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Bill C-208 is now law: Freeland

Finance Minister overrules officials to rule new legislation to level playing field when transferring a business within a family is now in effect
Finance Minister Chrystia Freeland ends delay on family tax break: “The law is the law.” | Glacier Media

Finance Minister Chyrstia Freeland has overruled ministry officials, and cleared up confusion, by ruling that Bill C-208, new legislation that levels the playing field for business owners who transfer ownership to members of their family, is now in effect.

Previously, under Canada’s Income Tax Act, those who sold the shares of their business to a company owned by their children or grandchildren were taxed at a significantly higher tax rate than if they had sold their business to a purchaser at arm’s length. The result essentially amounted to a tax penalty for keeping the family business in the family.

Bill C-208 received Royal Assent on June 29, which traditionally means it becomes law immediately.

However, in a June 30 statement, senior Department of Finance officials said the federal government proposed to introduce legislation to make the ruling effective January 1, 2022.

On July 19, Finance Minister Chrystia Freeland dismissed that decision, ruling that Bill C-208 is now in effect.

"The law is the law," Freeland in a statement.

Prior to the passage of the bill, when small business owners and owners of family farms or fishing corporations sold shares of their incorporated business to a non-family member, the sale was generally considered a capital gain, which may have been eligible for the lifetime capital gains exemption. This option was not available when the sale of shares was to a corporation controlled by a family member, explained Dino Infanti, partner, national leader, enterprise tax for KPMG LLP in Canada, in an exclusive column for Western Investor, published July 6 and since updated.

For example, if the husband and wife who own a successful auto repair company sold shares of their business to a third party, the increase in the value of the company was considered a capital gain for tax purposes. If the shares qualified for the lifetime capital gains exemption, the owner might not be required to pay any regular income tax on the sale.

In contrast, if the parents sold those same shares to a corporation controlled by a daughter or son, they could have been hit with a steep tax bill when they retired or exited the business. Canadian tax law treated the difference between the sale price of the shares and the cost to the owner of those shares as a dividend, rather than a capital gain.

“As a result, the business owners would lose out on the capital gain tax treatment and, if they qualified, the lifetime capital gains exemption, and be taxed at the higher dividend rate. Depending on the province they live in, the type of dividend and their overall income, they could have been taxed at a rate of 49 per cent. For example, on a $900,000 sale, the parents’ tax bill would have been a whopping $441,000 more to keep the business in family hands,” Infanti said.

Bill C-208 addresses this by amending a section of the Income Tax Act to essentially treat a business owner’s child or grandchild as being at arm’s length from them.

“Now, families can better plan for their retirement, without necessarily having differences in after-tax income affect their decision to pass the business on to the next generation,” Infanti noted.