Selling Your Business Doesn’t Mean You Qualify for the Small Business Capital Gains ExemptionAs a business owner, you may be aware that when you dispose of shares in your business, you could receive an exemption on all or a portion of the capital gains that ordinarily would be taxable. This is due to the Lifetime Capital Gains Exemption which says that, for 2020, up to $883,384 of capital gains is exempt from taxation. The Lifetime Capital Gains Exemption (LCGE) is available to individuals who are disposing of or deemed to have disposed of: Qualified Small Business Corporation (QSBC) shares; Qualified farm property; or Qualified fishing property2. For the shareholder of a small business corporation, this valuable benefit could reduce or eliminate the tax bill that otherwise would be payable upon the sale or succession of the company. The important thing to understand, however, is that the exemption is not automatic. Some conditions must be met. For the business to be considered a QSBC and therefore qualify for the Small Business Gains Exemption (SBGE) there are two main rules:
Rule # 1 – Ownership of SharesDuring the 24 months immediately preceding the disposition the shares must not have been owned by anyone other than the individual taxpayer or a related person;
Rule # 2 – Use of Corporate AssetsAlso, during this 24-month period; 50% or more of the fair market value of the corporate assets must have been used in an active business conducted primarily in Canada; At the time of the disposition (sale or upon the death of shareholder), all or substantially all (defined as 90% by the CRA) of the fair market value of the assets must have been used to produce active business income. Some examples of corporate assets which could put a corporation offside for its being a QSBC are cash, bonds, non-business related real estate and other investments. In situations where corporations do not qualify for the SBGE due to failing to meet the 90% rule, remedies are sometimes available, which may provide a solution. This will usually involve a “purification” of the corporation to distribute or transfer the non-business related assets.
Some examples as to how this could be accomplished are:
Paying a taxable dividend to shareholders;
Paying down any bank debt or accounts payable;
Pre-paying corporate income tax instalments;
Purchasing new assets which will be used in the business to produce active business income;
Setting up a Personal Pension Plan, Individual Pension Plan or Retirement Compensation Arrangement for the business owner.