An Act to amend the Income Tax Act (Canada Emergency Rent Subsidy and Canada Emergency Wage Subsidy) (S.C. 2020, c. 13)
Full Document:
Assented to 2020-11-19
An Act to amend the Income Tax Act (Canada Emergency Rent Subsidy and Canada Emergency Wage Subsidy)
S.C. 2020, c. 13
Assented to 2020-11-19
An Act to amend the Income Tax Act (Canada Emergency Rent Subsidy and Canada Emergency Wage Subsidy)
RECOMMENDATION
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Income Tax Act (Canada Emergency Rent Subsidy and Canada Emergency Wage Subsidy)”.
SUMMARY
This enactment amends the Income Tax Act to revise the eligibility criteria, as well as the level of subsidization, under the Canada Emergency Wage Subsidy (CEWS) as part of the response to the coronavirus disease 2019. It also extends the CEWS to June 30, 2021. The enactment further amends the Income Tax Act to introduce the Canada Emergency Rent Subsidy (CERS) in order to support those hardest hit by the coronavirus disease 2019. This subsidy provides relief in respect of rent and interest on debt obligations incurred to acquire real property used by businesses, charities and not-for-profit organizations in the course of their businesses or other activities. The rent subsidy is effective as of September 27, 2020.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. 1 (5th Supp.)Income Tax Act
1 (1) Paragraph 87(2)(g.6) of the Income Tax Act is replaced by the following:
Marginal note:COVID-19 – wage subsidy
(g.6) for the purposes of section 125.7, the new corporation is deemed to be the same corporation as, and a continuation of, each predecessor corporation unless it is reasonable to consider that one of the main purposes of the amalgamation is to cause the new corporation to qualify for the deemed overpayment under subsection 125.7(2) or (2.1) or to increase the amount of that deemed overpayment;
(2) Subsection (1) is deemed to have come into force on September 27, 2020.
2 (1) The definitions eligible employee and top-up revenue reduction percentage in subsection 125.7(1) of the Act are replaced by the following:
- eligible employee
eligible employee, of an eligible entity in respect of a week in a qualifying period, means an individual employed by the eligible entity primarily in Canada throughout the qualifying period (or the portion of the qualifying period throughout which the individual was employed by the eligible entity), other than, if the qualifying period is described in any of paragraphs (a) to (c.1) of the definition qualifying period, an individual who is without remuneration by the eligible entity in respect of 14 or more consecutive days in the qualifying period. (employé admissible)
- top-up revenue reduction percentage
top-up revenue reduction percentage, of an eligible entity for a qualifying period, means
(a) for a qualifying period referred to in any of paragraphs (c.2) to (c.4) of the definition qualifying period, the result (expressed as a percentage) of the formula
1 − A ÷ B
where
- A
- is the average monthly qualifying revenue of the eligible entity for the last three calendar months that ended prior to the current reference period for the qualifying period, and
- B
- is the average monthly qualifying revenue of the eligible entity for
(b) for a qualifying period referred to in any of paragraphs (c.5) to (c.7) of the definition qualifying period, the greater of
(c) for a qualifying period referred to in paragraph (d) of the definition qualifying period, the revenue reduction percentage of the eligible entity for the qualifying period. (pourcentage compensatoire de baisse de revenu)
(2) Paragraph (b) of the definition baseline remuneration in subsection 125.7(1) of the Act is amended by striking out “or” at the end of subparagraph (ii), by adding “or” at the end of subparagraph (iii) and by adding the following after subparagraph (iii):
(iv) if the eligible employee was on leave for any reason mentioned in subsection 12(3) of the Employment Insurance Act or section 2 of the Act respecting parental insurance, CQLR, c. A-29.011 throughout the period that begins on July 1, 2019 and ends on March 15, 2020, begins 90 days prior to the date on which the employee commenced that leave and ends on the day prior to the date on which they commenced their leave, in respect of a qualifying period referred to in any of paragraphs (c.2) to (d) of the definition qualifying period. (rémunération de base)
(3) Subparagraphs (e)(i) and (ii) of the definition base percentage in subsection 125.7(1) of the Act are replaced with the following:
(4) Paragraph (f) of the definition base percentage in subsection 125.7(1) of the Act is replaced with the following:
(5) The definition current reference period in subsection 125.7(1) of the Act is amended by striking out “and” at the end of paragraph (c.6) and by adding the following after that paragraph:
(c.7) for the qualifying period referred to in paragraph (c.7) of the definition qualifying period, December 2020; and
(6) Paragraph (a) of the definition prior reference period in subsection 125.7(1) of the Act is amended by striking out “and” at the end of subparagraph (viii), by adding “and” at the end of subparagraph (ix) and by adding the following after subparagraph (ix):
(x) for the qualifying period referred to in paragraph (c.7) of the definition qualifying period, December 2019;
(7) Paragraph (a) of the definition qualifying entity in subsection 125.7(1) of the Act is replaced by the following:
(8) The definition qualifying period in subsection 125.7(1) of the Act is amended by striking out “or” at the end of paragraph (c.6) and by replacing paragraph (d) with the following:
(9) Paragraph (b) of the definition specified percentage in subsection 125.7(1) of the Act is replaced by the following:
(b) for the qualifying period referred to in any of paragraphs (b) to (c.1) of the definition qualifying period, 70%; and
(10) The portion of the definition top-up percentage in subsection 125.7(1) of the Act before the formula is replaced by the following:
- top-up percentage
top-up percentage, of an eligible entity for a qualifying period, means the percentage determined by regulation for the qualifying period or, if there is no percentage determined by regulation for the qualifying period, the lesser of 25% and the percentage determined by the formula
(11) Subsection 125.7(1) of the Act is amended by adding the following in alphabetical order:
- public health restriction
public health restriction, in respect of a qualifying property of an eligible entity for a qualifying period, means an order or decision in respect of which the following conditions are met:
(a) it is made under a law of Canada or a province, or the authority granted under such a law;
(b) it is made in response to the coronavirus disease 2019 (COVID-19) pandemic;
(c) it is limited in scope based on one or more factors, such as
(d) non-compliance with the order or decision is a federal or provincial offence or can result in the imposition of an administrative monetary penalty or other sanction by the Government of Canada or a province;
(e) it does not result from a violation by the eligible entity of an order or decision that meets the conditions in paragraphs (a) to (d);
(f) as a result of the order or decision, some or all of the activities of the eligible entity at, or in connection with, the qualifying property (that it is reasonable to expect the eligible entity would, absent the order or decision, otherwise have engaged in) are required to cease (referred to in this definition as the “restricted activities”) based, for greater certainty, on the type of activity rather than the extent to which an activity may be performed or limits placed on the time during which an activity may be performed;
(g) it is reasonable to conclude that at least approximately 25% of the qualifying revenues of the eligible entity for the prior reference period that were earned from, or in connection with, the qualifying property were derived from the restricted activities; and
(h) the restricted activities are required to cease for a period of at least one week. (restrictions sanitaires)
- qualifying property
qualifying property, of an eligible entity for a qualifying period, means real or immovable property (other than property that is a self-contained domestic establishment used by the eligible entity or by a person not dealing at arm’s length with the eligible entity, or part of such a self-contained domestic establishment, the land subjacent to the self-contained domestic establishment and such portion of any immediately contiguous land as can reasonably be regarded as contributing to the use and enjoyment of the self-contained domestic establishment as a residence) in Canada used by the eligible entity in the course of its ordinary activities. (bien admissible)
- qualifying rent expense
qualifying rent expense, in respect of a qualifying property for an eligible entity for a qualifying period, means the amount determined by the formula
A − B
where
- A
- is the lesser of $75,000 and the total of all amounts paid — under a written agreement entered into before October 9, 2020, or pursuant to the renewal (on substantially similar terms) or assignment of a written agreement entered into before October 9, 2020 — in respect of the qualifying period by the eligible entity to a party with which the eligible entity deals at arm’s length, each of which is
(a) rent for the use of, or right to use, the qualifying property,
(i) including
(A) gross rent,
(B) rent based on a percentage of sales, profit or a similar criterion,
(C) amounts required to be paid under a net lease by the eligible entity either to the lessor or a third party, as
(I) base rent,
(II) regular instalments of operating expenses, such as insurance, utilities and common area maintenance expenses, customarily charged to the lessee under a net lease,
(III) property and similar taxes, including school and municipal taxes, and
(IV) regular instalments of other amounts payable to the lessor for services ancillary to the rental of real or immovable properties and customarily supplied or rendered in connection with the rental of real or immovable properties, and
(D) amounts received by the lessor under the Canada Emergency Commercial Rent Assistance program that were applied against rent payable in respect of the qualifying period, if those amounts would otherwise be required to be refunded to the eligible entity, and
(ii) excluding
(A) sales taxes,
(B) amounts paid as, on account of, in lieu of payment of or in satisfaction of, damages,
(C) amounts paid under a guarantee, security or similar indemnity or covenant,
(D) payments arising due to default under the agreement by the eligible entity,
(E) interest and penalties on unpaid amounts,
(F) fees payable for discrete items or special services, and
(G) reconciliation adjustment payments, and
(b) in the case of qualifying property owned by the eligible entity that is not used by the eligible entity primarily to earn rental income or, where the qualifying property is used primarily by the eligible entity to earn rental income directly or indirectly from a person or partnership not dealing at arm’s length with the eligible entity, that is not used by that person or partnership primarily to earn rental income,
(i) if there is a debt obligation secured by a mortgage or hypothec on the qualifying property, interest on the debt obligation to the extent that the amount of the debt obligation does not exceed the lesser of
(A) the lowest total principal amount secured by one or more mortgages or hypothecs (provided the mortgage or hypothec has an amortization period) on the qualifying property at any time after it was acquired by the eligible entity (excluding any temporary period in the course of a refinancing transaction between the time when an existing mortgage is discharged and a new mortgage is registered), and
(B) the cost amount of the qualifying property,
(ii) amounts paid for insurance on the qualifying property, and
(iii) property and similar taxes on the qualifying property, including school and municipal taxes; and
- B
- is the total of all amounts, each of which is received or receivable by the eligible entity in respect of the qualifying period, either directly or indirectly, from a party with which the entity deals at arm’s length and is described in paragraph (a) of the description of A. (dépenses de loyer admissibles)
- qualifying renter
qualifying renter, for a qualifying period, means an eligible entity that meets the following conditions:
(a) it files an application with the Minister in respect of the qualifying period in prescribed form and manner no later than 180 days after the end of the qualifying period;
(b) the individual who has principal responsibility for the financial activities of the eligible entity attests that the application is complete and accurate in all material respects; and
(c) it meets any of the following conditions:
- rent subsidy percentage
rent subsidy percentage, of an eligible entity for a qualifying period, means
(a) if the qualifying period is described in any of paragraphs (c.5) to (c.7) of the definition qualifying period,
(i) if the eligible entity’s revenue reduction percentage is greater than or equal to 70%, 65%,
(ii) if the eligible entity’s revenue reduction percentage is greater than or equal to 50%, but less than 70%, the percentage determined by the formula
40% + (A − 50%) × 1.25
where
- A
- is the eligible entity’s revenue reduction percentage, and
(iii) if the eligible entity’s revenue reduction percentage is less than 50%, the percentage determined by the formula
0.8 × B
where
- B
- is the eligible entity’s revenue reduction percentage; and
(b) for a qualifying period referred to in paragraph (d) of the definition qualifying period, a percentage determined by regulation in respect of the qualifying period. (pourcentage de subvention pour le loyer)
- rent top-up percentage
rent top-up percentage, of an eligible entity in respect of a qualifying property for a qualifying period, means the percentage determined by the formula
A × B ÷ C
where
- A
- is 25% or a prescribed percentage,
- B
- is the number of days in the qualifying period throughout which the qualifying property is subject to a public health restriction, and
- C
- is the number of days in the qualifying period. (pourcentage compensatoire pour le loyer)
(12) Section 125.7 of the Act is amended by adding the following after subsection (2):
Marginal note:COVID-19 — rent subsidy
(2.1) For a qualifying renter for a qualifying period referred to in any of paragraphs (c.5) to (d) of the definition qualifying period in subsection (1), an overpayment on account of the qualifying renter’s liability under this Part for the taxation year in which the qualifying period ends is deemed to have arisen during the qualifying period in an amount determined by the formula
A + B
where
- A
- is the amount determined by the formula
C × D
where
- C
- is the qualifying renter’s rent subsidy percentage for the qualifying period, and
- D
- is the lesser of
(a) the total of all amounts, each of which is the qualifying renter’s qualifying rent expense for a qualifying property for the qualifying period, and
(b) the amount determined by the formula
$300,000 × E
where
- E
- is
(i) 100%, unless the qualifying renter is affiliated at any time in the qualifying period with one or more eligible entities that claims an amount under this subsection in respect of the qualifying period,
(ii) a percentage assigned to the qualifying renter under an agreement, if
(A) the agreement is entered into by the qualifying renter and each eligible entity that
(B) the agreement is filed in prescribed form and manner with the Minister in respect of the qualifying period by the qualifying renter and each eligible entity referred to in clause (A) with their application for the qualifying period,
(C) the agreement assigns, for the purposes of this subsection, a percentage in respect of each eligible entity referred to in clause (B) for the qualifying period, and
(D) the total of all the percentages assigned under the agreement does not exceed 100%, and
(iii) in any other case, nil; and
- B
- is the total of all amounts, each of which is an amount in respect of a qualifying property for the qualifying period, determined by the formula
F × G
where
- F
- is
- G
- is the qualifying rent expense of the qualifying renter in respect of the qualifying property for the qualifying period.
(13) Subsection 125.7(3) of the Act is replaced by the following:
Marginal note:When assistance received
(3) For the purposes of this Act other than this section, and for greater certainty, an amount that a qualifying entity or qualifying renter is deemed under subsection (2) or (2.1) to have overpaid is assistance received by it from a government immediately before the end of the qualifying period to which it relates.
(14) Paragraph 125.7(4)(c) of the Act is replaced by the following:
(c) if all of the interests in an eligible entity are owned by participants in a joint venture and all or substantially all of the qualifying revenue of the eligible entity for a qualifying period is in respect of the joint venture, then the eligible entity may use the qualifying revenues of the joint venture (determined as if the joint venture were an eligible entity) as its qualifying revenues for the qualifying period for the purposes of this section;
(15) The portion of paragraph 125.7(4)(d) of the Act before subparagraph (i) is replaced by the following:
(d) if all or substantially all of an eligible entity’s qualifying revenue — determined without reference to paragraph (d) of the definition qualifying revenue in subsection (1) — for a qualifying period is from one or more particular persons or partnerships with which it does not deal at arm’s length and each particular person or partnership jointly elects with the eligible entity, for the purposes of this section
(16) Paragraph 125.7(4.1)(b) of the Act is replaced by the following:
(b) immediately prior to the acquisition, the fair market value of the acquired assets constituted
(i) all or substantially all of the fair market value of the property of the seller used in the course of carrying on business, or
(ii) if the seller and the eligible entity deal with each other at arm’s length, all or substantially all of the property of the seller that can reasonably be regarded as being necessary for the eligible entity to be capable of carrying on a business of the seller, or part of a business of the seller, as a business;
(17) Subsection 125.7(4.2) of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d):
(e) for the purposes of subparagraph (b)(i) of the definition prior reference period in subsection (1) and the description of C in subparagraph (c)(ii) of the definition qualifying entity in subsection (1), the eligible entity is deemed to have commenced carrying on the business in which the acquired assets are used at the earlier of
(18) Paragraph 125.7(5)(a) of the Act is replaced by the following:
(a) the amount of any deemed overpayment by an eligible entity under subsection (2) or (2.1) in respect of a qualifying period cannot exceed the amount claimed by the eligible entity — in the application referred to in paragraph (a) of the definition qualifying entity in subsection (1) or paragraph (a) of the definition qualifying renter in subsection (1) — in respect of that qualifying period; and
(19) Subsection 125.7(6) of the Act is replaced by the following:
Marginal note:Anti-avoidance — qualifying revenues
(6) Notwithstanding any other provision in this section, the qualifying revenue of an eligible entity for a current reference period for a qualifying period is deemed to be equal to the qualifying revenue of the eligible entity for the relevant prior reference period, if
(a) the eligible entity, or a person or partnership not dealing at arm’s length with the eligible entity, enters into a transaction or participates in an event (or a series of transactions or events) or takes an action (or fails to take an action) — other than, for greater certainty, a decision under subparagraph (a)(ii) or (b)(ii) of the definition qualifying revenue in subsection (1) or the decision to use one of the methods of computing qualifying revenues under subsection (4) — that has the effect of
(b) it is reasonable to conclude that one of the main purposes of the transaction, event, series or action in paragraph (a) is to
(i) cause an eligible entity to qualify for the deemed overpayment under subsection (2) in respect of that qualifying period,
(ii) in respect of qualifying periods described in any of paragraphs (c.2) to (d) of the definition qualifying period in subsection (1), increase the amount of a deemed overpayment under subsection (2), or
(iii) increase the amount of a deemed overpayment under subsection (2.1).
(20) Paragraphs 125.7(7)(a) and (b) of the Act are replaced by the following:
(21) Subsection 125.7(8) of the Act is replaced by the following:
Marginal note:Prescribed amounts
(8) The following may be prescribed for the purposes of:
(a) the definition base percentage in subsection (1),
(b) the definition rent subsidy percentage in subsection (1), the factors and percentages in paragraph (a) of that definition; and
(c) the definition qualifying rent expense in subsection (1), specific, or classes of, expenses that are included or excluded as qualifying rent expenses under paragraph (a) or (b) of that definition.
(22) Section 125.7 of the Act is amended by adding the following after subsection (9):
Marginal note:Amending or revoking elections
(10) An eligible entity may amend or revoke an election made under this section on or before the date that the application is due for the first qualifying period in respect of which the election is made.
Marginal note:Affiliated entities
(11) For the purposes of the description of E in subsection (2.1), if two eligible entities are affiliated with the same eligible entity, they are deemed to be affiliated with each other.
(23) Subsections (1) to (10) and (14) to (17) are deemed to have come into force on April 11, 2020; however, the definition eligible employee in subsection 125.7(1) of the Income Tax Act, as amended by subsection (1), is to be read as follows in respect of applications made before the day on which this Act receives royal assent:
- eligible employee
eligible employee, of an eligible entity in respect of a week in a qualifying period, means an individual employed in Canada by the eligible entity in the qualifying period, other than, if the qualifying period is described in any of paragraphs (a) to (c.1) of the definition qualifying period, an individual who is without remuneration by the eligible entity in respect of 14 or more consecutive days in the qualifying period. (employé admissible)
(24) Subsections (11) to (13) and (18) to (22) are deemed to have come into force on September 27, 2020.
- Date modified: