Income Tax Act
Marginal note:Definitions
110.6 (1) For the purposes of this section,
annual gains limit
plafond annuel des gains
annual gains limit of an individual for a taxation year means the amount determined by the formula
A - B
where
- A
- is the lesser of
(a) the amount determined in respect of the individual for the year under paragraph 3(b) in respect of capital gains and capital losses, and
(b) the amount that would be determined in respect of the individual for the year under paragraph 3(b) in respect of capital gains and losses if the only properties referred to in that paragraph were qualified farm properties disposed of by the individual after 1984, qualified small business corporation shares disposed of by the individual after June 17, 1987 and qualified fishing properties disposed of by the individual on or after May 2, 2006, and
- B
- is the total of
(a) the amount, if any, by which
(i) the individual’s net capital losses for other taxation years deducted under paragraph 111(1)(b) in computing the individual’s taxable income for the year
exceeds
(ii) the amount, if any, by which the amount determined in respect of the individual for the year under paragraph 3(b) in respect of capital gains and capital losses exceeds the amount determined for A in respect of the individual for the year, and
(b) all of the individual’s allowable business investment losses for the year; (plafond annuel des gains)
child
enfant
child has the meaning assigned by subsection 70(10); (enfant)
cumulative gains limit
plafond des gains cumulatifs
cumulative gains limit of an individual at the end of a taxation year means the amount, if any, by which
(a) the total of all amounts determined in respect of the individual for the year or preceding taxation years that end after 1984 for A in the definition annual gains limit
exceeds the total of
(b) all amounts determined in respect of the individual for the year or preceding taxation years that end after 1984 for B in the definition annual gains limit,
(c) the amount, if any, deducted under paragraph 3(e) in computing the individual’s income for the 1985 taxation year,
(d) all amounts deducted under this section in computing the individual’s taxable incomes for preceding taxation years, and
(e) the individual’s cumulative net investment loss at the end of the year; (plafond des gains cumulatifs)
cumulative net investment loss
perte nette cumulative sur placements
cumulative net investment loss of an individual at the end of a taxation year means the amount, if any, by which
(a) the total of all amounts each of which is the investment expense of the individual for the year or a preceding taxation year ending after 1987
exceeds
(b) the total of all amounts each of which is the investment income of the individual for the year or a preceding taxation year ending after 1987; (perte nette cumulative sur placements)
- eligible real property gain
eligible real property gain[Repealed, 1995, c. 3, s. 32(1)]
- eligible real property loss
eligible real property loss[Repealed, 1995, c. 3, s. 32(1)]
interest in a family farm partnership
participation dans une société de personnes agricole familiale
interest in a family farm partnership of an individual (other than a trust that is not a personal trust) at any time means a partnership interest owned by the individual at that time if
(a) throughout any 24-month period ending before that time, more than 50% of the fair market value of the property of the partnership was attributable to
(i) property that was used principally in the course of carrying on the business of farming in Canada in which the individual, a beneficiary referred to in clause (C) or a spouse, common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C) was actively engaged on a regular and continuous basis, by
(A) the partnership,
(B) the individual,
(C) where the individual is a personal trust, a beneficiary of the trust,
(D) a spouse, common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C),
(E) a corporation, a share of the capital stock of which was a share of the capital stock of a family farm corporation of the individual, a beneficiary referred to in clause (C) or a spouse, common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C), or
(F) a partnership, a partnership interest of which was an interest in a family farm partnership of the individual, a beneficiary referred to in clause (C) or a spouse, common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C),
(ii) shares of the capital stock or indebtedness of one or more corporations all or substantially all of the fair market value of the property of which was attributable to properties described in subparagraph (iv),
(iii) a partnership interest in or indebtedness of one or more partnerships all or substantially all of the fair market value of the property of which was attributable to properties described in subparagraph (iv), or
(iv) properties described in any of subparagraphs (i) to (iii), and
(b) at that time, all or substantially all of the fair market value of the property of the partnership was attributable to property described in subparagraph (a)(iv); (participation dans une société de personnes agricole familiale)
interest in a family fishing partnership
participation dans une société de personnes de pêche familiale
interest in a family fishing partnership of an individual (other than a trust that is not a personal trust) at any time means a partnership interest owned by the individual at that time if
(a) throughout any 24-month period ending before that time, more than 50% of the fair market value of the property of the partnership was attributable to
(i) property that was used principally in the course of carrying on the business of fishing in Canada in which the individual, a beneficiary referred to in clause (C) or a spouse or common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C) was actively engaged on a regular and continuous basis, by
(A) the partnership,
(B) the individual,
(C) where the individual is a personal trust, a beneficiary of the trust,
(D) a spouse, common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C),
(E) a corporation, a share of the capital stock of which was a share of the capital stock of a family fishing corporation of the individual, a beneficiary referred to in clause (C) or a spouse, common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C), or
(F) a partnership, a partnership interest of which was an interest in a family fishing partnership of the individual, a beneficiary referred to in clause (C) or a spouse, common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C),
(ii) shares of the capital stock or indebtedness of one or more corporations all or substantially all of the fair market value of the property of which was attributable to properties described in subparagraph (iv),
(iii) a partnership interest in or indebtedness of one or more partnerships all or substantially all of the fair market value of the property of which was attributable to properties described in subparagraph (iv), or
(iv) properties described in any of subparagraph (i) to (iii), and
(b) at that time, all or substantially all of the fair market value of the property of the partnership was attributable to property described in subparagraph (a)(iv); (participation dans une société de personnes de pêche familiale)
investment expense
frais de placement
investment expense of an individual for a taxation year means the total of
(a) all amounts deducted in computing the individual’s income for the year from property (except to the extent that the amounts were otherwise taken into account in computing the individual’s investment expense or investment income for the year) other than any amounts deducted under
(i) paragraph 20(1)(c), 20(1)(d), 20(1)(e) or 20(1)(e.1) of this Act or paragraph 20(1)(k) of the Income Tax Act, chapter 148 of the Revised Statutes of Canada, 1952, in respect of borrowed money that was used by the individual, or that was used to acquire property that was used by the individual,
(A) to make a payment as consideration for an income-averaging annuity contract,
(B) to pay a premium under a registered retirement savings plan, or
(C) to make a contribution to a pooled registered pension plan, registered pension plan or deferred profit sharing plan, or
(ii) paragraph 20(1)(j) or subsection 65(1), 66(4), 66.1(3), 66.2(2), 66.21(4) or 66.4(2),
(b) the total of
(i) all amounts deducted under paragraph 20(1)(c), 20(1)(d), 20(1)(e), 20(1)(e.1), 20(1)(f) or 20(1)(bb) of this Act or paragraph 20(1)(k) of the Income Tax Act, chapter 148 of the Revised Statutes of Canada, 1952 in computing the individual’s income for the year from a partnership of which the individual was a specified member in the fiscal period of the partnership ending in the year, and
(ii) all amounts deducted under subparagraph 20(1)(e)(vi) in computing the individual’s income for the year in respect of an expense incurred by a partnership of which the individual was a specified member in the fiscal period of the partnership ending immediately before it ceased to exist,
(c) the total of
(i) all amounts (other than allowable capital losses) deducted in computing the individual’s income for the year in respect of the individual’s share of the amount of any loss of a partnership of which the individual was a specified member in the partnership’s fiscal period ending in the year, and
(ii) all amounts each of which is an amount deducted under paragraph 111(1)(e) in computing the individual’s taxable income for the year,
(d) 50% of the total of all amounts each of which is an amount deducted under subsection 66(4), 66.1(3), 66.2(2), 66.21(4) or 66.4(2) in computing the individual’s income for the year in respect of expenses
(i) incurred and renounced under subsection 66(12.6), (12.601), (12.62) or (12.64) by a corporation, or
(ii) incurred by a partnership of which the individual was a specified member in the fiscal period of the partnership in which the expense was incurred, and
(e) the total of all amounts each of which is the amount of the individual’s loss for the year from
(i) property, or
(ii) renting or leasing a rental property (within the meaning assigned by subsection 1100(14) of the Income Tax Regulations) or a property described in Class 31 or 32 of Schedule II to the Income Tax Regulations
owned by the individual or by a partnership of which the individual was a member, other than a partnership of which the individual was a specified member in the partnership’s fiscal period ending in the year, and
(f) the amount, if any, by which the total of the individual’s net capital losses for other taxation years deducted under paragraph 111(1)(b) in computing the individual’s taxable income for the year exceeds the amount determined in respect of the individual for the year under paragraph (a) of the description of B in the definition annual gains limit; (frais de placement)
investment income
revenu de placements
investment income of an individual for a taxation year means the total of
(a) all amounts included in computing the individual’s income for the year from property (other than an amount included under subsection 15(2) or paragraph 56(1)(d) of this Act or paragraph 56(1)(d.1) of the Income Tax Act, chapter 148 of the Revised Statutes of Canada 1952), including, for greater certainty, any amount so included under subsection 13(1) in respect of a property any income from which would be income from property (except to the extent that the amount was otherwise taken into account in computing the individual’s investment income or investment expense for the year),
(b) all amounts (other than taxable capital gains) included in computing the individual’s income for the year in respect of the individual’s share of the income of a partnership of which the individual was a specified member in the partnership’s fiscal period ending in the year, including, for greater certainty, the individual’s share of all amounts included under subsection 13(1) in computing the income of the partnership,
(c) 50% of all amounts included under subsection 59(3.2) in computing the individual’s income for the year,
(d) all amounts each of which is the amount of the individual’s income for the year from
(i) a property, or
(ii) renting or leasing a rental property (within the meaning assigned by subsection 1100(14) of the Income Tax Regulations) or a property described in Class 31 or 32 of Schedule II to the Income Tax Regulations
owned by the individual or by a partnership of which the individual was a member (other than a partnership of which the individual was a specified member in the partnership’s fiscal period ending in the year), including, for greater certainty, any amount included under subsection 13(1) in computing the individual’s income for the year in respect of a rental property of the individual or the partnership or in respect of a property any income from which would be income from property,
(e) the amount, if any, by which
(i) the total of all amounts (other than amounts in respect of income-averaging annuity contracts or annuity contracts purchased under deferred profit sharing plans or plans referred to in subsection 147(15) as revoked plans) included under paragraph 56(1)(d) of this Act or paragraph 56(1)(d.1) of the Income Tax Act, chapter 148 of the Revised Statutes of Canada, 1952, in computing the individual’s income for the year
exceeds
(ii) the total of all amounts deducted under paragraph 60(a) in computing the individual’s income for the year, and
(f) the amount, if any, by which the total of all amounts included under paragraph 3(b) in respect of capital gains and capital losses in computing the individual’s income for the year exceeds the amount determined in respect of the individual for the year for A in the definition annual gains limit; (revenu de placements)
- non-qualifying real property
non-qualifying real property[Repealed, 1995, c. 3, s. 32(1)]
qualified farm property
bien agricole admissible
qualified farm property of an individual (other than a trust that is not a personal trust) at any time means a property owned at that time by the individual, the spouse or common-law partner of the individual or a partnership, an interest in which is an interest in a family farm partnership of the individual or the individual’s spouse or common-law partner that is
(a) real or immovable property that was used principally in the course of carrying on the business of farming in Canada by,
(i) the individual,
(ii) if the individual is a personal trust, a beneficiary of the trust that is entitled to receive directly from the trust any income or capital of the trust,
(iii) a spouse, common-law partner, child or parent of a person referred to in subparagraph (i) or (ii),
(iv) a corporation, a share of the capital stock of which is a share of the capital stock of a family farm corporation of an individual referred to in any of subparagraphs (i) to (iii), or
(v) a partnership, an interest in which is an interest in a family farm partnership of an individual referred to in any of subparagraphs (i) to (iii),
(b) a share of the capital stock of a family farm corporation of the individual or the individual’s spouse or common-law partner,
(c) an interest in a family farm partnership of the individual or the individual’s spouse or common-law partner, or
(d) an eligible capital property (which is deemed to include capital property to which paragraph 70(5.1)(b) or 73(3.1)(f) applies) used by a person or partnership referred to in any of subparagraphs (a)(i) to (v), or by a personal trust from which the individual acquired the property, in the course of carrying on the business of farming in Canada; (bien agricole admissible)
qualified fishing property
bien de pêche admissible
qualified fishing property of an individual (other than a trust that is not a personal trust) at any time means a property owned at that time by the individual, the spouse or common-law partner of the individual or a partnership, an interest in which is an interest in a family fishing partnership of the individual or the individual’s spouse or common-law partner that is
(a) real or immovable property or a fishing vessel that was used principally in the course of carrying on the business of fishing in Canada by,
(i) the individual,
(ii) if the individual is a personal trust, a beneficiary of the trust that is entitled to receive directly from the trust any income or capital of the trust,
(iii) a spouse, common-law partner, child or parent of a person referred to in subparagraph (i) or (ii),
(iv) a corporation, a share of the capital stock of which is a share of the capital stock of a family fishing corporation of an individual referred to in any of subparagraphs (i) to (iii), or
(v) a partnership, an interest in which is an interest in a family fishing partnership of an individual referred to in any of subparagraphs (i) to (iii),
(b) a share of the capital stock of a family fishing corporation of the individual or the individual’s spouse or common-law partner,
(c) an interest in a family fishing partnership of the individual or the individual’s spouse or common-law partner, or
(d) an eligible capital property (which is deemed to include capital property to which paragraph 70(5.1)(b) or 73(3.1)(f) applies) used by a person or partnership referred to in any of subparagraphs (a)(i) to (v), or by a personal trust from which the individual acquired the property, in the course of carrying on the business of fishing in Canada; (bien de pêche admissible)
qualified small business corporation share
action admissible de petite entreprise
qualified small business corporation share of an individual (other than a trust that is not a personal trust) at any time (in this definition referred to as the “determination time”) means a share of the capital stock of a corporation that,
(a) at the determination time, is a share of the capital stock of a small business corporation owned by the individual, the individual’s spouse or common-law partner or a partnership related to the individual,
(b) throughout the 24 months immediately preceding the determination time, was not owned by anyone other than the individual or a person or partnership related to the individual, and
(c) throughout that part of the 24 months immediately preceding the determination time while it was owned by the individual or a person or partnership related to the individual, was a share of the capital stock of a Canadian-controlled private corporation more than 50% of the fair market value of the assets of which was attributable to
(i) assets used principally in an active business carried on primarily in Canada by the corporation or by a corporation related to it,
(ii) shares of the capital stock or indebtedness of one or more other corporations that were connected (within the meaning of subsection 186(4) on the assumption that each of the other corporations was a payer corporation within the meaning of that subsection) with the corporation where
(A) throughout that part of the 24 months immediately preceding the determination time that ends at the time the corporation acquired such a share or indebtedness, the share or indebtedness was not owned by anyone other than the corporation, a person or partnership related to the corporation or a person or partnership related to such a person or partnership, and
(B) throughout that part of the 24 months immediately preceding the determination time while such a share or indebtedness was owned by the corporation, a person or partnership related to the corporation or a person or partnership related to such a person or partnership, it was a share or indebtedness of a Canadian-controlled private corporation more than 50% of the fair market value of the assets of which was attributable to assets described in subparagraph (iii), or
(iii) assets described in either of subparagraph (i) or (ii)
except that
(d) where, for any particular period of time in the 24-month period ending at the determination time, all or substantially all of the fair market value of the assets of a particular corporation that is the corporation or another corporation that was connected with the corporation cannot be attributed to assets described in subparagraph (i), shares or indebtedness of corporations described in clause (B), or any combination thereof, the reference in clause (B) to “more than 50%” shall, for the particular period of time, be read as a reference to “all or substantially all” in respect of each other corporation that was connected with the particular corporation and, for the purpose of this paragraph, a corporation is connected with another corporation only where
(i) the corporation is connected (within the meaning of subsection 186(4) on the assumption that the corporation was a payer corporation within the meaning of that subsection) with the other corporation, and
(ii) the other corporation owns shares of the capital stock of the corporation and, for the purpose of this subparagraph, the other corporation shall be deemed to own the shares of the capital stock of any corporation that are owned by a corporation any shares of the capital stock of which are owned or are deemed by this subparagraph to be owned by the other corporation,
(e) where, at any time in the 24-month period ending at the determination time, the share was substituted for another share, the share shall be considered to have met the requirements of this definition only where the other share
(i) was not owned by any person or partnership other than a person or partnership described in paragraph (b) throughout the period beginning 24 months before the determination time and ending at the time of substitution, and
(ii) was a share of the capital stock of a corporation described in paragraph (c) throughout that part of the period referred to in subparagraph (i) during which such share was owned by a person or partnership described in paragraph (b), and
(f) where, at any time in the 24-month period ending at the determination time, a share referred to in subparagraph (ii) is substituted for another share, that share shall be considered to meet the requirements of subparagraph (ii) only where the other share
(i) was not owned by any person or partnership other than a person or partnership described in clause (A) throughout the period beginning 24 months before the determination time and ending at the time of substitution, and
(ii) was a share of the capital stock of a corporation described in paragraph (c) throughout that part of the period referred to in subparagraph (i) during which the share was owned by a person or partnership described in clause (A); (action admissible de petite entreprise)
share of the capital stock of a family farm corporation
action du capital-actions d’une société agricole familiale
share of the capital stock of a family farm corporation of an individual (other than a trust that is not a personal trust) at any time means a share of the capital stock of a corporation owned by the individual at that time if
(a) throughout any 24-month period ending before that time, more than 50% of the fair market value of the property owned by the corporation was attributable to
(i) property that was used principally in the course of carrying on the business of farming in Canada in which the individual, a beneficiary referred to in clause (C) or a spouse or common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C) was actively engaged on a regular and continuous basis, by
(A) the corporation,
(B) the individual,
(C) where the individual is a personal trust, a beneficiary of the trust,
(D) a spouse, common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C),
(D.1) [Spent, see 2007, c. 2, s. 17]
(E) another corporation that is related to the corporation and of which a share of the capital stock was a share of the capital stock of a family farm corporation of the individual, a beneficiary referred to in clause (C) or a spouse, common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C), or
(F) a partnership, an interest in which was an interest in a family farm partnership of the individual, a beneficiary referred to in clause (C) or a spouse, common-law partner, child or parent of the individual or of such a beneficiary,
(ii) shares of the capital stock or indebtedness of one or more corporations all or substantially all of the fair market value of the property of which was attributable to property described in subparagraph (iv),
(iii) a partnership interest in or indebtedness of one or more partnerships all or substantially all of the fair market value of the property of which was attributable to properties described in subparagraph (iv), or
(iv) properties described in any of subparagraphs (i) to (iii), and
(b) at that time, all or substantially all of the fair market value of the property owned by the corporation was attributable to property described in subparagraph (a)(iv); (action du capital-actions d’une société agricole familiale)
share of the capital stock of a family fishing corporation
action du capital-actions d’une société de pêche familiale
share of the capital stock of a family fishing corporation of an individual (other than a trust that is not a personal trust) at any time means a share of the capital stock of a corporation owned by the individual at that time if
(a) throughout any 24-month period ending before that time, more than 50% of the fair market value of the property owned by the corporation was attributable to
(i) property that was used principally in the course of carrying on the business of fishing in Canada in which the individual, a beneficiary referred to in clause (C) or a spouse or common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C), was actively engaged on a regular and continuous basis, by
(A) the corporation,
(B) the individual,
(C) where the individual is a personal trust, a beneficiary of the trust,
(D) a spouse, common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C),
(E) another corporation that is related to the corporation and of which a share of the capital stock was a share of the capital stock of a family fishing corporation of the individual, a beneficiary referred to in clause (C) or a spouse, common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C), or
(F) a partnership, an interest in which was an interest in a family fishing partnership of the individual, a beneficiary referred to in clause (C) or a spouse, common-law partner, child or parent of the individual or of such a beneficiary,
(ii) shares of the capital stock or indebtedness of one or more corporations all or substantially all of the fair market value of the property of which was attributable to property described in subparagraph (iv),
(iii) a partnership interest in or indebtedness of one or more partnerships all or substantially all of the fair market value of the property of which was attributable to properties described in subparagraph (iv), or
(iv) properties described in any of subparagraphs (i) to (iii), and
(b) at that time, all or substantially all of the fair market value of the property owned by the corporation was attributable to property described in subparagraph (a)(iv). (action du capital-actions d’une société de pêche familiale)
Marginal note:Idem
(1.1) For the purposes of the definitions qualified small business corporation share and share of the capital stock of a family farm corporation in subsection 110.6(1), the fair market value of a net income stabilization account shall be deemed to be nil.
Marginal note:Property used in a fishing business
(1.2) For the purposes of applying the definition qualified fishing property, in subsection (1), of an individual, at any time, a property owned at that time by the individual, the spouse or common-law partner of the individual, or a partnership, an interest in which is an interest in a family fishing partnership of the individual or of the individual’s spouse or common-law partner, will not be considered to have been used in the course of carrying on the business of fishing in Canada, unless
(a) throughout the period of at least 24 months immediately preceding that time, the property or property for which the property was substituted (in this paragraph referred to as “the property”) was owned, by any one or more of
(i) the individual, or a spouse, common-law partner, child or parent of the individual,
(ii) a partnership, an interest in which is an interest in a family fishing partnership of the individual or of the individual’s spouse or common-law partner,
(iii) if the individual is a personal trust, the individual from whom the trust acquired the property or a spouse, common-law partner, child or parent of that individual, or
(iv) a personal trust from which the individual or a child or parent of the individual acquired the property; and
(b) either
(i) in at least two years while the property was owned by the one or more persons referred to in paragraph (a),
(A) the gross revenue of a person (in this clause referred to as the “operator”) referred to in paragraph (a) from the fishing business referred to in clause (B) for the period during which the property was owned by a person described in paragraph (a) exceeded the income of the operator from all other sources for that period, and
(B) the property was used principally in a fishing business carried on in Canada in which an individual referred to in paragraph (a), or where the individual is a personal trust, a beneficiary of the trust, was actively engaged on a regular and continuous basis, or
(ii) throughout a period of at least 24 months while the property was owned by one or more persons or partnerships referred to in paragraph (a), the property was used by a corporation referred to in subparagraph (a)(iv) of the definition qualified fishing property in subsection (1) or by a partnership referred to in paragraph (a)(v) of that definition in a fishing business in which an individual referred to in any of subparagraphs (a)(i) to (iii) of that definition was actively engaged on a regular and continuous basis.
Marginal note:Property used in a farming business
(1.3) For the purposes of applying the definition qualified farm property, in subsection (1), of an individual, at any time, a property owned at that time by the individual, the spouse or common-law partner of the individual, or a partnership, an interest in which is an interest in a family farm partnership of the individual or of the individual’s spouse or common-law partner, will not be considered to have been used in the course of carrying on the business of farming in Canada, unless
(a) throughout the period of at least 24 months immediately preceding that time, the property or property for which the property was substituted (in this paragraph referred to as “the property”) was owned, by any one or more of
(i) the individual, or a spouse, common-law partner, child or parent of the individual,
(ii) a partnership, an interest in which is an interest in a family farm partnership of the individual or of the individual’s spouse or common-law partner,
(iii) if the individual is a personal trust, the individual from whom the trust acquired the property or a spouse, common-law partner, child or parent of that individual, or
(iv) a personal trust from which the individual or a child or parent of the individual acquired the property;
(b) if paragraph (c) does not apply, either
(i) in at least two years while the property was owned by the one or more persons referred to in paragraph (a),
(A) the gross revenue of a person (in this clause referred to as the “operator”) referred to in paragraph (a) from the farming business referred to in clause (B) for the period during which the property was owned by a person described in paragraph (a) exceeded the income of the operator from all other sources for that period, and
(B) the property was used principally in a farming business carried on in Canada in which an individual referred to in paragraph (a), or where the individual is a personal trust, a beneficiary of the trust, was actively engaged on a regular and continuous basis, or
(ii) throughout a period of at least 24 months while the property was owned by one or more persons or partnerships referred to in paragraph (a), the property was used by a corporation referred to in subparagraph (a)(iv) of the definition qualified farm property in subsection (1) or by a partnership referred to in subparagraph (a)(v) of that definition in a farming business in which an individual referred to in any of subparagraphs (a)(i) to (iii) of that definition was actively engaged on a regular and continuous basis; or
(c) if the property or property for which the property was substituted was last acquired by the individual or partnership before June 18, 1987 or after June 17, 1987 under an agreement in writing entered into before that date,
(i) in the year the property was disposed of by the individual, the property was used principally in the course of carrying on the business of farming in Canada by
(A) the individual, or a spouse, common-law partner, child or parent of the individual,
(B) a beneficiary referred to in subparagraph (a)(ii) in the definition qualified farm property in subsection (1) or a spouse, common-law partner, child or parent of that beneficiary,
(C) a corporation referred to in subparagraph (a)(iv) in the definition qualified farm property in subsection (1),
(D) a partnership referred to in subparagraph (a)(v) in the definition qualified farm property in subsection (1), or
(E) a personal trust from which the individual acquired the property, or
(ii) in at least five years during which the property was owned by a person described in clauses (A) to (E), the property was used principally in the course of carrying on the business of farming in Canada by
(A) the individual, or a spouse, common-law partner, child or parent of the individual,
(B) a beneficiary referred to in subparagraph (a)(ii) in the definition qualified farm property in subsection (1) or a spouse, common-law partner, child or parent of that beneficiary,
(C) a corporation referred to in subparagraph (a)(iv) in the definition qualified farm property in subsection (1),
(D) a partnership referred to in subparagraph (a)(v) in the definition qualified farm property in subsection (1), or
(E) a personal trust from which the individual acquired the property.
Marginal note:Capital gains deduction — qualified farm property
(2) In computing the taxable income for a taxation year of an individual (other than a trust) who was resident in Canada throughout the year and who disposed of qualified farm property in the year or a preceding taxation year ending after 1984, there may be deducted such amount as the individual may claim not exceeding the least of
(a) the amount determined by the formula
[$375,000 - (A + B + C + D)] × E
where
- A
- is the total of all amounts each of which is an amount deducted under this section in computing the individual’s taxable income for a preceding taxation year that ended
(i) before 1988, or
(ii) after October 17, 2000,
- B
- is the total of all amounts each of which is
(i) 3/4 of an amount deducted under this section in computing the individual’s taxable income for a preceding taxation year that ended after 1987 and before 1990 (other than amounts deducted under this section for a taxation year in respect of an amount that was included in computing an individual’s income for that year because of subparagraph 14(1)(a)(v) as that subparagraph applied for taxation years that ended before February 28, 2000), or
(ii) 3/4 of an amount deducted under this section in computing the individual’s taxable income for a preceding taxation year that began after February 27, 2000 and ended before October 18, 2000,
- C
- is 2/3 of the total of all amounts each of which is an amount deducted under this section in computing the individual’s taxable income
(i) for a preceding taxation year that ended after 1989 and before February 28, 2000, or
(ii) in respect of an amount that was included because of subparagraph 14(1)(a)(v) (as that subparagraph applied for taxation years that ended before February 28, 2000) in computing the individual’s income for a taxation year that began after 1987 and ended before 1990,
- D
- is the product obtained when the reciprocal of the fraction determined for E that applied to the taxpayer for a preceding taxation year that began before and included February 28, 2000 or October 17, 2000 is multiplied by the amount deducted under this subsection in computing the individual’s taxable income for that preceding year, and
- E
- is
(i) in the case of a taxation year that includes February 28, 2000 or October 17, 2000, the amount determined by the formula
2 × (F + G)/H
where
- F
- is the amount deemed by subsection 14(1.1) to be a taxable capital gain of the taxpayer for the taxation year,
- G
- is the amount by which the amount determined in respect of the taxpayer for the year under paragraph 3(b) exceeds the amount determined for F, and
- H
- is the total of
(A) the amount deemed by subsection 14(1.1) to be a taxable capital gain of the taxpayer for the taxation year multiplied by
(I) where that amount is determined by reference to paragraph 14(1.1)(a), the reciprocal of the fraction obtained by multiplying the fraction 3/4 by the fraction in paragraph 14(1)(b) that applies to the taxpayer for the taxation year,
(II) where that amount is determined by reference to paragraph 14(1.1)(b), and the taxation year does not end after February 27, 2000 and before October 18, 2000, 2, and
(III) where that amount is determined by reference to paragraph 14(1.1)(b), and the taxation year ends after February 27, 2000 and before October 18, 2000, 3/2, and
(B) the amount determined for G multiplied by the reciprocal of the fraction in paragraph 38(a) that applies to the taxpayer for the taxation year, and
(ii) in any other case, 1,
(b) the individual’s cumulative gains limit at the end of the year,
(c) the individual’s annual gains limit for the year, and
(d) the amount that would be determined in respect of the individual for the year under paragraph 3(b) in respect of capital gains and capital losses if the only properties referred to in that paragraph were qualified farm properties of the individual disposed of after June 17, 1987.
Marginal note:Capital gains deduction — qualified small business corporation shares
(2.1) In computing the taxable income for a taxation year of an individual (other than a trust) who was resident in Canada throughout the year and who disposed of a share of a corporation in the year or a preceding taxation year and after June 17, 1987 that, at the time of disposition, was a qualified small business corporation share of the individual, there may be deducted such amount as the individual may claim not exceeding the least of
(a) the amount determined by the formula in paragraph (2)(a) in respect of the individual for the year,
(b) the amount, if any, by which the individual’s cumulative gains limit at the end of the year exceeds the amount deducted under subsection 110.6(2) in computing the individual’s taxable income for the year,
(c) the amount, if any, by which the individual’s annual gains limit for the year exceeds the amount deducted under subsection 110.6(2) in computing the individual’s taxable income for the year, and
(d) the amount that would be determined in respect of the individual for the year under paragraph 3(b) (to the extent that that amount is not included in computing the amount determined under paragraph (2)(d) or (2.2)(d) in respect of the individual) in respect of capital gains and capital losses if the only properties referred to in paragraph 3(b) were qualified small business corporation shares of the individual disposed of after June 17, 1987.
Marginal note:Capital gains deduction — qualified fishing property
(2.2) In computing the taxable income for a taxation year of an individual (other than a trust) who was resident in Canada throughout the year and who, in the year or a preceding year, disposed of a property that was, at the time of disposition, a qualified fishing property of the individual, there may be deducted the amount that the individual claims not exceeding the least of
(a) the amount determined by the formula in paragraph (2)(a) in respect of the individual for the year;
(b) the amount, if any, by which the individual’s cumulative gains limit at the end of that year exceeds the total of all amounts each of which is an amount deducted under subsection (2) or (2.1) in computing the individual’s taxable income for the year;
(c) the amount, if any, by which the individual’s annual gains limit for the year exceeds the total of all amounts each of which is an amount deducted under subsection (2) or (2.1) in computing the individual’s taxable income for the year; and
(d) the amount that would be determined in respect of the individual for the year under paragraph 3(b) in respect of capital gains and capital losses if the only properties referred to in that paragraph were qualified fishing properties of the individual disposed of on or after May 2, 2006.
Marginal note:Additional capital gains deduction — taxation year that includes March 19, 2007
(2.3) In computing the taxable income of an individual (other than a trust) for the individ-ual’s taxation year that includes March 19, 2007 (referred to in this subsection as the “transition year”), there may be deducted, where that individual was resident in Canada throughout the transition year and that individual disposed of in the transition year, and on or after March 19, 2007, a qualified small business corporation share of the individual, a qualified farm property of the individual, or a qualified fishing property of the individual, such amount as the individual may claim not exceeding the least of
(a) $125,000,
(b) the amount, if any, by which the individual’s cumulative gains limit at the end of the transition year exceeds the total of all amounts each of which is an amount deducted by the individual under subsection (2), (2.1) or (2.2) in computing the individ-ual’s taxable income for the transition year,
(c) the amount, if any, by which the individual’s annual gains limit for the transition year exceeds the total of all amounts each of which is an amount deducted by the individual under subsection (2), (2.1) or (2.2) in computing the individual’s taxable income for the transition year, and
(d) the amount that would be determined in respect of the individual for the transition year under paragraph 3(b) in respect of capital gains and capital losses if the only properties referred to in that paragraph were qualified small business corporation shares of the individual, qualified farm properties of the individual, and qualified fishing properties of the individual, disposed of by the individual on or after March 19, 2007.
(3) [Repealed, 1995, c. 3, s. 32(3)]
Marginal note:Maximum capital gains deduction
(4) Notwithstanding subsections (2), (2.1) and (2.2), the total amount that may be deducted under this section in computing an individual’s income for a taxation year shall not exceed the total of the amount determined by the formula in paragraph 2(a) and the amount that may be deducted under subsection (2.3), in respect of the individual for the year.
Marginal note:Deemed resident in Canada
(5) For the purposes of subsections (2) to (2.3), an individual is deemed to have been resident in Canada throughout a particular taxation year if
(a) the individual was resident in Canada at any time in the particular taxation year; and
(b) the individual was resident in Canada throughout the immediately preceding taxation year or throughout the immediately following taxation year.
Marginal note:Failure to report capital gain
(6) Notwithstanding subsections (2) to (2.3), no amount may be deducted under this section in respect of a capital gain of an individual for a particular taxation year in computing the individual’s taxable income for the particular taxation year, if
(a) the individual knowingly or under circumstances amounting to gross negligence
(i) fails to file the individual’s return of income for the particular taxation year within one year after the taxpayer’s filing-due date for the particular taxation year, or
(ii) fails to report the capital gain in the individual’s return of income for the particular taxation year; and
(b) the Minister establishes the facts justifying the denial of such an amount under this section.
Marginal note:Deduction not permitted
(7) Notwithstanding subsections (2) to (2.3), no amount may be deducted under this section in computing an individual’s taxable income for a taxation year in respect of a capital gain of the individual for the taxation year if the capital gain is from a disposition of property which disposition is part of a series of transactions or events
(a) that includes a dividend received by a corporation to which dividend subsection 55(2) does not apply but would apply if this Act were read without reference to paragraph 55(3)(b); or
(b) in which any property is acquired by a corporation or partnership for consideration that is significantly less than the fair market value of the property at the time of acquisition (other than an acquisition as the result of an amalgamation or merger of corporations or the winding-up of a corporation or partnership or a distribution of property of a trust in satisfaction of all or part of a corporation’s capital interest in the trust).
Marginal note:Deduction not permitted
(8) Notwithstanding subsections (2) to (2.3), where an individual has a capital gain for a taxation year from the disposition of a property and it can reasonably be concluded, having regard to all the circumstances, that a significant part of the capital gain is attributable to the fact that dividends were not paid on a share (other than a prescribed share) or that dividends paid on such a share in the taxation year or in any preceding taxation year were less than 90% of the average annual rate of return on that share for that year, no amount in respect of that capital gain shall be deducted under this section in computing the individual’s taxable income for the year.
Marginal note:Average annual rate of return
(9) For the purpose of subsection 110.6(8), the average annual rate of return on a share (other than a prescribed share) of a corporation for a taxation year is the annual rate of return by way of dividends that a knowledgeable and prudent investor who purchased the share on the day it was issued would expect to receive in that year, other than the first year after the issue, in respect of the share if
(a) there was no delay or postponement of the payment of dividends and no failure to pay dividends in respect of the share;
(b) there was no variation from year to year in the amount of dividends payable in respect of the share (other than where the amount of dividends payable is expressed as an invariant percentage of or by reference to an invariant difference between the dividend expressed as a rate of interest and a generally quoted market interest rate); and
(c) the proceeds to be received by the investor on the disposition of the share are the same amount the corporation received as consideration on the issue of the share.
Marginal note:Where deduction not permitted
(11) Where it is reasonable to consider that one of the main reasons for an individual acquiring, holding or having an interest in a partnership or trust (other than an interest in a personal trust) or a share of an investment corporation, mortgage investment corporation or mutual fund corporation, or for the existence of any terms, conditions, rights or other attributes of the interest or share, is to enable the individual to receive or have allocated to the individual a percentage of any capital gain or taxable capital gain of the partnership, trust or corporation that is larger than the individual’s percentage of the income of the partnership, trust or corporation, as the case may be, notwithstanding any other provision of this Act,
(a) no amount may be deducted under this section by the individual in respect of any such gain allocated or distributed to the individual after November 21, 1985; and
(b) where the individual is a trust, any such gain allocated or distributed to it after November 21, 1985 shall not be included in computing its eligible taxable capital gain (within the meaning assigned by subsection 108(1)).
Marginal note:Trust deduction
(12) Notwithstanding any other provision of this Act, a trust described in paragraph 104(4)(a) or (a.1) (other than a trust that elected under subsection 104(5.3), an alter ego trust or a joint spousal or common-law partner trust) may, in computing its taxable income for its taxation year that includes the day determined under paragraph 104(4)(a) or (a.1), as the case may be, in respect of the trust, deduct under this section an amount equal to the least of
(a) the amount, if any, by which the eligible taxable capital gains (within the meaning assigned by subsection 108(1)) of the trust for that year exceeds the amount, if any, by which
(i) the total of all amounts each of which is the amount, if any, determined under paragraph (b) or (d) of the definition cumulative gains limit in subsection 110.6(1) in respect of the taxpayer’s spouse or common-law partner at the end of the taxation year in which the spouse or common-law partner died
exceeds
(ii) the amount if any, determined under paragraph (a) of the definition cumulative gains limit in subsection 110.6(1) in respect of the taxpayer’s spouse or common-law partner at the end of the taxation year in which the spouse or common-law partner died,
(b) the amount, if any, that would be determined in respect of the trust for that year under paragraph 3(b) in respect of capital gains and capital losses if the only properties referred to in that paragraph were qualified farm properties disposed of by it after 1984, qualified small business corporation shares disposed of by it after June 17, 1987 and qualified fishing properties disposed of by it on or after May 2, 2006, and
(c) the amount, if any, by which the amount determined by the formula in paragraph (2)(a) in respect of the taxpayer’s spouse or common-law partner for the taxation year in which that spouse or common-law partner died exceeds the amount deducted under this section for that taxation year by that spouse or common-law partner.
Marginal note:Determination under para. 3(b)
(13) For the purposes of this section, the amount determined under paragraph 3(b) in respect of an individual for a period throughout which the individual was not resident in Canada is nil.
Marginal note:Related persons, etc.
(14) For the purposes of the definition qualified small business corporation share in subsection 110.6(1),
(a) a taxpayer shall be deemed to have disposed of shares that are identical properties in the order in which the taxpayer acquired them;
(b) in determining whether a corporation is a small business corporation or a Canadian-controlled private corporation at any time, a right referred to in paragraph 251(5)(b) shall not include a right under a purchase and sale agreement relating to a share of the capital stock of a corporation;
(c) a personal trust shall be deemed
(i) to be related to a person or partnership for any period throughout which the person or partnership was a beneficiary of the trust, and
(ii) in respect of shares of the capital stock of a corporation, to be related to the person from whom it acquired those shares where, at the time the trust disposed of the shares, all of the beneficiaries (other than registered charities) of the trust were related to that person or would have been so related if that person were living at that time;
(d) a partnership shall be deemed to be related to a person for any period throughout which the person was a member of the partnership;
(e) where a corporation acquires shares of a class of the capital stock of another corporation from any person, it shall be deemed in respect of those shares to be related to the person where all or substantially all the consideration received by that person from the corporation in respect of those shares was common shares of the capital stock of the corporation;
(f) shares issued after June 13, 1988 by a corporation to a particular person or partnership shall be deemed to have been owned immediately before their issue by a person who was not related to the particular person or partnership unless the shares were issued
(i) as consideration for other shares,
(ii) as part of a transaction or series of transactions in which the person or partnership disposed of property to the corporation that consisted of
(A) all or substantially all the assets used in an active business carried on by that person or the members of that partnership, or
(B) an interest in a partnership all or substantially all the assets of which were used in an active business carried on by the members of the partnership, or
(iii) as payment of a stock dividend; and
(g) where, immediately before the death of an individual, or, in the case of a deemed transfer under subsection 248(23), immediately before the time that is immediately before the death of an individual, a share would, but for paragraph (a) of the definition qualified small business corporation share in subsection 110.6(1), be a qualified small business corporation share of the individual, the share shall be deemed to be a qualified small business corporation share of the individual if it was a qualified small business corporation share of the individual at any time in the 12-month period immediately preceding the death of the individual.
Marginal note:Value of assets of corporations
(15) For the purposes of the definitions qualified small business corporation share and share of the capital stock of a family farm corporation in subsection 110.6(1), the definition share of the capital stock of a family farm corporation in subsection 70(10) and the definition small business corporation in subsection 248(1),
(a) where a person (in this subsection referred to as the “insured”), whose life was insured under an insurance policy owned by a particular corporation, owned shares of the capital stock (in this subsection referred to as the “subject shares”) of the particular corporation, any corporation connected with the particular corporation or with which the particular corporation is connected or any corporation connected with any such corporation or with which any such corporation is connected (within the meaning of subsection 186(4) on the assumption that the corporation referred to in this subsection was a payer corporation within the meaning of that subsection),
(i) the fair market value of the life insurance policy shall, at any time before the death of the insured, be deemed to be its cash surrender value (within the meaning assigned by subsection 148(9)) at that time, and
(ii) the total fair market value of assets (other than assets described in subparagraph (c)(i), (ii) or (iii) of the definition qualified small business corporation share in subsection 110.6(1), subparagraph (b)(i), (ii) or (iii) of the definition share of the capital stock of a family farm corporation in subsection 110.6(1) or paragraph (a), (b) or (c) of the definition small business corporation in subsection 248(1), as the case may be) of any of those corporations that are
(A) the proceeds, the right to receive the proceeds or attributable to the proceeds, of the life insurance policy of which the particular corporation was a beneficiary, and
(B) used, directly or indirectly, within the 24-month period beginning at the time of the death of the insured or, where written application therefor is made by the particular corporation within that period, within such longer period as the Minister considers reasonable in the circumstances, to redeem, acquire or cancel the subject shares owned by the insured immediately before the death of the insured,
not in excess of the fair market value of the assets immediately after the death of the insured, shall, until the later of
(C) the redemption, acquisition or cancellation, and
(D) the day that is 60 days after the payment of the proceeds under the policy,
be deemed not to exceed the cash surrender value (within the meaning assigned by subsection 148(9)) of the policy immediately before the death of the insured; and
(b) the fair market value of an asset of a particular corporation that is a share of the capital stock or indebtedness of another corporation with which the particular corporation is connected shall be deemed to be nil and, for the purpose of this paragraph, a particular corporation is connected with another corporation only where
(i) the particular corporation is connected (within the meaning assigned by paragraph (d) of the definition qualified small business corporation share in subsection 110.6(1)) with the other corporation, and
(ii) the other corporation is not connected (within the meaning of subsection 186(4) as determined without reference to subsection 186(2) and on the assumption that the other corporation is a payer corporation within the meaning of subsection 186(4)) with the particular corporation,
except that this paragraph applies only in determining whether a share of the capital stock of another corporation with which the particular corporation is connected is a qualified small business corporation share or a share of the capital stock of a family farm corporation and in determining whether the other corporation is a small business corporation.
Marginal note:Personal trust
(16) For the purposes of the definition qualified small business corporation share in subsection 110.6(1) and of paragraph 110.6(14)(c), a personal trust shall be deemed to include a trust described in subsection 7(2).
Marginal note:Order of deduction
(17) For the purpose of clause 110.6(2)(a)(iii)(A), amounts deducted under this section in computing an individual’s taxable income for a taxation year that ended before 1990 shall be deemed to have first been deducted in respect of amounts that were included in computing the individual’s income under this Part for the year because of subparagraph 14(1)(a)(v) before being deducted in respect of any other amounts that were included in computing the individual’s income under this Part for the year.
(18) [Repealed, 1995, c. 3, s. 32(11)]
Marginal note:Election for property owned on February 22, 1994
(19) Subject to subsection 110.6(20), where an individual (other than a trust) or a personal trust (each of which is referred to in this subsection and subsections 110.6(20) to 110.6(29) as the “elector”), elects in prescribed form to have the provisions of this subsection apply in respect of
(a) a capital property (other than an interest in a trust referred to in any of paragraphs (f) to (j) of the definition flow-through entity in subsection 39.1(1)) owned at the end of February 22, 1994 by the elector, the property shall be deemed, except for the purposes of sections 7 and 35 and subparagraph 110(1)(d.1)(ii),
(i) to have been disposed of by the elector at that time for proceeds of disposition equal to the greater of
(A) the amount determined by the formula
A - B
where
- A
- is the amount designated in respect of the property in the election, and
- B
- is the amount, if any, that would, if the disposition were a disposition for the purpose of section 7 or 35, be included under that section as a result of the disposition in computing the income of the elector, and
(B) the adjusted cost base to the elector of the property immediately before the disposition, and
(ii) to have been reacquired by the elector immediately after that time at a cost equal to
(A) where the property is an interest in or a share of the capital stock of a flow-through entity (within the meaning assigned by subsection 39.1(1)) of the elector, the cost to the elector of the property immediately before the disposition referred to in subparagraph 110.6(19)(a)(i),
(B) where an amount would, if the disposition referred to in subparagraph 110.6(19)(a)(i) were a disposition for the purpose of section 7 or 35, be included under that section as a result of the disposition in computing the income of the elector, the lesser of
(I) the elector’s proceeds of disposition of the property determined under subparagraph 110.6(19)(a)(i), and
(II) the amount determined by the formula
A - B
where
- A
- is the amount, if any, by which the fair market value of the property at that time exceeds the amount that would, if the disposition referred to in subparagraph 110.6(19)(a)(i) were a disposition for the purpose of section 7 or 35, be included under that section as a result of the disposition in computing the income of the elector, and
- B
- is the amount that would be determined by the formula in subclause 110.6(19)(a)(ii)(C)(II) in respect of the property if clause 110.6(19)(a)(ii)(C) applied to the property, and
(C) in any other case, the lesser of
(I) the designated amount, and
(II) the amount, if any, by which the fair market value of the property at that time exceeds the amount determined by the formula
A - 1.1B
where
- A
- is the designated amount, and
- B
- is the fair market value of the property at that time;
(b) a business carried on by the elector (otherwise than as a member of a partnership) on February 22, 1994,
(i) the amount that would be determined under subparagraph 14(1)(a)(v) at the end of that day in respect of the elector if
(A) all the eligible capital property owned at that time by the elector in respect of the business were disposed of by the elector immediately before that time for proceeds of disposition equal to the amount designated in the election in respect of the business, and
(B) the fiscal period of the business ended at that time
shall be deemed to be a taxable capital gain of the elector for the taxation year in which the fiscal period of the business that includes that time ends from the disposition of a particular property and, for the purposes of this section, the particular property shall be deemed to have been disposed of by the elector at that time, and
(ii) for the purpose of paragraph 14(3)(b), the amount of the taxable capital gain determined under subparagraph 110.6(19)(b)(i) shall be deemed to have been claimed, by a person who does not deal at arm’s length with each person or partnership that does not deal at arm’s length with the elector, as a deduction under this section in respect of a disposition at that time of the eligible capital property; and
(c) an interest owned at the end of February 22, 1994 by the elector in a trust referred to in any of paragraphs (f) to (j) of the definition flow-through entity in subsection 39.1(1), the elector shall be deemed to have a capital gain for the year from the disposition on February 22, 1994 of property equal to the lesser of
(i) the total of amounts designated in elections made under this subsection by the elector in respect of interests in the trust, and
(ii) 4/3 of the amount that would, if all of the trust’s capital properties were disposed of at the end of February 22, 1994 for proceeds of disposition equal to their fair market value at that time and that portion of the trust’s capital gains and capital losses or its net taxable capital gains, as the case may be, arising from the dispositions as can reasonably be considered to represent the elector’s share thereof were allocated to or designated in respect of the elector, be the increase in the annual gains limit of the elector for the 1994 taxation year as a result of the dispositions.
Marginal note:Application of subsection (19)
(20) Subsection 110.6(19) applies to a property or to a business, as the case may be, of an elector only if
(a) where the elector is an individual (other than a trust),
(i) its application to all of the properties in respect of which elections were made under that subsection by the elector or a spouse or common-law partner of the elector and to all the businesses in respect of which elections were made under that subsection by the elector
(A) would result in an increase in the amount deductible under subsection 110.6(3) in computing the taxable income of the elector or a spouse or common-law partner of the elector, and
(B) in respect of each of the 1994 and 1995 taxation years,
(I) where no part of the taxable capital gain resulting from an election by the elector is included in computing the income of a spouse of the elector, would not result in the amount determined under paragraph 110.6(3)(a) for the year in respect of the elector being exceeded by the lesser of the amounts determined under paragraphs 110.6(3)(b) and 110.6(3)(c) for the year in respect of the elector, and
(II) where no part of the taxable capital gain resulting from an election by the elector is included in computing the income of the elector, would not result in the amount determined under paragraph 110.6(3)(a) for the year in respect of a spouse or common-law partner of the elector being exceeded by the lesser of the amounts determined under paragraphs 110.6(3)(b) and 110.6(3)(c) for the year in respect of the spouse or common-law partner,
(ii) the amount designated in the election in respect of the property exceeds 11/10 of its fair market value at the end of February 22, 1994, or
(iii) the amount designated in the election in respect of the business is $1.00 or exceeds 11/10 of the fair market value at the end of February 22, 1994 of all the eligible capital property owned at that time by the elector in respect of the business; and
(b) where the elector is a personal trust, its application to all of the properties in respect of which an election was made under that subsection by the elector would result in
(i) an increase in the amount deemed by subsection 104(21.2) to be a taxable capital gain of an individual (other than a trust) who was a beneficiary under the trust at the end of February 22, 1994 and resident in Canada at any time in the individual’s taxation year in which the trust’s taxation year that includes that day ends, or
(ii) where subsection 110.6(12) applies to the trust for the trust’s taxation year that includes that day, an increase in the amount deductible under that subsection in computing the trust’s taxable income for that year.
Marginal note:Effect of election on non-qualifying real property
(21) Where an elector is deemed by subsection 110.6(19) to have disposed of a non-qualifying real property,
(a) in computing the elector’s taxable capital gain from the disposition, there shall be deducted the amount determined by the formula
0.75(A - B)
where
- A
- is the elector’s capital gain from the disposition, and
- B
- is the elector’s eligible real property gain from the disposition; and
(b) in determining at any time after the disposition the capital cost to the elector of the property where it is a depreciable property and the adjusted cost base to the elector of the property in any other case (other than where the property was at the end of February 22, 1994 an interest in or a share of the capital stock of a flow-through entity within the meaning assigned by subsection 39.1(1)), there shall be deducted 4/3 of the amount determined under paragraph 110.6(21)(a) in respect of the property.
Marginal note:Adjusted cost base
(22) Where an elector is deemed by paragraph 110.6(19)(a) to have reacquired a property, there shall be deducted in computing the adjusted cost base to the elector of the property at any time after the reacquisition the amount, if any, by which
(a) the amount determined by the formula
A - 1.1B
where
- A
- is the amount designated in the election under subsection 110.6(19) in respect of the property, and
- B
- is the fair market value of the property at the end of February 22, 1994
exceeds
(b) where the property is an interest in or a share of the capital stock of a flow-through entity (within the meaning assigned by subsection 39.1(1)), 4/3 of the axable capital gain that would have resulted from the election if the amount designated in the election were equal to the fair market value of the property at the end of February 22, 1994 and, in any other case, the fair market value of the property at the end of February 22, 1994.
Marginal note:Disposition of partnership interest
(23) Where an elector is deemed by subsection 110.6(19) to have disposed of an interest in a partnership, in computing the adjusted cost base to the elector of the interest immediately before the disposition
(a) there shall be added the amount determined by the formula
(A - B) × C/D + E
where
- A
- is the total of all amounts each of which is the elector’s share of the partnership’s income (other than a taxable capital gain from the disposition of a property) from a source or from sources in a particular place for its fiscal period that includes February 22, 1994,
- B
- is the total of all amounts each of which is the elector’s share of the partnership’s loss (other than an allowable capital loss from the disposition of a property) from a source or from sources in a particular place for that fiscal period,
- C
- is the number of days in the period that begins the first day of that fiscal period and ends February 22, 1994,
- D
- is the number of days in that fiscal period, and
- E
- is 4/3 of the amount that would be determined under paragraph 3(b) in computing the elector’s income for the taxation year in which that fiscal period ends if the elector had no taxable capital gains or allowable capital losses other than those arising from dispositions of property by the partnership that occurred before February 23, 1994; and
(b) there shall be deducted the amount that would be determined under paragraph 110.6(23)(a) if the formula in that paragraph were read as
“(B - A) × C/D - E”
Marginal note:Time for election
(24) An election made under subsection 110.6(19) shall be filed with the Minister
(a) where the elector is an individual (other than a trust),
(i) if the election is in respect of a business of the elector, on or before the individual’s filing-due date for the taxation year in which the fiscal period of the business that includes February 22, 1994 ends, and
(ii) in any other case, on or before the individual’s balance-due day for the 1994 taxation year; and
(b) where the elector is a personal trust, on or before March 31 of the calendar year following the calendar year in which the taxation year of the trust that includes February 22, 1994 ends.
Marginal note:Revocation of election
(25) Subject to subsection 110.6(28), an elector may revoke an election made under subsection 110.6(19) by filing a written notice of the revocation with the Minister before 1998.
Marginal note:Late election
(26) Where an election made under subsection 110.6(19) is filed with the Minister after the day (referred to in this subsection and subsections 110.6(27) and 110.6(29) as the “election filing date”) on or before which the election is required by subsection 110.6(24) to have been filed and on or before the day that is 2 years after the election filing date, the election shall be deemed for the purposes of this section (other than subsection 110.6(29)) to have been filed on the election filing date if an estimate of the penalty in respect of the election is paid by the elector when the election is filed with the Minister.
Marginal note:Amended election
(27) Subject to subsection 110.6(28), an election under subsection 110.6(19) in respect of a property or a business is deemed to be amended and the election, as amended, is deemed for the purpose of this section (other than subsection 110.6(29)) to have been filed on the election filing date if
(a) an amended election in prescribed form in respect of the property or the business is filed with the Minister before 1998; and
(b) an estimate of the penalty, if any, in respect of the amended election is paid by the elector when the amended election is filed with the Minister.
Marginal note:Election that cannot be revoked or amended
(28) An election under subsection 110.6(19) cannot be revoked or amended where the amount designated in the election exceeds 11/10 of
(a) if the election is in respect of a property other than an interest in a partnership, the fair market value of the property at the end of February 22, 1994;
(b) if the election is in respect of an interest in a partnership, the greater of $1 and the fair market value of the property at the end of February 22, 1994; and
(c) if the election is in respect of a business, the greater of $1 and the fair market value at the end of February 22, 1994 of all the eligible capital property owned at that time by the elector in respect of the business.
Marginal note:Amount of penalty
(29) The penalty in respect of an election to which subsection 110.6(26) or 110.6(27) applies is the amount determined by the formula
(A × B)/300
where
- A
- is the number of months each of which is a month all or part of which is during the period that begins the day after the election filing date and ends the day the election or amended election is filed with the Minister; and
- B
- is the total of all amounts each of which is the taxable capital gain of the elector or a spouse or common-law partner of the elector that results from the application of subsection 110.6(19) to the property or the business in respect of which the election is made less, where subsection 110.6(27) applies to the election, the total of all amounts each of which would, if the Act were read without reference to subsections 110.6(20) and 110.6(27), be the taxable capital gain of the elector or a spouse or common-law partner of the elector that resulted from the application of subsection 110.6(19) to the property or the business.
Marginal note:Unpaid balance of penalty
(30) The Minister shall, with all due dispatch, examine each election to which subsection 110.6(26) or 110.6(27) applies, assess the penalty payable and send a notice of assessment to the elector who made the election, and the elector shall pay forthwith to the Receiver General the amount, if any, by which the penalty so assessed exceeds the total of all amounts previously paid on account of that penalty.
Marginal note:Conditions for the application of subsection (32)
(31) Subsection (32) applies to an individual for a taxation year that begins after March 19, 2007 if
(a) in the taxation year the individual has a taxable capital gain from the disposition, before March 19, 2007, of a qualified small business corporation share of the individual, a qualified farm property of the individual or a qualified fishing property of the individual; and
(b) the total of all amounts each of which is an amount of a taxable capital gain of the individual described in paragraph (a) exceeds the amount that would be determined under paragraph (2)(a) in respect of the individual for the taxation year were the reference to “$375,000” in that paragraph read as a reference to “$250,000” (the amount of which excess is referred to in subsection (32) as the “denied excess”).
Marginal note:Deduction denied
(32) Notwithstanding subsections (2) to (2.3), if this subsection applies to an individual for a taxation year, no amount may be deducted under this section for the taxation year by the individual in respect of the individual’s taxable capital gains for the year described in paragraph (31)(a) to the extent of the denied excess.
- [NOTE: Application provisions are not included in the consolidated text
- see relevant amending Acts and regulations.]
- R.S., 1985, c. 1 (5th Supp.), s. 110.6
- 1994, c. 7, Sch. II, s. 81, Sch. VIII, s. 47, c. 8, s. 13, c. 21, s. 50
- 1995, c. 3, s. 32
- 1996, c. 21, s. 21
- 1998, c. 19, s. 130
- 2000, c. 12, s. 142
- 2001, c. 17, ss. 86, 242(E)
- 2007, c. 2, s. 17, c. 35, s. 31
- 2012, c. 31, s. 24
- Date modified: