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Notes: as well as the question, the sections Other Comments, Capital Loss and February 22, 1994 election need to be edited
Principal Issues: What do taxpayers who changed, several years ago, the use of an housing unit of a duplex, aimed by a possible choice of the subparagraph 45(3) according to the former CRA’s known position, have to do now that they are confronted with the new position preventing them from doing the aforementioned choice of the subparagraph 45(3)?
Position: The CRA does not accept any more the choice of the subparagraph 45(3) for a change in use aimed by the position taken on February 21st, 2012 when this change was made after this date.
The CRA continues however to accept after February 21st, 2012 a choice of subparagraph 45(3) for a change in use aimed by the position taken on February 21st, 2012 when this change in use was made on or before February 21st, 2012 and when it qualified otherwise for this choice before this position.
Financial Strategies and Financial Instruments Roundtable, October 7, 2016
2016 APFF Conference
Question 4
Elections under subsections 45(2) and 45(3) and the duplex/triplex issue
In two Technical Interpretations published in 2012 (2011-0417471E5 (footnote 1) and 2011-0420171E5 (footnote 2)), the CRA indicated that it was not possible to make an election under subsection 45(3) on one of the units of a duplex that the individual will now use as their principal residence because the duplex was a single property. In our understanding, the same principle would also apply for the purposes of subsection 45(2) (for example, if the individual begins to rent their own unit of a duplex).
Even if, for the purpose of the tax provisions relating to the principal residence exemption, a duplex is composed of two separate "units", a duplex (or other multiple unit housing complex) would, according to the CRA's position as set out in the above two interpretations, be only one property for purposes of the change of use rules. However, since the elections in subsections 45(2) and 45(3) are not possible for a partial change of use for a single property (there must be a complete change in use), the CRA has concluded that these elections are not possible with duplexes (or other multiple unit housing complexes) when there is a change in use for one of the units. It would not then be possible to defer the deemed disposition (which generally results in the triggering of a capital gain) and benefit from the additional four-year rule for the principal residence exemption, as the two benefits related to an election under subsection 45(2) or 45(3). This can mean a tax burden that is far from negligible for a taxpayer in such a situation, particularly in the cases referred to in subsection 45(3) where there is no other possible solution.
As a tax policy matter, we find it surprising that individuals who have acquired a multi-unit building are penalized respecting their own unit as contrasted to an individual who, for example, owns a condominium unit (and may even own several units in the same building) or a single family home. Thus owners of duplexes (triplexes, quadruplexes, etc.) of the owner-occupant type are deprived of certain tax advantages (deferral of disposition, four-year rule), while at the same time being forced to designate their unit as principal residence at the time of the change of use, rather than retaining years or certain years of designation for another residence (such as a cottage). Yet, for the purposes of the Home Buyers' Plan ("HBP"), the First-Time Purchase Tax Credit ("HBTC") and the calculation of the principal residence exemption, the housing unit of the owner is treated differently from any other types of housing.
This CRA position also has other surprising consequences.
If a triplex is a single property, it would mean, by way of example only, that it would be possible to claim the entirety of a capital loss on the land portion of a triplex occupied 40% by the owner, since it would be a single property. The definition of "personal-use property" (PUP) in section 54, as well as subparagraph 40(2)(g)(iii), would not have the effect of denying 40% of the capital loss on the "land" portion (a non-depreciable capital property) since the land would not be personal-use property. Indeed, the non-depreciable property (land) would not be used primarily (i.e., more than 50%) for the personal use and enjoyment of the taxpayer or persons related to the taxpayer. As for the "building" portion, it would be a depreciable property for which the current tax rules would not, according to our understanding, allow the claiming of any loss on the 40% portion occupied by the owner.
Let us look at another example involving the February 22, 1994 election with respect to the repeal of the $100,000 capital gains exemption. If the CRA's position is correct (that is, a duplex is a single property), the February 22, 1994 election on a duplex would also have triggered a disposition of the housing unit occupied by the owner, thereby forcing a decision respecting the designation of the unit as the principal residence to the detriment, for example, of a cottage.
Representatives of the CRA repeatedly said at the time that the duplex should be treated as two distinct properties (the rental portion and the personal residence portion). Many specialists who made the February 22, 1994 election on duplexes or triplexes would therefore not have made the election correctly. Since they was one property, they should have increased the proceeds of disposition (without exceeding the FMV) to trigger a gain sufficient to use the full $100,000 exemption (the other portion of the gain being potentially exempt as respecting a principal residence).
However, in Technical Interpretation 2000-0047535 (footnote 3) published in November 2000, the CRA stated that the four quadruplex units should be considered as four separate properties for purposes of the application of the change of use rules in paragraphs 13(7)(a), (b) and 45(1)(a). The CRA also stated that this was consistent with an earlier position (EC1987) (footnote 4) and that if the property were considered to be one property in this situation, the application of paragraphs 13(7)(d) and 45(1)(c) would give a result that is not representative of the actual situation.
This technical interpretation indicates, in large part, why so many practitioners made the February 22, 1994 election in respect of a single housing unit when a building had more than one unit, as explained above. This position also explains why the election under subsections 45(2) or 45(3) was repeatedly made with respect to a change in use for a unit in a duplex (or triplex) until the above-referenced 2012 Technical Interpretations had been published. Finally, since an election under subsection 45(3) must only be filed with the CRA at the time of the actual disposition, it is quite possible that individuals will be left hanging if they have disposed of their duplex after the change of position of the CRA, announced in 2012. Some may have chosen to use one of the duplex units (previously leased) as their principal residence in the 1990s or 2000s, considering, in good faith, the election under subsection 45(3), to be based on the known policy of the CRA at the time of such change in use. Thus, many people are currently experiencing great uncertainty in this regard.
In short, if the federal interpretations published in 2012 are well founded in law and there no administrative relief (or legislative clarification) isprovided, there would be obvious contradictions between certain positions already taken by the CRA or faced today in the application of the Income Tax Act.
We believe that the legislation could be amended to also reflect the concept of "housing unit" for the purposes of subsections 45(2) and 45(3) (not just the concept of "property") and thus harmonize the tax rules on such changes in use with the other measures related to the principal residence mentioned above (HBP, Principal Residence Exemption and HBTC).
Question to the Canada Revenue Agency
What should individuals do who changed the use of duplex housing several years ago as a result of a possible election under subsection 45(3), based on the former known policy of the CRA, and are now confronted with the new policy preventing them from making the election under subsection 45(3)?
CRA response
Where a taxpayer changes, in whole or in part, the use made of a property, subsection 45(1) provides inter alia that the taxpayer is deemed to have disposed of the property, or the part thereof, as the case may be, at that time and have immediately thereafter reacquired the property, or part thereof, as the case may be. These rules can result in a capl gain or loss for the taxpayer.
However, where at any time a property that was acquired by a taxpayer for the purpose of gaining or producing income ceases to be used for that purpose and becomes the principal residence of the taxpayer, subsection 45(3) permits electing, by written notice to the Minister within the specified time, to be deemed not to have so disposed of the property at that time and to have reacquired it immediately thereafter.
In Technical Interpretation 2011-0417471E5 dated February 21, 2012, the CRA took the position that a building is normally considered to be a single property for the purposes of subsection 45(1) unless the property had been legally divided into two or more separate properties. Thus, a change of use of a duplex unit is generally a partial change of use within the meaning of paragraph 45(1)(c) and therefore, such a change cannot be the subject of an election under subsection 45(3).
The CRA therefore no longer accepts an election under subsection 45(3) for a change of use referred to in the position taken on February 21, 2012 where this change occurred after that date.
However, the CRA continues to accept an election made under subsection 45(3) after February 21, 2012 for a change of use referred to in the position taken February 21, 2012 where this change of use has been made on or before February 21, 2012 and where it also qualified for this election prior to this position being taken.
Other Comments
The wording of this question refers to the application of the definition of PUP in section 54 and subparagraph 40(2)(g)(iii) in a situation where an individual occupies 40% of a triplex owned by the individual. Reference is also made to an election made February 22,1994 that would have been made in respect of a single housing unit where there were several buildings.
The CRA was asked Question No. 2 of the Roundtable on Federal Taxation at the APFF Annual Conference 2013 (footnote 6):
(1) to confirm that the capital loss on the "land" portion of a triplex occupied 40% by the owner could result in a fully qualifying capital loss if it is a single property (there is a loss);
(2) to comment on the situation in respect of a February 22, 1994 election of in such a case.
The CRA then responded that the Tax Rulings Directorate should conduct a more thorough analysis of these issues before making a decision on these issues.
Here, after analysis, are the CRA comments.
Capital loss
According to section 948 of the Civil Code of Québec, ownership of property gives a right to what it produces and to what is united to it, naturally or artificially, from the time of union. This right is called a right of accession. An owner of a property (e.g. land) is the owner by accession to all buildings and structures on the property. Therefore, a building and the land on which the building is located are a single property under the private law applicable in Québec.
Subsection 1102(2) of the Income Tax Regulations ("I.T.R.") (footnote 7)constitutes an exception to this rule in the tax context, but only for the purposes of certain provisions of the Income Tax Act. Indeed, subsection 1102(2) I.T.R. provides that the classes of property described in Schedule II shall be deemed not to include the land upon which a property described therein was constructed or is situated. Subject to subsection 13(21.1) of the Act, this provision, however, applies only for the purposes of calculating capital cost allowance, and recapture or terminal loss.
Consequently, where a taxpayer realizes a capital loss on the disposition of a property comprising a building and the land upon which it is situated, subparagraph 40(2)(g)(iii) effectively denies the loss only if the property is a PUP under section 54.
February 22, 1994 election
With respect to the 22 February 1994 election, the CRA still considers as valid the form Election to Declare a Capital Gain on Property Owned at the End of February 22, 1994, filed by a taxpayer in accordance with the instructions and information available at that time .
Isabelle Landry
(450) 623-0193
October 7, 2016
2016-065179
FOOTNOTES
Note to reader: Because of our system requirements, the footnotes contained in the original document are shown below instead:
1 CANADA REVENUE AGENCY, Technical Interpretation 2011-0417471E5, February 21, 2012.
2 CANADA REVENUE AGENCY, Technical Interpretation 2011-0420171E5, June 27, 2012.
3 CANADA REVENUE AGENCY, Technical Interpretation 2000-0047535, November 3, 2000.
4 CANADA REVENUE AGENCY, Technical Interpretation EC1987, June 24, 1980.
5 supra note 9.
6 CANADA REVENUE AGENCY, Technical Interpretation, 2013-0495621C6, October 11, 2013
7 Income Tax Regulations, C.R.C., c. 945
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