Canadian Real Estate Tax Handbook 2017 Edition kpmg.ca COMMON FORMS OF REAL OWNERSHIP AND NON-RESIDENTS INVESTING IN GOODS AND SERVICES TAX/ U.S. VACATION PROPERTY APPENDICES ESTATE OWNERSHIP OPERATING ISSUES CANADIAN REAL ESTATE HARMONIZED SALES TAX Welcome Welcome to the 2017 edition of KPMG’s Canadian Real Estate Tax Handbook. This book is intended for tax, accounting and finance professionals and others with an interest in the Canadian income tax and GST/HST issues impacting the Canadian real estate industry. KPMG has prepared this tax handbook in order to provide the Canadian real estate industry participants including private and public owners, operators and developers and other advisors with a useful tax technical guide to help them navigate through some of the tax fundamentals that will assist in creating long term value. The world is constantly evolving, and in today’s globally integrated economies, governments continue to introduce tax policy changes and tax authorities continue to invest in advanced technologies and resources for enhanced enforcement. Through KPMG’s assessment of the Canadian Real Estate industry, a number of trends influence today’s tax environment, including: 1. Increasing complexity of relevant laws; 2. Increasing globalization of investment; 3. Increasing sophistication of financial and structural arrangements; 4. Increasing urbanization and intensification; 5. Changing demographics and increasing social media; and, 6. Increasing velocity to take action. With this pace of change, there are new pressures on tax professionals to continue making informed decisions on the company’s day-to-day operations, managing their tax risks and identifying tax efficient planning opportunities. We hope that KPMG’s Canadian Real Estate Tax Handbook assists our audience in making more informed decisions on day-to-day operations, and to channel such decisions proactively and positively to create real value for the developers, owners, operators, shareholders, unit holders, investors and lenders who form the real estate industry. Lorne Shillinger Partner, National Real Estate Tax Leader Canadian Real Estate Tax Handbook | 2017 Edition © 20172016 KPMG LLP, a Canadian limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. i The KPMG name and logo are registered trademarks or trademarks of KPMG International. COMMON FORMS OF REAL OWNERSHIP AND NON-RESIDENTS INVESTING IN GOODS AND SERVICES TAX/ U.S. VACATION PROPERTY APPENDICES ESTATE OWNERSHIP OPERATING ISSUES CANADIAN REAL ESTATE HARMONIZED SALES TAX Notice to readers The information contained in the Canadian Real Estate Handbook (the “Handbook”) is current to October 31, 2016. All information provided herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act upon such information without appropriate professional advice after a thorough examination of the particular situation. The information takes into account the applicable provisions and judicial and administrative interpretations of the relevant taxing statutes, the regulations thereunder and applicable tax treaties. The information also takes into account all specific proposals to amend these legislative authorities or other relevant statutes and tax treaties publicly announced prior to the date of this Handbook, based on the assumption that these amendments will be enacted substantially as proposed. The information does not otherwise take into account or anticipate any changes in law or practice, by way of judicial, governmental or legislative action or interpretation. These legislative authorities are subject to change, retroactively and/or prospectively, and any such changes could have an effect on the validity of the information. All statutory references herein, unless otherwise noted, are to the Income Tax Act (Canada) (the “Act”). References to the Canada Revenue Agency (“CRA”) herein also include its predecessors (i.e., the Canada Customs and Revenue Agency, Revenue Canada and the Department of National Revenue). Canadian Real Estate Tax Handbook | 2017 Edition © 2016 KPMG LLP, a Canadian limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. ii The KPMG name and logo are registered trademarks or trademarks of KPMG International. COMMON FORMS OF REAL OWNERSHIP AND NON-RESIDENTS INVESTING IN GOODS AND SERVICES TAX/ U.S. VACATION PROPERTY APPENDICES ESTATE OWNERSHIP OPERATING ISSUES CANADIAN REAL ESTATE HARMONIZED SALES TAX Table of contents Limited partnership Losses 12 Elimination of Section 88 Bump on Certain Partnership Interests 13 Subsection 15(2) and Partnerships 14 Welcome i Non-resident Partner 15 Notice to readers ii Partnership Information Return Filing Requirements 15 Partnership Waivers 15 Common Forms of Real Estate Ownership 1 Corporations 16 Joint Ventures 2 Unlimited Liability Corporations 16 Co-ownerships 2 Tax Considerations of Corporations 16 Tax Considerations of Co-ownerships 3 Active Versus Investment Business 16 Tax Considerations of a Co-ownership/Unincorporated Joint 3 Trusts 17 Venture Fiscal Year-end Tax Considerations of a Trust 18 Partnerships 4 Alternative Minimum Tax 19 What is a Partnership? 4 Part XII.2 Tax 19 Legal Meaning of “Partnership” 4 SIFT Trusts 19 Tax Considerations of Partnerships 4 Bare Trust 20 Fiscal Period 5 Real Estate Investment Trusts 20 Specified Investment Flow-through (SIFT) Partnerships 7 Unit Trust Requirements 20 Transferring Property to a Canadian Partnership 8 Mutual Fund Trust 21 Real Property Inventory Rollover 9 Taxation of a Mutual Fund Trust (That is Not a SIFT Trust) 22 Transferring Partnership Property to Members of the Partnership 9 Basic Rules 22 Incorporation of a Partnership 9 Nature of Income Distributed 22 Partnership Not a Separate Entity in Certain Circumstances 10 Planning for Over Distributions 23 Conversion from General Partnership to Limited Partnership or Vice Versa 10 ACB of a Mutual Fund Trust Unit 23 Issues with Partnerships 10 Second Generation REITs 24 Presumption of Carrying on Business 10 Third Generation REITs 24 Income and Loss Allocation 10 SIFT Rules 24 Adjusted Cost Base 11 Legislative Chronology 25 Negative ACB 11 REIT Exemption 25 Canadian Real Estate Tax Handbook | 2017 Edition © 20172016 KPMG LLP, a Canadian limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved. iii The KPMG name and logo are registered trademarks or trademarks of KPMG International. COMMON FORMS OF REAL OWNERSHIP AND NON-RESIDENTS INVESTING IN GOODS AND SERVICES TAX/ U.S. VACATION PROPERTY APPENDICES ESTATE OWNERSHIP OPERATING ISSUES CANADIAN REAL ESTATE HARMONIZED SALES TAX Key Definitions 27 Building Available for Use—Subsection 13(28)152 43 Property definitions 27 Non-arm’s length Transfers—Subsections 13(30) and 13(31) 43 Entity Definitions 31 Anti Avoidance—Subsection 13(32) 44 Investment, security and equity definitions 32 Current vs. Capital Expenditure 44 Revenue Character Flow-through Rules 33 Leaky Condominiums—Technical Interpretation 2001 0104217 44 Interest Rate and Foreign Currency Hedging 34 Repairs to Newly Acquired Rental Property 45 Retroactive Application 35 Failed Land Development 45 Exchangeable Units of Subsidiary Limited Partnerships 35 Replacement Property Rules 45 Stapled Securities 36 Tax Treatment of Bargain Purchase Option Leases 46 Pension Plans 36 Acquisition of Previously Rented or Leased Property 46 Permitted investments for pension plans 36 Contingent Liabilities 46 Income Tax Rules for Pension Plans 37 Capital Cost Allowance 48 Registered pension plans 37 Capital Cost Allowance—Paragraph 20(1)(a) 48 Income tax regulations applying to registered pension plans 37 Rental Property Separate CCA Class—Regulation 1101(1ac) 49 Pension Realty Corporation and Pension Investment Corporation 37 Rental Property CCA Restriction—Regulation 1100(11) 50 Historical Note 50 Ownership and Operating Issues 39 Exceptions—Regulation 1100(12) 50 Property Additions 40 Green Buildings Tax Incentives 50 Acquisitions 40 Summary of Class 43.1 and 43.2 50 Land/building allocation 40 Solar Heating Equipment 51 Intangible assets and below-market leases 40 Wind Turbines 51 Purchase price discount due to non-market rate debt 40 Fixed Location Photovoltaic Equipment 51 Ownership and operating issues 40 Geothermal Energy 52 Building on leased land 41 Electric Vehicle Charging Stations 52 Corporate acquisition and land bump 41 CCA Restriction 52 Non-arm’s Length Transfers 41 Other Incentives and Programs 52 Affiliated persons 42 Financing 53 Affiliation between a person and a trust 42 Interest Deductibility 53 Available for Use 43 Related Court Cases 53 Canadian Real Estate Tax Handbook | 2017 Edition © 20172016 KPMG LLP, a Canadian limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. 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