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Thin capitalization changes - Structuring Canadian Investments
1. McCarthy Tétrault LLP / mccarthy.ca
Changes to the Thin Capitalization Rules
June 2013
Chris Falk
2. McCarthy Tétrault LLP / mccarthy.ca
Introduction - Thin Capitalization Rules
• For Canadian income tax purposes, taxpayers can
generally deduct interest expenses on monies
borrowed to earn income; however, in a corporate
context, a corporation cannot deduct the payment of
dividends
• Accordingly, but for the thin capitalization rules:
• Significant incentive for non-residents investing in
Canada to finance their investments with debt
rather than equity
3. McCarthy Tétrault LLP / mccarthy.ca
Introduction (cont)
• The thin capitalization rules restrict interest deduction for:
• a corporation resident in Canada (a CRIC)
• on loans made by non-residents of Canada who are
significant shareholders of the CRIC or their affiliates
• Thin capitalization rules a central concern in structuring
foreign investment in Canadian subsidiaries
3
4. McCarthy Tétrault LLP / mccarthy.ca
Introduction (cont)
• Rules expanded substantially in the last two federal budgets
• The changes are relevant in structuring new investments
and in determining whether existing investments need to be
restructured
• Propose to:
• Comment briefly on how the rules apply generally; and
• Outline the key changes introduced by Budgets 2012
and 2013
4
5. McCarthy Tétrault LLP / mccarthy.ca
Overview – Thin Capitalization Rules
• Where they apply, the thin capitalization rules deny
deduction by a CRIC of interest payable to a “specified non-
resident”
• “Specified non-resident”: a non-resident that is a “specified
shareholder” - together with non-arm’s length persons, owns
shares of the CRIC representing at least 25% of the votes or
value of the CRIC
• also includes any other non-resident who does not deal at arm’s
length with a specified shareholder
5
6. McCarthy Tétrault LLP / mccarthy.ca
Overview (cont)
• Rules apply to the extent that a specified debt-to-equity ratio
is exceeded
• “Debt” for this purpose is debt of the CRIC to specified
non-residents (not other debt) where interest otherwise
deductible
• “Equity” is – in general terms – the total of:
• retained earnings (on a non-consolidated basis)
• contributed surplus to the extent contributed by a specified non-
resident shareholder
• paid-up capital (on shares owned by a specified non-resident
shareholder)
6
7. McCarthy Tétrault LLP / mccarthy.ca
Overview (cont)
• Where the rules are engaged, a proportion of the interest on
“bad debts” is disallowed
• Disallowance based upon the “excess bad debt” (i.e., amount
above the ratio) compared to the “total bad debt”
7
8. McCarthy Tétrault LLP / mccarthy.ca
Overview (cont)
• Historically, Canada’s rules were comparatively generous:
• 3:1 debt-to-equity ratio; reduced to 2:1 (2000)
• Generally considered not to apply to debts of partnerships with
CRICs as partners (Ontario case that might have suggested
otherwise was in respect of debt of partners, not of partnership)
• Not applicable to trusts or to non-resident corporations (except
non-resident corporations that had elected under ITA 216 re net
rental income)
8
9. McCarthy Tétrault LLP / mccarthy.ca
Changes to Thin Capitalization Rules
• Budgets 2012 and 2013 lowered the debt-to-equity
threshold and expanded the reach of the rules
• Will outline very briefly the 2012 changes and comment in
more detail on the 2013 changes, with a focus on the
corporate-related changes
9
10. McCarthy Tétrault LLP / mccarthy.ca
Budgets 2012 & 2013 – Summary of
Key Changes
Budget Change Effective Date
2012 Debt-to-equity ratio lowered from 2:1 to 1.5:1 Taxation years commencing
after 2012
2012 CRICs that are partners in partnerships – income
inclusion to CRIC where partner CRIC “offside”
CRIC taxation years
commencing after March 28,
2012
2012 Denied interest a deemed dividend – deemed paid
immediately before year-end (where not paid or credited in
year)
Taxation years ending after
March 29, 2012
2013 Trusts resident in Canada Taxation years commencing
after 2013
2013 Non-resident corporations and trusts operating in Canada Taxation years commencing
after 2013
2013 Changes where ITA 216 election by corporation or trust re
net rental income – rules for non-resident corporations
and trusts used
Taxation years commencing
after 2013
10
11. McCarthy Tétrault LLP / mccarthy.ca
Budget 2012 Changes
1. Lowered the thin capitalization ratio from 2:1 to 1.5:1
• Under the old rules, at least one-third of the CRIC’s capital
(ignoring “good debt”) needed to come from equity
• Now at least 40% (i.e., 60% debt, 40% equity is 1.5:1)
11
12. McCarthy Tétrault LLP / mccarthy.ca
Budget 2012 Changes (cont)
2. Expanded the reach of the rules to CRICs that are
partners in a partnership
• Provisions work generally not by denying interest deductibility to
the partnership but by adding deemed income to partner CRICs
that are over the relevant debt-to-equity ratio
• In this regard, some but not all partners may be “offside”
(so rules would not work appropriately if disallowed
deductions at partnership level)
12
13. McCarthy Tétrault LLP / mccarthy.ca
Budget 2012 Changes (cont)
3. Treats the denied interest (or deemed income in the
partnership context) as a deemed dividend for
withholding tax purposes (ITA 214(16))
• Important change as interest payable to non-resident may not
be subject to withholding tax (e.g., if non-participating interest
payable to an arm’s length lender or if treaty-exempt under
the Canada-US treaty)
• Onerous as does not require an actual payment for the
withholding tax to be triggered (ITA 214(17))
• If not paid or credited in year, deemed paid immediately before end of
year
13
14. McCarthy Tétrault LLP / mccarthy.ca
Budget 2013 Changes
• Budget 2013 further expands the rules
• Will now apply to:
• Trusts resident in Canada
• Non-resident corporations and trusts operating in Canada
• Non-resident corporations that elect under ITA 216 to
pay tax on their net rental income will use the thin
capitalization provisions applicable generally for non-
resident corporations. Similarly now for trusts as well.
14
15. McCarthy Tétrault LLP / mccarthy.ca
Budget 2013 – Trusts Resident in Canada
• No longer outside the thin capitalization net
• Rules look to trust beneficiaries rather than shareholders
• Specified Beneficiary/Specified Non-Resident Beneficiary concepts
• Analogous to the Specified Shareholder/Specified Non-Resident Shareholder in
the corporate context
• At least 25% FMV test
• including interests of non-arm’s length persons
15
16. McCarthy Tétrault LLP / mccarthy.ca
Trusts Resident in Canada (cont)
• Trust’s equity amount
• Contributions to the trust from specified non-resident beneficiaries
plus tax-paid earnings less capital distributions from the trust
• Special Transitional Rule - If trust elects, equity computation as
at March 21, 2013 – FMV of trust assets less trust liabilities
16
17. McCarthy Tétrault LLP / mccarthy.ca
Trusts Resident in Canada (cont)
• Non-deductible interest
• Can be designated as payment of income to the non-resident
beneficiary that received the interest
• deductible therefore to the trust
• But withholding tax (and possibly 36% Part XII.2 tax (e.g., where
business income/taxable capital gains from taxable Canadian
property))
• Provisions will also apply to trusts that are partners in a
partnership
17
18. McCarthy Tétrault LLP / mccarthy.ca
Budget 2013 – Non-Resident Corporations
and Trusts
• Where carry on business in Canada
• Canadian branch not a separate legal entity with shareholders
and equity
• Special rules regarding equity
• 40% of the corporation’s or trust’s cost of its properties less
indebtedness (other than to “specified non-residents”)
18
19. McCarthy Tétrault LLP / mccarthy.ca
Non-Resident Corporations and Trusts (cont)
• Special rule – in effect – mirrors the 1.5:1 debt to
equity ratio (i.e., 60%/40%, after backing out “good
debt”)
• Provisions not directly related to share capital, etc.
• Change to the computation of equity can be
critical to corporations that have elected under
ITA 216 to pay tax on net rental income
• Can no longer “fix” their debt-to-equity ratios simply by
subscribing for new shares (and circling funds if
necessary), which typically had no impact from a
Canadian income tax perspective
19
20. McCarthy Tétrault LLP / mccarthy.ca
What does it all mean?
• Generally now very important to plan out of the rules
• interest subject to the rules treated as a deemed dividend with
withholding tax independent of payment
• CRICs with indebtedness to significant non-resident
shareholders need to consider the application of the
rules in light of the 1.5:1 debt-to-equity ratio
20
21. McCarthy Tétrault LLP / mccarthy.ca
What does it all mean? (cont)
• Non-resident corporations that have made ITA 216
elections in respect of rental income need to consider
whether they will have enough equity under the new
rules (based upon the cost of the assets in question)
• Corporations that are non-residents or partners in
partnerships need to review the rules to see if they
now have thin capitalization concerns
• Trusts must review rules as well
21
22. McCarthy Tétrault LLP / mccarthy.ca
What does it all mean? (cont)
• Guarantees by specified non-residents do not make
loans “bad loans”
22
23. McCarthy Tétrault LLP / mccarthy.ca
Contact Details
23
Christopher (Chris) Falk*
Partner | Associé
Tax | Fiscalité
T: 604-643-7945
C: 604-374-7945
F: 604-622-5645
E: cfalk@mccarthy.ca
McCarthyTétrault LLP
Pacific Centre
P.O. Box 10424, Suite 1300
777 Dunsmuir Street
Vancouver BC V7Y 1K2
*Denotes Law Corporation
Please, think of the env ironment bef ore printing this message.
24. McCarthy Tétrault LLP / mccarthy.ca
VANCOUVER
Suite 1300, 777 Dunsmuir Street
P.O. Box 10424, Pacific Centre
Vancouver BC V7Y 1K2
Tel: 604-643-7100
Fax: 604-643-7900
Toll-Free: 1-877-244-7711
CALGARY
Suite 3300, 421 7th Avenue SW
Calgary AB T2P 4K9
Tel: 403-260-3500
Fax: 403-260-3501
Toll-Free: 1-877-244-7711
TORONTO
Box 48, Suite 5300
Toronto Dominion Tower
Toronto ON M5K 1E6
Tel: 416-362-1812
Fax: 416-868-0673
Toll-Free: 1-877-244-7711
MONTRÉAL
Suite 2500
1000 De La Gauchetière Street West
Montréal QC H3B 0A2
Tel: 514-397-4100
Fax: 514-875-6246
Toll-Free: 1-877-244-7711
QUÉBEC
Le Complexe St-Amable
1150, rue de Claire-Fontaine, 7e étage
Québec QC G1R 5G4
Tel: 418-521-3000
Fax: 418-521-3099
Toll-Free: 1-877-244-7711
UNITED KINGDOM & EUROPE
125 Old Broad Street, 26th Floor
London EC2N 1AR
UNITED KINGDOM
Tel: +44 (0)20 7786 5700
Fax: +44 (0)20 7786 5702