Tax-Free Savings Account
In an effort to encourage Canadians to save, the Federal Government introduced the Tax-Free Savings Account (“TFSA”) in 2009. The TFSA is a registered, general-purpose account that allows Canadians to earn tax-free investment income. TFSAs have become popular savings vehicles for many Canadians as they are seen as a flexible savings tool that complements existing registered retirement savings plans (“RRSPs”).
Unlike an RRSP, annual contributions made to a TFSA are not tax-deductible. However, investment income earned in a TFSA and withdrawals from a TFSA are not generally subject to income tax. As with RRSPs, unused TFSA contribution room may be carried forward into future taxation years. Withdrawals from a TFSA may also be re-contributed to a TFSA in future years.
When first introduced, TFSAs were subject to an annual contribution limit of $5,000 per individual account holder. As a result of the contribution limit being indexed to inflation in $500 increments, the TFSA contribution limit was increased to $5,500 on January 1, 2013, and it has remained at $5,500 since then.
As was widely speculated in the media and anticipated prior to Budget Day, the Budget proposes to increase the TFSA annual contribution limit to $10,000 per individual. The increase is expected to be retroactive and will apply as of January 1, 2015 and to all future taxation years. Although the TFSA contribution limit will no longer be indexed to inflation or be subject to any other means of indexation, the Budget proposal offers a significant contribution limit increase that provides Canadians with a tax-efficient means of saving.
Minimum Withdrawal Factors for Registered Retirement Income Funds
Until an individual attains the age of 71, there is no obligation to withdraw funds from a RRSP and continued contributions on a tax-deferred basis are allowed. By the end of the year in which the holder of a RRSP attains the age of 71, his or her RRSP must be converted to a registered retirement income fund (“RRIF”), or the savings used to purchase a qualifying annuity. A minimum amount must then be withdrawn annually from a RRIF beginning in the year in which the RRIF holder turns 72. Such minimum amount is calculated by applying a percentage or factor (the “minimum withdrawal factor”), based on the age of the RRIF holder (or his or her spouse, depending on the relevant election), to the amount held in the RRIF.
The Budget proposes to reduce the minimum withdrawal factors that apply to RRIFs with respect to RRIF holders between the ages of 71 and 94. The adjustment is based on a 5% nominal rate of return and a 2% indexing, which is explained as being more consistent with historical long-term rates of return on an investment portfolio and expected inflation than the current assumptions of 7% nominal rate of return and 1% indexing. The RRIF factors will continue to be capped at a rate of 20% for ages 95 and above in order to ensure that the RRIF can continue for the life of the holder (or the holder’s spouse or common-law partner).
The new RRIF withdrawal factors will apply to the 2015 and subsequent taxation year and will enable RRIF holders to preserve more of their RRIF savings, and thereby provide them with income at older ages. This is beneficial given the increasing life expectancies of Canadians and is consistent with the expectation that the tax deferral afforded to contributions to a RRSP and the savings in the RRIF serves a retirement income purpose.
There will be no change to the minimum withdrawal factors that apply in respect of ages 70 and under.
The RRIF minimum withdrawal factors are also used to determine the minimum amount that must be withdrawn annually, beginning at 71 years of age, from a defined contribution Registered Pension Plan (“RPP”) and a Pooled Registered Pension Plan (“PRPP”).
Because the new RRIF withdrawal factors apply to the 2015 and subsequent taxation years, RRIF holders who at any time in 2015 withdraw more than the reduced 2015 minimum amount will be able to re-contribute the excess to their RRIFs and will be entitled to the continued tax deferral in respect of such excess. These re-contributions will be permitted until February 29, 2016 and will be deductible for the 2015 taxation year. Similar rules will be in place for those receiving annual payments from a defined contribution RPP or a PRPP which exceed the reduced 2015 minimum amount.
Registered Disability Savings Plan – Legal Representation
A temporary measure introduced as part of Budget 2012, enables the parent, spouse or common-law partner (a “qualifying family member”) of a disabled individual (the “beneficiary”) to become the planholder of a Registered Disability Savings Plan (“RDSP”) for the benefit of the beneficiary. This measure is currently relied upon in circumstances where the beneficiary may not have the contractual capacity to open an RDSP account for their own benefit. Budget 2012 provided that such temporary measure would only be in place until the end of 2016. The Budget has extended such measure until the end of the 2018 calendar year.
Permitting a qualifying family member to act as a planholder of an RDSP for the benefit of their spouse, common-law partner or adult child was the Federal Government’s response to the circumstance where a disabled individual lacks the necessary mental capacity to establish and maintain his or her own RDSP. In certain provinces, the only way that an RDSP can be opened for the benefit of a beneficiary who lacks the requisite capacity is for the court to declare such individual legally incompetent and to appoint a legal guardian, who may then open an RDSP for the beneficiary. This is a potentially lengthy and costly process and may be inappropriate depending on the nature and extent of the individual’s disabilities.
The Federal Government has noted that questions of capacity and legal representation are matters of provincial and territorial jurisdiction and are not the responsibility of the Federal Government. Some provinces and territories have already enacted measures and streamlined processes to allow for the appointment of a trusted person to manage resources on behalf of a disabled person who lacks contractual capacity. However, many provinces have yet to enact any such measures and certain disabled individuals may continue to have difficulties establishing RDSPs in these provinces. By extending the ability of qualifying family members to act as planholders of RDSPs, the remaining provinces and territories will have additional time to address the RDSP legal representation issue. The rules implementing the Budget 2012 measure will not be altered and a qualifying family member who becomes a planholder before the end of 2018 can remain the plan holder after 2018.
Repeated Failure to Report Penalty
The Budget proposes to revise the penalty under the Tax Act in connection with repeated failures to report, which may apply to a taxpayer who fails to report an amount of income in a taxation year and has failed to report an amount of income in any of the 3 preceding taxation years. Presently, the repeated failure to report penalty is equal to 10% of the unreported income for a particular taxation year. The Federal Government has expressed concerns that the repeated failure to report income penalty may be disproportionate to the actual associated tax liability, particularly for lower income individuals.
The repeated failure to report penalty does not apply if the gross negligence penalty under subsection 163(2) of the Tax Act applies. In general, the gross negligence penalty applies if a taxpayer knew or, under circumstances amounting to gross negligence, ought to have known that an amount of income should have been reported. The amount of this penalty is generally equal to 50% of the understatement of tax payable (or the overstatement of tax credits) related to the omission. In some cases, the repeated failure to report penalty has been greater than the gross negligence penalty which might have otherwise applied to a taxpayer’s acts or omissions.
Effective for 2015 and subsequent taxation years, the Budget proposes to amend the repeated failure to report income penalty to apply in a taxation year only if a taxpayer fails to report at least $500 of income in the year and in any of the 3 preceding taxation years. The amount of the penalty will equal the lesser of:
- 10% of the amount of unreported income; and
- an amount equal to 50% of the difference between the understatement of tax (or the overstatement of tax credits) related to the omission and the amount of any tax paid in respect of the unreported amount (e.g. by an employer in respect of source deductions made under the Tax Act).
The Budget does not propose any changes or amendments to the gross negligence penalty, which will continue to apply in cases where a taxpayer fails to report income intentionally or in circumstances amounting to gross negligence.
Repeated Failure to Report Penalty
The Budget proposes to introduce a non-refundable Home Accessibility Tax Credit for expenditures related to alterations or renovations of an eligible dwelling to allow a qualified individual to gain access to, be more mobile and functional within, or reduce the risk of harm of gaining access to, an “eligible dwelling.” Such alterations or renovations would, for example, include the installation of wheelchair ramps and grab bars. The Home Accessibility Tax Credit is proposed to take effect after 2015. The credit available to qualifying individuals will provide tax relief of 15% on up to a maximum of $10,000 of eligible expenditures per calendar year, per qualifying individual, up to a maximum of $10,000 per eligible dwelling.
The Home Accessibility Tax Credit is available in addition to any other tax credits or grants for which a qualifying or eligible individual is entitled to receive. As such, an eligible expenditure may qualify for both the Medical Expense Tax Credit and the new Home Accessibility Tax Credit. However, otherwise eligible expenditures which are to be reimbursed or expected to be reimbursed, other than under a government program, will not qualify for the credit.
Qualifying and Eligible Individuals
In general, seniors (individuals who are 65 years or older at the end of a particular taxation year) and persons with disabilities (individuals who are eligible for the Disability Tax Credit under the Tax Act at any time during a particular taxation year) will be “qualifying individuals” for the purposes of the Home Accessibility Tax Credit.
“Eligible individuals” will also be able to claim the new Home Accessibility Tax Credit. An eligible individual (in relation to a qualifying individual) will be an individual who has claimed the spouse or common law partner amount, eligible dependant amount, caregiver amount or infirm dependant amount for the qualifying individual for the taxation year, or could have claimed any such amount for the taxation year if the qualifying individual had no income for the particular taxation year. As such, provided all other conditions are met, the Home Accessibility Tax Credit could be claimed by a broad range of individuals, including:
- the spouse or common-law partner of the qualifying individual;
- a parent, grandparent, child, grandchild, brother, sister, aunt, uncle, niece or nephew of the qualifying individual; or
- a parent, grandparent, child, grandchild, brother, sister, aunt, uncle, niece or nephew of the qualifying individual’s spouse or common-law partner.
If one or more qualifying or eligible individuals make a claim for a Home Accessibility Tax Credit in respect of an eligible dwelling, the total of all amounts claimed by the qualifying and/or eligible individuals for the taxation year in respect of the eligible dwelling cannot exceed $10,000.
An eligible dwelling must be the qualifying individual’s principal residence at any time during the taxation year in question. For the purposes of the new Home Accessibility Tax Credit, an eligible dwelling includes the land on which the dwelling is situated.
Under the new rules, in general, a housing unit will be considered to be a qualifying individual’s principal residence if it is:
- ordinarily inhabited or expected to be ordinarily inhabited by the qualifying individual within the taxation year; and
- owned by the qualifying individual or the qualifying individual’s spouse or common-law partner.
A qualifying individual may only have one principal residence at any time, but may, in fact, have more than one principal residence during a taxation year. Such a situation may, for example, arise if the qualifying individual moves during the year. In any case involving a qualifying individual with more than one principal residence during a taxation year, the total eligible expenditures for the Home Accessibility Tax Credit in respect of all principal residences of the qualifying individual for that year will be subject to the $10,000 annual limit.
For condominiums and co-operative housing corporations, the new Home Accessibility Tax Credit will be available for eligible expenditures incurred to renovate the unit which constitutes the qualifying individual’s principal residence and may also be applied towards the qualifying individual’s share of eligible expenditures incurred in respect of common areas. If a qualifying individual does not own a principal residence, a dwelling will also be considered to be an eligible dwelling of the qualifying individual if it is the principal residence of an eligible individual in respect of the qualifying individual and if the qualifying individual ordinarily inhabits the dwelling in question with the eligible individual.
The cost of alterations or renovations of an eligible dwelling will, in general, qualify for the Home Accessibility Tax Credit if they are supported by a receipt and made or incurred for the purposes of:
- allowing a qualified individual to gain access to or to be more mobile and functional within a dwelling; or
- reducing the risk of harm to a qualifying individual within a dwelling or with respect to gaining access to a dwelling.
The Department of Finance has provided examples of eligible expenditures, which include expenditures relating to:
- wheelchair ramps;
- walk-in bathtubs;
- wheel-in showers; and
- grab bars.
Eligible expenditures will include the cost of labour and professional services, building materials, fixtures, equipment rentals and permits. These eligible expenditures must be of an enduring nature and they must be integral to the eligible dwelling.
The Department of Finance has also provided examples of expenditures which would not qualify for the Home Accessibility Tax Credit, which include expenditures related to:
- improvements for enhancing or maintaining a dwelling’s value;
- routine repairs and maintenance which would be performed on a property on a regular basis;
- household appliances and devices;
- general household maintenance services;
- mortgage interest costs of financing a renovation;
- goods or services provided by a person not dealing at arm’s length with a qualifying or eligible individual, unless the person is registered for Goods and Services Tax or Harmonized Sales Tax under the Excise Tax Act; and
- otherwise eligible expenditures made in respect of areas of the personal residence which are used to generate business or rental income.
In addition, if expenditures are made which benefit common areas or a housing unit as a whole, the CRA will apply its general administrative practices to determine how business or rental income and expenditures should be allocated between personal use and income-earning use for the purposes of claiming the Home Accessibility Tax Credit.
Lifetime Capital Gains Exemption for Qualified Farm or Fishing Property
The Budget proposes to increase the Lifetime Capital Gains Exemption (“LCGE”) provided under the Tax Act for dispositions of qualified farm and fishing property to $1 million. Currently, the Tax Act provides an individual with a lifetime exemption of $813,600 (for 2015, as indexed for inflation) for capital gains arising on the disposition of qualified small business corporation shares and qualified farm or fishing property.
The new LCGE is proposed to apply to dispositions of qualified farm or fishing property that occur on or after Budget Day and will be the greater of:
- $1 million; and
- the indexed LCGE applicable to capital gains realized on the disposition of qualified small business corporation shares.
The Budget does not propose an increase to the LCGE for dispositions of qualified small business corporation shares. The LCGE exemption for qualified small business corporation shares will therefore remain, at least for the time being, at $813,600 (for 2015, as indexed for inflation).
Transitional rules are proposed to address the increase in the LCGE relating to dispositions of qualified farm or fishing property on or after Budget Day and to address the resulting difference from the LCGE applicable to dispositions of qualified small business corporation shares.
Lifetime Capital Gains Exemption for Qualified Farm or Fishing Property
In response to a recent court decision, Last v. R., 2014 FCA 129, the Budget proposes to amend the Tax Act to clarify that the CRA and the courts may increase or adjust an amount included in an assessment that is under objection or appeal at any time, provided the total amount of the assessment does not increase. Similar amendments are proposed to be made to Part IX of the Excise Tax Act (in relation to the Goods and Services Tax/Harmonized Sales Tax) and the Excise Act, 2001 (in relation to excise duties on tobacco and alcohol products), to help ensure consistency in administrative measures in federal tax statutes. The measures are expected to come into force upon Royal Assent.
The Federal Government’s interpretation of the judgement is that while the basis of an assessment can be changed after the expiration of the normal reassessment period, each source of income is to be considered in isolation and the amount of the assessment in respect of any particular source of income cannot increase. This is somewhat inconsistent with the Federal Government’s understanding of the CRA’s powers with respect to reassessments made after the normal reassessment period.
In support of its position, the Federal Government states that, in its view, long-standing jurisprudence has held that on appeal from a tax assessment, the question to be answered is, generally, whether the CRA’s assessment is higher than mandated under the Tax Act. The Federal Government further states that, in cases of reassessments made after the normal reassessment period, although the total amount from all sources that is assessed cannot increase, the basis of the assessment can change. This would allow, for instance, a reduced liability in relation to one item included in the computation of an assessment to be offset by an increased liability in relation to another item.
Consistent with this principle, the Federal Government points to a specific provision in the Tax Act (namely, subsection 152(9)), which provides that the Minister of National Revenue may advance an alternative argument in support of an assessment at any time after the normal reassessment period. In the Federal Government’s view, the purpose of this provision is to allow the Minister to advance an alternative argument after the relevant reassessment period has expired, and this process of raising arguments and counter-arguments ‘in the alternative’ is a conventional part of the litigation process.
Information Sharing for the Collection of Non-Tax Debts
The CRA collects debts owing to the Federal and Provincial Governments under both tax and non-tax programs. Non-tax programs include the Government Employees Compensation Act, the Canada Labour Code, the Canada Student Loans Act, the Wage Earner Protection Program Act and the Apprentice Loans Act. Currently, confidential taxpayer information cannot be used by CRA staff to collect debts under many non-tax programs. Likewise, CRA staff engaged in non-tax collection activities cannot share taxpayer information with staff engaged in tax collection activities. Consequently, the CRA has to have segregated and separate staff for collecting tax and non-tax debts. According to the Federal Government, this limits the Federal Government’s efficiency and can be frustrating for taxpayers who may be contacted by more than one Canada Revenue Agency debt collector where the taxpayer owes amounts under both tax and non-tax programs.
The Budget proposes to amend the Tax Act, Part IX of the Excise Tax Act (in relation to the Goods and Services Tax/Harmonized Sales Tax) and the Excise Act, 2001 (in relation to excise duties on tobacco and alcohol products) to permit the sharing of taxpayer information within the CRA in respect of non-tax debts under certain Federal and Provincial Government Programs.
To ensure greater consistency in the information sharing rules in federal tax statutes, the Budget also proposes to amend Part IX of the Excise Tax Act and the Excise Act, 2001 to permit information sharing in respect of certain programs where such information sharing is already permitted under the Tax Act.
The new measure will apply on Royal Assent to the enacting legislation.
Transfer of Education Credits – Effect on the Family Tax Cut
The Family Tax Cut (“FTC”), proposed in October, 2014, is a non-refundable tax credit that allows eligible parents with at least one child under the age of 18 to notionally transfer up to $50,000 of taxable income from the higher income spouse or common-law partner to the lower income spouse or common-law partner. The intention of the FTC is to allow for income sharing for couples with children under the age of 18, thereby reducing or eliminating the difference in federal tax payable by a one-income earner couple relative to a two-income earner couple with a similar family income. The amount of tax saved by this notional transfer becomes a non-refundable tax credit that can be claimed by either spouse. The tax credit is limited to $2,000 and will apply for the 2014 and subsequent taxation years.
Where personal income tax credits have been transferred from one spouse or common-law partner to the other, the FTC suppresses the use of those credits in the transferee’s hands. Instead, the personal income tax credits previously transferred are taken into consideration in the calculation of the transferor’s adjusted tax payable. This prevents the double counting of these credits in the calculation of the FTC.
In the same manner, the previously-announced FTC rules prevent transferred education-related amounts, such as tuition, education and textbook tax credits from being included in the FTC calculation. However, the concern with double-counting typically associated with the transfer of personal income tax credits is not, in the Federal Government’s view, at issue when calculating education-related credits. As a result, the value of the FTC may be reduced for couples who transfer education-related amounts between themselves. The Federal Government suggests that this affects only a very small percentage of couples claiming the FTC for the 2014 taxation year.
The Budget proposes to revise the calculation of the FTC for the 2014 and subsequent taxation years to ensure that couples claiming the FTC and transferring education-related credits between themselves receive the appropriate value of the FTC. After the enacting legislation receives Royal Assent, the CRA will automatically reassess affected taxpayers for the 2014 taxation year to ensure that they receive any additional benefits to which they are entitled under the FTC.