SMALL BUSINESS CORPORATION GOING PUBLIC
Under the lifetime capital gains exemption, you are allowed to earn a certain amount of capital gains on a tax-free basis. The amount of possible exempt capital gain on qualified small business corporation shares (“QSBC shares”) is $835,716 as of 2017 ($417,858 of taxable capital gains) and is indexed annually to inflation. For qualified farm and fishing property, the amount is $1 million of capital gains ($500,000 of taxable capital gains).
QSBC shares are shares in certain types of small business corporations. Among other things, the following criteria must be met: 1) the corporation must be a Canadian-controlled private corporation; 2) at the time of disposition of the shares, 90% or more of the corporation’s assets must be assets that are used principally in an active business carried on primarily in Canada, shares or debt in small business corporations, or a combination of the two; and 3) normally you have to own the shares for at least two years.
Obviously, a Canadian-controlled private corporation does not include a public corporation. So what happens if you own QSBC shares and the corporation goes public? From that point on, the shares will no longer qualify as QSBC shares and therefore will no longer qualify for the capital gains exemption.
Fortunately, you can access your capital gains exemption on your accrued QSBC capital gains up to the time that the corporation goes public. You can elect, under section 48.1 of the Income Tax Act, to be deemed to have sold your QSBC shares immediately before that time for proceeds equal to any amount between your cost of the shares and their fair market value. Therefore, you can elect to trigger the entire accrued gain or only part of it, depending on how much capital gains exemption you have available. You will be deemed to reacquire the shares at the same elected amount.
You own QSBC shares with a cost of $100,000 and fair market value of $900,000. You have $600,000 of your capital gains exemption remaining (covering $300,000 of taxable capital gains).
If you make an election and elect at $700,000, you will have a capital gain of $600,000 and resulting taxable capital gain of $300,000, which will be tax-free because of your exemption (although Alternative Minimum Tax could apply – this has to be considered in light of all of your sources of income and deductions). The cost of your shares will be bumped up to $700,000.
The election should be made by your tax filing-due date for the year. You can file late for up to two years after your filing-due date, if you pay a penalty. The penalty is 0.25% of your capital gain, but with a maximum of $100, times the number of months or part months late.