Québec’s Ministry of Finance (Finance Québec) has introduced new rules regarding the disclosure of nominee agreements, effective May 17, 2019. The new disclosure requirement will affect virtually all nominee agreements involving one or more parties subject to Québec taxation.

As outlined in our e-communication of May 21, 2019, the following nominee agreements must be disclosed to Revenu Québec within the following timelines:

  • nominee agreements entered into on or after May 17, 2019, must be disclosed within 90 days of the date on which the nominee agreement was concluded; and
  • nominee agreements entered into prior to May 17, 2019, must be disclosed no later than September 16, 2019, when the “tax consequences” of the agreement continue after May 17, 2019

In announcing the new disclosure requirement, Finance Québec did not define the term “tax consequences,” and, therefore, the scope of the term may remain unclear until such time as draft legislation is released. That being said, Revenu Québec has just recently confirmed that it interprets the term “tax consequences” to refer only to income tax consequences in respect of which Revenu Québec has jurisdiction (and not other tax consequences such as sales or land transfer taxes), but has also indicated that it will interpret the new requirement broadly to apply to a number of common arrangements in which nominee agreements are used, such as 

  • the use of a nominee to acquire and hold legal title to rental property (even where the rent is collected and the expenses are paid for by the beneficial owner);
  • the use of a nominee to collect rent and pay expenses; and
  • the use of a nominee to acquire matrimonial assets, including a principal residence

In the coming weeks or months, Revenu Québec will be publishing a prescribed form that parties to a nominee agreement will be required to use to fulfil their disclosure obligations. Until Revenu Québec publishes the prescribed form, disclosure of a nominee agreement should be made by way of letter addressed to Revenu Québec and must include the following information: 

  • the date of the nominee agreement;
  • the identity of the parties to the nominee agreement; and
  • a full description of the facts of the transaction or series of transactions to which the nominee agreement relates and the identity of any person or entity for which such transaction or series of transactions has tax consequences.

The requirement to disclose a nominee agreement is not a recurring obligation: the prescribed form (or prescribed information) needs to be submitted only once, and the disclosure of a nominee agreement by one of the parties to the agreement is deemed to have been made by all of the other parties. In addition, please note that this new disclosure requirement is different and replaces the disclosure of nominee agreements by means of the Corporation Income Tax Return Form CO-17. As a result, parties that have already disclosed the existence and content of their nominee agreements to Revenu Québec using Form CO-17 must disclose it again.

Please note that failure to comply with this new disclosure requirement will result in penalties (including some penalties that accrue daily), as well as the suspension of the limitation period for reassessments until such time as the disclosure requirement is complied with. Accordingly, we recommend that you make any required disclosures of nominee agreements as soon as possible and, in any event, no later than 

  • 90 days following the execution of the nominee agreement for any such agreements entered into on or after May 17, 2019; or
  • September 16, 2019, for any nominee agreements entered into prior to May 17, 2019. 

We are attaching a sample letter that you can complete for this purpose until such time as Revenu Québec publishes its prescribed form, along with an English translation of the sample letter (note that the French version should be used for all taxpayers that are not individuals).

 

[Date] 

 

PAR COURRIER RECOMMANDÉ

 

AGENCE DU REVENU DU QUÉBEC

3800, rue de Marly, secteur 5-1-8

Québec (Québec) G1X 4A5

 

OBJET : Déclaration d’un contrat de prête-nom

Madame, Monsieur,

Conformément aux exigences énoncées par le ministère des Finances du Québec dans le Bulletin d’information 2019-5 et en l’absence d’un formulaire prescrit, la présente vise à vous informer qu’un contrat de prête-nom a été conclu entre les parties mentionnées ci-dessous :

Nous espérons le tout conforme et vous prions d’agréer, Madame, Monsieur, l’expression de nos sentiments les meilleurs. 

 

[English Letter Permitted for Individuals Only]

[Date] 

BY REGISTERED MAIL

 

AGENCE DU REVENU DU QUÉBEC

3800, rue de Marly, secteur 5-1-8

Québec (Québec) G1X 4A5 

 

RE: Disclosure of Nominee Agreement

To whom it may concern :

In accordance with the requirements set out by the Ministère des Finances du Québec in Information Bulletin 2019-5, and in the absence of a prescribed form, this letter is to inform you that a nominee agreement was entered into between the parties listed below: 

We trust the foregoing is to your satisfaction, and remain, 

Yours truly,