The federal government provided its 2021 Economic and Fiscal Update on December 14, 2021. Amidst numerous new legislative measures introduced was the newly-proposed underused housing tax (the “UHT”). Draft legislation, in the form of a new Underused Housing Tax Act (the “UHTA”), was released after a consultation process that occurred in August and September 2021. Each follows a brief backgrounder provided in the 2021 Federal Budget. The UHT forms a part of the federal government’s stated efforts to counter speculative transactions and undesired vacancy in Canadian residential real estate.

Certain provinces and municipalities have implemented legislative measures aimed at curtailing real estate speculation and vacancy over the past six years. However, the UHTA is the first federal statute aimed at vacant homes and foreign owners. The following is an overview of the draft UHTA and a comparison to similar existing provincial and municipal measures.

Overview of Legislative Framework

In essence, the UHT is an annual tax on the value of non-Canadian-owned residential real estate that is considered vacant or underused. The UHT would be implemented by way of the UHTA, which largely mirrors the draft legislation released shortly prior to the above-noted consultation period.

Imposition of tax

  • The UHT is imposed on each owner of residential property, other than an excluded owner.
  • The rate of tax is 1% of the property’s taxable value, being the greater of: (a) the property’s assessed value for property tax purposes; and (b) the property’s most recent sale price on or before December 31 of the relevant year. Alternatively, an owner may elect to use the property’s fair market value as at any time between January 1 of the relevant calendar year and April 30 of the following calendar year.
  • Residential property is defined to generally mean:

1) a detached house or similar building, containing not more than three dwelling units, or

2) a part of a building that is a semi-detached house, rowhouse unit, residential condominium unit or other similar premises that is, or is intended to be, a separate parcel or other division of real property,

together with, in each case, that proportion of the surrounding appurtenances, land, and (if applicable) common areas reasonably necessary for its use and enjoyment as a place of residence for individuals.

  • Dwelling unit is defined to mean “a residential unit that contains private kitchen facilities, a private bath and a private living area.”
  • Owner is generally defined to mean the title holder under the relevant land registration system, and includes a life tenant, life lease holder, and individual with continuous possession of land under a long-term lease.
  • Excluded owner is defined to include (but is not limited to) persons who, on December 31 of the relevant calendar year, are:
    • Canadian citizens or permanent residents, except where they hold their interest as a partner of a partnership or a trustee of a trust (excluding personal representative of a deceased individual),
    • corporations incorporated under the laws of Canada or a province whose shares are listed on a stock exchange in Canada for which a designation under section 262 of the federal Income Tax Act (the “ITA”) is in effect,
    • trustees of mutual fund trusts (MFTs), real estate investment trusts (REITs), and SIFT trusts, and
    • registered charities.

Exemptions

If the owner is not an excluded owner, the residential property is subject to the UHT unless an exemption applies. The most notable exemptions are listed below.

  • A dwelling unit in a residential property that is owned by an individual is the primary place of residence of:
    • the individual,
    • the individual’s spouse or common-law partner, or
    • a child of the individual or the individual’s spouse or common-law partner if the child occupies the residential property for the purposes of authorized study at a designated learning institution as defined in section 211.1 of the Immigration and Refugee Protection Regulations.
  • At least 180 days in the calendar year are included in a qualifying occupancy period, meaning a period of at least one month during which one of the following individuals has continuous occupancy of a dwelling unit that is part of the residential property:
    • An individual who deals at arm’s length with the owner and their spouse or common-law partner (if any) and who is given continuous occupancy of the dwelling unit under a written agreement.
    • An individual who does not deal at arm’s length with the owner or their spouse or common-law partner (if any) and who pays fair rent for continuous occupancy of the dwelling unit under a written agreement. Note that fair rent is defined to mean the amount determined in prescribed manner or, in the absence of any such prescription, 5% of the taxable value in respect of the residential property for the year.
    • An individual who is the owner or their spouse or common-law partner, who is in Canada for the purpose of pursuing authorized work under a Canadian work permit, and who occupies the dwelling unit in relation to that purpose for the period.
    • An individual who is a Canadian citizen or permanent resident and a spouse, common-law partner, parent, or child of the owner.

However, a qualifying occupancy period excludes months in which the only individuals who occupy the property are the owner or their spouse, common-law partner, parent, or child if each of those individuals resides at another place for an equal or greater number of days than they reside in the subject residential property.

  • The owner owns the property solely in their capacity as a partner of a specified Canadian partnership, meaning a partnership each member of which is, on December 31 of the relevant year, an excluded owner or specified Canadian corporation (described below).
  • The owner owns the property solely in their capacity as trustee of a specified Canadian trust, meaning a trust under which each beneficiary having a “beneficial interest” (an undefined term) in the residential property is, on December 31 of the relevant year, an excluded owner or specified Canadian corporation.
  • The owner is a specified Canadian corporation, which generally means a corporation incorporated in or continued into Canada (federally or provincially) unless non-Canadian individuals or corporations collectively own shares which carry 10% or more of the votes or value of the corporation.
  • The property is not suitable for year-round use as a place of residence.
  • A dwelling unit that is part of the residential property is uninhabitable for a period of at least 120 consecutive days in the calendar year as a result of a renovations that were carried on without unreasonable delay (though this exemption can only be used once every 10 years).
  • The person became an owner of the property in the calendar year and was not an owner of the property at any time during the preceding nine years (i.e., new purchases).
  • The owner died during the calendar year or in the previous calendar year.
  • There is more than one owner and one such owner, whose “ownership percentage” was at least a 25%, died in the calendar year or in the previous year.
  • Construction of the property is not substantially complete before April of the calendar year.
  • Construction is substantially complete after March in the calendar year, the property is offered for sale to the public during the calendar year, and the property has never been occupied by an individual as a place of residence or lodging during the calendar year (i.e., new builds).

Administration and Enforcement

The vast majority of the UHTA is dedicated to administration and enforcement. The relevant rules are very similar to those found in the ITA and Excise Tax Act (the “ETA”). In particular:

  • Each owner, other than an excluded owner, of a residential property on December 31 of a year must file a declaration for that year in respect of each such property on or before April 30 of the following year.
  • The draft UHTA provides for a general anti-avoidance rule (“GAAR”) akin to those found in the ITA and ETA.
  • In addition, the draft UHTA provides parameter change rules that, in essence, operate to deny a tax benefit where transactions are undertaken to take advantage of a rate change or a definition change.
  • The objection and appeal processes set out in the draft UHTA are similar to those in the ITA and ETA. The objection period is 90 days after a notice of assessment is sent, unless an application for an extension is approved. If an owner’s objection is rejected and they wish to appeal further, they must file a notice of appeal with the Tax Court of Canada within 90 days of the notice of confirmation or reassessment.
  • Though any assessment is deemed valid once issued, there are limits on collection similar to those found in the ITA. In particular, the CRA cannot undertake collection efforts until 90 days after the assessment or confirmation is issued, or until after any objection or appeal filed by the owner is resolved.

Analysis and Comparison to Provincial / Municipal Measures

The UHT has many similarities to British Columbia’s Speculation and Vacancy Tax and the various municipal empty homes taxes that have been enacted in municipalities across Canada. However, the UHT applies in much narrower circumstances. With respect to individuals, the UHT does not apply to owners who are Canadian citizens or permanent residents, regardless of whether they actually reside in Canada in the relevant year. In other words, income tax residency status is irrelevant.

Therefore, Canadian citizens or permanent residents who are non-residents for Canadian income tax purposes appear technically free to leave their properties unoccupied without having to pay the UHT. Further, those owners are not required to file UHT declarations since they are excluded owners.

A notable feature of the UHTA are the draft definitions of residential property and dwelling unit. While comparable municipal and provincial tax laws generally apply tax on a parcel-by-parcel basis, the UHTA’s definition of residential property suggests that buildings or units within a single parcel could be examined separately. For instance, a laneway house may constitute a separate residential property. Does that mean both the laneway house and the other detached house must qualify for an exemption to fully exempt the owner? As another example, an apartment complex with more than three dwelling units could have multiple residential properties. This distinction may become especially relevant depending on what rules, if any, are prescribed in relation to the definition of fair rent, which generally sets the amount of rent that a non-arm’s length occupier must pay for the qualifying tenancy exemption described above to apply.

Separately, the parameter change rule is novel. The rule’s purpose is unclear, especially considering there is a separate GAAR that seemingly has broader application. It will be interesting to see how, if at all, the federal government resorts to the parameter change rule.

Finally, the collections rules mirror those in the ITA, which is a welcome differentiation from other taxes of a similar nature. Although the ITA has long contained rules that prevent collection action while an objection or appeal is underway, such rules are absent from the ETA as well as the various comparable provincial and municipal statutes. With GST/HST and provincial taxes, taxpayers often find themselves in the predicament of having to pay a significant tax assessment while needing to wait several years before receiving a refund after a successful appeal. In the interim, the taxpayer is faced with cashflow issues and potentially severe economic disruption.

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Subject to changes to the draft UHTA as it proceeds through Parliament, the UHT will apply starting January 1, 2022 with the first declaration due April 30, 2023.