Limited time to recover refundable tax

A recent Federal Court of Appeal decision reminds business owners how important it is to file their corporate returns on time.

Background

“Keep it in the corporation.” That’s what we often suggest small business owners do with money they don’t need for current lifestyle spending. The preferential tax treatment of active business income results in a substantial tax deferral. Only when those funds are later withdrawn will they be subject to personal tax rates.

When investment income and capital gains are earned inside a Canadian-controlled private corporation, the CCPC must pay federal refundable tax of 26.66% and include that balance in the corporation’s notional Refundable Dividend Tax on Hand (RDTOH) account. When taxable dividends are paid out to shareholders, a dividend refund equal to 33.33% of the dividends paid (up to the balance in the RDTOH account) is refunded to the corporation.

The purpose of this rule is to ensure corporations initially pay about 50% total federal and provincial tax on investment income. This eliminates the incentive to earn investment income in a corporation rather than personally, where the top marginal rate is also about 50%, depending on the business owner’s province of residence.

Once sufficient dividends are paid out, the dividend refund mechanism, combined with another tax mechanism known as the gross-up and dividend tax credit system, ensure the total tax paid on investment income earned through a corporation and paid out as a dividend is roughly equal to the tax payable had the individual earned that investment income personally.

For a corporation to get its dividend refund for a particular tax year, it must file that year’s tax return within three years. If it misses that three-year deadline, there seems to be no solution, as an Ontario company recently found out.

Consequences of missing the deadline

The case, 1057513 Ontario Inc. v The Queen (2015 FCA 207), involved a corporation, 1057513 Ontario Inc., that found itself in the Federal Court of Appeal this past fall appealing a decision of the Tax Court of Canada.

The Tax Court had dismissed the taxpayer’s appeal of reassessments for tax years 1997 through 2004.

During those years, the taxpayer paid refundable tax. The company also paid sufficient dividends that, if its corporate tax returns had been filed within the three-year period set out under the Income Tax Act, would have resulted in a dividend refund for each year. But, since the corporation did not file its tax returns for the years in question until 2008, it was ineligible to receive the dividend refunds.

The issue before the appellate court was whether the Tax Court had committed any error in concluding that there is a requirement to file tax returns within three years from the end of the taxation year in which the dividend is paid in order to receive the dividend refund.

The Federal Court of Appeal could see no reason to overturn the Tax Court’s finding and dismissed the taxpayer’s appeal, denying the dividend refunds.

This harsh result echoes a statement made by CRA in 2011 concerning the rule. CRA had stated, “We cannot envision a situation in which an action […] would enable a taxpayer to obtain a dividend refund beyond the period described.”

If you earn investment income, this case serves as a reminder that missing tax deadlines can have severe consequences.