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Canada: Tax-Efficient Sectors

Tax-Efficient Business Forms

A number of companies had converted to tax-efficient income trusts in the period 2000-2005, thereby avoiding the general corporation tax regime. However, faced with falling revenues, the government changed the tax rules so that new income trusts are subject to a tax regime that is similar to corporation tax requirements; existing income trusts converted from corporations are subject to this new regime after 2011. Income trusts are generally therefore no longer tax-efficient vehicles for corporations, although they remain a suitable vehicle for real estate investment trusts and mutual fund investment trusts.

Trusts remain an important tax-efficient sector for individuals wishing to reduce their tax liability, particularly where the trust itself is resident abroad in a lower tax jurisdiction and can also benefit from a double tax agreement. In the case of a family business, with careful planning a trust can serve to protect business assets while reducing the tax liability.

One point to note, though, is the 2009 case of Garron and Garron, Trustees of the Garron Family Trust v. The Queen, which challenged the residence test applying to trusts. As in English law, in Canada it was previously held that the jurisdiction in which the trustees reside and exercise their discretion indicated the residence of the trust. The decision in Garron and Garron held that the corporate residence test should apply to trusts, in that a trust should be deemed resident in the jurisdiction in which its central management and control actually resides. The Canada Revenue Agency, in an interpretation bulletin released in light of this decision, has indicated that a trust’s residence now depends on the jurisdiction in which the trustee who manages and controls the trust resides.

Individuals over age 65 can make tax-free transfers of assets into some types of trust, while trusts that take effect on death can also benefit from certain tax advantages. Canadian trust income is, though, generally subject to higher rate marginal tax rates, so advice should be sought in this area to ensure effective tax savings. Registered retirement savings plans and registered retirement income funds also fall under trust law.

Canadian-controlled private corporations (CCPCs) can claim a small business deduction of 17% on the first C$500,000 of income, subject to conditions. CCPCs can also benefit from enhanced investment tax credits, and shareholders can qualify for capital gains exemption on disposal of small business corporate shares.

 

 

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