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This translation was prepared by Tax Interpretations Inc. The CRA did not issue this document in the language in which it now appears, and is not responsible for any errors in its translation that might impact a reader’s understanding of it or the position(s) taken therein. See also the general Disclaimer below.
Principal Issues: 1) Can the CRA confirm that the calculation of the principal residence exemption for vacant land is based on the years designated as principal residence? 2) If so, can CRA accept a different calculation method?
Position: 1) In the given situation, yes. 2) No.
Reasons: 1) Wording of the Act. 2) No provision in the Act to this effect.
FEDERAL TAX ROUNDTABLE, OCTOBER 7, 2021
APFF CONFERENCE 2021
Question 15
Principal Residence Exemption
Setting the scene
- An individual purchased a vacant lot in 1991 of 5,000 square metres.
- He built a house on it in 2000, 10 years later.
- This house then became his principal residence until its disposition in 2020.
Analysis
At the time of sale, the taxpayer may designate the building (residence and land) as a principal residence for the years 2000 to 2020. The capital gain attributable to the land prior to the construction of the residence, i.e. the 10-year period from 1990 to 1999, would then be taxable. Thus, assuming the capital gain attributable to the land is $500,000 at the time of sale, $350,000 (21/30 * $500,000) would be exempt and the remaining $150,000 would be taxable as a capital gain.
The current rules have the effect of spreading the increase in value of the land linearly over the number of years of ownership. However, given the recent and significant increase in the value of land, those rules may result in the taxation of a much higher capital gain than if the gain had been taxed on the basis of the actual value in 2000, when the land began to be used as a principal residence.
Questions to the CRA
a) Can the CRA confirm that the calculation of the exempt amount is based on the years designated as the principal residence, as described above?
b) If so, can the CRA accept an alternative method that allows the taxpayer to be taxed on the actual gain accrued on the land at the time the house was built in 2000, in order to exempt the actual gain accrued on the land from that time until the sale of the residence?
CRA Response
Paragraph 40(2)(b) generally allows an individual to reduce the gain otherwise determined from the disposition of a property that was the individual's principal residence at any time after the acquisition date by the number of years that the property was the individual's principal residence.
According to that paragraph, the amount that may reduce an individual's otherwise determined gain is calculated according to, inter alia, the formula B / C.
Element B refers to the number one plus the number of taxation years that end after the acquisition date for which the property was the individual's principal residence and during which the individual was resident in Canada. Element C refers to the total number of years after the acquisition date during which the individual owned the property.
Section 54 defines "principal residence" as, inter alia, a housing unit owned, whether jointly with another person or otherwise, in the year by an individual and ordinarily inhabited by the individual, the individual's spouse or common-law partner or former spouse or common-law partner, or a child of the individual. Paragraph (e) of that definition provides that an individual's principal residence for a taxation year is deemed to include the land subjacent to the housing unit and such portion of any immediately contiguous land as can reasonably be regarded as contributing to the use and enjoyment of the housing unit as a residence. However, where the total area of the subjacent land and of that portion exceeds one-half hectare, the excess shall be deemed not to have contributed to the use and enjoyment of the housing unit as a residence unless the taxpayer establishes that it was necessary to such use and enjoyment.
In a situation where an individual acquires land in one taxation year and constructs a housing unit thereon in a subsequent year, the CRA's long-standing position is set out in paragraph 2.29 of Income Tax Folio S1-F3-C2 (footnote 1), namely that in such a situation the property cannot be designated as the individual's principal residence for the years preceding the year in which the individual, the individual's spouse or common-law partner, the individual's former spouse or common-law partner, or the individual's child begins to ordinarily inhabit the dwelling.
Consequently, the years in which land is vacant are not included in the description of B in the formula in paragraph 40(2)(b), whereas all years from the year in which the individual acquired the vacant land are included in the description of C in that same formula. It is possible, therefore, that on the subsequent disposition of the property, where the property is land that has been vacant for certain years, that the principal residence exemption will eliminate only a portion of the gain otherwise determined.
There is no provision in the Income Tax Act that allows for a different calculation of the amount that may reduce the gain otherwise determined for purposes of the principal residence exemption in this situation. The CRA is responsible for administering the Income Tax Act as passed by Parliament and cannot go beyond the provisions included therein.
Lyne Gélinas
(438) 334-3528
October 7, 2021
2021-090105
FOOTNOTES
Due to our system requirements, footnotes contained in the original document are reproduced below:
1 CANADA REVENUE AGENCY, Income Tax Folio S1-F3-C2, "Principal Residence", July 25, 2019.
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