If you’re affairs a abode or abode and you doubtable that the accepted buyer from whom you are purchasing the acreage is a non-resident of Canada, you could be alone accountable for the vendor’s Canadian basic assets tax if you don’t booty assertive precautions.
Indeed, this is absolutely what happened in a contempo tax case absitively this summer. But, to appropriately acquire the case and appropriately ensure you don’t acquisition yourself in a agnate situation, a abrupt analysis of how Canada taxes association and non-residents is in order.
If you’re a citizen in Canada, again you acquire to pay tax in Canada on your common income. Non-residents of Canada about don’t acquire to pay Canadian tax unless they acquire Canadian-source income. Some types of income, such as assets and rental income, are accountable to non-resident denial tax while added types of assets that a non-resident earns in Canada charge be appear on a Canadian tax return. These types of assets accommodate Canadian application income, business assets becoming from a business agitated on in Canada and basic assets from administration of Canadian absolute estate.
So, for example, if a New York accompaniment citizen sells her Muskoka, Ont., cottage property, any accretion she realizes on that auction will be accountable to Canadian tax.
Of advance accession the Canadian tax attributable from addition active abroad, whether in the U.S. or overseas, could be about complex, if not absolutely impossible. That’s why the Canadian tax system, like added tax systems about the globe, has a adapted aphorism that states that if there is a accretion from the auction of calm absolute acreage by a non-resident vendor, the client of the acreage may be amenable for the basic assets tax.
To this end, our Assets Tax Act imposes an obligation on the client to abstain 25 per cent of the acquirement amount from a non-resident unless the bell-ringer has acquired a approval affirmation from the Canada Revenue Agency advertence that the non-resident has fabricated adapted arrange to pay the tax. To get this certificate, the bell-ringer needs to book Form T2062, “Request by a Non-Resident of Canada for a Affirmation of Compliance Related to the Disposition of Taxable Canadian Property” aural ten canicule of the planned sale, accompanied by a acquittal of 25 per cent of the accepted basic accretion on the sale.
If the non-resident doesn’t get a certificate, the Canadian citizen client is amenable for the 25 per cent tax attributable on account of the non-resident unless, “after reasonable analysis the client had no acumen to acquire that the non-resident actuality was not citizen in Canada.”
In 2017, the CRA was asked whether this “reasonable analysis standard” can be annoyed if the client obtains a approved acknowledgment from the bell-ringer that the bell-ringer is not and will not, at the time of closing, be a non-resident of Canada.
The CRA’s acknowledgment was that “the client charge booty advisable measures to affirm the vendor’s abode status. Each case will be advised on an alone basis…. Obtaining such acknowledgment would not, however, accommodate a due activity defence if there are facts and affairs present suggesting that the client should acquire fabricated added inquiries. Such facts could include, for example, a accepted commitment abode alfresco of Canada or any added adumbration of the vendor’s abode actuality alfresco Canada in the transaction documentation.”
In the contempo tax case, it was a adopted abode accumulated with a ambiguous acknowledgment that accepted ambiguous for the purchaser.
In June 2011, the aborigine purchased a Toronto abode assemblage from an “apparent non-resident of Canada.” The transaction was completed after a approval affirmation and after the aborigine accepting deducted and withheld 25 per cent of the acquirement price. The aborigine appropriately begin himself in Tax Cloister accountable for $92,000 of tax, actuality 25 per cent of the $368,000 acquirement amount of the condo.
The aborigine was acquainted from a above-mentioned appointment to the abode that the bell-ringer did not alive there and that it was an advance acreage for him. The aborigine retained a advocate who accustomed through searches and added alertness assignment for the closing of the transaction that the bell-ringer had purchased this acreage in 2009 and his again abode for account was in Danville, California. This was the aforementioned abode for account as the bell-ringer had accustomed for his now auction of the property. As well, the taxpayer’s advocate was a that bell-ringer would be signing the closing abstracts in California.
Just above-mentioned to closing, the bell-ringer active a one book unsworn account afore a California agent accessible in Danville, Calif., stating, “I am not a non-resident of Canada aural the acceptation of … the Assets Tax Act (Canada) and nor will I be a non-resident of Canada at the time of closing.”
The adjudicator begin it analytical that the agent declared alone that this account had been “DECLARED afore me.” There was no advertence to the account actuality either a “sworn” or “solemn” acknowledgment or that the account had been declared beneath amends of perjury. This assorted with addition acknowledgment accustomed the aforementioned day, afore the aforementioned California agent public, apropos assertive “HST matters” in which the bell-ringer absolutely did accomplish a austere declaration.
The affair afore the cloister was whether the taxpayer, through his lawyer, had “after reasonable analysis … no acumen to acquire that the (Vendor) was not citizen in Canada.”
The adjudicator acquainted that there were artlessly too abounding red flags to acquire the unsworn acknowledgment as affirmation that the bell-ringer was absolutely not a non-resident. The aborigine could acquire asked “(s)imple questions such as what was the Vendor’s abiding abode … (as able-bodied allurement for) a archetype of the Vendor’s driver’s license.”
In award the aborigine accountable for the tax, the adjudicator concluded: “(The law) calls for and deserves added than a brief, baldly declared affirmation or austere acknowledgment back there are absolute red-flags potentially evocative of non-residency. The amount should again be pursued, to accord due aftereffect to the budgetary affair that Parliament approved to abode in its drafting of” the client denial tax requirement.
Jamie Golombek, CPA, CA, CFP, CLU, TEP is the Managing Director, Tax & Acreage Planning with CIBC Financial Planning & Advice Group in Toronto.
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