Friday, August 21, 2015

Canadian Tax Primer 10: Making Attributions

As noted in Tax Primer 9 (click here if you haven’t read it yet), spouses can transfer assets to each other without triggering capital gains tax.  However, attribution rules can apply after the transfer.  The attribution rules tax future income and capital gains on the transferred asset as if no transfer had occurred.  If the attribution rules apply, income and capital gains realized by the recipient spouse after the date of the transfer are “attributed” back for income tax purposes to the transferring spouse.

For example, assume that you have very significant income and pay income tax at the top marginal rate.  In contrast, your spouse has very little or no income and either pays no income tax at all or pays income tax at a very low rate.  If you can decrease your income and increase your spouse’s income, you can have some of your high-rate income taxed at your spouse’s lower rate.  In order to accomplish this, you gift some mutual funds to your spouse (which you can do without triggering any capital gains tax).  However, the attribution rules will apply to those transferred mutual funds.

(a)        If the mutual fund distributes $100 in dividend income to your spouse, the dividend income will belong to your spouse.  However, you will have to pay the income tax on that dividend at your tax rate (as if you were still the owner of the mutual fund).

(b)        If your spouse sells the mutual fund and realizes a capital gain, the proceeds of sale will belong to your spouse.  However, you will have to pay the income tax on that capital gain at your tax rate (as if you were still the owner of the mutual fund).

In other words, income and capital gains realized after the date of transfer are all attributed back to you for income tax purposes – even though your spouse is the actual owner of the income and the capital gains.  The attribution rules override reality for income tax purposes.

These attribution provisions do not apply if the transferring spouse elects to transfer the asset at fair market value and pays tax on the capital gain that arises on the transfer to the low-income spouse.  In addition, the low-income spouse must actually pay fair market value for the asset.
Attribution rules apply in a similar fashion to loans made from a high-income spouse to a low-income spouse (unless a fair market value rate of interest is actually paid on the loan).  Assume that you lend $100 to your low-income spouse on an interest-free basis and your spouse invests the money.  You will have to pay income tax at your tax rate on any income or capital gain realized by your spouse in respect of that investment.

As suggested in Tax Primer 3 (click here if you haven’t read it yet), one can avoid these attribution rules by having the high-income spouse to lend funds to the low-income spouse at a fair market value interest rate.  The interest rate has to be at least equal to the Canada Revenue Agency prescribed rate of interest in effect at the time of the loan.  As of the June 15, 2015, this prescribed rate of interest is a mere 1%.  If the low-income spouse invests the loaned funds and earns a 4% return, the low-income spouse pays tax on a 3% return (after deducting the 1% interest paid to the high-income spouse).  While the high-income spouse pays tax on the 1% interest received, the high-income spouse avoids paying tax on the other 3%.

The loan has to be carefully documented and the low-income spouse has to actually pay the interest to the high-income spouse within 30 days of the end of each calendar year.  With proper structuring of the loan, the current 1% interest rate can be locked in for a considerable period of time (up to 20 or 25 years).  Over time, the low-income spouse can build up a significant investment portfolio.
Other ways around the attribution rules follow.  These are not as effective as the loan method but – for those who like technical details – illustrate how the attribution rules work.

The attribution rules do not apply on attributed income.  For example, assume that you gift units of a mutual fund to your low-income spouse.  After you make this gift, the mutual fund distributes a $100 dividend to your spouse.  As discussed above, you will have to pay income tax at your rate on that $100 dividend (as if you were still the owner of the mutual fund).  However, assume your spouse likes the investment game and re-invests that $100 dividend in shares of Bell Canada Enterprises.  If Bell Canada then pays a $5 dividend to your spouse, attribution will not apply to the $5 dividend.  Instead, your spouse will pay the income tax on the $5 dividend at your spouse’s tax rate.  Attribution does not apply to the $5 because your spouse bought the Bell Canada shares with “fresh” money rather than money that had been supplied by you. 

While the process is long and slow and requires some bookkeeping work, there is a long-term benefit to paying the tax on attributed income so that your spouse gets to invest the attributed income and build up an investment portfolio that will be taxed in your spouse’ hands.  The tortoise does sometimes win the race.  In order to benefit from income splitting, it is not necessary to make your spouse a millionaire.  It is sufficient to shift enough income so that your spouse uses up those lower tax brackets.  The benefits of income splitting disappear once your spouse’ income reaches the top marginal tax rate levels.

The exception for investments purchased with “fresh” income does not apply to investments purchased with substituted property.  For example, assume that you gifted an investment to your spouse and your spouse later sold the investment.  The proceeds of sale received by your spouse constitute “substituted property”.  In essence, the investment increased in value and was sold.  On the sale, the investment changed its form from an investment to cash.  That cash is not “fresh” money; it is just a different form of the property that you transferred to your spouse.  Even if your spouse re-invests the cash, income earned on the re-invested cash will still be subject to the attribution rules.

If you are the high-income earner and your spouse has some income, it is always possible to have your spouse build up an investment portfolio by having your spouse save all that income.  You would become the “spending spouse” and use your income to cover all the family expenses.  Meanwhile, your spouse would become the “saving spouse”, cover none of the family expenses and instead save and invest every cent of the spouse’ income.  The attribution rules would not apply because you would have made no transfer of any property to your spouse and you would have lent no money to your spouse.  Your spouse simply would have no obligation to cover any household or personal expenses, thereby keeping all his or her income and investing it.  Consequently, your spouse’s investment earnings would be taxed at your spouse’s tax rate.

If you are attempting to increase the investment assets of a low-income spouse, segregation of those assets in a separate account is critical.  You and your spouse need to be able to show that the attribution rules do not apply in respect of your spouse’ assets.  This could be difficult to prove if all your assets have been co-mingled in a single bank or investment account.  If everything is mixed together, it becomes virtually impossible to show that your spouse made investments with his or her own independent funds (rather than funds that are traceable to you).

Segregation of accounts merely means that the low-income spouse puts all his or her independently-earned income into a separate account.  This does not mean that the spouses cannot have joint accounts.  Joint accounts are often convenient, as they allow either spouse to access funds in the account.  For example, the high-income spouse could deposit his or her income into a joint bank account in respect of which each spouse was an authorized signatory for the purpose of withdrawing funds.  It does not matter which spouse can access the funds in the account, as long as it is possible to clearly identify the source of the funds that went into the account.

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The above article provides general commentary of an educational nature. It does not constitute advice for any specific person or any specific set of circumstances. Because circumstances vary, readers should consult professional advisers in order to obtain advice that is applicable to their specific circumstances.