Prior to 2021, section 84.1 of the Income Tax Act (“Act”) created a real impediment to a tax-efficient succession of a family business from one generation to the next, effectively penalizing a sale to a family member compared to an arm’s length third party from a tax perspective. However, as previously discussed in our article[1] on June 30, 2021, in our article[2] on July 15, 2021, and as part of our March 28, 2023 budget update [3], Bill C-208 introduced amendments to the Act designed to allow for an intergenerational transfer of certain family businesses with comparable tax advantages to an arm’s length sale to a third party.
To summarize, Bill C-208 amended section 84.1 to deem a non-arm’s length transaction to be an arm’s length transaction where a taxpayer sells shares of a qualified small business corporation or shares in the capital stock of a family farming and fishing corporation to a purchaser that is a corporation owned by a child or grandchild of the taxpayer, provided certain conditions are satisfied. Those changes were intended to permit a taxpayer to receive capital gains tax treatment on such a sale (as they would upon a sale to an arm’s length purchaser). However, the 2021 legislation was broadly worded, creating the potential for considerable tax planning opportunities for small business owners with adult children.
The 2023 Federal Budget introduced amendments to the Bill C-208 legislation designed to tighten the scope of the rules. More criteria were added to require a more comprehensive transfer of ownership from a parent to an adult child. However, those amendments do not come into effect until January 1, 2024. As such, there remains a potential opportunity to rely on the original form of Bill C-208 to transfer the applicable types of shares to an adult child, provided the transfer occurs by December 31, 2023.
Planning that utilizes the current Bill C-208 legislation should be approached with care, since even though a plan may technically work under the existing legislation, there is a potential for a Canada Revenue Agency audit review and challenge to ensure compliance with the Act. Alternatively, taxpayers now have an opportunity to plan for an intergenerational small business transfer under the new rules that will be applicable for transactions that occur on or after January 1, 2024.
Our Miller Thomson LLP Corporate Tax lawyers would be pleased to provide their advice with respect to these tax changes.
[1] https://www.archive.millerthomsonlaw.com/en/publications/communiques-and-updates/wealth-matters/june-30-2021-wealth/new-taxation-rules-impacting-transfers-of-family-businesses-to-the-next-generation-everything-you-thought-you-knew-about-intergenerational-transfers-is-now-wrong/
[2] https://www.archive.millerthomsonlaw.com/en/publications/communiques-and-updates/wealth-matters/july-15-2021-wealth/update-on-bill-c-208-new-taxation-rules-impacting-transfers-of-family-businesses-to-the-next-generation/
[3] https://www.archive.millerthomsonlaw.com/en/publications/communiques-and-updates/federal-budget-review/march-28-2023-3/2023-canada-federal-budget/
