Prescribed rate loans are a mainstay of spousal income splitting. A high-income spouse lends to a low-income spouse to invest in a non-registered portfolio, allowing investment income and associated tax to shift from the former to the latter.
So long as interest on the loan is paid according to the rules, it may remain outstanding indefinitely. As the portfolio grows, spouses may also be motivated to keep a loan going for another reason: If the whole portfolio must be sold to retire the loan, there may be an unwelcome realization of large capital gains.
But does the whole portfolio really have to be sold? Recent comments from the Canada Revenue Agency (CRA) suggest that loan retirement is more flexible and tax-friendly than may have been feared.
Recapping the rationale
Our progressive rate income tax system is based on the individual as the taxed unit. If you as a high bracket taxpayer try to work around this by making a gift to someone close to you, like a spouse, investment income on that gifted property will be attributed back to you. However, if this is done through a loan charging interest no less than the prescribed rate according to tax regulations, there is no attribution.
The prescribed rate is set quarterly, calculated as the average yield of Government of Canada 3-month T-Bills auctioned in the first month of the preceding quarter, rounded up to the next whole percentage. It is presently at 1%, its lowest possible rate, and will continue that way until at least March 2021.
The borrowing spouse is taxed on the investment income less interest paid, and in turn the interest is taxable to the lending spouse. The interest must be paid during the year, or no later than 30 days after year-end. As well, there must be an actual payment, meaning that it can’t just be a bookkeeping entry or further gift or loan from the lender.
Failure to comply with the rules at any point will taint the arrangement, such that attribution will apply for that year and on into the future.
Paying down or replacing loans
While the loan may remain outstanding indefinitely, there may be situations where it would be desirable to pay it off. For example, the borrower may inherit or otherwise come into a substantial sum. Arguably that money could be invested alongside the existing arrangement, but depending on what else is going on in their lives at the time, the couple may decide it’s best to retire the loan.
Another scenario is where there is an existing loan that was established while the prescribed rate was higher than at present. A lower interest rate would both increase the borrower’s net return and decrease the income inclusion for the lender. As the rules do not allow the couple to simply change the rate by stroke of a pen, the past loan must be closed-out before a new one can be advanced.
Assuming there’s no other money in reserve, the source to pay off the existing loan would have to be that same investment portfolio. Playing devil’s advocate (without casting aspersions on our tax authority), with anything short of full disposition, could it be argued that the borrower is still investing and earning off the original borrowed money? If so, would that then taint the second loan from the beginning?
Favourable CRA view on refinancing
At the Canadian Tax Foundation conference in October 2020, the CRA was given the scenario of an original $100,000 prescribed rate loan at 2% that had grown through investment to $200,000. It was asked about the implications if the borrower sold half the investments to retire the loan, followed by a new $100,000 loan at 1%, also to be invested.
With respect to potential attribution on the continuing investment from the original loan, the CRA official quoted a section from IT-511R that allows exemption from attribution once “the loan is repaid” – Nothing more was said on the point. With respect to investment of the second loan proceeds, it was acknowledged that it could similarly qualify for the exemption from attribution, as long as all other conditions are satisfied.
Helpfully, CRA further mentions the attribution rule where a new loan is used to pay an existing loan. The response expressly notes that this rule “would not technically apply in this situation as the proceeds from Loan 2 are not used to repay Loan 1.”
This is good news for spouses looking to refinance a loan at a lower rate while keeping from triggering excessive capital gains on appreciated investments. As CRA itself highlighted, form and process matter here, so the couple should take care to execute the steps in the approved order, and document accordingly.