How should you own real estate properties?

There are benefits and risks to owning property personally, through a trust or through a corporation

• By: Vivek Bansal

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Historically low mortgage rates and appreciating real estate prices may be encouraging more of you to invest in real estate. When purchasing real estate, one of the key decisions you must make is how to own the property: personally, through a trust or through a corporation?

This article discusses some of the key considerations for clients looking to purchase either a principal residence or a rental property.

Principal residence

Under the Canadian tax rules, capital gains realized on the sale of a principal residence are generally exempt from tax if the taxpayer qualifies for the principal residence exemption (PRE). The PRE can only be claimed by individuals and certain trusts (such as alter-ego, joint spousal, and qualified disability trusts) under specific conditions.

Given the costs involved in setting up and maintaining a trust, your clients may prefer personal ownership. However, in some cases, the costs are warranted due to the estate planning benefits of using a trust. For example, if you want to leave property to a disabled child, a trust can be beneficial to ensure that the property is transferred to specific family members when the disabled child dies. Similarly, a trust can be useful in a blended family situation to control how, when and to whom the property is distributed after the surviving spouse dies.

A corporation cannot access the PRE, so any capital gains realized on the sale of the principal residence would be taxable to the corporation at high income tax rates (e.g., 50.17% in Ontario for 2020). In addition, personal use of a corporately owned property by the shareholder would be considered a taxable benefit to the shareholder. This could result in double taxation, as the taxable benefit included on the shareholder’s personal tax return is not deductible to the corporation and there is no step-up to the cost base of the property owned by the corporation. For these reasons, owning a principal residence through a corporation is usually the least tax-efficient approach.

Rental property

Personal ownership

If you personally own a rental property, the net rental income would be added to your net income for the year and taxed at their marginal tax rates. In addition, net rental income is also considered “earned income” for the purposes of calculating RRSP contribution room. If you are not currently generating the maximum RRSP contribution room through other sources of “earned income,” the added income could be a benefit of owning rental property personally.

If rental expenses are greater than the net rental income in a year due to rental vacancies, the net rental loss may also be deductible against other sources of income. The deduction would provide tax savings and reduce the cost of maintaining a rental property during a poor rental market. This is generally allowed for real estate operations that are predominantly commercial in nature as opposed to personal or recreational. If the Canada Revenue Agency determines that you are not primarily carrying on the rental operations to make a profit, then rental expenses either may not be deductible or the deduction may be limited to the extent of rental income generated from the property.

In terms of broader non-tax considerations, personally owned rental property is subject to creditor and spousal claims against you. If this is a concern, personal ownership of the rental property may not be ideal.

Corporate ownership

If the corporation is not carrying on an active real estate business, any rental income earned inside a corporation is considered passive income and would generally be subject to high income tax rates (e.g., 50.17% in Ontario for 2020). This flat tax rate applies to every dollar of rental income earned inside the corporation and may be much higher than the graduated tax rates your client would have paid when earning the rental income personally. As such, you may have lower after-tax dollars to reinvest and grow their investments in the corporation.

Passive rental income earned inside a corporation may affect your access to the small business tax rate if their corporation is an active (non-real estate) business. In some situations, you may decide to own real estate property used in a business through a corporation separate from the active business corporation. This can allow you to use different ownership structures in each corporation to maximize income-splitting and tax-planning opportunities.

Unlike with personal ownership, net rental losses earned inside the corporation cannot be used to offset other sources of income by the shareholders. As a corporation is a separate entity for tax purposes, these losses are locked inside the corporation and can only be used by the corporation.

Despite the unfavourable tax consequences, a corporation provides some non-tax advantages. For example, a corporation will generally protect your personal assets in the case of any lawsuits or creditor claims against the corporation. In Ontario and B.C., a corporation may allow you to avoid probate fees or estate administration taxes on the rental property using a secondary will.

However, using a corporation involves annual accounting and tax filing costs which may be greater than the one-time probate fees on the rental property.

Trust ownership

You may consider owning rental property through a trust. There are various types of trusts available and each has unique requirements and tax implications.

Unless certain income attribution rules apply, rental income earned inside a trust would generally be subject to the highest marginal tax rate (e.g., 53.53% in Ontario for 2020), and rental losses realized in a trust cannot be allocated to trust beneficiaries and must be used by the trust itself. In most situations, the rental income may be allocated and distributed to a trust beneficiary so that it is taxed at the beneficiary’s marginal tax rates.

A trust is commonly used as an estate planning tool to minimize probate fees because the rental property owned by the trust would not fall into your client’s estate when they die. A trust can also provide protection against creditors and spousal claims. Like the option of a corporate ownership, you should consider the costs involved in setting up and maintaining a trust to determine whether the potential benefits outweigh the costs.

Conclusion

There are various options available when deciding on the ownership of real estate property. It is important for you to understand the options available and obtain professional advice to determine which option works best.