A tax avoidance strategy has been growing in popularity in recent years. Although CRA has been aware of the strategy for over ten years, its increase in popularity and the Federal government’s current focus on reforming the taxation of insurance means that the life of the strategy may be coming to an end.
There are several good reasons for life insurance to be owned corporately rather than personally. A business owner is typically a key person of the business, and any buy-sell agreements or business interruption applications may require that the policy be owned corporately. Corporate ownership also allows for the payment of premiums with corporate dollars, which for small businesses generally have a lower tax rate than if the policy is owned personally.
There are of course also downsides. The loss of creditor protection, a potential impact to the capital gains exemption, additional complexity and accounting requirements, and the potential taxation of the death benefit are among the impacts to consider. Properly planned, these issues can be minimized, making corporate ownership an attractive option.
The corporately owned policy can be a newly issued policy, or could be a personally owned policy that is sold to the corporation. The latter may be the only option if health concerns make it costly, or even impossible, to obtain a new policy.
The sale of a policy from personal ownership to corporate ownership introduces a little used, until recently, tax savings opportunity. In exchange for the policy the corporation pays the individual the fair market value of the policy. The gain reportable to the individual is based on the cash surrender value of the policy rather than the fair market value, the two of which may differ substantially.
In many cases the taxable gain to the individual is zero, effectively resulting in a tax free disbursal of earnings from the corporation.
Overview of the transfer
A shareholder transferring a policy to his or her corporation is making a non-arm’s length transfer and therefore subject to Section 148(7) of the Income Tax Act. In exchange for the policy the company pays the shareholder the fair market value of the policy. The tax consequences consist of four parts:
- Deemed Disposition – The shareholder who owns the policy is deemed to have disposed of the policy for the cash surrender value (CSV). The taxable income to the shareholder will be the CSV minus the Adjusted Cost Basis (ACB).
- New Adjusted Cost Basis – Section 148(7) also deems the new ACB after the transfer to be equal to the CSV. The corporation has acquired an interest in the policy at the new ACB.
- Payment for the fair market value – The corporation pays or provides a note to the shareholder for the fair market value of the insurance policy. There is no tax to the shareholder and the company has a reduction in retained earnings.
- Payment of the Death Benefit – Upon the death of the life insured, the death benefit is paid into the Capital Dividend Account (CDA) to the extent that the benefit exceeds the ACB. The ACB will typically have enough time to decrease to $0, so the entire death benefit is paid into the CDA, which can then be distributed tax free.
Best Policies to Value
An actuary specializing in fair market valuation can provide advice on the potential value of a policy. The best policies to transfer will result in little or no taxable income upon disposition, and have fair market value that is greater than the cash value. There are several factors which contribute to a policy having a fair market value that is greater than the cash surrender value.
- Deterioration in health – Any health problems that reduce life expectancy will increase the value of a life insurance policy.
- Policies with guaranteed costs – Policies with guaranteed level premiums build up value over time, as the initial premiums exceed the cost of insurance in order to keep the premiums lower at higher ages when the cost of insurance exceeds the premiums. The reduction in interest rates has further increased the value of such policies, as they premiums were set assuming higher interest rates, and the premiums are guaranteed. Examples of these policies are Universal Life with level cost of insurance, term to 100, and whole life non-participating policies.
Although the CRA has stated that they agree with the tax treatment described above, they also feel it is an anomaly and referred the matter to the department of Finance. This position has been confirmed several times in the past ten years. While Finance has yet to take any action, the issue does now appear to be on their radar. The next budget may very well put an end to this opportunity.