Friday, October 30, 2015

Canadian Tax Primer 14: General Rules for the Capital Gains Exemption

Each individual resident in Canada can claim a lifetime capital gains exemption.  This means tax-free capital gains on the sale of qualifying assets.

Two separate limits apply.  An individual can claim up to $813,600 (in 2015) in exempt capital gains on the sale of shares of an active business corporation.  If the sale involves specified types of farming or fishing property, the exemption limit is $1 million per Canadian-resident individual.

Even though there are two separate limits, the limits are cumulative over one’s lifetime.  If you claim the exemption on one type of asset, that claim reduces your exemption room on the other type of asset.  For example, assume that you have previously claimed $300,000 in exempt capital gains on the sale of shares of an active business corporation.  This means that you have $513,600 of remaining exemption room if you sell more active business corporation shares (the $813,600 cumulative limit less the $300,000 previously claimed) or $700,000 of remaining exemption room if you sell qualified farming or fishing assets (the $1 million cumulative limit less the $300,000 previously claimed).  You cannot claim both $536,000 on the sale of shares plus $700,000 on the sale of farming or fishing assets.

Just to be clear, these exemption limits refer to the whole capital gain (not the half of the capital gain that is included in income).  Tax Primer 5 explains that only half of a capital gain is subject to income tax, but ignore that rule for this discussion.

The exemption limit for active business corporation shares is linked to the inflation rate, so new exemption room is added each year.  The exemption limit for farming and fishing assets is fixed at $1 million until the limit for active business corporation shares also reaches $1 million (as a result of inflation).  Once that point is reached, both exemption limits will thenceforth march into the future arm-in-arm, both linked to inflation.

Various rules affect a person’s ability to claim the capital gains exemption.  For example, access to the exemption may be restricted if you have a positive balance in your CNIL account.  The tax acronym CNIL is pronounced “senile”; however, we are told that it has nothing to do with the government’s opinion of the average taxpayer.  Instead, it stands for “Cumulative Net Investment Loss”.  A “Cumulative Net Investment Loss” arises if certain investment expenses deducted after 1987 exceed certain types of investment income reported after 1987.  You might have a “CNIL” problem if you have invested in certain types of tax shelters.

If you have previously incurred allowable business investment losses (referred to as ABIL’s in tax shorthand), you will have to pay tax on capital gains until you have “paid back” the tax relief provided by those losses.  Once that is done, you can start to apply your capital gains exemption against any remaining capital gains.

A capital gains exemption claim can also trigger federal minimum tax.  This is a timing consideration.  The government wants you to be successful, but not too successful in any one year.  If the exemption claim saves too much tax, you may have to defer part of the tax savings to a future taxation year.  Usually, however, this amounts to no more than a mild irritation in the long run.
Only Canadian-resident individuals can claim the capital gains exemption.  This can cause confusion in connection with the sale of active business corporation shares.  An individual has to sell shares of an active business corporation in order for the exemption to be available.  If the individual sells assets of an unincorporated business, however, the individual cannot claim the exemption.  So it may be necessary to incorporate the business before selling the business.

While it may be necessary for the business to be incorporated before an individual can claim the exemption, a corporation itself cannot claim the exemption.  So it is important to ensure that the business is incorporated but that individuals own the shares of the corporation that carries on the business.

While only Canadian-resident individuals can claim the capital gains exemption, each Canadian-resident individual can claim an exemption.  If you have an incorporated family business, therefore, you might want ownership of that business to be structured so that each family member can claim a capital gains exemption on a future sale of the shares of that incorporated business.  I will discuss this in more detail in Tax Primer 15.  Stay tuned!

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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.