Canada: The Quebec 2012-2013 Budget: An Unconvincing Exercise

The 2012-2013 budget (the Budget) tabled in the National Assembly by the Minister of Finance Raymond Bachand on March 20, 2012, maintains a course toward a balanced budget in 2013-2014 despite a global outlook of lower-than-anticipated economic growth in 2012 and 2013. As a result, the target budget deficit of C$1.5-billion for 2012-2013 is maintained. It was also announced that the provincial economy posted growth of 1.6% of the actual gross domestic product (GDP) in 2011 and is expected to grow by 1.5% in 2012 and 1.9% in 2013, in line with that of the world economy. Elimination of the deficit as initially planned in 2009 seems to be the cornerstone of the Budget, which holds little appeal for Quebecers. Paradoxically, the Budget contains several measures, some new and others reworked, but the measures as a whole seem caged in by constraints arising from weak economic growth and the little leeway the government has afforded itself.

In this context, the Budget focuses more specifically on businesses, with a few measures designed to support the economic recovery or to step up the already-announced improved collection of tax revenue.

The Budget also contains a document entitled "Quebec and its Natural Resources" (the Resources Document), dedicated to some of the major strategies advocated by the government with respect to natural resource management, exploration and mining. The Resources Document will be the subject of a separate Blakes Bulletin. However, it is worth noting that the government intends to set up a corporation called Ressource Québec, which will be an arm of Investissement Québec and will manage a C$1.2-billion investment portfolio for projects carried out by corporations in the Quebec mining and oil and gas industries.

Below are some of the measures affecting businesses.

I- Natural Resource Development

Review of Hydrocarbon Royalty Regimes

In line with the philosophies that led to major changes in the mining duties regime two years ago (see the July 2010 Blakes Bulletin: Quebec Mining Duties Regime – Substantial Changes Proposed) and the announcement of a new regime of royalties for shale gas last year (see the June 2011 Blakes Bulletin: Government of Quebec's Position on Shale Gas Exploration/Production), including the principle of levying duties representing fair compensation for the use of non-renewable resources, the government once again sets out general principles in the Resources Document that will serve as a basis for a review of the royalty regime for hydrocarbons produced both onshore and offshore.

As it has been proposed for shale gas, a regime of variable-rate royalties will apply to the onshore production of hydrocarbons. Royalties will be calculated based on gross production value at a rate ranging from 5% to 40%, depending on the resource price and the well production volume. The 5% rate will apply to cases with the lowest price and the lowest production volume, as estimated by the government, while the 40% rate will apply to cases with a high resource price and high production volume. This calculation method is based on a well-by-well approach, similar to the mine-by-mine approach for the mining industry.

For offshore hydrocarbons, the royalty will be based not on the gross value but on the net production value, to take into account the particular risks involved in such enterprises. It is anticipated that corporations will pay lower royalties on volumes extracted during the initial project development and commercialization phases; once a corporation has recovered certain eligible costs, it will pay a royalty based on net revenue at a rate that will vary according to the project's profitability.
A new licence and lease regime for onshore hydrocarbons was also announced: (i) all new exploration licences for oil, gas and underground reservoirs will be awarded by way of auction, (ii) the annual exploration licence fee as well as oil and gas lease rates will be raised in 2014, (iii) new work requirements associated with exploration licences will be announced, and (iv) the issuance fees for related licences will be increased.

Revision of Mining Claim Registration and Renewal Fees

The revision of the mining duties regime, undertaken two years ago, now ends with the announcement of a revision of claim registration and renewal fees. The government intends to achieve a 25% increase in revenue from these fees, which will be subject to annual indexing.

II- New Tax Measures

Inter Vivos Trusts

Recent tax audits seem to be the impetus for the new measures pertaining to inter vivos trusts. The Quebec government together with the Quebec Revenue Agency have noted that the use of inter vivos trusts by individuals and corporations in some circumstances prevents the province from fairly taxing the income of such trusts, especially trusts that are not resident in Canada but hold rental property in Quebec. According to the government, this observation justifies the introduction of two new measures.

Taxation Rate for Inter Vivos Trusts
Generally, according to the existing Quebec tax legislation, the tax payable by an inter vivos trust, mutual fund trust or specified investment flow-through trust is equal to the greater of the tax on its taxable income (modified in the case of mutual fund trusts and specified investment flow‑through trusts), calculated according to the progressive tax rates used to calculate an individual's tax payable, and the tax on the trust is taxable income calculated at a rate of 20%.

The Budget proposes to amend the tax legislation to prevent a taxpayer who has reached the highest taxable income bracket (24%) from benefiting from a lower maximum tax rate (20%) on part of the taxpayer's taxable income by setting up an inter vivos trust. Consequently, the rate applicable for determining the tax payable by an inter vivos trust (including a mutual fund trust and a specified investment flow-through trust) will be equal to the highest rate applicable for the calculation of the tax payable by an individual, i.e., 24%. This amendment will apply to a trust's taxation year ending on or after March 20, 2012. Ironically, this measure applies to all inter vivos trusts whether used by an individual or by a corporation.

Trusts Not Resident in Canada
Quebec's tax legislation contains no provision subjecting a trust that does not reside in Canada to provincial tax on income derived from the rental of property located in Quebec, where such income constitutes property income. Such income is only subject to tax under the federal Income Tax Act, which provides for a tax withholding on rental income generated in Quebec, or the trust may elect to pay tax in Canada on the rental income as though it were a person residing in Canada and such income constituted its sole source of income. In that case, the trust is required to add a surtax to the tax payable, and it may not claim the Quebec abatement regarding such property income.

The Government of Quebec has decided that it is inappropriate for a trust not resident in Canada to not be taxed on income derived from the rental of an immovable property located in Quebec. Consequently, property income derived from the rental of an immovable property located in Quebec by an inter vivos trust that has not resided in Canada during the year will be liable for Quebec tax. To take into account the taxation at the federal level, the Quebec tax rate will be set at 5.3%. Such a trust will be required to file an income tax return, whether or not it has tax payable. This measure does not apply to individuals that are not resident in Canada.

Moreover, the Quebec Revenue Agency has identified transactions, considered abusive by the Quebec Ministry of Finance, involving non-resident trusts that contemplate to dispose of immovable property located in Quebec. The Quebec tax legislation already provides that a non-resident trust be liable to Quebec income tax on the taxable capital gain resulting from the disposal of immovable property located in Quebec, while a trust that is resident in Canada and disposes of such immovable property is liable to provincial tax on the taxable capital gain arising from such disposition in its province of residence. A transaction is considered abusive when a trust that is initially not resident in Canada becomes a resident of Canada outside Quebec before disposing of the immovable property located in Quebec, thus avoiding any tax liability in Quebec.

The Quebec tax legislation will be amended to provide that an inter vivos trust that is not resident in Canada but becomes a resident of Canada will be deemed to have disposed of its immovable rental properties before becoming a resident of Canada, thus subjecting the gain to Quebec income tax. To ensure payment of the Quebec tax payable by an inter vivos trust following such deemed disposition, the trust will have to obtain a compliance certificate from the Quebec Revenue Agency before disposing of an immovable rental property located in Quebec owned by trust when its residence status changed. The buyer of such an immovable property must receive a copy of the compliance certificate to avoid becoming liable for such tax. This procedure and the potential tax liability of the buyer are similar to the disposal procedure for a taxable Quebec property.

All these measures applying to inter vivos trusts that are not resident in Canada will be applicable with respect to taxation years ending on or after March 20, 2012, or to trusts beginning residency in Canada as of March 20, 2012, or later, as applicable.

Employment of Workers Age 65 or Over

A private-sector employer with an establishment in Quebec, whether incorporated or not, who employs workers age 65 or over may claim a refund of part of its contributions to the Health Services Fund (HSF). For each employee whose annual salary exceeds C$5,000, the employer will be refunded part of its contribution to the HSF. This reduction may be up to C$400 in 2013, C$500 in 2014, C$800 in 2015 and C$1,000 as of 2016, according to the terms and conditions established and upon submitting an application to the Minister of Revenue within the prescribed timeframe.

Creation of New Financial Services Corporations

Subject to the expiry of a five-year qualification period, an eligible corporation whose activities consist in (i) an analysis, research, management, advisory and securities trading service or securities distribution, carried out by certain types of securities dealers, or (ii) a securities advisory or securities management service provided by certain types of securities advisers will receive a refundable tax credit equal to 30% of the eligible salary paid to certain full-time employees occupying jobs in which at least 75% of their duties are attributable to the transactional process specific to the carrying out of these activities (up to a maximum annual credit of C$30,000/employee). This tax incentive differs in several respects from the refundable tax credit granted under the new international financial centres program, which requires, among other requirements, that the corporation exercise activities involving eligible international transactions (see our March 2010 Blakes Bulletin: Quebec's Budget Calls for Increased Taxpayer Participation).

The refundable tax credit for the creation of new financial services corporations is combined with the introduction of a second refundable tax credit representing 40% of eligible expenditures, including fees relating to the constitution of the initial file for participation in a stock exchange and fees, dues and expenses incurred by the eligible corporation and paid to certain regulatory bodies (up to a maximum annual credit of C$150,000 per corporation). Like the 30% refundable tax credit for salaries, this credit will only be available for five years from the effective date.

Lastly, foreign specialists hired by an eligible corporation to carry out certain specific activities will receive a five-year tax holiday on 100% of their salary for the first two years and on 75%, 50% and 25% of their salary for the next three years, respectively. This tax holiday is granted to individuals who do not reside in Canada immediately prior to a certain date and who work exclusively or nearly exclusively for the eligible corporation. It is similar to the Quebec tax holiday available to foreign researchers, foreign university professors or certain foreign specialists employed by an international financial centre.

To benefit from the refundable tax credits of 30% on salaries and 40% on eligible expenditures, a corporation must hold a qualification certificate issued by the Minister of Finance and various annual eligibility certificates covering not only the corporation but each eligible employee, if applicable. Apart from the nature of the corporation's activities and the absence of any arm's-length relationship between the corporation and its clients, one of the essential conditions for obtaining the qualification certificate is that the corporation's net shareholders' equity for the previous fiscal year must be less than C$15-million, as determined on a consolidated basis.

To benefit from the five-year tax holiday, the foreign specialist must have entered into his employment contract while the new financial services corporation's qualification certificate was valid, and such corporation must have applied for and obtained the required annual certificate for that person from the Minister of Finance within the prescribed timeframe.

The measures pertaining to new financial services corporations and the tax holiday for certain foreign specialists are effective March 21, 2012, and the Minister of Finance will not accept any qualification certificate application after December 31, 2017.

Temporary Refundable Tax Credit for Diversification of Markets of Quebec Manufacturing Corporations

Generally, a small manufacturing corporation having an establishment in Quebec and whose eligible activities make up 75% of its total gross income may, subject to certain conditions, claim a temporary refundable tax credit equal to 30% of the eligible certification expenses incurred with respect to eligible goods (up to a maximum of C$45,000). Eligible goods are those manufactured in Quebec by an eligible corporation and certified compliant with legal standards outside Quebec. An eligibility certificate must be obtained from Investissement Québec.

This tax incentive is not available to tax-exempt corporations or to any corporation with assets over C$50-million as reported in its financial statements for the previous fiscal year. The Budget does not state whether this C$50‑million limit is calculated on a consolidated basis. The credit will apply to all eligible certification expenses incurred after March 20, 2012, but before January 1, 2016.

Temporary Refundable Tax Credit for Share Issue Expenses incurred in an Initial Public Offering

A corporation that is an eligible issuing corporation for purposes of the Stock Savings Plan II (SSP II) may claim a refundable tax credit of 30% for eligible share issue expenses incurred after March 20, 2012, in an initial public offering under the SPP II. Eligible expenses are the same as those usually deductible in calculating its income but may not exceed the lesser of 15% of the gross proceeds from the issue of shares or C$3-million.

Voluntary Retirement Savings Plans

The Budget has announced an upcoming bill that will provide a framework for the implementation of voluntary retirement savings plans (VRSPs), which are pooled registered pension plans similar in effect to the federal plans proposed in federal Bill C‑25, Pooled Registered Pension Plans Act. Under Quebec's new legislation, any corporation with five or more eligible employees will have to offer a VRSP, unless the employees already have the option to contribute to a retirement savings plan through deductions at source.

As it did in 1990 for the retirement savings fiscal reform, the Quebec government intends to harmonize its legislation with that of the federal government—in this case, Bill C-25 on pooled registered pension plans.

III- Existing and Revamped Tax Measures

Renewal of the Refundable Tax Credit for Labour Training

The 30% temporary refundable tax credit for labour training in the mining, forestry and manufacturing industries, which was to end in 2012, will be renewed for all eligible labour training expenses incurred before January 1, 2016. The terms and conditions of the tax credit remain the same.

Simplification of Tax Credits for Production of Multimedia Titles

Multimedia titles resulting from an order, which were eligible for credits of 26.25%, will now enable an eligible corporation to receive a higher tax credit rate (30% or 37.50%). Vocational-training titles will be eligible for the lowest rate, namely 26.25%, since they involve a more limited economic risk.

Regarding the tax credit for businesses specializing in multimedia production, a taxpayer may now obtain certification as a specialized corporation from Investissement Québec without the requirement that all or almost all of the activities the corporation carries out in Quebec in the year consist of producing, for itself or on behalf of another person or partnership, eligible multimedia titles and, if applicable, carrying out scientific research and experimental development relating to such titles. If the taxpayer meets the other conditions, a ratio of 75% will now be deemed sufficient.

A subcontractor can no longer qualify as an eligible corporation for multimedia production tax credits. These credits may exclusively be claimed by the corporation hiring the subcontractors, since it is assuming the economic risk related to the eligible production work.

Lastly, for both the multimedia title tax credit (general) and the specialized corporation tax credit, eligible production work on an eligible multimedia title will include activities relating to quantitative data analysis related to the operation of an eligible multimedia title with the aim of optimizing its operation.

Generally, these changes will apply to certification applications filed with Investissement Québec after March 20, 2012, regarding a given taxation year ending after such date and to any subcontracts relating to eligible production work entered into after such date.

Improved Tax Incentives for Ore Processing in Quebec

The tax credit for capital investments in manufacturing and processing materials, which ranges from 5% to 40% (according to the location where the qualified property is used, the corporation's paid-up capital calculated on a consolidated basis, and a cumulative ceiling of C$75-million on eligible investments) is extended to encompass certain property used entirely within Quebec and mainly for primary processing (including smelting, refining and hydrometallurgy) of certain Canadian or foreign ores, except those extracted from a gold or silver mine.

Generally, this change will apply to qualified property acquired after March 20, 2012, and before January 1, 2018. The terms and conditions of the tax credit remain unchanged.

Refundable Tax Credit for Resources

There will be a two-part change to the refundable tax credit for resources. Initially, the rate will be reduced, although it could be increased under certain conditions.

Tax Credit Reduction
The refundable resource tax credit rates available to qualified corporations, except those applicable to expenses related to renewable energy and energy efficiency, are reduced as follows:

Refundable Tax Credit for Resources Before and After Reduction (%)

A 10% increase in the tax credit for eligible expenses related to mining resources, oil and gas (5% for eligible expenses related to other natural resources) will be available to qualified corporations that develop no mineral resources, oil or gas wells. This increase will only be offered in exchange for an option to acquire an equity interest in the operation of the project being developed, which the government will hold through Ressource Québec. The Budget does not state the terms and conditions of obtaining such options.

The changes to the refundable tax credit for resources will apply to eligible expenses incurred after December 31, 2013, subject to certain exceptions.

Co-operatives

Co-operatives, both financial and non‑financial, are an integral part of Quebec's social and economic landscape. Non-financial co-operatives are supported in their development project and their capitalization by two tax measures: the Co-operative Investment Plan (the CIP) and the patronage dividend tax deferral mechanism. The Budget contains a number of changes to the tax measures applicable to non-financial co-operatives; the key changes are outlined below.

Changes to the CIP
The CIP supports the capitalization efforts of non-financial co-operatives by allowing them to issue securities for which the purchasers may claim a deduction equal to 125% of the acquisition cost of the qualifying security.

Several amendments to the CIP are proposed, some of which apply to all eligible categories of non-financial co-operatives while others are reserved for certain specific categories.

Measures applicable to all eligible categories of non-financial co-operatives

According to the current rules, a special tax may apply when a security issued under the CIP is redeemed or repaid. Generally, this tax may not exceed the lesser of (i) 30% of the cost of acquisition of the security (25% in the case of an allowable redemption or repayment) or (ii) the amount paid by the co-operative (or federation) for the redemption or repayment. If the redemption or repayment is part of a block redemption or repayment (other than an excluded exchange operation), the special tax must be paid by the co-operative (or federation).

The Budget proposes amending the tax legislation so that in the event of a block redemption or repayment of qualifying securities after March 20, 2012, in connection with a winding-up, the special tax, if any, will be payable not by the co-operative (or federation) but by the holders of the securities immediately prior to the redemption or repayment.

Interest on preferred units issued under the CIP

Currently, under the terms of the CIP, a preferred unit is deemed a qualifying security if, among other things, it bears interest. The CIP does not prohibit payment of interest on a preferred unit through the issuance of another preferred unit.

The Budget proposes that the qualifying security status of a preferred unit be maintained only if the interest is payable in money. This measure will apply to preferred units issued after March 20, 2012. In addition, a preferred unit will only be considered a qualifying security if it was not issued in payment of interest declared after March 20, 2012, on a unit held by an eligible investor.

Measures applicable to shareholding workers' co-operatives (SWCs)

The Budget proposes modifying the CIP conditions to provide that an SWC be considered a qualified co-operative only if it immediately invests the amounts raised from its members in the corporation it holds and which employs its members, or with a financial institution authorized to receive deposits, or in property described in certain articles of the Civil Code of Quebec. Failure to meet this requirement should not cause the SWC to become subject to a special tax, though its qualified co-operative status could be revoked. These amendments will apply to any fiscal year of an SWC beginning after March 20, 2012.

Moreover, a preferred unit issued by an SWC will not be considered a security qualifying for the CIP unless it is acquired for a consideration consisting solely of money. This amendment will apply to preferred units acquired after March 20, 2012.

Measure applicable to work co-operatives (WCs)

To restore fairness among the various categories of co-operatives that may turn to the CIP to obtain capital, the definition of "qualified co-operative" will be amended to provide that the eligibility criterion relating to the capitalization rate will also apply to any WC, unless the majority of its employees are seasonal workers. This measure will apply as of 2013 to existing qualified co-operatives and immediately in all other cases.

Renewal of the Patronage Dividend Tax Deferral Mechanism
The patronage dividend tax deferral mechanism, which was implemented in February 2002 and was to end on December 31, 2012, allows members of a qualified co-operative who receive dividends in the form of preferred units to defer tax on the value of such units until they are disposed of.

This mechanism will be renewed for another 10 years. To replace the existing annual certification process, certificates granted will be valid indefinitely. However, they may be revoked if the co-operative (or federation) fails to submit a required document or does not submit a copy of its annual report within the prescribed timeframe. In addition, some situations in which a co-operative (or federation) ceases to exist (including in the case of a winding-up or merger) may result in a deemed revocation of the certificate.

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.