The Budget proposes substantial and complex changes to the taxation of corporate partners with significant interests in partnerships to limit what the Federal Government perceives as inequitable tax deferral.

Background

A partnership generally computes its income or loss for tax purposes as if it were a separate person. The partnership’s income or loss is then allocated among its partners. A partner’s share of the partnership’s income or loss for a particular fiscal year of the partnership is included in the computation of the partner’s income for the partner’s taxation year in which the partnership fiscal year ends.

For example, where ABC Inc. has a September 30 year end and is a partner in a partnership with an October 31 year end, ABC Inc.’s share of the partnership’s income for the partnership year ended October 31, 2011 is included in ABC Inc.’s income for ABC Inc.’s September 30, 2012 taxation year. In years where the partnership has income, this results in approximately a one year deferral for ABC Inc. of the tax payable on its share of partnership income. In years where the partnership has losses, this results in the deferral of a deduction, i.e., the reverse of a tax deferral.

The deferral of tax or tax deductions may extend for longer than one year in the case of multiple tiers of partnerships with different year ends.

The Federal Government expresses concern about an apparently increasing use by corporations of partnerships with misaligned fiscal periods for the primary purpose of deferring taxes. Notwithstanding the fact that different year ends for partnerships and their partners may, as the government acknowledges, have no tax deferral purpose and despite the availability of the general anti-avoidance rule to deal with abusive situations, new rules are proposed which will govern the recognition by a corporation of income from a partnership.

Limitation on Deferral: Income Accrual

The new rules will apply to a corporation (other than a professional corporation) for a taxation year of the corporation if:

  1. the corporation is a member of a partnership at the end of the corporation’s taxation year;
  2. the last fiscal period of the partnership that began in that taxation year of the corporation ends after the corporation’s year end; and
  3. the corporation (together with affiliated and related parties) was entitled to more than 10% of the partnership’s income (or assets in the case of wind-up) at the end of the last fiscal period of the partnership that ended in the corporation’s taxation year.

In computing a corporation’s income for a taxation year where the new rules apply, the corporation must effectively accrue income from the partnership for a portion of the partnership’s fiscal period that begins in that taxation year of the corporation and ends in the corporation’s next taxation year. The accrual is for the period from the beginning of the partnership’s fiscal period to the end of the corporation’s taxation year (the “Stub Period”).

The accrual of income for the Stub Period eliminates the perceived tax deferral. The proposed changes don’t appear to allow for accrual of partnership losses for the Stub Period. Any such losses would then be recognized in the following corporation taxation year as they are under the current rules.

The requirement to accrue partnership income for the Stub Period does not affect the requirement under the current rules for a corporation to include in its income its share of partnership income or loss for partnership fiscal periods ending in each taxation year of the corporation. Thus, a corporation will include in its income for a taxation year:

  1. its share of partnership income or loss for partnership fiscal periods ending in that taxation year, and
  2. an accrual amount in respect of the Stub Period.

A deduction for the prior year’s Stub Period income inclusion prevents double taxation of the Stub Period income.

This tax measure will apply to taxation years of a corporation that end after Budget Day.

Calculating the Accrual Amount

Unless the corporate partner makes a designation, the accrued income will generally be a pro-rated portion of the partner’s income from the partnership for the fiscal periods of the partnership that end in the corporation’s taxation year. The pro-rated amount is calculated by reference to the number of days in the Stub Period and is called the “Adjusted Stub Period Accrual”.

The Adjusted Stub Period Accrual income for a particular year is deducted in computing the corporation’s income for the next year. This deduction is allowed because the corporation will include an amount for the Stub Period in its income in the next year as part of, according to normal practice, its share of partnership income or loss for the partnership year ending in that next year of the corporation.

A corporation may designate a lower amount to be included in its income in respect of the Stub Period. The ability to designate a lower amount will be attractive where a corporation expects that its income from the partnership for the partnership fiscal period that includes the Stub Period will be less than its share of partnership income for the previous year. However, if the designated amount is less than the lesser of the corporation’s actual pro-rated income from the partnership for the Stub Period (determined by reference to the allocation for the partnership’s year ending in the corporation’s immediately following year) and the Adjusted Stub Period Accrual amount, then the corporate partner will be subject to an increased income inclusion for the following taxation year that will effectively charge the corporation for the deferral. If the designated amount is short by more than 25% of the lesser of the actual pro-rated income for the Stub Period and the Adjusted Stub Period Accrual amount (the amount over 25% being the “Excessive Shortfall”), there is a punitive result. In this case, the corporation must include 50% of the Excessive Shortfall in its income for the following year.

Resource Expenses

Resource expenses incurred by a partnership, such as Canadian exploration expenses, Canadian development expenses, Canadian oil and gas property expenses, and foreign resource expenses, are generally not included in the calculation of the partnership income or loss that is allocated among the partners. Instead, these expenses are generally allocated separately to the partners. The new rules will allow Stub Period resource expenses to be accounted for in the same taxation year as the Stub Period accrual for partnership income if the partnership provides the necessary information on such expenses.

Other than for purposes of computing accrued Stub Period income from a partnership, the actual allocation of these resource expenses and other amounts affecting resource expense pools will continue to be made at the end of the partnership’s fiscal period.

Transitional Relief

For some corporations, the proposed change in recognition of partnership income will result in the inclusion of significant additional partnership income for a corporation’s first taxation year that ends after Budget Day. To mitigate the potential impact on cash-flow, transitional relief is provided that will generally result in no additional taxes being payable for that first corporate taxation year. The additional partnership income will generally be brought into the corporation’s income over the following five taxation years as follows:

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If the corporation’s first year end after Budget Day ends in 2012, no inclusion of transitional income is required for the 2012 year and the 5 year phased inclusion begins with the corporation’s 2013 taxation year.

To be eligible for continued transitional relief for a particular taxation year as described above, certain conditions must be met. The corporation must be a partner at the partnership’s last fiscal period end before Budget Day and continue as a partner until the end of the corporation’s taxation year for which continued transitional relief is claimed. There are other conditions relating, among other things, to the continuity of the partnership business that gave rise to the transitional income and the corporation not ceasing to be a Canadian resident, not going bankrupt or winding up.

Election to Change a Partnership’s Fiscal Period

The proposed new rules will allow a partnership to change its fiscal period to align, for example, with the taxation year of one or more corporate partners by way of a one-time election (a “Single-tier Alignment Election”), if the following conditions are met:

  1. he last day of the new fiscal period must be after Budget Day, and no later than the latest day that is the last day of the first taxation year that ends after Budget Day, of a corporate partner that has been a member of the partnership continuously since before Budget Day;
  2. the election must be in writing and filed with the Minister of National Revenue on behalf of the partnership on or before the earliest of all filing-due dates for the return of income of any corporate partner for the taxation year in which the new fiscal period ends;
  3. at least one of the corporate partners would, in the absence of the election, have Adjusted Stub Period Accrual income greater than nil in its first taxation year ending after Budget Day; and s
  4. all members of the partnership are corporations other than professional corporations.

If a partnership changes its fiscal year end by way of a Single-tier Alignment Election, a corporate partner may have income from two partnership fiscal periods ending in the corporation’s first taxation year ending after Budget Day. The corporation’s share of partnership income for the second such partnership fiscal period will be eligible for transitional relief as described above such that this income is brought in over five years.

Multi-Tier Partnerships

The Federal Government expressed particular concern that the partnership tax deferral can be multiplied through the use of a tiered structure (which could be several layers deep) where the partnership is itself a member of another partnership with a different fiscal period. The Budget therefore proposes that partnerships in a tiered partnership structure will all be required to have the same fiscal period.

Partnerships that are not required under existing rules to have a December 31 fiscal period will be allowed, on a one-time basis, to choose a common fiscal period by filing an election in writing with the Minister of National Revenue (referred to as a “Multi-tier Alignment Election”). The elected fiscal period must end before March 22, 2012 and must not exceed 12 months. The election must be filed on behalf of the partnerships on or before the earliest of all filing-due dates for the return of income of any corporate partner of any of the partnerships for the corporate taxation year in which the new fiscal period ends. If a Multi-tier Alignment Election is not filed, the common fiscal period of the partnerships will end on December 31.

The change of partnership year ends for multi-tier partnerships could result in additional partnership income for the first taxation year to which these new rules apply. This additional income will also be eligible for the transitional relief described above.