Although this isn’t incredibly applicable to most right now, I know at least a few of us are interested in tax law, and one of the most interesting things in Canadian tax law is Estate Taxes and Capital Gains taxes. One of the main ways that these capital gains taxes are avoided is through something called an Estate Freeze - which is an incredibly complex topic. I will attempt to simplify it so we can all get a better understanding, but I will not be able to go into all of the incredibly specific legal situations that can arise with GAAR (tax avoidance rules), or every different situations with spouses…
To start, it is important to understand that unlike our American counterparts, Canadians are not subject to estate tax. Instead, any accumulated gains on assets are subject to deemed disposition and capital gains are calculated on their gain in value since purchase. To clarify this a bit more, let’s say you bought a second home (because the first home in Canada is exempt from capital gains tax), for $100,000, and 50 years later you died. When you pass the home on to your child, if it is now worth $500,000, you would not be subject to a flat rate based on the total value, but instead a 27% capital gains tax on the gain between 500,000 and 100,000 so 400,000. Effectively, the CRA assumes that upon death, the properties have been “sold” and any proceeds are thus taxable. Luckily, this also means that if the child sells the property the new cost basis becomes $500,000. This lack of estate tax makes the most pressing concern minimizing the recognized capital gains on the transfer, and extending the compound interest of keeping capital within the family for the longest possible time. This is most applicable to those with family businesses who usually have a large portion of their wealth trapped within a business they hope to pass on, but that would be crippled with an unexpected tax bill…
(RBC Wealth Management)
This is where an estate freeze comes in. It is effectively the act of a business owner to exchange ownership of his shares in a business for preferred shares with fixed value and transfer the economic interest to a trust of which their children are the beneficiary. This allows the deemed disposition to occur at that moment, and allows the proprietor to plan for the expense. Similarly, it locks the value of the shares at that price, and is carried over to the kids at a much lower cost basis, allowing the value to carry over with less tax as it grows from that point. Let’s take the owner of Restaurant ABC, who is presiding over long-term growth plans. He believes the value of the business is likely to increase substantially over time, and he wants to pass that onto his kids tax-minimized. He determines that the value of the company is 1 million dollars. He transfers the value of those shares to a trust for which he is the trustee (and thus controls the distribution of the funds). The shares are deemed to be disposed of at their current value of 1 million, and the owner can utilize his LCGE (lifetime capital gains exemption), and receives preferred voting shares instead that allow him to maintain control over his own corporation. When the trust is forcibly wound up after 21 years (to prevent infinite tax rollovers), the descendants would assume control over the shares.
This whole process allows the original owner to retain control over their corporation, plan for the expected tax bill, and postpone taxes until the death of their descendant, allowing them to bank the compound interest. An estate freeze is incredibly complicated, but understanding the general ideas will give you a decent grasp of how to look at tax minimizing strategies, how trusts can come into play, and how the Canadian system has big differences from the us and how they are exploited.
By: Mateo Gjinali
Comments