On February 20, 2018 the B.C. government unveiled its Budget and Fiscal Plan 2018/19 – 2020/21[1] (the “Budget”) and an accompanying housing plan.[2] This update addresses the impact and significance of seven key measures relating to real estate that will be of interest to companies doing business, or considering doing business, in B.C. Those measures are:

  1. the increase in the property transfer tax;
  2. the increase in and expansion of the foreign buyer tax;
  3. the new speculation tax;
  4. the increase in the school tax;
  5. the new pre-sale condo database;
  6. the new beneficial ownership transparency measures; and
  7. the strengthened auditing and enforcement powers.

Please note that the precise nature and scope of these measures may change somewhat as they are formalized through the process of debate, drafting, and implementation.

1. Property Transfer Tax

Under the B.C. Property Transfer Tax Act,[3] a property transfer tax is triggered when certain types of transactions, called “taxable transactions”, are registered in the Land Title Office.[4] Taxable transactions include, for example, transactions where a person becomes the owner of the relevant property or the holder of a lease, life estate, or right to purchase the property.[5]

The amount of tax payable is typically based on the fair market value (“FMV”) of the land and improvements as of the date of registration.[6] Before February 21, 2018, the applicable rates were:

  • 1% on the first $200,000 of FMV,
  • 2% on the portion of FMV over $200,000 up to $2 million, and
  • 3% of the portion of FMV that exceeds $2 million.[7]

If the legislative amendments proposed in the Budget are passed as proposed, then if a taxable transaction involves residential property and occurs on or after February 21, 2018, an additional 2% tax (for a total of 5%) will apply to the portion of the residential property’s FMV that exceeds $3 million.[8] If the property is classified as “residential mixed class” (such as residential and commercial, residential and recreational, or residential and farm land), then the additional 2% tax will apply only to the residential portion of the property. The government has released a guidance document to assist in calculating the additional tax payable.

As for what properties qualify as “residential”, BC Assessment’s property classification framework governs.[9] The residential (class 1) classification generally includes single-family residences, multi-family residences, duplexes, apartments, condominiums, nursing homes, seasonal dwellings, manufactured homes, farm buildings, daycare facilities, and some types of vacant land.[10] Based on the broad spectrum of properties captured by the term “residential”, businesses should be aware that property that might appear, at first glance, to be non-residential may in fact be “residential” for the purposes of the property transfer tax. A close reading of the relevant laws and regulations, as well as a clear understanding of the nature and use of the property, are both essential.

The proposed amendments do not expand the scope of transactions subject to the property transfer tax. Rather, they simply increase the amount of tax payable on taxable transactions involving residential property with an FMV exceeding $3 million. Further, it is important to note that the additional tax will apply only where the FMV of the residential property exceeds $3 million. Therefore, if, for example, a transaction were to involve a residential component worth $2.5 million and a non-residential component worth $1 million, the additional 2% tax would not apply to any portion of the transaction, despite the fact that the total FMV would exceed $3 million. The value threshold is not cumulative across residential and non-residential property combined.

The province estimates that the increased property transfer tax will generate $81 million in 2018–2019 and a further $81 million in 2019–2020.[11]

2. Foreign Buyer Tax

In addition to the property transfer tax described above, if the transferee in a taxable transaction is a foreign national, foreign corporation, or a taxable trustee, then the transferee must pay an additional property transfer tax, better known as a “foreign buyer tax”, on the transaction’s FMV, provided the transaction involves residential property located within a specified area of the province.[12]

When it first took effect in August 2016, the foreign buyer tax applied at the rate of 15% and applied only within the Greater Vancouver Regional District.[13] However, as of February 21, 2018, the tax will be raised to 20% and its territorial scope expanded to cover the following districts:

  • the Capital Regional District;
  • the Fraser Valley Regional District;
  • the Regional District of Central Okanagan;
  • the Regional District of Nanaimo; and
  • the Greater Vancouver Regional District (which was already included).[14]

The province has suggested that further expansions may be rolled out in the future.

As is the case for the additional 2% property transfer tax discussed above, if the property is classified as residential mixed class, then the foreign buyer tax will apply only to the residential portion of the property, leaving the current rule unchanged.[15] Moreover, apart from the territorial expansion, the scope of transactions captured by the foreign buyer tax will remain the same.

Notably, if the property is located in one of the first four districts listed above, then the transaction may be exempt from the foreign buyer tax based on a transitional provision. The main exemption eliminates the foreign buyer tax where the following two conditions are met: (1) the property transfer is subject to a written agreement dated on or before February 20, 2018 and (2) the registration occurs on or before May 18, 2018.[16] However, if the written agreement is assigned to a foreign entity or taxable trustee on or after February 21, 2018, then the foreign buyer tax will apply.[17] Moreover, no transitional period exemptions are available for transactions involving property located in the Greater Vancouver Regional District. This is an important point to note for those who have signed a deal involving Vancouver property but have yet to close.

The province projects that the increased and expanded foreign buyer tax will generate $35 million in 2018–2019 and $40 million in 2019–2020.[18]

3. Speculation Tax

The government also announced its intention to bring forward legislation in the fall of 2018 imposing a new “speculation tax” on residential property in the province. Many consider this property tax an “empty homes tax”, a form of tax that has already been implemented in the City of Vancouver.[19] The stated purpose of the speculation tax is to increase housing affordability in B.C. by curbing speculation in the residential housing market.

The proposed tax will target foreign and domestic homeowners who do not pay income tax in B.C.[20] It will affect those who leave their homes vacant, as well as households with high worldwide income that pay little income tax in B.C. – so-called “satellite families”. It will also likely affect developers that are holding vacant residential land or vacant houses pending redevelopment. Outside these contexts, up-front exemptions will be available for most principal residences and qualifying long-term rental properties, as well as for certain “special cases”. In addition, a non-refundable income tax credit will be available to provide relief for those who do not qualify for an up-front exemption but who pay income taxes in British Columbia. This tax credit may be available to British Columbians who own a vacation home within the province that is caught by the tax. That said, this relief may provide little comfort to retirees and others who lack sufficient income to offset the speculation tax. This may have the effect of, among other things, hindering the pace of development for recreational development projects in the province.

The province advised that it will administer and apply the tax annually, outside the normal property tax system and property tax cycle, beginning in the 2018 taxation year. The 2018 tax rate will be 0.5% of assessed value, with that figure rising to 2% in 2019. At least initially, the tax will apply only in certain areas of the province, namely:

  • Metro Vancouver;
  • Kelowna;
  • West Kelowna;
  • the Capital Regional District;
  • the Fraser Valley; and
  • the Nanaimo Regional District.

It is unclear exactly what types of properties will qualify for an up-front exemption. The province has provided assurances that “most” principal residences, “qualifying” long-term rental properties, and “certain special cases” will enjoy up-front exemptions, but these words have yet to be spelled out with precision.

Particularly in the popular press, concerns are being raised that Canadians who live in another province but who own vacation property in one of the designated areas in B.C. – particularly in popular vacation home areas such as Kelowna – will see their B.C. property caught by the tax. This scenario is not unlikely, given that the province has indicated that the tax will target “foreign and domestic home owners”.[21] Concerns are also being raised that the list of designated areas may be expanded in the future to include other regions such as the Kootenays, another popular vacation home spot, particularly among nearby Albertans.

The province estimates that the speculation tax will generate $87 million in 2018–2019 and $200 million in 2019–2020.[22]

4. Increased School Tax

Pursuant to the B.C. School Act,[23] the province levies an annual school tax on the net taxable value of land and improvements in the province.[24] Beginning in the 2019 tax year, the province will increase the school tax on certain residential properties assessed at over $3 million.[25] The draft legislative amendments frame this increase as an “additional school tax”.[26]

Only residential (class 1) properties are subject to the increase, and only certain types of properties, called “dwelling properties”,[27] within that class are affected. Generally speaking, the properties affected include detached homes, stratified condominium or townhouse units, and most vacant land. However, after releasing the Budget, the government clarified that the additional school tax will not apply to residential apartment buildings that have four or more rental units.[28] Indeed, the definition of “dwelling properties” in the proposed legislation generally excludes non-strata properties that are used or intended to be used as a residence by four or more families.[29] The public policy rationale for this exclusion is likely the concern that apartment building owners would simply pass on the increased taxes to renters, at least to the extent permitted by rent controls.

The tax increase, which will apply across the province and be administered through the existing school tax system, will apply only to the portion of the residential property’s taxable assessed value that exceeds $3 million.[30] In the case of a mixed-use property, only the residential portion of the property’s taxable assessed value above $3 million will be subject to the tax. A rate of 0.2% will apply to the portion of residential assessed value between $3 million and $4 million, and a rate of 0.4% will apply to the portion of residential assessed value exceeding $4 million.

In the absence of some form of relief, the effects of the increased school tax would be felt heavily by retirees, pensioners, and other fixed-income homeowners who are “house rich but cash poor”. These homeowners might find themselves struggling to come up with the funds to pay the additional school tax, which may run into five figures annually. However, relief may be available in the form of the provincial property tax deferment program, which permits qualifying seniors to defer payment of their property taxes on their principal residence until they sell the home. While deferment of property taxes may not be the ideal solution for many seniors, it may be more palatable than taking out a mortgage on their home to pay the increased tax bill.

The province estimates that the increase in the school tax will generate $50 million in 2018–2019 and $200 million in 2019–2020.[31]

5. Pre-Sale Condo Database

Citing the goal of cracking down on tax evasion in pre-sale condo reassignments, the government announced its intention to establish a new database on pre-sale condo assignments.[32] Developers will be required to collect and report to a designated provincial office comprehensive information about the assignment of pre-sale condo purchases. This information will be shared with federal and provincial tax authorities in order to ensure appropriate taxes are paid. The province also indicated that the information collected will allow it to develop new taxation models in the future.

The details on the proposed database are sparse; many important questions are left unanswered. To list just a few:

  • What information will developers be required to collect and report?
  • How will developers collect and report that information?
  • What “designated provincial office” will receive the information?
  • How long will the information be retained?
  • How will the province ensure the information is protected and secured?
  • To what extent, if any, will members of the public be permitted to access the information?
  • How will privacy concerns be addressed?
  • How will the accuracy of the information be tested?
  • What “new taxation models” might be developed in the future?

6. Beneficial Ownership Transparency

Citing concerns over speculation, tax fraud, and money laundering in the province, the government announced three new measures it intends to implement to enhance transparency around real estate ownership in B.C.:

  • requiring disclosure of more information about beneficial ownership on property transfer tax forms;
  • establishing a new registry of beneficial ownership in B.C., administered by the Land Title Survey Authority, that will be publicly available and shared with federal and provincial law enforcement and tax authorities; and
  • introducing legislative amendments requiring B.C. corporations to maintain accurate, up-to-date information on beneficial owners, with such information being made available to law enforcement, tax, and other authorities.[33]

Again, the precise details have yet to be ironed out. The province has not indicated a proposed timeline for implementing the beneficial ownership registry, nor has it clarified precisely what information about beneficial ownership will be contained in the registry or how the registry will be made accessible to members of the public.

As noted above, property transfer taxes are triggered only when certain types of transactions are registered. Accordingly, at present, as long as there is no change in registered ownership, a transfer of beneficial ownership does not trigger property transfer taxes. However, the new beneficial ownership transparency measures suggest that the government may be preparing to extend the property transfer tax to transactions involving a change of beneficial ownership. This reform would have a significant effect across the real estate industry. For a discussion of whether property transfer tax reform may be on the horizon, see our earlier blog post here.

7. Strengthened Auditing and Enforcement Powers

Finally, with a view to ensuring it can verify the accuracy of the information provided on property transfer tax forms and enforce the property transfer tax effectively, the government announced that it will amend the Property Transfer Tax Act to:

  • increase the limitation period for assessments – which was previously as short as one year, depending on the case[34] – to six years;
  • enable the collection of additional buyer information;
  • introduce administrative penalties for non-compliance with the Act;
  • extend the application of the general anti-avoidance rule; and
  • enable tax administrators to compel access to information relevant to transfers such as information held in a multiple listing service database.[35]

At present, the Property Transfer Tax Act provides for various “offences”, punishable upon conviction.[36] The draft legislation contemplates administrative penalties for non-compliance, including for evading or avoiding a tax liability through certain acts or omissions.[37] The consequence of a finding that such evasion or avoidance has taken place is that the person may be held jointly and severally liable for the amount of any tax avoided or evaded as a result and must pay, in addition to that amount, a penalty equal to the amount of tax avoided or evaded.[38]

Prior to the recent announcements, the anti-avoidance rule contained in the Property Transfer Tax Act related exclusively to the foreign buyer tax.[39] Under the proposed amendments, however, the anti-avoidance rule will extend broadly throughout the Act. It remains to be seen whether the government may seek to apply the general anti-avoidance rule to certain transfers of beneficial interests.

Conclusion

The Budget ushers in a number of significant changes affecting real estate in British Columbia. Though many important details have yet to be clarified, and while the government has indicated that it may be open to amending its legislative proposals if compelling concerns are raised, a consistent theme running through the new measures is the government’s objective of “stabilizing” housing prices in the province. Whether the means chosen to achieve that end will prove effective remains to be seen. What is clear, however, is that companies doing business in B.C., or considering doing business in B.C., will soon have a new suite of legal and regulatory requirements with which to comply.

Considered from an economics perspective, the new measures discussed above focus heavily on tax-driven disincentives aimed at cooling demand. These measures focus primarily on the residential housing market, particularly at the luxury end. But that is not to say that they will not affect non-residential real estate markets as well. To the contrary, the new measures can reasonably be expected to have at least some effect on prices in other segments of the real estate market, to varying degrees. Relatedly, we expect to see some real estate investors shifting their portfolios toward non-residential real estate such as commercial properties, as many of those properties sit outside the scope of the new taxes. Overall, it is difficult to predict what impact the new measures will have on real estate prices in the province, though major shocks are unlikely.