Want to Give Your Spouse an Interest-Free Loan From the Corporation? Tax Considerations
Friday, March 12th, 2010Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only (and is only current to the date that it was written). If you need legal advice with respect to tax issues, you should seek professional assistance.
So you have a Canadian corporation and you want to give your spouse and interest-free loan? What could go wrong, you say? Well, the tax implications may not make it worth your while.
For starters, s. 15(2) of the Canada Income Tax Act provides that if a person is “connected” with a shareholder of a corporation and receives a loan from that corporation, then the amount of that loan is to be included in that person’s income for the year (and hence tax must be paid on it). Here, the word connected is defined in s 15(2.1) to include person with whom the shareholder does not deal at arm’s length with (which includes your spouse).
What about the interest free part of the loan, you say? Well, under s.80.4(2), the spouse may have to include the amount of interest that would have otherwise been paid in their income tax (and hence pay tax on it): once again, if a person is “connected” with a shareholder of a corporation (i.e. which includes a spouse) and receives a loan from that corporation, then that person will be deemed to have received a taxable benefit (i.e. must pay tax on) equal to the difference of the interest they paid in the year and the interest they should have paid in the year (i.e. a prescribed rate).
Overall, therefore, a shareholder of a corporation who offers his or her spouse an interest free loan could be doing more harm than good: the principal and the interest might end up being included in the spouse’s income for tax purposes.
Please keep in mind, however, that there are other provisions in the Canada Income Tax Act which modify or make these sections inapplicable; it really depends on the particular situation. One such example deals with repayment of the corporate loan within one year. Section 15(2.6) of the Canada Income Tax Act provides that, if the corporate loan to the spouse is repaid by the spouse within 1 year after the end of the taxation year (of the lender/creditor in which the loan arose), then it would not need to be included in the spouse’s income (and hence no taxes would need to be paid). So, the spouse would not need to include the amount of the loan in his or her income and pay taxes on it so long as the loan was repaid within 1 year from the end of the corporation’s taxation year. To better understand this situation, take the following example. A corporation’s year end is August 31. A shareholder’s spouse took out a loan on December 31st, 2008. The clock would not start ticking until August 31st, 2009 and the spouse would only need to repay it by August 31st, 2011 to avoid including it in his or her tax return.
The Canada Revenue Agency Interpretation Bulletin (IT-119R4) on shareholder loans helps explain what is meant by the phrase “series of loans or other transactions and repayments” (found at the end of s. 15(2.6):28. It is a question of fact whether or not a repayment of a loan is part of a series of loans or other transactions and repayments. In most cases, when there are only a few loans or other transactions and a few repayments made during a taxation year of a lender, there is no such series. However, when only one loan or other transaction and one repayment occur in each taxation year of a lender, a series of loans or other transactions and repayments may still be in evidence. This could occur, for example, when a repayment is of a temporary nature, such as a loan that is repaid shortly before the end of the year and the same amount, or substantially the same amount is borrowed shortly after the end of the year. Such a repayment of a temporary nature is not considered to decrease the loan balance in applying subsection 15(2) and paragraph 20(1)(j) to a series of loans or other transactions and repayments.
So if a shareholder’s spouse were to take out a corporate loan and repay that amount before the year end (e.g. August 31st), and then shortly thereafter take out “substantially the same amount” as was repaid before the corporation’s year end, then the Canada Revenue Agency may deem such transactions to be “a series of loans or other transactions and repayments” – for which the spouse will need to include the amount as income under s. 15(2).
Remember, if you need tax and/or business advice, you should seek professional assistance.
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Question: Wondering how becoming common law in Ontario-Canada affects taxes?
Currently, I am self-employed and own a corporation that I draw a salary from. Together we have 2 children. And in the past I have claimed 1 as spouse and 1 as dependent. Now, if the father of my children starts living with us and we become common law. Then I will lose this feature although I will still continue to deduct both children from my income tax. Just the one will not be claimed as spouse. So, what I am wondering is how big of a deal is this for my tax return this year?
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If he is renting out the basement apartment at at least fair market value, then you would have to claim that as income… meaning more taxes. Plus you would no longer be able to claim the eligible dependant amount since you would technically have a spouse. You could still claim the amount for children born in 1991 or later on line 367 (if applicable) but not a spouse or dependent amount.
You can not claim BOTH amounts for eligible dependent AND spouse. If you have been getting away with it somehow, be prepared to pay back any credits you received for the spouse amount with hefty penalties and interest. Claiming the Spouse amount of Non Refundable Tax Credit for your child is tax fraud.
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