Employee And Shareholder Loans
The Income Tax Act contains various anti-avoidance rules with respect to employee and shareholder loans that are designed to re-characterize the transaction to reflect the underlying economic realities.
Employee Loans
Where a person receives a loan or otherwise incurs a debt by virtue of their employment or intended employment, the person may be deemed to have received a taxable benefit in the taxation year. The benefit is measured as the difference between the amount of interest calculated on the loan or debt at the prescribed rate of interest, set by the government each quarter, and the amount of interest actually paid by the employee in the year or within 30 days after the end of the year. The provision effectively treats the “deemed interest” as salary.
Loans to Generate Income
Some employee loans can be related to earning income, such as loans to acquire a car used in performing responsibilities of the employee, or loans to acquire corporate shares. The amount of the taxable benefit on such loans is deemed to be interest paid by the employee. The deemed interest is deductible in exactly the same way as interest actually paid is deductible.
Commercial Rate Rule Exception
The taxable benefit rules do not apply to an employee loan on which interest is charged at a rate equal to or above the commercial lending rate at the time the loan is made. This exception may be restricted depending on the terms and conditions of the loan.
Qualifying Home Purchase Loan
Exceptions apply to loans to purchase a residence. A taxable benefit on a qualifying home purchase loan arises if the interest charged on the loan by your employer is less than a threshold interest rate. The threshold rate is the lesser of the prescribed rate in effect at the date the loan is made and the actual prescribed rate for any quarter the loan is outstanding. All home purchase loans have a five-year term for tax purposes. On each fifth anniversary date, a new loan is deemed to be received and the base for the threshold becomes the prescribed rate in effect at that anniversary date.
Home Relocation Loans
Some employees are eligible for different treatment on the first $25,000 of home relocation loans. Employees who have acquired a home at a new work location and are otherwise entitled to claim moving expenses are eligible. Eligible employees may deduct an amount equal to the taxable benefit on the first $25,000 of the loan, for up to five years.
Shareholder Loans
Loans extended to a shareholder of a corporation are subject to interest rules similar to those for employees. Additional rules apply because a shareholder can have more control over timing or repayment requirements. The Income Tax Act addresses this potential benefit separately.
Certain loans or indebtedness may be exempt from this rule. The exception will apply to specific types of loans to shareholders whose indebtedness arose by virtue of their employment, rather than shareholdings. To access this relief, taxpayers must be able to demonstrate that the company makes loans with similar terms and conditions available to all employees. This is an impossible hurdle for most small corporations. Therefore, shareholders of such corporations may not be able to access long-term loans, such as housing loans, from their corporations.
Employee Stock Options
Employees who acquire shares under an employee stock option plan are subject to a taxable benefit on the difference between the value of the shares on the date acquired and the cost, if the shares are acquired at a price less than the FMV (Fair Market Value).
Because the employment benefit is taxable as employment income, it is 100% taxable. In some circumstances, an amount equal to 50% of the benefit qualifies as a deduction from income, making the benefit taxable at effectively the same rate as a capital gain.
Generally, when the employee disposes of or exercises the option, a taxable event occurs. However, two exceptions defer the taxable event until the shares are subsequently disposed of. The exceptions occur for options on shares of Canadian-Controlled Private Corporations (“CCPCs”) and for options on shares of publicly traded shares and units of mutual funds.
Taxable Benefits
Employees are taxable on certain benefits received by virtue of or in respect of their employment.
The following is a list of the most common taxable employee benefits:
- Board and lodging and rent-free or low rent housing (except at special work sites).
- Life insurance premiums.
- Provincial healthcare premiums.
- Employer-Paid tuition for personal interest courses taken primarily for the personal benefit of the employee.
- Travel costs for family members, unless required to accompany employee and primarily involved in the business activities on trip.
- Income tax preparation fees and financial consulting fees.
- The personal use of frequent flyer points, where points were earned on employer-paid business travel (in certain circumstances).
The value of any taxable benefits is included in employment income and may be subject to source withholdings for Canada Pension Plan (CPP), and Quebec Pension Plan (QPP) contributions and Employment Insurance (EI) premiums.