Translation disclaimer
This translation was prepared by Tax Interpretations Inc. The CRA did not issue this document in the language in which it now appears, and is not responsible for any errors in its translation that might impact a reader’s understanding of it or the position(s) taken therein. See also the general Disclaimer below.
Principal Issues: [TaxInterpretations translation]
A taxpayer owns an immovable with four units. If there is a change in use of one unit, should the four apartments be considered four separate properties for the purposes of the change-in-use rules in paragraphs 13(7)(a), (b) and 45(1)(a) of the Act or should the building be considered a single property and the change-in-use rules in paragraphs 13(7)(d) and 45(1)(c) of the Act apply instead.
Position: The four apartments should be considered four separate properties for the purposes of the change-of-use rules in paragraphs 13(7)(a), (b) and 45(1)(a) of the Act.
Reasons: Previous position EC1987. If the immovable were considered as a single property in this situation, the application of paragraphs 13(7)(d) and 45(1)(c) of the Act would produce a result that is not representative of the actual situation.
XXXXXXXXXX
November 3, 2000
Dear Sir,
Subject: Application of the change of use rules under subsections 13(7) and 45(1) of the Act
This is in response to your letter of September 11, 2000, in which you asked for our opinion on the above subject.
You presented us with the following situation:
1. Ms. X is the owner of an immovable containing four units, Apartments A, B, C and D (we have assumed that these are four self-contained domestic establishments). She does not own any other immovables.
2. The total cost of the building, acquired on January 1, 2000, was $400,000, including $100,000 for the land.
3. Ms. X occupied Apartment C from January 1, 2000 to December 31, 2004. This apartment was her principal residence.
4. Apartments A, B and D were rented out and earned income. Ms. X did not claim any capital cost allowance on the rented part of the building throughout the period of ownership.
5. In 2001, Ms. X invested $50,000 in improvements to Apartment C, which she occupied.
6. On January 1, 2005, Ms. X decided to personally occupy Apartments A and B and to rent Apartment C. Apartment D is still rented.
7. On January 1, 2005, the fair market value (FMV) of the building was $500,000, including $100,000 for the land. Part of the increase in the FMV of the building since its acquisition was due to the improvements made to Apartment C. For the purposes of this letter, we have assumed that the other portion of the increase in FMV, i.e. $50,000, is to be allocated equally to each apartment, i.e. $12,500 each.
QUESTIONS
You wish to know whether the four apartments should be considered as four separate properties for the purposes of the change-in-use rules in paragraphs 13(7)(a), (b) and 45(1)(a) of the Income Tax Act (the “Act”), or whether the building should be considered a single property and the change-in-use rules in paragraphs 13(7)(d) and 45(1)(c) should apply instead.
As stated in paragraph 22 of Information Circular 70-6R3 dated December 30, 1996, it is the practice of our Directorate not to issue written opinions regarding proposed transactions otherwise than by way of advance income tax rulings. Furthermore, when it comes to whether a completed transaction has received appropriate tax treatment, that determination rests first with our Tax Services Offices following their review of all facts and documents, which is usually performed as part of an audit engagement. However, we can offer the following general comments that we hope may be helpful to you. These comments may not, however, fully apply to the situation you have submitted.
In the type of situation you have presented to us, we agree with you that each apartment should be considered a separate property for the purposes of applying the change-in-use rules.
Here is a summary of the tax implications applicable to the situation you have presented to us.
When Ms. X stopped using Apartment C as her principal residence on January 1, 2005 and started renting it out, there was a complete change in use of the Apartment. Consequently, paragraph 13(7)(b) applied for the purposes inter alia of sections 13 and 20. Accordingly, Ms. X was deemed to have acquired Apartment C for the purpose of earning income in the amount of $134,375 (calculated under paragraph 13(7)(b) based on a cost of the property of $125,000, a FMV of $137,500 and a rate applicable under clause 13(7)(b)(ii)(B) of 3/4). Furthermore, for the purposes of applying subdivision c of the Act, paragraph 45(1)(a) applied and Ms. X was deemed to have disposed of Apartment C on January 1, 2005 for proceeds equal to the FMV of the property, i.e. $137,500, and to have reacquired the property immediately thereafter at a cost equal to that FMV. As a result of this deemed disposition, Ms. X realized a capital gain of $12,500, but this gain will not be taxable by virtue of paragraph 40(2)(b) since Apartment C was Ms. X's principal residence.
When Ms. X stopped renting Apartments A and B and started using them for personal purposes, there was a complete change in use of those apartments. Consequently, paragraph 13(7)(a) applied for the purposes inter alia of sections 13 and 20. Ms. X was then deemed to have disposed of Apartments A and B on January 1, 2005 for proceeds equal to their FMV, i.e., $87,500 each, and to have reacquired them immediately thereafter at a cost equal to that FMV. Furthermore, for the purposes of applying subdivision c of the Act, paragraph 45(1)(a) applied and Ms. X was deemed to have disposed of Apartments A and B on January 1, 2005 for proceeds equal to their FMV, i.e. $87,500 each, and to have reacquired them immediately thereafter at a cost equal to that FMV. As a result of this deemed disposition, Ms. X will realize a capital gain of $12,500 for each of the apartments. However, Ms. X could make an election under subsection 45(3) if one of the apartments becomes her principal residence. If she makes such an election, paragraph 45(1)(a) will not apply in respect of that apartment, so there will be no deemed disposition or acquisition and no capital gain. If Ms. X made improvements to Apartments A and B so that those two properties could be considered a single “housing unit” for purposes of the definition of principal residence in section 54, she may be able to make an election under subsection 45(3) in respect of both apartments. This is a question of fact that cannot be decided.
These comments are not advance income tax rulings and do not bind the Agency with respect to any particular factual situation. Furthermore, they are based on the current Act.
We hope you find these comments useful.
Best regards,
Ghislain Martineau
Acting Manager
Individuals and Business Section
Business and Publications Division
Income Tax Rulings Directorate
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