With the advent of the proposed new capital gains rules, renewed consideration is warranted with respect to alternate forms of tax efficient estate planning – such as a partnership freeze. A partnership freeze is a planning technique that has not been widely adopted historically. However, given the proposed capital gains regime under consideration by Parliament, its potential should be revisited in light of the changing tax landscape.
For those considering estate freezes now or in the near future, consideration may be warranted as to whether a partnership freeze is more advantageous than a traditional corporate estate freeze.
PARTNERSHIP FREEZE IN THE NEW CAPITAL GAINS REGIME
As has been discussed in previous articles, the proposed new rules generally provide for a capital gains inclusion rate of two-thirds for all realized capital gains, except that individuals other than trusts retain access to a one-half inclusion rate on the first $250,000 of annual capital gains realized. As currently proposed, the $250,000 threshold would also apply to capital gains allocated to individuals through partnerships and trusts.
Normally, the Income Tax Act (Canada) (the "Act") is based on the principle of integration, which among other things generally should mean that a capital gain realized personally or inside a corporation should be equally taxed. Prior to the proposed changes, capital gains realized in a corporation could be "flowed" up to the ultimate individual shareholders using a combination of tax-free capital dividends and taxable dividends, resulting in combined taxes payable by the individual and the corporation that are roughly equivalent to the taxes payable on a capital gain realized personally. While not perfect, taxation was somewhat integrated prior to these new rules.
Without further changes to the proposed rules, corporations will not have access to this $250,000 threshold, and will always be taxable at the new two-thirds inclusion rate, disrupting integration. The Joint Committee has raised this issue with the Department of Finance, but to date the draft legislation has not introduced any changes to address integration issues.
If the status quo continues and the draft legislation is not revised, there may now be greater advantages to adopting a partnership freeze. Following the implementation of a partnership freeze, capital gains realized by the partnership can potentially be allocated by the partnership to individuals (either directly as partners or indirectly as beneficiaries of a family trust). Those individuals receiving such partnership allocations may utilize their annual $250,000 threshold for taxation of capital gains at the one-half inclusion rate. An estate freeze effected through a corporation would not offer similar tax benefits.
PARTNERSHIP FREEZE VS TRADITIONAL CORPORATE ESTATE FREEZE
The vast majority of traditional estate freeze transactions utilize a corporation. Often these freeze transactions involve the transfer of property to a corporation by the freezor in exchange for fixed value redeemable preferred shares. The growth shares of the corporation are generally issued to the next generation of the family, either directly or indirectly through an inter vivos family trust. Thus, the existing value of the property is "frozen" and attributable to the freezor, and the future growth in value accrues to the holder of the new common shares of the corporation.
As an alternative to a traditional corporate estate freeze, the freezor could transfer property to a partnership. The partnership agreement can be structured to replicate the economics of a typical estate freeze, such that the freezor's interest in the partnership is fixed, and the future growth accrues to the next generation or to a family trust.
Historically, the partnership freeze has not been widely adopted in Canada as an estate planning technique. It might be speculated that this is a result of current case law. The CRA has also previously commented that it has never issued a favourable advance income tax ruling on proposed transactions involving the use of a partnership to implement an estate freeze.
That said, in Aquilini Estate, 2019 TCC 132, the Tax Court specifically acknowledged in obiter that "the scheme of the Act would allow parties to effect estate freezes that would allow the transfer of future growth," even if such a transaction had not been successfully effected in the circumstances of that case. Similarly, in Krauss, 2009 TCC 597 (which was affirmed by the Federal Court of Appeal in 2010 FCA 284), the Tax Court also indicated support for the premise that structured properly, a partnership can replace a typical estate freeze through a corporation if the same economics can be replicated.
Similarly, the CRA commentary on this topic has indicated that the application of subsections 103(1) and (1.1) to a partnership estate freeze will depend on the particular facts involved, and the allocation of income should recognize the capital contributions of the partners as well as the non-monetary contributions of each partner (CRA document no. 2004-0070001C6, June 28, 2004). Assuming such considerations can be adequately addressed in the partnership agreement, the CRA's administrative positions do not seem to preclude the successful implementation of a partnership freeze. In theory, provided that the partnership agreement reflects the standard economic terms of a freeze as closely as possible, it is difficult to understand a policy objection to this approach.
There are numerous technical issues to work through in planning and implementing a partnership freeze. There are also, in addition to the possibility of allowing greater access to the one-half inclusion rate for capital gains, other potential advantages. These should be carefully considered and reviewed in each planning scenario.
There will no doubt be further commentary and discussion of this topic forthcoming. However, for practitioners that are currently working on estate freeze transactions, the timing to consider a structure is now, before implementation and accrued gains are "locked" in corporate form.
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.