S.45(2) Election and the Changes in Use of Property
Many Canadian taxpayers are aware that the disposition of a property typically triggers a capital gain. In other words, the taxpayer is required to pay a tax on the profit realized from selling the property at a price higher than in which they purchased it. One exception to this rule is if the property in question was the taxpayer’s principal residence. Indeed, if a property qualifies as a taxpayer’s principal residence, he or she can use the principal residence exemption to reduce or eliminate any capital gain otherwise occurring, for income tax purposes.
However, what happens if the property changes its “use” during ownership? For example, what happens if a taxpayer resides in a property but later decides he or she wants to starting renting it out or vice versa? We first discussed changes of use in this blog post, and now, the current post will briefly explain the Income Tax Act rules regarding the change of “use” in properties and the s.45(2) late election request.
What is a Change of Use?
The Income Tax Act (“ITA”) deems a taxpayer to have disposed of, and immediately reacquired the property (at the cost equal to fair market value), when the taxpayer changes the “use” of a property from income-earning to personal use or vice versa. This means that anytime a taxpayer changes its property from a rental property to principal residence (or vice versa), the taxpayer will have to pay a capital gain tax on the fair market value minus the purchase cost of the house.
Taxpayers must be very watchful for deemed disposition rules because they may not have the requisite funds to pay for the tax owing. Consider the normal scenario where the taxpayer owes capital gain tax after selling his or her property. The taxpayer would be able to use the funds received from the sale of the home to pay for the tax owing. In contrast, a deemed disposition would require the taxpayer to owe the same amount of tax but not have the actual profits from selling the home.
Subsection 45(2) Election
S.45(2) of the ITA carves out a way that allows taxpayers to be deemed not to have made the change in “use” of the property. This means that taxpayers can elect not to be considered as having started to use the property as income producing, and subsequently not report any capital gain. This election is done in the year that the change of use occurs.
It is important to note that taxpayers can only make the s.45(2) election if they satisfy the following:
- You must report the net rental or business income you earn; and
- You cannot claim any capital cost allowance (CCA) on the property
Additionally, a property can qualify as a taxpayer’s principal residence for up to 4 years during which a subsection 45(2) election remains in force, even if the housing unit is not ordinarily inhabited during those years by the taxpayer or by his/her spouse. However, the taxpayer must be a resident or deemed to be a resident, in Canada during those years for the full benefit of the principal residence exemptions to apply.
What if I miss the Deadline to file the Election?
While the CRA may allow late elections requests even after the change in use of property has already occurred, penalties may apply. Specifically, s.220(3) of the ITA requires taxpayers to pay the lesser of the following:
- $8,000; or
- $100 for each complete month from the election’s original due date to the date the application is made in a form satisfactory to the CRA.
Further to the above, if you miss the deadline for the election, technically you have income taxes to pay because the change in use means there is a deemed sale. This can be a very complex matter and professional assistance is recommended. If you have questions regarding the s.45(2) election request, want to file one, or you’re late in filing one already, contact a professional at R&A Tax Law today! We are help to help.
**Disclaimer
This article provides information of a general nature only. It does not provide legal advice nor can it or should it be relied upon. All tax situations are specific to their facts and will differ from the situations in this article. If you have specific legal questions you should consult a lawyer.
Kevin Hong
Kendal Steele
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Seeking advise. In 2021 I sold my principal residence and moved into my second residential rental property and fulfilled all the Section 45 requirements by filing my letter with CRA. Now I’m considering renting my principal residence and renting condo in Burlington. What are CRA implications as I’m concerned as to the timing of when Capital Gains will have to be paid on my original second property which was purchased in 2015. We have lived in that as new principal residence for the past 2 years. Does renting and not declaring any CCA defer payment of Capital Gains tax until I decide to sell in the future?
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