to family members in a tax-efficient manner, often hampering the ability to allow continuing success of the business now and into the future.

The first section of the Income Tax Act that I will speak to is section 55. It is a complicated set of rules aimed at preventing avoidance that might be achieved through converting what would otherwise be a taxable capital gain to a tax-free intercorporate dividend. The proposed change is aimed at the fact that, for section 55, siblings are deemed to be unrelated for these purposes. It should be noted that they are still related for the other provisions of the act.

Because siblings are deemed to be unrelated, the ability to divide the business among them in a tax-efficient manner is extremely complicated and not always possible. The siblings must rely on what is called the pro rata butterfly exemption in paragraph 55(3)(b). This provision requires that, when splitting up a corporation, each shareholder must receive an equal pro rata share of each of the cash or near cash business and investment properties of a corporation. The purpose of the provision is to prevent a shareholder from cashing out without paying tax, with the other shareholder continuing to carry on the business. Because they must take equal shares of each asset type with the company being split up, the provision prevents this.

As a result of these requirements, section 55 prevents a disguised sale of a business on a tax-deferred basis. However, problems arise when there is a legitimate splitting of all asset types in the company among siblings but the asset mix that is to be divided between them does not fit squarely within the extremely strict requirements of paragraph 55(3)(b).

Bill C-208 proposes to allow siblings to be related for purposes of section 55, as they are for the other sections of the Income Tax Act, if the corporation split up among the siblings is a family farm corporation or a qualified small business corporation. These are both defined terms in the Income Tax Act that require all or substantially all of the assets of the company to be active farming or business assets. Therefore, since passive assets could not make up more than 10% of the value of the business, and due to the linking of the exemption to these statuses and the fact that the transaction would also have to follow the rules of the existing paragraph 55(3)(a), the integrity of section 55 should be protectable, allowing the business assets or farming assets of the small business to be split up more efficiently among siblings.

There have been comments opposing the change, to the effect that it may erode the tax base. The fact is, due to the punitive results of the rules in section 55, you either have a division that qualifies and is done on a tax-deferred basis, or one that does not qualify, in which case the transaction does not proceed. This is because the family has no liquidity to pay any taxes that would result from the transaction if it's fully taxable. If a successful split cannot happen, what can happen is that the business relationships among the siblings deteriorate, or it becomes difficult to transition the business to the next generation as the family tree grows.

The second section of consideration is section 84.1, which is in place most notably to prevent the use of a person's lifetime capital gains exemption to extract a corporate surplus on a tax-free basis when there is a related corporation used in the acquisition of the shares of that corporation.

In general, a parent can sell the shares of a corporate business to their child personally and use their capital gains exemption on the sale. To the extent the parent has an available exemption, they can receive the proceeds tax-free, but the child must repay the purchase price with personal funds. To fund the purchase, a child would usually have to receive salaries or dividends from the business to pay the personal taxes, and use the after-tax cash to pay their parent.

Alternatively, a parent could sell the business to an unrelated party that is incorporated and claim the capital gains exemption with the same result as the previous example. The difference is that the unrelated party can use corporate funds to repay the purchase price, and corporate level funds are, of course, subject to lower taxes, leaving more funds to repay the exiting shareholder.

In the end, the proposed change to the legislation would put a successor child of a business in the same shoes as an unrelated party upon the transition of the business. Why does a stranger receive better tax treatment than a child, when the purpose is to keep businesses within the family?

In closing, the “deemed unrelated” provisions of section 55 and the inability of a parent to utilize their capital gains exemption on a bona fide transfer of their business to the next generation are obstacles that hamper the transition of family businesses to family members. The proposed changes are designed to add more flexibility to the tax rules and allow for easier transition in these circumstances.

Thank you.

[The Chair, Liberal, Wayne Easter]

I will reconvene the meeting.

Welcome to meeting number 25 of the Standing Committee on Finance. As you know, the committee is studying Bill C-208.

Welcome to the witnesses in this panel. We appreciate your coming in on fairly short notice on an important private member's bill.

Just so panellists know, if the clerk hasn't told you, we're going to go until 6:30 Ottawa time. We've extended it by half an hour. We were able to squeeze out the time. We will need to stop probably five minutes before that, because we need to have a discussion as a committee.

We'll start with BDO Canada and Dustin Mansfield, chartered professional accountant.

Mr. Mansfield, if you're ready to roll, the floor is yours.

[The Chair, Liberal, Wayne Easter]

We will have to end it there with this panel. The other panel is waiting.

I very much thank you, witnesses, for coming forward on this important bill. Thank you very much for your testimony and answering our questions today.

Pat Kelly, on the point you brought up at the beginning, I know there's a lot of push to go to clause-by-clause. We passed the deadline for committee members to propose amendments, but the letter just went out to independent members of the House this week—I believe it was yesterday—on whether they want to propose amendments.

We really do need to hear from officials. I'm sensing strong support for the principle of this bill, but are there any unintended consequences? We need to hear from officials, and we need to get it done as fast as possible.

I understand that the notices went out for Thursday's meeting. In the third hour we're dealing with COVID-19 spending and programs. I understand there's a problem scheduling one of the departments in. We talked about this the other day: the in camera meeting on the spending for COVID-19 contracts, etc. I understand there's one department we're having trouble scheduling witnesses in, from staff at the Department of Finance. However, they can schedule them all in for March 30. We can do an hour in camera then and do Bill C-208 with officials and possibly get to clause-by-clause on Thursday, in that hour, if we want to make that trade.

Think about that while we're dealing with the next panel. I'm not going to pop it on you right now without giving you time to think about it. We'll try to find some time, in the last 10 minutes of the next panel, to come back to this topic.

Mr. Clerk, we will suspend for five minutes while you test the next witnesses.

Thanks, all of you.

[Andre Harpe]

Actually, I'd defer to somebody else for a clear example, but at the same time Bill C-208 would level it, so basically the taxes would be the same with a neighbour versus one of my children.

[Annie Koutrakis, Liberal, Vimy, QC]

Thank you, Mr. Chair.

I will ask one last question.

Would a parent be able to retain de jure and de facto control of a corporation whose shares are transferred under Bill C-208?