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MUSINGS: PASSIVE INVESTMENT INCOME

November 3, 2017

In his appearance before the Standing Senate Committee on National Finance this Wednesday, Mr. Morneau attempted to defend the actions of his Department in drafting the proposed tax rules related to private corporations.

 

While stating that the current system benefits those that are already successful rather than those who are starting out, he introduced changes to the passive investment income rules to “grandfather” all existing capital and only tax “new” capital under the new rules.  How is this not benefiting those that are already successful and penalizing those starting out?

 

In introducing a threshold of $50,000 of investment income on “new” capital that will continue to be taxed under existing rules, he stated that $50,000 will be easy to track.

 

Let’s consider that for a moment.  In order to determine how passive investment income will be taxed, it will be necessary to determine which “pool” of capital generated the investment income.

 

As it appears currently, remembering that we won’t see the legislation until after next spring’s 2018 Federal Budget, there are a number of different pools of capital and income that have come to mind (this list seems to grow daily):

 

  • pre-2018 capital
     

  • post-2017 income from the re-investment of pre-2018 capital
     

  • capital gains from pre-2018 capital assets held for business use
     

  • capital gains from pre-2018 capital assets held for investment purposes
     

  • capital gains from post-2017 capital assets held for business use
     

  • capital gains from post-2017 capital assets held for investment purposes
     

  • income up to $50,000 from post-2017 low rate active business earnings
     

  • income in excess of $50,000 from post-2017 low rate active business earnings
     

  • income from post-2017 high rate active business earnings
     

  • post 2017 income from shareholder loans to the company
     

  • post 2017 income from borrowings by the company
     

  • post 2017 income from capital held by the company for business re-investment, capital improvements, banking covenants, bonding, etc.
     

  • post 2017 income from capital from a non-taxable source such as the untaxed ½ of capital gains or life insurance proceeds

 

If a non-deductible expenditure is made, we must know the order in which the various pools will be reduced to be able to continue to track all of the pools of investment income.

 

If control of the company changes what does that do to the various pool balances?  Does it matter if it is an arm’s length or non-arms’ length change of control?  Does it matter if the change of control is as a result of the death of the controlling shareholder?

 

Brian Bloom, a tax partner at Davies Ward Phillips & Vineberg, and formerly a senior legislative draftsman at the Department of Finance, has estimated that the passive investment income rules will require 100 pages of legislation.

 

But, as Morneau said in his appearance, $50,000 will be easy to track!

 

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