Family Business Transfers- All Good Until Nov 1, 2021 -or later!
Updated: Aug 15, 2021
The law changed June 29th facilitating these transfers and the next day the government put out a statement June 30th that you needed to hold off selling your family business to your kids or grandkids at this juncture until January 1, 2022. Two weeks later the Finance Committee says it's the law and earliest the government can change this is November 1, 2021! So your good to go until November 1, 2021 in the interim. Is your head spinning on this already?
A private member’s bill C-208 made its way through Parliament this year with all opposition party MPs voted in favour and 19 Liberals. Then the Bill received royal assent on June 29 (law) that allowed for Canadians who sell their business (farm, fishery and Canadian Controlled Private Corporation) to a family members at the same tax cost as to a stranger without facing a extra and unfair tax burden on transfer of the generational business prior to this date.
Well a day later the government announced that it will repeal the bill with retroactive effect and draft an entirely new set of rules! The new rules will only take effect on January 1, 2022, and, until that happens, many family business transfers will not be able to proceed and have a higher and unfair tax cost on the sale! What happened here? Why have a private members bill go forward, approval, and receive Royal Assent only to stop it the next day?
A Major Update- The Saga Continues
Monday July 19th in the afternoon the Finance Committee officials stated that Bill C-208’s changes are law and part of the Income Tax Act.
The government “is committed to facilitating genuine intergenerational share transfers,” the release said, it’s “also committed to protecting the integrity of the tax system. As such, the government is clarifying that it does intend to bring forward amendments to the Income Tax Act that honour the spirit of Bill C-208 while safeguarding against any unintended tax avoidance loopholes that may have been created by Bill C-208.”
The main concern is “surplus stripping,” where dividends are converted to capital gains to take advantage of a lower tax rate without ownership of the business actually being transferred.
The government will introduce draft legislative amendments for consultation, with final proposals in another bill that would apply as of Nov. 1 or when the final draft legislation is published — whichever comes later.
A small business owner selling a business to a family member in the near term, relying on Bill C-208, would not be affected by retroactive amendments that might be enacted, said Trevor McGowan, a Department of Finance official, in a response to a question at the committee.
McGowan confirmed that Bill C-208 was law and that “any new amendments put forward by the government, which would need to be included in a bill and passed through Parliament, would not apply before Nov. 1, 2021.”
Liberal MP Rachel Bendayan, who’s also parliamentary secretary to Small Business Minister Mary Ng, emphasized the same point.
“I would like to unequivocally confirm on behalf of the government that any amendments to safeguard our tax policy or avoid artificial tax planning in connection with Bill C-208 would not be retroactive,” she said.
I believe it's helpful to see the government’s clarification now regarding how they intend to introduce amendments and when they will apply consistent with the normal process being the later of either November 1, 2021 or the date of the publication of the final draft legislation. However, the press release on June 30th, 2021 was disappointing and really caused lots of confusion in an area which is significant to many business owners in transferring the business to a family member.
Again, the government being on social justice agendas, combined with not being really sure what it's trying to accomplish has caused significant confusion in these policies. Thus, too many agendas and not enough experience causes lots of confusion to the public, tax advisors shaking their heads, and government employees needing to clarify positions again and again (trend over the last two years).
The only good thing is you can transfer your business by November 1, 2021 and it's all good, subject to GAAR -General Anti Avoidance Rules if the transaction is completed merely to reduce income taxes.
Updated : July 22, 2021
Copyright © 2021 By Peter Wiesner CPA, CA
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