With the extreme financial uncertainty created by COVID-19, residential homebuilders and buyers are seeing an uptick with incomplete purchase contracts. Buyers are adding clauses that allow them to postpone closings or back out of them entirely. Others are assigning their purchase contracts to new buyers (informally known as "flipping the contract") regularly without careful examination of the tax implications.
To bring some clarity to the tax implications on the assignment of a purchase contract, we will discuss the key income tax, GST/HST, and CRA audit considerations for both contracting parties. Before we get started, let's review the role of the three parties involved in this type of transaction: the assignor, the assignee, and the builder.
Assignment of a purchase contract defined
At its core, an assignment of a purchase contract occurs when an original buyer of a new home, condominium unit, or a single purpose dwelling, allows someone else (i.e., an assignee) to take over the purchase contract. With permission from the builder, the assignee assumes the liability for purchasing that piece of property. Assigning a contract allows the original buyer (i.e., the assignor) to sell their interest in that property before taking possession of it and potentially making a profit.
Income tax implications for the assignor
With an assignment sale, the assignor must report any profit realized from an assignment sale in the tax year in which the right is assigned. The profit will either be treated as fully taxable business income, which is fully taxable, or income from a capital gain, only 50% of which is taxable.
Many taxpayers assume that any profit related to the sale of real estate will be regarded as income from capital gains. However, it is not the nature of the property that determines whether the profit is treated as business income or income from capital gains. Instead, it is the intention of the buyer at the time of the purchase of the property. If the buyer intends to resell it for a profit, the income realized on the sale of the property is business income. Capital gains treatment generally occurs where the acquired property was held for some time and used personally or to generate revenue.
The CRA generally considers that any profit on an assignment sale is business income because the entire transaction typically lasts for a short period and is undertaken with the intention to make a quick profit.
Furthermore, where taxpayers purchase a pre-construction property intending to live in it as a principal residence, the profit will not qualify for the principal residence exemption where there is an assignment sale. This is because the rights to the property would typically have been sold prior to closing. The property was not inhabited as a principal residence and therefore cannot qualify for the principal residence exemption. Thus, any profit would be taxable and treated as business income.
Tax implications for assignors who are non-residents of Canada
When a non-resident of Canada sells Canadian real estate or an option to acquire Canadian real estate, there is a requirement to notify the CRA of such transactions within ten days. Failure to inform the CRA can result in a penalty of up to $2,500 (additional penalties may also be applicable in certain provinces). Furthermore, the purchaser may be liable to withhold 25% of the gross proceeds and remit this to the federal authorities.
GST/HST implications for the assignor
Determining whether the assignor's proceeds are subject to GST/HST is subject to review by the CRA. The issue is whether the assignor meets the definition of a "builder" for GST/HST purposes and whether the assignor intended to purchase the property for business purposes. In many cases, the assignor of the property may be deemed to be a builder under the Excise Tax Act.
If the assignor can demonstrate to the CRA that their intention when they put in the offer to buy the property was to use it as a primary place of residence, then when they assign the contract, they will be exempt from paying GST/HST on the consideration received for the assignment of the contract. If, on the other hand, they entered the contract with the intention of leasing or reselling the property at a profit, then they will be required to collect and remit tax on the total amount charged to the assignee, which includes any mark-up earned through the assignment.
GST/HST implications for the assignee
Under most new construction agreements, the assignor will qualify for the GST/HST New Residential Housing Rebate, which is typically included in the purchase price, as long as the assignor intends to use the home as a place of residence. However, once the purchase contract is assigned, that eligibility is forfeited because the assignor is no longer taking title to the home on closing. It is also worth noting that there can only be one New Residential Housing Rebate application filed per dwelling.
Therefore, it will be incumbent upon the assignee to determine whether the New Residential Housing Rebate opportunity still exists. They will need to meet the stipulated legislated requirements, and they may have to apply directly to the CRA or arrange with the builder to have the rebate amount credited at closing. It is advisable that the assignee provide a declaration to the builder that they meet the requirements for the rebate (i.e., they will use the property as a place of residence) and obtain a commitment in writing from the builder that the New Residential Housing Rebate will be credited to them upon closing.
The builder should ascertain what the buyer's property intentions are before closing because having a New Residential Housing Rebate assigned by a buyer who intends to rent the property will have many potential negative consequences for all parties. The assignee may be eligible to apply for the New Residential Rental Housing Rebate directly with the CRA, where the assignee intends to purchase the property for long-term rental as a place of residence. In addition, the amount due on closing under the original purchase contract may need to increase since the new purchaser cannot assign the New Residential Housing Rebate to the builder.
Recent CRA audit activity
The CRA has increased its compliance efforts in the real estate sector, particularly in areas where speculative activity has increased.
The recent 2019 Federal Budget announced that CRA would be devoting significant resources to pursue and investigate real estate transactions as the government feels that this is a substantial area of non-compliance.
This means that if you are involved in a pre-construction assignment sale, the likelihood that you will be subject to CRA scrutiny will be high, so taxpayers must understand the rules for both income tax and GST/HST relating to assignment sales.
If your return is selected for audit, the CRA will consider the following factors when determining whether you correctly reported a real estate sale:
- The type of property sold
- How long you owned it
- Your history of selling similar properties
- Whether you did any work on the property
- Why you sold the property
- Your intention in buying the property
If you are a professional contractor or renovator, a speculator or middle investor, or an individual renovator, the CRA will be paying close attention to your property sales.
How BDO can help
Are you concerned about how to close your real estate transaction during self-isolation? Do you need help calculating the GST/HST on a newly constructed property? Talk with your BDO advisor today for all your real estate and construction needs.
Jameson Bouffard, Partner, National Real Estate and Construction Leader
Linda McCracken, Senior Manager, Indirect Tax
The information in this publication is current as of June 22, 2020.
This publication has been carefully prepared, but it has been written in general terms and should be seen as broad guidance only. The publication cannot be relied upon to cover specific situations and you should not act, or refrain from acting, upon the information contained therein without obtaining specific professional advice. Please contact BDO Canada LLP to discuss these matters in the context of your particular circumstances. BDO Canada LLP, its partners, employees and agents do not accept or assume any liability or duty of care for any loss arising from any action taken or not taken by anyone in reliance on the information in this publication or for any decision based on it.