Canada: Canadian Tax - The New 75% Wage Subsidy

Updated April 14th, 2020

On April 11, 2020, the legislation implementing the Federal Government's new Canada Emergency Wage Subsidy ("CEWS") was enacted. The CEWS is a $73 billion subsidy intended to support the well-being of workers, maintain employment relationships and reduce claims on the employment insurance regime.

The CEWS is Different from the Previous 10% Wage Subsidy

Although they both relate to the wages paid to employees, the CEWS is different from the previously enacted wage subsidy of 10 per cent of remuneration, which is described in our earlier bulletin that can be found here. In particular, the CEWS is a cash subsidy paid by the government to employers based on the amount of wages paid to employees, rather than a reduction (i.e., a deemed remittance) of the payroll remittances that an employer is required to make to the government on wages paid. Eligible employers can benefit from both the CEWS as well as the previously enacted 10% subsidy, although assistance received under the 10% subsidy will reduce the amount that the eligible employer can receive under the CEWS. Read more about the 10% Wage Subsidy here.

Amount of the 75% Subsidy

The subsidy takes the form of a deemed overpayment of income tax by an eligible employer, which is then refunded to the employer. The amount of the subsidy for each eligible employee will be the greater of:

1. the least of
   
   1. 75% of eligible remuneration paid to the eligible employee in the week,
   2. $847, and
   3. If the eligible employee does not deal at arm's length with the employer, nil, and
2. the least of
   
   1. the eligible remuneration paid to the eligible employee in the week,
   2. 75% of baseline remuneration in respect of the eligible employee for the week, and
   3. $847,
   less
3. the amounts received by the eligible employer under the 10% wage subsidy,
   less
4. amounts received by the eligible employee for the week as a work-sharing benefit under the Employment Insurance Act,
   plus
5. the amount payable by the eligible employer as employer premiums or contributions under the Canada Pension Plan, a provincial pension plan, the Employment Insurance Act or Quebec's Act respecting parental insurance, in respect of the eligible employee if the employee was on leave with pay for the week.¹

As a result of this formula, the CEWS may actually cover 100% of the eligible remuneration paid to an eligible employee, if that remuneration has dropped from the pre-crisis level. To illustrate, consider a hypothetical example involving an employee with an annual salary of $58,700 (weekly salary of $1,129). If the employer continues to pay the weekly salary of $1,129, the employer will be entitled to a benefit of $847 (i.e. 75% x $1,129). If the employee's weekly post-crisis salary has been reduced to 75% of her weekly pre-crisis salary (i.e. $847), then the subsidy would cover the greater of:

1. 75% of the eligible remuneration paid, being $635 (i.e. 75% x $847), and
2. $847, which is equal to both the employee's post-crisis salary and 75% of the eligible employee's baseline remuneration.

As the example demonstrates, in circumstances where an employee's pre-crisis income is $58,700 or less and that income is reduced by 25%, an employer can be subsidized for the employee's entire reduced remuneration for the duration of the CEWS program (subject to the employer's ability to demonstrate best efforts were made to top up the employee's salary to pre-crisis levels).

Eligible Employee, Eligible Remuneration and Baseline Remuneration

For an individual to be an "eligible employee", the individual must (i) be employed in Canada, and (ii) not have been without remuneration by the eligible employer for more than 14 consecutive days in the Claim Period (see "Applying for the CEWS" below) for which the employer is claiming the CEWS.

"Eligible remuneration" means salary, wages and other remuneration such as taxable benefits but will exclude a retiring allowance and stock option benefits. There are rules to prevent the artificial inflation of remuneration paid during a claim period, such as (i) amounts that can reasonably be expected to be paid or returned to the eligible employer or a person not dealing at arm's length with the employer (such as loans or advances for the "extra" 25% of normal salary that is not covered by the subsidy), and (ii) temporary increases in salary above the employee's baseline remuneration as part of an arrangement one of the main purposes of which was to increase the employer's subsidy claim. Arguably, these anti-avoidance rules should not apply to prevent the employer from claiming the subsidy in circumstances where the wage increase is due to industry-wide pay increases in the form of hazard pay.

An eligible employee's "baseline remuneration" is the average weekly eligible remuneration paid to the employee by the particular employer during the period beginning on January 1, 2020 and ending on March 15, 2020, excluding any period of seven or more consecutive days for which the employee was not remunerated. The legislation does not specifically address the potential for commission-based employees to have a lower baseline remuneration due to the timing of payments of commissions.

There is no overall cap on the amount of subsidy that an eligible employer may claim for all of its eligible employees. In addition, an eligible employer may claim the subsidy in respect of remuneration paid to new employees provided that such employees are dealing at arm's length with the employer and subject to the "14 consecutive days" requirement discussed above.

The CEWS is for remuneration paid to employees and does not extend to payments to independent contractors. Contractors may consider applying for the Canada Emergency Response Benefit ("CERB").

The eligible remuneration paid to an eligible employee is subject to regular income tax withholdings and employee and employer contributions to the Canada Pension Plan ("CPP"), Employment Insurance ("EI"), Québec Pension Plan ("QPP"), and Québec Parental Insurance Plan ("QPIP").

Types of Eligible Employers

The CEWS is available to an employer that is an "eligible entity" meaning:

1. a corporation (other than a corporation that is tax-exempt(but see (d) below) or that is a public institution),
2. an individual,
3. a registered charity (other than a public institution),
4. a person that is exempt from tax because of s. 149(1)(e) (agricultural organization, board of trade or chamber of commerce), (j) non-profit corporation for SR&ED), (k) (labour organization) or (l) (non-profit organization) (other than a public institution),
5. a partnership all of the members of which are described this paragraph or in any of (a) to (d) above, or
6. a prescribed organization.²

A public institution will not qualify for the CEWS. For these purposes, a public institution is defined to mean:

1. an organization described in any of s. 149(1)(a) to (d.6) (e.g. municipalities, First Nations bands, local governments, crown corporations, municipal corporations, band-owned corporations), or
2. a school, school board, hospital, health authority, public university or college.

Qualifying Periods

There are currently three "qualifying periods" for which an eligible employer can apply for the CEWS:

1. March 15 – April 11, 2020;
2. April 12 – May 9, 2020; and
3. May 10, 2020 to June 6, 2020.

The legislation contains the flexibility to prescribe by regulation additional qualifying periods that end no later than September 30, 2020, but no additional qualifying periods have yet been prescribed.

Qualifying for the CEWS

Four Criteria

In order to qualify for the CEWS in respect of any particular qualifying period, an eligible employer must meet four conditions with respect to that period. Three of those conditions are administrative in nature – the employer must file an application for the qualifying period before October 2020; an individual with principal responsibility for the employer's financial activities must attest that the application is correct and complete in all material respects; and the employer must have been registered for a Canada Revenue Agency ("CRA") payroll account on March 15, 2020. Consequently, new employers (and potentially certain successor employers) would not qualify for the CEWS.

The fourth condition is substantive and requires that the employer have suffered a reduction in qualifying revenue for the current reference period that relates to the relevant qualifying period as compared to qualifying revenue for the prior reference period.

The current reference period and prior reference period for each of the three qualifying periods currently contained in the legislation is set out below:

To illustrate by way of example, in order to be eligible for the CEWS for Period 1, an eligible employer must be able to show that its qualifying revenue for March 2020 was at least 15% less than either (i) its qualifying revenue for March 2019, or (ii) the average of its qualifying revenue for January and February 2020. Once the employer elects, in its first CEWS application, to use either the same month in 2019 or the January/February 2020 average as its prior reference period, it must use that same prior reference period for all subsequent CEWS applications.

Deeming Rule

The revenue reduction condition must be met separately for each qualifying period. However, a deeming rule provides that if the qualifying employer meets this condition for one qualifying period, it is deemed to have met the condition in respect of the immediately following period.

This is a welcome solution to the issue that the qualifying periods do not match the current reference periods. Consequently, an employer paying its employees qualifying remuneration in the second or third qualifying period would not know at the time of the payment if it has suffered the required reduction in qualifying revenue to qualify for the CEWS.

Meaning of "Qualifying Revenue"

"Qualifying revenue" for a reference period means the in-flow of cash, receivables or other consideration arising in the course of the ordinary activities of the eligible employer, subject to certain additional rules:

1. A registered charity is required to include revenue from businesses unrelated to the purposes of the charity if substantially all persons employed by the charity in the carrying on of that business are not remunerated for that employment, but may elect to exclude funding received from government sources. Once a registered charity has elected to include or exclude funding received from government sources, the chosen method must be applied consistently throughout the duration of the CEWS program.
2. Eligible employers exempt from tax under s. 149(1)(e), (j), (k) or (l) are required to include membership fees and other amounts received in the course of their ordinary activities, but may elect to exclude funding received from government sources. Once such an employer has elected to include or exclude funding received from government sources, the chosen method must be applied consistently throughout the duration of the CEWS program.
3. In all cases, extraordinary items, amounts derived from non-arm's length persons or partnerships, amounts eligible for refund under the CEWS, and amounts deemed to have been remitted by the employer under the 10% Wage Subsidy are to be excluded.

Special rules are available for corporate groups in an effort to allow them to meet the reduction in revenue condition as follow:

1. where a group of eligible employers normally prepares consolidated financial statements, each member of the group may choose to each determine its qualifying revenue separately, provided that each member of the group uses the same basis;
2. if an affiliated group of eligible employers jointly elect, the consolidated qualifying revenue of the group determined in accordance with relevant accounting principles is to be used for each member of the group;
3. an eligible employer that is wholly owned by the joint venture participants and receives 90% or more of its qualifying revenue is in respect of the joint venture may use the qualifying revenues of the joint venture instead of its own qualifying revenues;
4. if 90% or more of the eligible employer's revenue for a qualifying period is from one or more non-arm's length entities, and a joint election is made, then the eligible employer's qualifying revenue for the current reference period is calculated by reference to the reduction in the non-arm's length entities' worldwide qualifying revenues from arm's length sources.

Cash or Accrual Method

For purposes of performing the gross revenue calculation, a qualifying employer may choose between the cash or accrual method (i.e. is not restricted to using its normal accounting method) but must do so consistently throughout the duration of the CEWS program.

The employer will also have to make its best efforts to top up an employee's salary to the pre-crisis level. This criterion appears to be subject to flexibility.

Expanded Application

The measures introduced may assist the following Canadian employers to qualify for the CEWS:

• employers who are acting as central paymasters in their corporate group;
• employers who only provide goods and or services to related corporations (e.g., fulfilling an R&D or manufacturing function);
• employers who are partnerships (by deeming them to be a taxpayer); and
• employer corporations that second employees to a joint venture.

However, since entitlement to the CEWS is contingent on a reduction in gross revenues, it does not appear that a start-up business, operating on seed capital but without any revenues, can benefit from the CEWS. Start-ups who have had revenues from at least February of 2020 may however qualify if their qualifying revenues have suffered a reduction that meets the reduction criterion.

Applying for the CEWS

Employers, and not the employees, will need to apply for the wage subsidy for each of the qualifying periods. The CRA My Business Account portal will be modified to accept applications. The modified portal is anticipated to be on line within 3 to 6 weeks from April 1, 2020, with payments to follow. Applications may be made as late as September 30, 2020.

The apparent purpose of the CEWS is that employers maintain current levels of employment, or re-hire laid-off employees, pay their eligible remuneration and receive the CEWS in due course. However, in light of the time lag between payment of remuneration and receipt of the CEWS, employers will have to finance the amount of the subsidy, either through their own resources, commercial borrowings or government programs such as the Canada Emergency Business Account.

The CEWS is Taxable to Employers

The amount of the CEWS received by an employer for a qualifying period will be considered government assistance and be included in the employer's income for the taxation year that includes that qualifying period. The employer will be entitled to a deduction for the amount of remuneration paid to employees. In addition, the amount of the CEWS received will reduce the employer's remuneration expenses eligible for tax credits calculated on the same remuneration, such as SR&ED credits.

Compliance and Penalties

An employer will be required to repay amounts received under the CEWS if the employer does not meet the eligibility requirements and pay its employees accordingly. Where artificial transactions have been undertaken to reduce revenues in an attempt to qualify for the CEWS, the government has indicated a penalty equal to 25% of the subsidy claimed would be imposed. More generally, in cases of fraudulent claims or other abuse of the CEWS, the government has indicated potential penalties of up to 225% of the CEWS benefits received and up to 5 years in prison. The legislation also provides that the Minister may publicly disclose the names of anyone who has applied for the CEWS, potentially impacting the "brand" of the applicant, even if the applicant has not been successfully assessed or charged.

Next Steps for Employers

Employers should ensure that they are registered with the CRA for direct deposit and should also assemble records so that, when the application portal opens in 3-6 weeks, they will be in a position to demonstrate the 15% reduction in gross revenues for March and the amount of the pre-crisis remuneration paid to employees. Preparatory work in connection with showing a 30% reduction in revenues for April and May should also be undertaken, to the extent possible. Employers should also seek legal advice in light of their particular circumstances, as certain of the rules are complex.

Footnotes

1. Of interest, the Federal Government would be compensating the eligible employer for contributions of QPP and QPIP made to the Québec Government.

2. No organizations have yet been prescribed for purposes of the definition of "eligible entity" but this paragraph preserves the ability of the government to broaden the scope of the eligible employers, without the need to amend the legislation.

Read the original article on GowlingWLG.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.