Investments in properties and gifting arrangements
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Tax shelters
- What is a tax shelter?
- Registering a tax shelter
- Tax shelter identification number
- Investments in properties and gifting arrangements
- Penalties
Investments in properties and gifting arrangements
An investment in property, or a gifting arrangement can be considered a tax shelter if certain conditions are met.
- Prescribed property and prescribed benefits in relation to a tax shelter
- Representations made in connection with the property
- Gifting arrangements
- Appraisals for donations of gifts in kind
Prescribed property and prescribed benefits in relation to a tax shelter
Prescribed property
There are two types of properties excluded from the definition of a tax shelter. They are flow-through shares and prescribed property.
Prescribed property in relation to a tax shelter is defined in the Income Tax Regulations section 3101 and includes property that is:
- a registered pension plan
- a registered retirement savings plan
- a deferred profit-sharing plan
- a registered retirement income fund
- a registered education savings plan
- shares of:
- prescribed venture capital corporations
- prescribed labour-sponsored venture capital corporations
- taxable Canadian corporations held in a prescribed stock savings plan
An investment in property is considered to be a tax shelter where it is reasonable to consider, based on statements or representations made or proposed to be made, that the buyer or donor will have losses, deductions, or credits within the first four years of buying an investment in the property.
Statements or representations include those made by a promoter or person associated with the promoter or their agent.
Further, it has to be reasonable to consider that the losses, deduction, or credits would be equal to or greater than the Net cost of the original investment or of the property acquired under the gifting arrangement.
Prescribed benefits
Prescribed benefits in respect of an interest in a tax shelter are defined in the Income Tax Regulations subsections 3100(1), 3100(2) and 3100(3), and include:
- tax credits
- revenue guarantees
- contingent liabilities
- limited-recourse amounts
- rights of exchange or conversion
Representations made in connection with the property
The definition of what constitutes a tax shelter depends entirely on the reasonable inferences that the CRA can draw from representations made in connection with the property Representations include:
- written representations such as those contained in sales brochures or advertisements
- verbal representations such as those made in public or private information, or sales meetings
Gifting arrangements
Generally, a gifting arrangement is any arrangement under which it may reasonably be considered, based on statements or representations made or proposed to be made in connection with the arrangement, which a person entering into the arrangement would:
- make a gift to a qualified donee, or make a political contribution, of property acquired by the person under the arrangement
- incur a limited-recourse debt that can reasonably be considered to relate to a gift to a qualified donee or a political contribution
A political contribution refers to a monetary contribution to a registered party, a registered association, or a candidate as defined in the Canada Elections Act.
Learn more: Limited-recourse amounts in respect of a tax shelter
The tax shelter rules for gifting arrangements generally apply to gifts, monetary contributions, and representations made and property acquired under the gifting arrangement after February 18, 2003.
As part of the overall gifting arrangement, documents such as purchase agreements, transfer agent agreements, deeds of gift, and other documents may be used at some future date. The promoter has to provide unsigned copies of such documents with their application to get a tax shelter identification number.
Appraisals for donations of gifts in kind
Generally, appraisals are central to the success of gifting arrangements, and may be produced after the tax shelter identification number has been issued.
The Canada Revenue Agency (CRA) requires that appraisals of gifts in kind be produced as they become available after the CRA have issued the tax shelter identification number. The promoter has to include these reports when they file Form T5003SUM, Tax Shelter Information Return, in the following year. If the number of appraisal reports is substantial (more than 10), the CRA will accept a listing of the appraisers along with one completed and representative report from each appraiser. The list has to be prepared in the format provided on Form T5001, Application for Tax Shelter Identification Number and Undertaking to Keep Books and Records.
The appraiser should be at arm's length from the donor or the institution receiving the donation. A fair market value (FMV) evaluation should be obtained from a dealer or appraiser who is active in the marketplace for the object donated.
If an appraisal is needed and you think the FMV of the gift is $1,000 or less, a qualified staff member of the institution receiving the gift can appraise it.
If there is difficulty in finding an independent appraiser, or if it involves an unreasonable expense, qualified staff members of the institution accepting the gift can appraise it, even though the FMV might be more than $1,000.
Net cost
"Net cost" is net of any prescribed benefits expected to be received or enjoyed, directly or indirectly, by the person or another person with whom the person does not deal at arm’s length.
Property
Property is defined in subsection 248(1) of the Income Tax Act and means property of any kind whatever, whether real or personal and whether tangible or intangible, including a right of any kind and a share or a chose in action (right to sue). Two types of properties excluded from the definition of a tax shelter are flow-through shares and prescribed property.
Limited-recourse amounts in respect of a tax shelter
A limited-recourse amount is the unpaid principal amount of any indebtedness for which recourse is limited in any way. If a person (or any other person not dealing at arm's length with the person) incurs a limited-recourse amount, the amount of any tax benefits to which the person would otherwise be entitled to may be reduced.
For example, the amount of any expenditure that is the cost or capital cost of the person's tax shelter investment is reduced by the amount of any related limited-recourse amount incurred by the person (or any other person not dealing at arm's length with the person).
This provision is meant to ensure that participants' deductions will be limited to funds that are actually at risk.
Example
A taxpayer reports an investment of $100,000 in a tax shelter. The investment is composed of $10,000 in cash, and financing of $90,000.
Where, for example, the only collateral for the debt is the tax shelter property itself, or potential income from that property, the $90,000 would be a limited-recourse amount. As such, under tax shelter rules, the cost of the investment would be $10,000 and not $100,000.
The Canada Revenue Agency (CRA) also consider the unpaid principal amount of a financing to be a limited-recourse amount unless all of the following requirements are met:
- interest is payable at least annually at a rate equal to or greater than the prescribed rate of interest at the time the indebtedness arose, or during its term
- interest is paid every year during the term of the indebtedness no later than 60 days after the end of the taxation year
- there are bona fide arrangements in writing, at the time the indebtedness arose, for repayment of all principal and interest and the repayment will occur within a reasonable period not exceeding 10 years
However, in some circumstances the CRA may consider loans repayable within 10 years to be a limited-recourse amount. For example, the maximum 10 year time period for repayment cannot be avoided through a series of loans and repayments. Also, where the investor is a partnership, the indebtedness is a limited-recourse amount if recourse against any member of the partnership is limited in respect of the unpaid principal amount.
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- Date modified:
- 2025-07-24