New Foreign Entity Tax
On February 20, 2018, the province increased the Foreign Entity Tax payable by foreign entities and taxable trustees to 20% on transfers of residential properties registered on or after February 21, 2018, and expanded the areas to which the tax applies from the Regional District of Greater Vancouver to:
- Capital Regional District (Victoria and Islands)
- Fraser Valley Regional District
- Regional District of Central Okanagan
- Regional District of Nanaimo
The additional property transfer tax doesn’t apply to properties located on Tsawwassen First Nation lands.
If the property is located in the Capital Regional District, Fraser Valley Regional District, Regional District of Central Okanagan or Nanaimo Regional District and the property transfer is registered on or after February 21, 2018, there are two instances where the additional property transfer tax does not have to be paid.
- The additional property tax does not have to be paid where the registration of the transfer occurs on or before May 18, 2018 and the property transfer is subject to a written agreement dated on or before February 20, 2018. (Note: If the written agreement is assigned to a foreign entity or taxable trustee on or after February 21, 2018, the additional property transfer tax must be paid.)
- The additional property transfer tax does not have to be paid where the registration of the transfer occurs at any time, where the property transfer is:
- subject to a court order dated on or before February 20, 2018;
- subject to an Order Nisi of Foreclosure dated on or before February 20, 2018;
- subject to a separation agreement which was signed on or before February 20, 2018;
- from the personal representative of a deceased’s estate to the beneficiary and the death of the deceased occurred on or before February 20, 2018; or
- to a surviving joint tenant when the death of the deceased occurred on or before February 20, 2018
The additional tax is payable on the interest acquired by the foreign entity or taxable trustee, and applies only on the residential portion of a property: There are three types of properties where this may occur:
- Property classified as residential (Class I) by BC Assessment. You pay the additional tax based on the fair market value of the full property.
- Property classified as farm land by BC Assessment that includes a residential improvement, such as a building used as a farmer’s home. You pay the additional tax on the value of the residential improvement plus 0.5 hectares of land (1.24 acres).
- Property classified as commercial by BC Assessment that includes a residential improvement (Class I), such as a condo in a building with commercial space. You pay the additional tax on the value of the residential improvement.
As stated above, the Foreign Entity Tax will be triggered by the registration of a transfer of “residential property” to a foreign entity or taxable trustee.
Residential property includes:
- any lands or improvements that are classified as “Class 1 property” by the BC Assessment Authority
- not only single-family residences but also multi-family residences, apartments and condominiums
- undeveloped lands that are classified as Class 1 property by BC Assessment. Nursing homes, cooperative developments, farms and senior residences are also included in Class 1.
The Foreign Entity Tax is payable with respect to any registered transaction that attracts PTT, including the transfer of a fee simple interest in land or a registered lease with a term longer than 30 years.
A “foreign entity” includes both a “foreign national” and a “foreign corporation”. A “foreign national” means a person who is neither a Canadian citizen nor a permanent resident at the time of registration, and includes a stateless person.
For purposes of determining which corporations are “foreign corporations”, the new rules adopt the “de facto” control test in section 256 of the Income Tax Act (Canada)(”ITA”).
De facto control occurs where a person or group of persons has a clear right and ability to affect the composition or decision of the board of directors of the company, or can directly influence the shareholders of a company that can elect the board of directors.
A foreign corporation includes a corporation that is not incorporated in Canada, a corporation that is incorporated in Canada (including BC) but is “controlled” in whole or in part by a foreign national or foreign corporation, unless the shares of the corporation are listed on a Canadian Stock Exchange, and a corporation which is controlled directly or indirectly by a foreign entity (Section 256 of the Income Tax Act).