Mr. Speaker, before I begin, I would like to thank my colleague once again for raising this important issue.
I can assure him that we are listening to Canadians. I meet with people every day. I have met with accounting firms and tax firms. We understand this issue, but the most important thing we have to do, as a government, is to understand that the greatest injustice we could do would be to introduce new tax loopholes in Canada. The $800 million figure is the figure provided by the Department of Finance, which has studied this issue at least as thoroughly as my colleague on the other side of the House. The $800 million figure is just the beginning; we expect it to be higher in subsequent years.
I am rising in the House to speak to my colleague’s bill, Bill C-274. The stated objective of this bill, to facilitate the transfer of family businesses to future generations in a family, seems commendable. It is the statement of principle by my colleague across the aisle. His proposed approach is to amend two long-standing anti-avoidance rules in the Income Tax Act. Those two measures have been in the Canadian tax code for a long time.
I am so pleased to be here this evening to discuss the repercussions that these fiscal changes may have. We often talk about unexpected consequences. My colleague's principle is worthy, but we have to take a close look at the measures themselves and really understand the fiscal consequences this could have for the country. I am sure all members of the House will agree that the intention behind this bill is good, and I want to go on the record as saying that my colleague's intention is very good. There is no doubt about that. Many of us are from rural parts of Quebec and Canada. We understand how things are for our farmers and entrepreneurs. I represent Shawinigan, which is, in a way, the beating heart of entrepreneurship in Quebec. We know all about entrepreneurship. We all come from places where small businesses can prosper, and we all want a fair tax system for all Canadians.
However, when weighing the merits of this bill, it is important to consider all the potential consequences of passing it. We must not lose sight of the fact that the tax rules that Bill C-274 proposes to amend exist for a reason, and that is to prevent people from engaging in inappropriate tax avoidance in Canada. Let us be clear about what Bill C-274 is proposing, and that is to soften the rules designed to prevent tax avoidance in Canada.
Let me explain. The proposed changes would dilute the anti-avoidance rules in sections 55 and 84.1 of the Income Tax Act. To help my colleagues fully understand what that means, let us first look at section 55 of the Income Tax Act. As currently worded, section 55 of the act applies to corporations that seek to inappropriately reduce capital gains by paying tax-free dividends between corporations. In short, the anti-avoidance rules consider such dividends to be a capital gain.
Two exemptions to the anti-avoidance rule authorize business restructuring by allowing company shareholders to split company shares between them, while deferring taxes. When those exemptions apply, any dividend paid between companies in the context of restructuring is not considered a capital gain.
The first exemption applies to the restructuring of related corporations, and the second applies to all corporate restructurings. Bill C-274 would broaden that first exemption, which we can call the related corporations exemption, so that it applies to brothers and sisters.
Spouses, as well as parents and their children, are eligible for this exemption because it is presumed that they have shared economic interests. However, brothers and sisters are considered to have separate and independent economic interests and are therefore not eligible for the related corporations exemption. That is consistent with other tax rules. For example, a family farm or fishing corporation cannot be transferred among brothers and sisters on a tax-deferred basis.
That being said, although brothers and sisters cannot restructure their participation in a corporation on a tax-deferred basis under the related corporations exemption, they can do it under the second exemption I mentioned earlier, which applies to all corporate restructuring. It is called the “butterfly exemption”.
Now the question is why siblings and their companies would want to have access to the first exemption if they can already achieve the same thing through the second exemption. The answer is that the conditions are less rigorous under the first exemption. The conditions are less rigorous because the companies are linked and are considered part of the same economic group at the time of restructuring. As a result, assets can be transferred on a tax deferred basis within a group of related companies regardless of the composition of assets.
Under the second exemption, known as the “butterfly exemption”, one condition requires a proportional distribution of the various types of assets transferred. The goal of this condition is to prevent tax avoidance.
By way of illustration, I would return to the example my colleague used of three siblings who each own one-third of a family farm corporation. Those siblings could reorganize the company's assets by transferring, on a tax deferred basis, those assets to their individual farm corporations by transferring their proportionate share of each type of asset from the family farm corporation.
There are fewer tax avoidance opportunities under the butterfly exemption because of the requirement that each of the brothers’ and sisters’ corporations must receive its proportional share of the assets of the corporation being restructured. If the proposed amendment to section 55 were passed, as my colleague suggests, the siblings could undertake a business restructuring in which the dividends paid between their corporations would not be treated as capital gains. The consequence of that would be to create new opportunities for tax avoidance in Canada.
I would also like to point out that Bill C-15, which received royal assent in June 2016, included an amendment that tightened the anti-avoidance rule set out in section 55, a rule that Bill C-274 would loosen. Consequently, if Bill C-274 were passed into law, we would be sending a message that conflicts with what Parliament recently decided concerning this particular provision.
I would now like to say a few words about the other anti-avoidance rule that Bill C-274 would loosen, the rule set out in section 84.1 of the Income Tax Act. This anti-avoidance rule may apply when an individual sells shares of one corporation to another corporation that is related to the individual.
For example, an individual might sell shares to a corporation owned by his child or grandchild. In such a case, the proceeds of the sale received by the seller may be considered, in certain circumstances, to be a taxable dividend instead of a capital gain, which is taxed at a lower rate or even exempt from tax if the lifetime capital gains exemption is available to the individual.
Bill C-274 would limit the application of the anti-avoidance rule by excluding the sale of shares of a corporation owned by an individual to corporations controlled by his children and grandchildren. However, that would facilitate the conversion of dividends into capital gains that are taxed at a lower rate or tax exempt. Such conversions of corporate dividends into capital gains taxed at a lower rate could be made as often as the managing owner wants to extract the corporation’s surpluses with tax deferral.
Significant tax planning would occur if Bill C-274 were passed. For example, a high-income shareholder could reduce his income tax by $17,500 for each $100,000 in business profits.
Another important point to consider is the fact that nothing is stopping a parent from selling shares of his family corporation directly to his child or grandchild and claiming the lifetime capital gains exemption on the capital gains arising from the transaction.
In closing, I think that the most important thing to say today is that nothing in Canada’s Income Tax Act prevents corporate transfers. My colleague’s proposal would create opportunities for tax avoidance.
The government listened to Canadians, and then it pledged to do everything in its power to make tax fairness a reality in Canada.