2022 Federal Budget

Budget 2022 proposes to increase the maximum HBTC from $750 to $1,500 for qualifying home purchases made on or after January 1, 2022. The HBTC is a non-refundable tax credit available to individuals who purchase a first-time home.

Budget 2022 proposes to introduce the MHRTC, which is a refundable tax credit that applies to individuals who incur eligible expenses in renovating their home to create a second dwelling unit for an eligible senior who is a “qualifying relation”. The credit is computed as 15 per cent of the eligible expenses, to a maximum of $50,000, for a maximum refundable credit of $7,500. The MHRTC will apply to eligible expenses incurred on or after January 1, 2023 to create a secondary dwelling.

Eligible Persons

Eligible persons for the purposes of the MHRTC are:

• Seniors who are 65 years of age or older at the end of the taxation year that includes the end of the renovation period.
• Adults with disabilities who are 18 years of age or older at the end of the taxation year that includes the end of the renovation period, and who are eligible for the Disability Tax Credit at any time in that year.

Qualifying Relations

A qualifying relation in respect of an eligible person who claims the MHRTC would be an individual who is 18 years of age or older at the end of the taxation year that includes the end of the renovation period and is a parent, grandparent, child, grandchild, brother, sister, aunt, uncle, niece, or nephew of the eligible person.

Who can claim the MHRTC?

• An individual who ordinarily resides, or intends to ordinarily reside, in the eligible dwelling within twelve months after the end of the renovation period and who is:
  
  • An eligible person;
  • The spouse or common-law partner of the eligible person;
  • A qualifying relation, in respect of an eligible person; or
• A qualifying relation, in respect of an eligible person, who owns the eligible dwelling.
• More than one individual can claim the MHRTC as long as no more than 15 per cent of the maximum $50,000 expenditure limit is claimed between them.

Eligible Dwelling

An eligible dwelling would be defined as a housing unit that is:

• Owned (either jointly or otherwise) by the eligible person, the spouse or common-law partner of the eligible person or a qualifying relation in respect of the eligible person; and
• Where the eligible person and a qualifying relation in respect of the eligible person ordinarily reside, or intend to ordinarily reside, within 12 months after the end of the renovation period.

An eligible dwelling would include the land subjacent to the housing unit and the immediately contiguous land but would not the portion of that land that exceeds the greater of ½ hectare and the portion of that land that the individual establishes is necessary for the use and enjoyment of the housing unit as a residence.

Qualifying Renovation

A qualifying renovation would be defined as a renovation or alteration of, or addition to, an eligible dwelling that is:

• Of an enduring nature and integral to the eligible dwelling; and
• Undertaken to enable an eligible person to reside in the dwelling with a qualifying relation, by establishing a secondary unit within the dwelling for occupancy by the eligible person or the qualifying relation.

A secondary unit would be defined as a self-contained dwelling unit with a private entrance, kitchen, bathroom facilities, and sleeping area. The secondary unit could be newly constructed or created from an existing living space that did not already meet the requirements to be a secondary unit. To be eligible, relevant building permits for establishing a secondary unit must be obtained and renovations must be completed in accordance with the laws of the jurisdiction in which an eligible dwelling is located.

One qualifying renovation would be permitted to be claimed in respect of an eligible person over their lifetime.

Renovation Period

The renovation period means a period that:

• Begins at the time that an application for a building permit for a qualifying renovation is submitted; and
• Ends at the time when the qualifying renovation passes a final inspection, or proof of completion of the project according to all legal requirements of the jurisdiction in which the renovation was undertaken is otherwise obtained.

The MHRTC would be available for the taxation year that includes the end of the renovation period.

Eligible Expenses

Eligible expenses would include the cost of labour and professional services, building materials, fixtures, equipment rentals and permits. Items such as furniture, appliances and regular repairs and maintenance are not integral to the creation of the dwelling and therefore, not eligible. Receipts for the eligible expenses must be retained.

Eligible expenses must be reduced by any reimbursement or any other form of assistance that an individual is or was entitled to receive, including any related rebates. Furthermore, expenses would not be eligible for the MHRTC if they are claimed under the Medical Expense Tax Credit and/or Home Accessibility Tax Credit.

The HATC is a non-refundable tax credit that provides recognition of eligible home renovation or alteration expenses in respect of an eligible dwelling of a qualifying individual. A qualifying individual is an individual who is eligible to claim the Disability Tax Credit at any time in a tax year, or an individual who is 65 years of age or older at the end of a tax year. The HATC is currently calculated as 15 per cent of eligible home renovation expenses to a maximum of $10,000, for a maximum credit of $1,500.

Budget 2022 proposes to increase the annual expense limit of the HATC to $20,000, for an increased maximum credit of $3,000.

The increased HATC would apply to expenses incurred in 2022 and the subsequent taxation years.

Budget 2022 proposes to introduce a new deeming rule to ensure profits from flipping residential real estate are always subject to full taxation (i.e., no capital gains treatment). To this end, profits that are triggered on the disposition of residential property (including a rental property) that was owned for less than 12 months would be deemed to be fully taxable business income.

The new deeming rule would not apply if the disposition of property is connected to at least one of the life events listed below:

• Death: a disposition due to, or in anticipation of, the death of the taxpayer or a related person.
• Household addition: a disposition due to, or in anticipation of, a related person joining the taxpayer’s household or the taxpayer joining a related person’s household (e.g., birth of a child, adoption, care of an elderly parent).
• Separation: a disposition due to the breakdown of a marriage or common-law partnership, where the taxpayer has been living separate and apart from their spouse or common-law partner because of a breakdown in the relationship for a period of at least 90 days.
• Personal safety: a disposition due to a threat to the personal safety of the taxpayer or a related person, such as the threat of domestic violence.
• Disability or illness: a disposition due to a taxpayer or a related person suffering from a serious disability or illness.
• Employment change: a disposition for the taxpayer or their spouse or common-law partner to work at a new location or due to an involuntary termination of employment. In the case of work at a new location, the taxpayer’s new home must be at least 40 kilometres closer to the new work location.
• Insolvency: a disposition due to insolvency or to avoid insolvency (i.e., due to an accumulation of debts).
• Involuntary disposition: a disposition against someone’s will, for example, due to, expropriation or the destruction or condemnation of the taxpayer’s residence due to a natural or man-made disaster.

Where this new deeming rule applies, the Principal Residence Exemption (“PRE”) would not be available on the sale of a residence. The result is that 100 per cent of the gain on the sale is subject to full taxation.

This new measure would apply to sales of residential properties completed on or after January 1, 2023.

Budget 2022 proposes to introduce the LMDT to recognize that certain tradespeople need to travel and relocate for their work in the construction industry. The LMDT would allow eligible workers to deduct up to $4,000 in eligible expenses per year, thereby reducing their taxable income.

Eligible Individuals

An eligible individual is a tradesperson or an apprentice who:

• Makes a temporary relocation that is required for their work/employment; and
• Ordinarily lives at a residence in Canada and temporarily needs to live in a lodging unit near the work location (which is away from the ordinary residence). The temporary lodging must be at least 150 kilometers closer to the work location as compared to the ordinary residence.

Eligible expenses include temporary lodging expenses, transportation and meals.

The individual must maintain their ordinary residence in order to qualify for the LMDT.

The LMDT applies to the 2022 and subsequent taxation years.

Budget 2022 proposes to provide a broader definition of patient in cases where an individual relies on a surrogate or a donor in order to become a parent. Patient would be defined in these circumstances as:

• The taxpayer;
• The taxpayer’s spouse or common-law partner;
• A surrogate mother; or
• A donor of sperm, ova, or embryos.

This broader definition will allow an individual or their spouse to claim the medical expense credit in respect of a surrogate or donor. Moreover, the budget proposes to allow reimbursements bout-of -pocket medical expenses made by surrogate mothers or donors to qualify for the medical credit by the taxpayer who is becoming the parent. The expenses must otherwise be eligible and be incurred in Canada to qualify.

This expanded medical expense credit applies to expenses incurred in 2022 and subsequent taxation years.

Disbursement Quota Changes

Budget 2022 proposes to make several changes to the disbursement quota (“DQ”) that applies to charities. Currently, the DQ is 3.5 per cent of the charity’s property not used in charitable activities or administration. The budget proposes to increase the DQ to 5 per cent for the portion of property not used in charitable activities or administration that exceeds $1 million.

Budget 2022 also proposes to amend some provisions of the Income Tax Act to give the Canada Revenue Agency discretion to grant a DQ reduction to certain charities for any particular tax year, as well as allow certain charities to accumulate property that is not to be included in determining the DQ.

These changes will apply in respect of charity fiscal periods beginning on or after January 1, 2023.

Budget 2022 proposes to introduce a one-time Canada Recovery Dividend (“CRD”) and additional tax on banks and life insurers.

The CRD is a one-time 15 per cent tax on bank and life insurer groups applicable on profits exceeding $1 billion. This tax would apply to these entities based on their taxable income for years ending in 2021. The CRD liability would be imposed for the 2022 taxation year and would be payable in equal amounts over five years.

Banks and insurer groups will be subject to an additional tax of 1.5 per cent of their annual taxable income over $100 million. This new tax will apply to taxation years ending after Budget Day.

Carbon capture, utilization, and storage (“CCUS”) is a suite of technologies that capture carbon dioxide (CO₂) emissions from fuel combustion, industrial processes or directly from the air, to either store the CO₂ or use the CO₂ in industry.

Budget 2022 proposes to introduce an investment tax credit for CCUS (the CCUS Tax Credit). The CCUS Tax Credit would be refundable and available to businesses that incur eligible expenses starting on January 1, 2022.

Credit Rates

The following rates would apply to eligible expenses incurred after 2021 and through 2030:

• 60 per cent for eligible capture equipment used in a direct air capture project;
• 50 per cent for all other eligible capture equipment; and
• 37.5 per cent for eligible transportation, storage, and use equipment.

Eligible expenses that are incurred after 2030 through 2040 would be subject to the lower rates set out below:

• 30 per cent for eligible capture equipment used in a direct air capture project;
• 25 per cent for all other eligible capture equipment; and
• 18.75 per cent for eligible transportation, storage, and use equipment.

Eligible Expenses

The CCUS Tax Credit would be available in respect of the cost of purchasing and installing eligible equipment used in an eligible CCUS project, to the extent the equipment was part of a project where the captured CO₂ was used for an eligible use.

The project would also be subject to the required validation and verification process, would need to meet the storage requirements, and a climate-related financial disclosure report would need to be produced in order for the CCUS Tax Credit to be claimed.

Budget 2022 proposes to expand eligibility under Capital Cost Allowance Classes 43.1 and 43.2 to include air-source heat pumps primarily used for space or water heating. Eligible property would include equipment that is part of an air-source heat pump system that transfers heat from the outside air, including refrigerant piping, energy conversion equipment, thermal energy storage equipment, control equipment and equipment designed to enable the system to interface with other heating and cooling equipment. Eligible property would not include:

• Buildings or parts of buildings;
• Energy equipment that backs up an air-source heat pump system; or
• Equipment that distributes heated or cooled air or water within a building.

This expansion of Classes 43.1 and 43.2 would apply in respect of property that is acquired and that becomes available for use on or after Budget Day, where it has not been used or acquired for use for any purpose before Budget Day.

Budget 2021 proposed a temporary measure to reduce zero-emission technology manufacturers’ tax rates on eligible zero-emission technology manufacturing and processing income of:

• 7.5 per cent, where that income would otherwise be taxed at the 15-per-cent general corporate tax rate; and
• 4.5 per cent, where that income would otherwise be taxed at the 9-per-cent small business tax rate.

The reduced tax rates would apply to taxation years that begin after 2021, subject to a phase-out starting in taxation years that begin in 2029 and would be fully phased out for taxation years beginning after 2031.

Budget 2022 proposes to include the manufacturing of air-source heat pumps used for space or water heating as an eligible zero-emission technology manufacturing or processing activity. Eligible activities would include the manufacturing of components or sub-assemblies only if such equipment is purpose-built or designed exclusively to form an integral part of an air-source heat pump.

Flow-through share agreements allow corporations to renounce or “flow through” both Canadian exploration expenses and Canadian development expenses to investors, who can deduct the expenses in calculating their taxable income.

Budget 2022 proposes to eliminate the flow-through share regime for oil, gas, and coal activities by no longer allowing oil, gas and coal exploration or development expenditures to be renounced to a flow-through share investor.

This change would apply to expenditures renounced under flow-through share agreements entered into after March 31, 2023.

 

Canadian-controlled private corporations (“CCPC”) have access to the SBD in respect of the first $500,000 of profits in the associated group of companies. With the SBD, the first $500,000 of profits are taxed at a much lower combined federal and provincial corporate tax rate (12.2% in Ontario). The SBD is reduced under two conditions, as follows:

• The combined taxable capital employed in Canada of the CCPC and its associated corporations is between $10 million and $15 million; or
• The combined “adjusted aggregate investment income” of the CCPC and its associated corporations is between $50,000 and $150,000.

Budget 2022 proposes to extend the range over which the SBD is reduced based on the combined taxable capital employed in Canada of the CCPC and its associated corporations. The new range would be $10 million to $50 million. We note that the second condition above where the associated group of companies has investment income that exceeds $50,000 is unchanged by Budget 2022, which means that the SBD of a corporation can still be reduced where the investment income earned in the associated group exceeds $50,000, notwithstanding that the increased taxable capital threshold is not exceeded.

The increased taxable capital threshold under the SBD would apply to taxation years that begin on or after Budget Day.

The GAAR is intended to prevent abusive tax avoidance transactions. If abusive tax avoidance is established, the GAAR applies to deny the tax benefit created by the abusive transaction. The onus to prove GAAR has been established is on the part of the Canada Revenue Agency (“CRA”).

Currently, the GAAR may apply where there has been an abusive transaction and a tax benefit has been enjoyed by the taxpayer as a result.

Budget 2022 proposes that the Income Tax Act be amended to provide that the GAAR can apply to transactions that affect tax attributes that have not yet become relevant to the computation of tax.

These changes will not apply to tax attributes that are concluded before Budget Day. Specifically, determinations made before Budget Day, where the rights of objection and appeal in respect of the determination were exhausted before Budget Day, would remain binding on taxpayers and the CRA.

This new GAAR measure would apply to Notices of Determination issued on or after Budget Day.

A CCPC can be migrated to a foreign jurisdiction, thereby making it a non-CCPC. This type of planning was sometimes sought to benefit from tax deferral opportunities in respect of investment income earned in the corporation. A CCPC that earns investment income is subject to the refundable corporate tax regime which applies a higher corporate tax rate (50.17% in Ontario) to investment income earned in the CCPC. This tax is partially refundable (30 2/3%) when the CCPC pays taxable dividends to its shareholders. A non-CCPC is not subject to the refundable corporate tax regime, such that investment income earned therein is subject to the lower general corporate tax rate (26.5% in Ontario). All to say that, by converting a CCPC to a non-CCPC, shareholders could defer a significant amount of tax on investment income.

Budget 2022 proposes to curtail the tax deferral afforded by the non-CCPC planning described above. Specifically, Budget 2022 proposes amendments to the Income Tax Act to align the taxation of investment income earned and distributed by “substantive CCPCs” with the rules that currently apply to CCPCs. Substantive CCPCs would be private corporations resident in Canada (other than CCPCs) that are ultimately controlled (in law or in fact) by Canadian-resident individuals. It would also cause a corporation to be a substantive CCPC in circumstances where the corporation would have been a CCPC but for the fact that a non-resident or public corporation has a right to acquire its shares.

Substantive CCPCs earning and distributing investment income would be subject to the same anti-deferral and integration mechanisms as CCPCs, with respect to such income. Furthermore, the investment income earned by substantive CCPCs would not be added to the general rate income pool (“GRIP”) of the corporation. This means that dividends paid out of the substantive CCPC would be non-eligible dividends which are subject to a higher dividend tax rate in the hands of the individual shareholder(s) than eligible dividends ordinarily paid by non-CCPCs.

These measures would apply to taxation years that end on or after Budget Day. For true business transactions that triggered a change of corporate status from CCPC to non-CCPC, an exception would be provided where the taxation year of the corporation ends because of an acquisition of control caused by the sale of all or substantially all (90% or more) of the shares of a corporation to an arm’s length purchaser. The purchase and sale agreement pursuant to which the acquisition of control occurs must have been entered into before Budget Day and the share sale must occur before the end of 2022.

The foreign accrual property income (“FAPI”) rules aim to prevent Canadian taxpayers from gaining a tax deferral advantage by earning certain types of investment income through controlled foreign affiliates (“CFA”) (i.e., a non-resident corporation in which the taxpayer has, or participates in, a controlling interest). The rules do this by including the Canadian shareholder’s participating share of the CFA’s FAPI in the Canadian shareholder’s income in the year it is earned. If the Canadian shareholder is a CCPC, this amount is subject to the same additional refundable tax described above. In other words, the FAPI regime seeks to address any deferral advantage by subjecting FAPI earned in a CFA to tax on a current basis and at the same level as if it was earned in Canada.

To avoid double taxation, FAPI income inclusions are subject to a deduction in respect of foreign tax paid on the FAPI (referred to as “foreign accrual tax”). This deduction is a proxy for a foreign tax credit on the FAPI amount included in the Canadian resident taxpayer’s income. The proxy amount is calculated based on the amount of foreign income that was subject to a sufficient level of foreign tax, determined based on the “relevant tax factor”. The relevant tax factor is calibrated to the tax rate to which the taxpayer would have been subject had the income been earned in Canada.

To mirror the new anti-deferral measures applicable to substantive CCPCs, Budget 2022 proposes targeted amendments to the Income Tax Act to eliminate the tax-deferral advantage available to CCPCs and their shareholders earning investment income through CFAs. The deferral advantage would be addressed by applying the same relevant tax factor to individuals, CCPCs and substantive CCPCs (i.e., the relevant tax factor currently applicable to individuals). This relevant tax factor is calibrated based on the highest combined federal and provincial or territorial personal income tax rate and would thus eliminate any tax incentive for CCPCs and their shareholders to earn investment income in a controlled foreign affiliate.

Please speak to your Crowe Soberman advisor regarding the details of this new measure, including with respect to repatriations of a foreign affiliate’s after-tax profits, as these are very technical in nature.

These measures would apply to taxation years that begin on or after Budget Day.

Canada is one of 137 members of the Organisation for Economic Co-operation and Development (OECD)/Group of 20 (G20) Inclusive Framework on Base Erosion and Profit Shifting (the Inclusive Framework) that have joined a two-pillar plan for international tax reform agreed to on October 8, 2021.

Pillar One is intended to reallocate a portion of taxing rights over the profits of the largest and most profitable multinational enterprises (“MNEs”) to market countries (i.e., where their users and customers are located). Pillar Two is intended to ensure that the profits of large MNEs are subject to an effective tax rate of at least 15 per cent, regardless of where they are earned.

Implementation Timeline and Framework

The Pillar Two project has now entered the implementation phase. The October Statement provides that countries should implement Pillar Two effective in 2023, with the Undertaxed Profits Rule (“UTPR”) coming into effect in 2024.

In accordance with the Detailed Implementation Plan accompanying the October Statement, work is ongoing at the OECD to develop an Implementation Framework for public release by the end of 2022. The Implementation Framework is intended to address issues around administration of Pillar Two, including filing obligations, multilateral review processes and safe harbours that would be designed to reduce administration and compliance costs by relieving MNEs of the obligation to compute their jurisdictional ETRs in certain circumstances.

Implementation in Canada

In light of these international developments, and in accordance with the timeline and parameters set out in the October Statement, Budget 2022 proposes to implement Pillar Two, along with a domestic minimum top-up tax that would apply to Canadian entities of MNEs that are within the scope of Pillar Two.

The government anticipates that draft implementing legislation would be publicly released for consultation and the Undertaxed Profits Rule (“IIR”) and domestic minimum top-up tax would come into effect in 2023 as of a date to be fixed. The UTPR would come into effect no earlier than 2024.

Budget 2022 is launching a public consultation on the implementation in Canada of the Model Rules and a domestic minimum top-up tax. Interested parties are invited to send written representations by July 7, 2022 to the Department of Finance Canada, Tax Policy Branch.

The eligibility for charities and non-profit organizations that provide health care services to claim a rebate equivalent to 83 per cent of the GST or federal component of the HST will be extended to include health care services that are provided without the involvement of a physician as long as a nurse practitioner is involved. This measure would generally apply to rebate claim periods ending after Budget Day in respect of GST/HST paid or payable after that date.

• Vaping products would be subject to a new excise duty based on the volume of vaping liquid in each vaping product.
• Elimination of excise duty for beer containing no more than 0.5 per cent ABV.
• Repeal of the 100 per cent Canadian wine excise duty exemption.