Advocis Banff School 2007 The New Dividend Tax Rules’ Impact on Corporate-Owned Life Insurance Strategies Florence Marino, B.A., LL.B., TEP AVP Tax & Estate Planning Group, Manulife Financial

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Agenda

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New dividend tax rules - background A word about Provincial variation Corporate client profiles Overview of general implications of new dividend rules General impacts on Corporate Owned Life insurance planning Understanding impact on Buy Sell and Business Succession - Case Studies Conclusion – Lots of opportunity

New Dividend Rules: Background

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The Old Days:

 Total tax on dividends paid out of high rate corporate income from Canadian companies  = 56% (maximum)  Effective double tax to shareholders Maximum tax on income from income trusts =46% (for individual)

New Dividend Rules: Background

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New dividend regime introduced to “level” playing field

  Applies to dividends paid after 2005 Canadian companies   Public CCPC’s taxed at general federal tax rate   Not income taxed at small business rate Not investment income that has generated RDTOH

Eligible dividends – CCPC’s

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Distributions paid after 2005

   From active income subject to high corporate tax rate (post 2000) or From “eligible dividends” received after 2005 Received by a person resident in Canada

General Rate Income Pool (GRIP)

  Tracks amount available to pay out eligible dividends Dividends can be paid 1 st from GRIP pool

New dividend rules – Public Companies

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Most dividends received from public companies will be eligible dividends – i.e. portfolio dividends Must track

   “LRIP” (Low Rate Income Pool) LRIP will include   Taxable income that has benefited from SBD (might have occurred while a CCPC) Non-eligible dividends received Must pay non-eligible dividends (out of LRIP) first

A word about Provincial variation - 2007 dividend tax rates 2007 Ineligible Dividends Eligible Dividends Capital Gains British Columbia Alberta Saskatchewan Manitoba Ontario Quebec New Brunswick Nova Scotia P.E.I

Newfoundland

31.58% 25.21% 30.83% 36.75% 31.34% 36.35% 35.40% 33.06% 33.61% 35.62% 18.47% 17.45%* 20.35% 23.83% 24.64%** 29.69% 23.18% 28.35% 24.44% 30.63% 21.85% 19.50% 22.00% 23.20% 23.21% 24.11% 23.48% 24.13% 23.69% 23.52%

Not with the program *14.55% by 2009 **22.37% by 2010

CCPC Client Profiles

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Opcos Earning active business income in excess of small business threshold In Ontario, probably non M&P above claw back range $1.1 million+ Procorps in active phase

CCPC Client profile

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Holdcos Funnelled eligible dividends from Opco Opco sold off assets now Holdco Procorp after professional dies Investco receiving public company dividends

Overview of general implications

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Sale of business

  Old norm: buyer wants assets; seller wants to sell shares Shift – seller more likely to sell assets – difference between post asset sale wind up dividend (if sufficient GRIP) and realizing capital gain not significant

Overview of general implications

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Income splitting

 Stream eligible dividends to higher rate taxpayers

Alberta trusts continue to thrive Holdcos

  Generally still a bad idea to “incorporate” investment portfolio Eligible dividends can be used to recover RDTOH

Overview of general implications

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More likely for companies not to “bonus down” to small business thresholds

  Leaves more “trapped surplus” at the corporate level More deferred capital gains tax on CCPC shares?

 Increased use of wasting freeze?

Overview of general implications

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Eligible dividends generally cheaper than or close to capital gains tax rates

 Preference shift to dividend producing strategies vs. capital gains producing strategies  Post-mortem planning use of 164(6) loss carry back to eliminate capital gain and be taxed on dividend (with or without insurance)

General impacts on corporate life insurance planning

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Are RCA’s for owner mangers (and therefore insurance funding of them) dead?

Life insurance for increased corporate retentions

  Increased capital gains exposure Tax efficient investing

Generally, eligible dividends preferred to capital gains

 Changes to buy-sell and succession planning

Impact on buy-sell planning – Case study Facts:

       Stephen, 45 Jim, 50 50/50 shareholders of Opco ACB/PUC = 0; FMV $2 million Currently receiving 500,000 bonus/yr each Buy sell agreement on death requires “most tax effective” method of buy-out 1 million corporate-owned life insurance on each

Buy-sell planning Stephen 50 Opco $2 million FMV Jim 50

When Stephen dies….

What is most tax effective?

Options under the old rules

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Sale to Jim – promissory note method (All capital gain):

    Stephen pays 1,000,000 x 23% = 230,000 Stephen’s estate net cash of 770,000 Jim has 1,000,000 ACB – future capital gains tax liability of 1,000,000 x 23% 230,00 No CDA remaining

Options under the old rules

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Redemption 100% capital dividend (Half capital gain):

    Stephen pays 500,000 x 23% = 115,000 Stephen’s estate receives 885,000 Jim has 0 ACB and future capital gains tax liability of 2,000,000 x 23% No CDA remaining

Options under old rules

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Redemption 50% capital dividend (Half taxable dividend)

    Stephen’s estate pays 500,000 x 31% = 155,000 Stephen’s estate receives 845,000 Jim has 0 ACB and future capital gains tax liability of 2,000,000 x 23% = 460,000 500,000 CDA credit remaining

Tax Recap Old rules

600 500 400

Tax in

300

000's

200 100 0

Stephen Jim Total

Redemption 100% CDA Promissory Note 50% Solution

Tax Recap with eligible dividends

600 500 400

Tax in

300

000's

200 100 0

Stephen Jim Total

Redemption 100% CDA Promissory Note 50% Solution

Tax recap including grandfathered shares or spousal rollover

Redemption 100% CDA Promissory Note 600 500 400

Tax in

300

000's

200 100 0

Stephen Jim Total

50% Solution Spousal Rollover or Grandfathered

No insurance redemption for full eligible dividend or capital gain vs. with insurance new normal

Redemption 100% 700 600 500 Promissory Note Insured Redemption 50% Solution

000's

300 200 100 0

Stephen Jim Total

Buy-sell planning conclusions

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Insurance funding always better than no funding 50% solution even more efficient now Implications for drafting buy-sell agreements: address GRIP/eligible dividends

  Flexibility Perspective

hybrid agreement?

Impact on succession planning – Case study Facts:

    Dad, age 65, owns $1 million pref shares in Opco with nominal ACB, PUC Active kids hold common shares (Dad has done a freeze) GRIP balance = $1 million Contemplating options for Dad with and without insurance

What if Dad dies tomorrow

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Capital gain on Dad’s death

Proceeds of disposition ACB Capital gain to Dad $1,000,000 0 $1,000,000 Tax @ 23%* *BC 21.85%, Alta 19.5%, Sask 22% $230,000

What if Dad dies tomorrow

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If pref are redeemed within first year of estate can get eligible dividend treatment:

Deemed dividend 1,000,000 Capital dividend Taxable dividend (eligible) Dividend tax @ 22%* 0 1,000,000 220,000 *BC 18.47%, Alta 17.45% going to 14.55%, Sask 20.35% Capital gain on death (Loss carry back wipes out gain) 0

Comparison of options

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Redeem pref with corporate funds, no insurance Redeem pref with corporate funds and insurance proceeds, purchase $181,000 corporate-owned insurance to fund dividend tax Purchase $1million corporate-owned insurance to redeem pref and use 50% of the CDA (50% solution, full funding) Purchase $500,000 of corporate-owned insurance, redeem pref at death with insurance and corporate funds and use all the CDA generated by insurance (50% solution)

Summary of options Strategy Corp Funds Insurance Capital Div Undfunded redemptio n 1,000,000 0 0 Insure for tax 181,000 181,000 181,000 50% Sol’n – full funding 50% Sol’n – 50% funding 0 500,000 1,000,000 500,000 500,000 500,000

Dad’s total tax under various options

No insurance 250

000's

200 100 Buy Insurance for dividend tax 100% funding 50% Solution* Fund only 50% solution 50 0

Dad

*500,000 CDA remaining in corp for kids

Cost compare of options for funding redemption 500,000 450,000 400,000 350,000 300,000 250,000 200,000 150,000 100,000 50,000 0 Bank loan Savings Lump sum Life insurance PV of Alternatives

Conclusion

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New rules create opportunity!

Most clients (and many professional advisors) aren’t aware of the implications of the new rules   Revise existing buy-sell agreements?

Consider options for business succession planning Discuss the planning opportunity  Is there sufficient funding?

 New rules as a door opener

Advanced planning needed!

Advocis Banff School 2007 The New Dividend Tax Rules’ Impact on Corporate-Owned Life Insurance Strategies Florence Marino, B.A., LL.B., TEP AVP Tax & Estate Planning Group, Manulife Financial