Family Members as Part-Time Workers

This continues consideration of the revised proposals on income splitting through a family corporation.  The government released these revisions on December 13, 2017.  If passed into law in their current form, the proposals will apply as of the start of 2018.

The revised proposals contain an exemption for an over-age-17 family member who is actively engaged on a “regular, continuous and substantial basis” in the activities of the family business corporation.

This will be a difficult question of fact in many cases.  However, a de minimis rule allows a family member to qualify for this exemption if the family member works an average of 20 hours per week in the business during a taxation year.  If the business operates on a seasonal bases, the average is for only the portion of the year in which the business operates.

If the family member has met the 20-hour per week minimum for any five previous taxation years (including years before 2018), the family member will be exempt from the proposals even during years in which the family member does not work an average of 20 hours per week.

A qualification has to be made in respect of capital gains.  In order for a capital gain on the sale of shares to be exempt from the income-splitting proposals under this exemption, the family member must have met the 20-hour per week standard during five previous taxation years (not just the year of the sale).  The five years need not be consecutive.

The 20-hour per week exemption applies in respect of any family corporation, including service corporations and professional corporations.

If a family member wants to rely on the 20-hour per week exemption, the family member will have to keep careful track of hours worked in the business.  As the 20-hour minimum is an average, the family member may have to work more than 20 hours per week if the family member takes vacation time.  The family member may (but does not have to) receive a reasonable salary for the work.  The primary advantage of meeting the 20-hour per week average is that the family member can receive dividends without having to justify the dividend.

A signed employment agreement is advisable, but careful tracking of time worked is more important.  In the case of an audit, the onus of proof is on the taxpayer.

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