A gift to company owners
contemplating a company sale.

In the many conversations I have regularly with owners of privately owned businesses, I am constantly surprised that they are virtually unaware of the tax benefits when they are thinking of a succession plan or selling the Shares of their company.  In the 2007 federal budget, the lifetime capital gains exemption was hiked 50% to $750,000, which means that the first $750,000 of the sale price of each shareholders company “Shares” will have a capital gain that exempt from all income taxes.  Under our Canadian tax laws, taxpayers bring only 50% of the remaining gain into play as income and pay taxes only at their individual marginal tax rate.

And, there’s some intriguing ways to further maximize the net gains in situations when a couple wants to pass on their business to their children. So, how does this work?

Well, under the “freeze”, the parents exchange their common shares in the enterprise for preferred shares frozen at the current value of their business.  Let’s say its $4 million.  This means that the business’s future growth will flow to newly created common shares held in the trust that names the children as beneficiaries, and therefore from this point, only the children will benefit from future growth and capital gain.

Then, sometime in the future when the parents finally decide to sell for $7 million, the family trust would designate the capital gain to the children as named beneficiaries. So, if there were three offspring, each would receive $1 million.  When each child claims their capital gains exemption of $750,000, they would therefore be liable to pay taxes on only $250,000 each.  And the marginal tax rate for each child would, of course, depend on its individual situation. In effect, we create five different capital gains exemptions instead of the original two that acts to considerably lower the tax liability for all concerned.

Often when a small and medium sized enterprise (SME) owner sells, part or most of the purchase price is paid out over an extended period of time.  This offers an opportunity to spread or defer the capital gains over several years. So, if the balance of the purchase price is doled out in periodic payments, it is highly recommended that a maximum 20% be paid each year for a period of five years.

It should be noted that if someone has already cashed in some of the entire previous capital gains exemption limit of $500,000, the $750,000 new limit would, of course, be accordingly reduced. Would you be surprised that Canadian tax laws also offer restrictions that define how people can qualify for these exemptions? There are three basic tests.
One, taxpayers must have owned the enterprise more than 24 months before the sale.  This is known as the “holding period.”

Two, during this holding period, the business must have used more than half of the enterprise’s assets at current fair market value. Three, on the actual date of sale, the enterprise must have been employing more than 90% of these assets.

There can be other complications. If a Canadian company has an asset in the form of an American subsidiary, the U.S. asset would not be allowed to be included in calculating the capital gains and therefore the exemption totals.   So, the highly recommended course of action would be to separate the two assets to be two separate entities. How much can a seller of a small business enterprise save?

It all depends on where a seller resides and their own individual marginal tax rate. But, the exemption can convert into significant savings. 

Written by Mark Borkowski of Mercantile Mergers & Acquisitions Corp. www.mercantilemergersacquisitions.com