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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. Is an amalgamated corporation which becomes the owner of a housing unit located in Canada upon amalgamation and disposes of it less than 365 days later, subject to the flipped property rules? Does the gain from the disposition of a flipped property under subsection 12(12) of the Income Tax Act qualify for the small business deduction ?; 2. Would CRA’s response be different if the corporation became the owner of the housing unit following a winding-up?; 3. Would CRA’s response be different if the corporation became the owner of the housing unit following a rollover?; 4. Would CRA’s response be different if the corporation became the owner of the housing unit following a transf er at its FMV?; 5. What is the scope of the expression “housing unit” for the purposes of subsection 12(13)?
Position: 1. Yes; 2. No; 3. No; 4. No; 5. To be determined.
Reasons: 1. Wording of the Act; 2. Wording of the Act; 3. Wording of the Act; 4. Wording of the Act; 5. Currently in discussion with Finance.
APFF FEDERAL TAX ROUNDTABLE 10 OCTOBER 2024
2024 APFF CONFERENCE
1. Flipped Property Rules
Background
Effective January 1, 2023, gains from the disposition of flipped properties have been recharacterized as fully taxable business income instead of capital gains taxable at 50%. The rules for individuals involved in this type of sale seem fairly detailed, but those for corporations are less so. Assume the following situation:
- Aco had rented a housing unit that it had owned for 5 years;
- Aco’s principal activity was the rental of real estate and it had fewer than 5 full-time employees;
- Bco was a property management company that held 100% of the shares of the capital stock of Aco;
- in January 2023, there was an amalgamation between Aco and Bco.
Questions to CRA
(a) The new corporation resulting from the amalgamation disposed of the housing unit in December 2023. Considering that the value of the building had appreciated since its acquisition, will the flipped property rules apply in order to recharacterize the building as inventory? Will the recapture, if any, and the gain be treated as business income eligible for the small business deduction (“SBD”)?
(b) If, instead of amalgamating, Aco had been wound up into Bco, would the answer be the same regarding the sale of the building in December 2023?
(c) If instead there was a transfer of the building from Aco to Bco in January 2023 and a resale of the building in December 2023, would the flipped property rules apply?
(d) If the transfer of the building from Aco to Bco in January 2023 had been by way of sale at fair market value (‘FMV’), would the answer be the same as in question c)?
(e) Aco purchased a new building in January 2023 and operated a seniors' residence there until the building was resold to a third party in October 2023. Would that building qualify as a “housing unit” for the purposes of the new provisions?
(f) Finally, in March 2023, Bco acquired a building to operate a computer consulting business. The employees worked there 8 hours a day and ate lunch in the kitchen, which was furnished with an oven and refrigerator. In December 2023, due to a lack of staff for its business, Bco sold the building to a third party. Would that building qualify as a “housing unit” for the purposes of new subsection 12(12) of the Income Tax Act?(footnote 1).
(g) Can the CRA provide the necessary conditions to qualify a building as a “housing unit” for the purposes of subsection 12(12)?
CRA Response to Question 1(a)
Generally, the rules set out in subsection 12(12) on flipped property apply where a taxpayer realizes a gain on the disposition of a "flipped property." The expression "flipped property" is defined in subsection 12(13) and essentially refers to a housing unit (or the right to acquire such a housing unit) situated in Canada, which is owned or held by a taxpayer for less than 365 consecutive days prior to its disposition, other than a disposition that can reasonably be considered to occur due to, or in anticipation of, one of the exemptions provided for in paragraph 12(13)(b). For the purposes hereof, in order to determine whether or not the property meets the parameters of the definition of ‘flipped property’ as set out in the preceding paragraph, we have made the following assumptions:
- The property disposed of is a housing unit located in Canada;
- the disposition of this property does not occur because of or in anticipation of one of the exemptions provided by paragraph 12(13)(b).
Thus, considering the assumptions set out above, the principal issue to be resolved in order to determine whether, in the scenario presented, the property disposed of in December 2023 is a ‘flipped property’ within the meaning of subsection 12(13) is to ensure that the property meets the condition set out in paragraph 12(13)(b), i.e., to determine whether the property in question is held for less than 365 consecutive days prior to its disposition by the new corporation resulting from the amalgamation. If this is the case and all other requirements are satisfied, the rules set out in subsection 12(12) on flipped property could apply.
Essentially, for the purposes of paragraph 12(13)(b), a taxpayer's holding period in respect of a housing unit begins when the taxpayer becomes the owner thereof. In the context of an amalgamation, paragraph 87(2)(a) deems a corporation resulting from an amalgamation to be a new corporation and paragraph 87(1)(a) deems it to become the owner of the property owned by the predecessor corporations following the amalgamation. Consequently, in the scenario presented, if the amalgamated corporation held the property for less than 365 consecutive days before its disposition, subsections 12(12), 12(13) and 12(14) could hypothetically apply if all the other conditions were satisfied.
Where subsection 12(12) applies to a taxpayer, the taxpayer is deemed to be carrying on a business that is an adventure or concern in the nature of trade in respect of the flipped property. The income of a Canadian-controlled private corporation (“CCPC”) from an active business carried on in Canada for a taxation year generally qualifies for the small business deduction (“SBD”). The definition of "active business carried on by a corporation" in subsection 125(7) includes an adventure or concern in the nature of trade. Thus, we are of the view that income arising from the disposition of a flipped property could be considered income from an active business and be eligible for the SBD subject to the limits and requirements set out in the Income Tax Act, in particular, in section 125.
However, we would like to point out that, under the various scenarios presented, the CRA could, depending on the circumstances, consider the possibility of applying the general anti-avoidance rule (“GAAR”) provided for in subsection 245(2) if one of the main purposes of a transaction is to obtain an undue tax benefit to which the taxpayer would not otherwise be entitled.
CRA Response to Question 1(b)
For information purposes, the general comments concerning subsections 12(12), 12(13) and 245(2), as well as the assumptions set out in Question 1(a), remain relevant for the purposes of this question, with certain adaptations required by the context.
Thus, in the case of a winding-up, if the requirements of subsection 88(1) are satisfied, paragraph 88(1)(a) provides, among other things, that the property of the subsidiary distributed to the parent corporation on the winding-up is deemed, except in certain cases provided for in paragraphs 88(1)(a.1), 88(1)(a.2) and 88(1)(a.3), to have been disposed of by the subsidiary.
Consequently, in determining whether the property is held by the taxpayer for less than 365 consecutive days prior to its disposition, as required by paragraph (b) of the definition of ‘flipped property’ in subsection 12(13), the time at which the parent corporation is distributed a property on a winding-up generally corresponds to the time at which it begins to be held.
Thus, in the hypothetical scenario given, assume that on January 31, the building is distributed to Bco following the winding-up of Aco. If Bco subsequently disposes of the building on December 1 of the same year, it would have held the building for less than 365 days prior to disposing of it. Given the assumptions set out above, the building could be a ‘flipped property’ under subsection 12(13) and thus trigger the application of the flipped rules in subsection 12(12) if all the requirements were satisfied.
CRA Response to Question 1(c)
For information purposes, the general comments regarding subsections 12(12), 12(13) and 245(2), as well as the assumptions set out in question 1(a), remain relevant for the purposes of this question, with certain adaptations required by the context.
In summary, subsection 85(1) allows a taxpayer to transfer certain property to a taxable Canadian corporation, i.e., to another taxpayer, for an agreed-upon amount when certain conditions are satisfied.
Consequently, to determine whether the property is held by the taxpayer for less than 365 consecutive days prior to its disposition, as required by paragraph (b) of the definition of ‘flipped property’ in subsection 12(13), it is first necessary to determine when the property was acquired. In this case, Bco acquired the building at the time of the rollover in its favour, i.e., in January. If it had disposed of the property on December 1, it would have held the property less than 365 days prior to its disposition. Given the above assumptions, the building could be ‘flipped property’ under subsection 12(13) and thus trigger the application of the flipped rules in subsection 12(12), provided all the requirements are satisfied.
CRA Response to Question 1(d)
In order for a property to qualify as ‘flipped property’ under the definition of that term in subsection 12(13), it must, among other things, be a property held by a taxpayer for less than 365 days prior to its disposition. This definition does not provide for any exception or continuity rule where the property is acquired through a transfer between taxpayers made at FMV.
CRA Response to Question 1(e), (f) and (g)
Questions 1(e), 1(f) and 1(g) have a common denominator in that they refer to the condition set out in paragraph (a) of the definition of ‘flipped property’ in subsection 12(13), which requires that the property in question be a housing unit situated in Canada. The term ‘housing unit’ is not defined in the Income Tax Act. We must therefore rely on the common meaning of this term and take into account the overall context of the text in which it is used so that the interpretation adopted is consistent with the spirit of the Income Tax Act and Parliament's intent.
According to the Supplementary Information that accompanied the 2022 budget (footnote 2), the Residential Property Flipping Rule is intended to ensure that profits from residential properties flipped after less than 12 months are considered to be business income and thus subject to full taxation. The information also clarified that the reference to residential property also includes rental property.
In addition, the property flipping rules are part of a package of measures contained in Bill C-32(footnote 3) aimed at making life more affordable for Canadians (footnote 4). In such a context, the CRA is prepared to interpret the expression "housing unit" with some flexibility. That said, with respect to your specific questions, they are currently under review and will be the subject of consultations with representatives of the Department of Finance in order to provide you with further clarification on the scope of this term.
In closing, it is important to note that, even in the absence of the flipped property rules set out in subsections 12(12), 12(13) and 12(14), the question of whether the disposition of a property results in business income or a capital gain can only be resolved following a review of the relevant facts and circumstances of a particular situation.
Eric Paquin
October 10, 2024
2024-102836
FOOTNOTES
Due to our system requirements, footnotes contained in the original document are reproduced below:
1 R.S.C. 1985, c. 1 (5th Supp.) (the "Act").
2 CANADA, Department of Finance, Budget 2022 - A Plan to Grow our Economy and Make Life More Affordable, Tax Measures: Supplementary Information, April 7, 2022
3 Bill C-32, An Act to implement the fall 2022 economic statement, 1st session, 44th Parliament, 2022 (Can) (tabled November 3, 2022 and assented to December 15, 2022).
4 CANADA, Department of Finance, News Release, “Government of Canada introduces legislation to make life more affordable and build an economy that works for everyone”, November 4, 2022
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