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November 12, 2020 Senate Standing Committee on National Finance

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November 12, 2020 Senate Standing Committee on National Finance November 12, 2020 Senate Standing Committee on National Finance Submitted electronically: [email protected] ATTENTION: The Hon. Percy Mockler, Chair of the Senate Standing Committee on National Finance and Senate Committee Members Re: Examination of the subject matter of Bill C-9, An Act to amend the Income Tax Act (Canada Emergency Rent Subsidy (CERS) and Canada Emergency Wage Subsidy (CEWS)) Bill C-9 addresses many of the immediate concerns raised by Canadian businesses over the past few months. These amendments are welcome and will assist many businesses as they endure a second wave of COVID-19 and seek economic stabilization. While it is crucial to ensure businesses survive in the short term, it is equally important to have policy objectives that allow Canadian businesses to thrive in the medium and long term. Below we have identified a number of considerations to address programs gaps identified through our review. I. Canada Emergency Rent Subsidy (CERS) Canadians are pleased with the redevelopment of the rent subsidy program that now focusses support directly to tenants. The alignment with the CEWS program effectively reduces the duplication of effort for impacted entities when applying for these programs. Further, the sliding scale of the subsidy based on revenue decline appears to achieve the policy objective of supporting those businesses most impacted by the pandemic. Program Gaps i) MNP agrees with the identified issue relating to the requirement that rent must be paid prior to accessing the subsidy. ii) CERS requires that lease renewals must be on substantially similar terms. However, some businesses are facing a difficult decision to downsize their space requirements, while others are expanding their space to accommodate social distancing. In theory these decisions, along with many others, would prohibit these businesses from accessing CERS. iii) The CERS is designed as a CECRA transition program, however there are a number of businesses that would have otherwise qualified under the CECRA program but were unable to access that needed financial assistance. In order to ensure all businesses are captured as the program intended, consideration should be given to making the program retroactive to April 1. iv) For businesses that own their own building and rent surplus space to a tenant, they are faced with ambiguity on the definition of qualifying rent expense. This leaves businesses with a question of their eligibility if their revenue has declined relative to the incidental rental income. v) Top-up subsidy requires a public health restriction where some or all activities are required to cease. Specifically excluded situations include reductions due to capacity restrictions or hour restrictions. This can lead to anomalies for businesses operating in one jurisdiction versus another (i.e. In-restaurant dining closed in Winnipeg, MB versus capacity restrictions in Surrey, BC). We have highlighted the ambiguity in the proposed legislation relating to specific drafting and interpretation potential in the attached Appendix. ACCOUNTING › CONSULTING › TAX SUITE 2000, 330 5TH AVE STREET SW, CALGARY AB, T2P 0L4 1.800.661.7778 P: 403.444.0150 F: 403.444.0198 MNP.ca Page 2 II. Canada Emergency Wage Subsidy (CEWS) We appreciate the program enhancements made and the extension into the new year as COVID-19 cases rise and we face additional lock-down measures. This helps create business confidence and stability key to economic recovery. Program Gaps i) Bill C-9 may delay vital business decisions by containing amendments related to asset sales that could have a negative impact on small and medium sized businesses. Given the significance of the CEWS program for Canadians, program eligibility is a material consideration in making decisions about the future. For example, a family-owned flower shop with two locations is unable to transition one of the locations to their daughter. She would be disqualified from CEWS whereas if the family opted to sell that location to a competitor, the new owner would qualify. This leads to the long-term sustainability of the business being compromised. ii) The CEWS program is highly complex and therefore many businesses are not able to make a claim on their own. This is an undue burden put on businesses as they try and pivot their business and/or adapt to new ways of doing business. III. Considerations The legislative changes put forward in Bill C-9 provide businesses with much needed emergency financial support in a time of sustained crisis. At the same time, these amendments demonstrate how complex our tax system and government programs are. Easing the administrative and financial burden put on businesses to access and comply with the programs may allow more businesses to access these program supports. Ultimately, we believe that the core objectives of any recovery measures ought to result in a more robust and competitive economy so that all Canadians and Canadian businesses can prosper in our evolving economic reality. An ideal recovery is one where our country is well positioned to respond to any future challenges. On August 7th MNP provided a submission (attached) to the House of Commons Standing Committee on Finance outlining our perspectives to ensure just that. Canadians and the businesses with which they work or invest are continuing to face a crisis of confidence. The need for the protections and stability afforded to them by amended programs like CEWS and CERS are not to be understated. Rebuilding the confidence of Canadians will not be done by maximizing the number of businesses receiving government support, but rather by creating the conditions whereby businesses are able stand on their own. MNP is pleased to continue to work with the Government, Parliamentarians and policy makers across Canada to further discuss our comments and recommendations in this submission. Amanjit (Am) Lidder J. Kim Drever Senior Vice President, Tax Services Regional Tax Leader, Tax Services MNP LLP MNP LLP Page 3 APPENDIX These suggestions outline specific legislative considerations to address the ambiguity in the proposed legislation relating to specific drafting and interpretation potential. 125.7(1) Definitions Public Health Restriction Paragraph (f) requires “some or all of the activities of the eligible entity at, or in connection with, the qualifying property (that it is reasonable to expect the eligible entity would, absent the order or decision, otherwise have engaged in) are required to cease”. It further indicates that “the type of activity rather than the extent to which the activity may be performed or limits placed on the time during which an activity may be performed”. This specific wording of the type of activity rather than the extent to which it is performed will have vast differences based on the form of the public health restrictions in the various jurisdictions. For instance, consider a restaurant in a jurisdiction that limits in-person dining versus another jurisdiction that restricts capacity. Only one of these restaurants would be able to access the rent top-up percentage, even though the revenue impact on their business may be identical. Qualifying property: As the word property has not been defined in this context, this can lead to uncertainty regarding multiple properties in close proximity with each other on separate title. For instance, a business may rent two or more bays in a building which have separate titles and distinct addresses – is this considered to be one property or multiple properties? This is important because the qualifying rent expenses are capped at $75,000 per property. Similarly, a business might own side-by-side condo units in a commercial building and be incurring interest on related mortgages. We recommend this be defined as being separate titles. Qualifying rent expense: Formula ‘A’ issues: As recognized by the Minister, this requires the rent to be paid prior to the CERS subsidy being obtained. Consideration should be given to a tenant to be able to direct payment to their landlord if they cannot pay in advance of application. The draft wording of the preamble states “pursuant to the renewal (on substantially similar terms) or assignment of a written agreement entered into before October 9, 2020”. This program is slated to continue until June 2021, and many businesses will sign renewals in between October 9 and June 2021. The wording can be clarified to ensure that renewals that are entered into after October 9, 2020 would continue to be covered by the CERS. Any renewals must be on substantially similar terms. This would impede a business from accessing the CERS where they have renegotiated leases on different terms (i.e. – downsized as a result of the pandemic). The lease must be entered into prior to October 9, 2020. Therefore, any business whose lease has expired and they have relocated, would not be able to access the CERS. Subparagraph (b) in Formula ‘A’ restricts businesses that own their own building from accessing the CERS where the qualifying property “is used primarily by the eligible entity to earn rental income from an arm’s length person”. There is no definition of primarily – does it relate to square footage or revenue, or some other measure? If this is measured by gross revenues, there could be situations where the rental Page 4 income would normally be less than 50% of gross revenue, but due to the impact of the pandemic, such rental income now accounts for more than 50% of gross revenue. Top-up revenue reduction percentage B in the formula should reference subparagraph (c)(ii) of the definition qualifying entity to pro-rate the prior reference period average revenue based on the number of days the entity operated in the period of January and February 2020. 125.7(4.1)(b) Asset Sales – Conditions In subparagraph (i), the wording indicates that 90% of the entity’s assets used in the course of “carrying on business” are sold.
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