What's CRA's Position on Family Gifts?

Family enjoying the outdoors together

What's CRA's Position on Family Gifts?

Last updated November 23, 2020.

Large gifts of money and property will get CRA's attention.

Follow these tips to limit the tax burden for giver and receiver.

Gifts of property among family members are common and can be very welcome for the recipient and satisfying for the giver.

Although Canada has no gift tax, in some cases a gift can trigger tax rules that could increase your income taxes and prevent a win-win situation for both you and the recipient.

 

Income Splitting Strategies

 

These tax rules are in place to ensure that, first, taxpayers do not abuse income splitting strategies and, second, that CRA receives all income taxes to which is it rightfully entitled.

Income splitting is the strategy of moving income from a family member in a higher tax bracket to a family member with a lower tax bracket.

Since Canada has a graduated income tax system, the idea is to reduce the overall family burden.

The Income Tax Act, however, contains several income attribution rules that prevent Canadians from income splitting.

If you gift your spouse part of your income, they’ll still attribute it back to you and you’ll be taxed at the higher rate.

Attribution rules apply to several situations, including:

  • Income and losses from property transferred to a spouse or minor family member
  • Capital gains/losses realized on property transferred to a spouse
  • Transfers of property to a trust

Note that in tax terms "transfer" has a broad definition that covers just about any way ownership of a property is moved from one person to another. A transfer includes both a gift and a sale.

Click here for a list of income splitting strategies that don't break any of the attribution rules.

Spousal Election to Avoid Attribution Rules

Property transferred at fair market value (FMV) is not subject to attribution rules (no tax owing).

If you want to transfer property to your spouse as a gift and still avoid attribution rules you must elect that spousal rollover rules do not apply. In that case, you then will report any accrued gains on the property and your spouse will report any future gains.

Should you sell or transfer property to a family member for less than fair market value (so you give them a cut rate but not an outright gift), not only could attribution rules apply, but CRA will adjust your "deemed proceeds" from the transaction upward to the property's FMV. This triggers any accrued gains, which will be taxable.

Your relative will be deemed to have received property equal to whatever he or she paid for it, not its FMV.

Attribution rules apply to minor children regardless of value of transfer and you cannot elect out of it.

Avoid Double Tax With a Gift

In such a case, the family as a whole might end up paying double tax on a portion of any accrued capital gains. That's because the recipient will also be taxed again on that portion of the gains between his or her actual cost and the FMV at the time of transfer which you will have already reported.

On the other hand, there also is a downside to giving property to a family member for a stated value that is higher than its FMV, as the family member's deemed cost will be adjusted downward to the FMV. Your proceeds of disposition for the property would still equal the actual selling price you had set on the property at the time of the transfer.

However, if you make an outright gift of the property to your family member, the family member's cost is "bumped" up to the fair market value, thereby avoiding this double-tax issue.

Making the gift or transfer of property to your spouse, as opposed to a child or other family member, usually will automatically occur on a tax-free basis, unless you elect otherwise. However, you and your spouse must both be Canadian residents at the time of the transfer.

Gifts to Under Age Family

If you transfer property to your spouse or a family member who is under 18 years of age, any income earned from that property is attributed to you, the transferor.

Similarly, any operating loss from the property also becomes your loss. However, this rule does not apply to a transfer of property for use in a business of a spouse or minor.

Income from the property could be in various forms, including interest, dividends, rents and royalties. A loss from the property could arise in a situation where the expenses incurred to earn income from the property exceed the income earned.

Expenses incurred for the purpose of earning interest and dividend income could include interest paid on borrowed money, investment counsel fees, and other carrying charges.

If you transfer the property to your spouse, any capital gains or allowable capital losses on subsequent disposal of that property also attribute to you.

However, if you give the property to a minor family member, such as a child, grandchild, niece or nephew, the capital gains or losses do not attribute to you.

If you have assets you expect to increase substantially in value, such as shares in a corporation, jewellery or art, consider transferring them to your children or a trust for your children.

While any dividends will be attributed to you until your children reach 18, capital gains on the sale of the assets will not be.

Principal Residence

While the attribution rules may sound restrictive, there are some additional ways you can make gifts to your family members that will create some tax benefits for you.

For example, you could make a gift of your home and if it was your principal residence for each year you owned it, the transfer will be tax-exempt. To qualify as a principal residence you, your spouse or child must have ordinarily inhabited it.

You also could transfer a non-principal residence, such as a cottage or a rental dwelling, to an adult child and it could qualify as the child's principal residence if the child occupied it.

You would be liable for any accrued gain up to the time of transfer, but assuming the home remained your child's principal residence, there would be no further taxable gain for the child.

Avoiding Attribution Rules

You also could consider making the following types of gifts to family members that will avoid attribution rules: 

  • Use your own funds to pay your spouse's tax bills throughout the year. Since the payment goes straight to CRA and is not invested by your spouse, there is no property from which income can be attributed. That means that any funds your spouse would have used to pay the income taxes can be invested without the income being attributed to you.
     
  • Pay the interest on your spouse's investment loans. There will be no attribution so long as you do not pay any principal on account of the spousal loan. The interest will be deductible on your spouse's tax return.
     
  • Make contributions to your spouse's RRSP. Income earned in the RRSP is tax-sheltered and when the funds are turned into an annuity or RRIF the payments are income to your spouse.

    Click here for more details on how to use income splitting strategies to your advantage.

     
  • Make gifts to your adult children (18 or over) to enable them to earn sufficient income to absorb their deductions and credits and also to pay for certain expenses that you would ordinarily pay out of after-tax dollars.
     
  • Give your adult children enough funds to allow them to make the maximum deductible contributions to their RRSPs.
     
  • Deposit Canada Child Tax Benefits or Universal Child Care Benefits into your child's bank account or a Registered Education Savings Plan (RESP) because attribution will not apply to income earned on these funds.

 

It's great to give and receive gifts, just be sure you do it correctly to avoid the gift becoming a tax burden. Make sure you consult with your accountant or tax professional ahead of time or you might end up with an unexpected tax bill.

Learn how to choose the right accounting solution for your small business

When we speak to small business owners, they tell us that doing the actual work is the easy part of running a business. It’s keeping up with all their tax obligations—corporate tax returns, record keeping, GST/HST, payroll, selling or transferring assets—that’s the hard part.

Most business owners don’t have the time or technical knowledge to handle all the admin on their own. They’re also afraid of making a mistake—they don’t want the CRA to come calling.

Sound familiar? You have enough on your plate just keeping up with the day-to-day of your business. That's why you hired an accounting and tax provider. Or are thinking of hiring one. But how do you find the right fit?

Find the answer in our free e-book: 5 essential questions to ask when choosing when choosing a tax provider.

FBC works with Canadian small business owners to minimize their income taxes and maximize their assets. We can help you stay on top of your record keeping, file your taxes on time and keep you caught up.

We offer tax planning, preparation and audit representation as well as bookkeeping and financial planning to cover your complete financial needs, all available year-round for one fee.

Interested in learning more? Please call us at 1-800-265-1002 or email [email protected] We're also offering a free consultation to explain how you can make sure you’re taking advantage of all the tax-saving opportunities available to you.

Read these articles for more information on family gifts as well as charitable gifts: