Planning Out Your Estate through Clark Craig Law Office
As you have probably already figured out, most estate planning involves an effort to leave as much of your estate as possible to your heirs and as little as possible to the tax man. It is in this area that competent professional advice is critical. Failure to take advantage of available tax strategies can cost an estate large tax bills which might easily have been avoided.
We have already seen that most parents wish to postpone direct gifts to children past the age of 18. All trust funds for infant children and those over 18 who have not yet received the capital are subject to income tax on their annual income. Where the amounts are significant, it is important that a person familiar with the taxation of trusts review the trust and advise as to the appropriate amounts to pay out and retain in the trust in order to minimize the tax. Generally, the trustee will attempt to equalize the income so that the trust and the child both receive the same amount of taxable income, thus ensuring the imposition of tax at the lowest rate (subject, of course, to the terms of the trust document).
RRSPs offer a little-known but very useful means of reducing income tax in appropriate circumstances. Under recent amendments to the Income Tax Act, parents can designate dependent infant children as direct beneficiaries under their RRSPs, thus achieving taxation of the funds in the hands of the child at a much lower rate of tax. A requirement is that the RRSP be used to purchase an annuity payable over the number of years between the child’s current age and the age of 18. While this arrangement is not for everyone, it can be a useful tool in appropriate circumstances.
Perhaps the most important area of estate planning involves the small business owner. Few owner-managers have thought about succession should they die prematurely. Many parents have strong feelings about who, if any, of their spouse or children is best suited to continue to operate their business but few have developed a plan to accomplish their wish.
One of the last remaining true opportunities for tax avoidance involves the exemption for up to $900,000 (approx) of capital gains on the disposition of shares in a qualifying small business corporation or farm property. A rollover of shares to a holding company or reorganization of the existing capital structure can often permit a realization of the exemption and pass on the benefit of future growth in the company to a future generation. The requirements for a successful deferral are complex and require expert accounting and tax advice.
A Financial Plan – the Basics
For over 20 years I held the designation of Certified Financial Planner. In the last year, I let the designation lapse as the demands of my Wills and Estates practice left insufficient time to devote to this area. I do, however, incorporate the skills and knowledge that I accumulated in assisting my clients with their estate plans.
All of us have some sort of vague and ill-defined financial plan in mind – usually something like raising and educating our children, working until our late 50s or early 60s, then retiring to a secure, worry-free life of comfort, leisure and travel. Unfortunately, few of us have made any sort of effort to determine whether our goals are achievable and what plans we need to make now to achieve those goals. Only by critically analyzing our current lifestyle and expenditures and making reasoned plans and projections can we determine what is required on our part. One of the first rules of financial planning states that “If you fail to plan, you plan to fail”
The First Rule
I have been working with clients and their finances for many years. It still amazes me how few people even have a savings or investment account, much less any savings plan. The vast majority of persons of all ages and income levels have given no reasoned thought to the future.
Most people run their finances on a basis of paying the bills, buying what they wish and if anything is left over, putting it away for a rainy day. Nothing could be a better recipe for failure. The basic and most important rule of financial planning is “Pay yourself first.” Only by a rigorous and disciplined plan of saving at the beginning and using only what remains can financial goals be achieved. Whether we save by payroll deduction or automatic deduction and transfer to a savings account does not matter. What does matter is that it be done before access to the funds for lifestyle expenses.
A savings plan, while providing an essential starting point, is only the first step. To develop a plan for financial security we must set clear and measurable goals and make some hard choices. Most financial plans will require many compromises and establishing priorities among competing goals. Setting up the education plan may mean postponing the new car and driving the old clunker for another few years. Contributing to the RRSP may mean cutting back on the vacation. The move to a larger home may require a decision to work for another 5 years before starting that life of leisure.
To have any chance of success, goals must be measurable. The intention to provide for the education of the children through university, while admirable, has little chance of success without a plan - a plan which starts with a careful investigation of current post-secondary costs, anticipated inflation, number of years to save, projected return on investment, and amount of savings required to achieve the goal. In the following paragraphs, I discuss some areas to think about for those who are considering setting up a financial plan.
Budgeting - The Painful First Step
Any successful financial plan starts with a critical analysis of the current asset situation and lifestyle expenditures.
If we cannot find some savings, no matter how little, we cannot plan for the future. Everyone hates to keep records and make budgets. Why?
Firstly, record keeping is hard work. It is much easier simply to live from day to day, spending what we earn and using plastic if we can’t afford something than to carefully document and record every purchase and to make difficult decisions to delay purchases which we cannot afford.
Secondly, budgeting forces us to be honest with ourselves and our spouses. Few of us are willing to admit that we need assistance with our finances or that we cannot live within our income. How many husbands are willing to come clean on how much that golf club membership really costs? How many wives are comfortable discussing the cost of the last trip to the hairdresser? How many are prepared to track the real costs of that frantic lifestyle involving eating out or ordering in as a regular part of life?
To be successful, education plans, like all others, must be specific and measurable. The future costs of education must be projected as accurately as possible. If it is likely that the child will live away from home, residence and food costs must be estimated as well. With costs for education currently rising much faster than inflation in general, anticipated increases are an essential part of the plan.
For most people, the starting point should be the establishment of an RESP for each child as early as possible. Current rules allow for a maximum of $50,000 lifetime for each child. The government contribution of 20% of the contribution on the first $2,500.00 and the tax-free accumulation of the funds until they are required make this plan extremely attractive. Relaxation of the formerly rigid rules under which accumulated income was forfeited if the child did not attend post-secondary school makes the plan even more desirable. Group or self-administered plans are available from most financial institutions. A full summary of all of the rules including increased grants for lower-income families and carry-forward provisions can be found at www.canlearn.ca/eng/savings/know_your_resp.shtml.
It is not only parents who may contribute to RESP. These plans are an ideal vehicle for grandparents to provide meaningful assistance to beloved grandchildren while providing often much-needed and appreciated help for their children who are just starting families and careers. Keep in mind that while more than one plan per child is permitted, the total lifetime contribution limit remains.
The alternative education plan involves the establishment of trust for the child. Many parents have set aside funds “in trust” for the children with the idea that these funds will be used in the future for educating the children. Very few parents have planned correctly so as to avoid the very rigid attribution rules of the Income Tax Act. Even fewer have put in place the necessary documentation to survive an audit by the CRA. While the tax people seem to be somewhat tolerant in this area, there is no guarantee that the policy may not change or that any particular plan may not be challenged as part of an overall audit to which we are all subject.
As a general rule, try to plan investments or gifts for infant children so that they do not earn immediate income since this will be taxed in the donor’s hands. Instead, prefer assets such as equity mutual funds which add value primarily through capital gains which will be taxed in the child’s hands when redeemed.
How many of us believe that the numbers required to retire comfortably cannot possibly be attained or that the Canada Pension Plan will be bankrupt before we can gain access to our lifetime of contributions? How many of us know the details of our pension and whether it will be sufficient to provide for our goals?
A well-conceived plan can provide a scheme for retirement at an income level which does not significantly impair the current standard of living. Obviously the sooner in life the plan is implemented, the lower the cost and the greater the chance of success.
Like all other plans, the retirement plan must be as specific as possible. It is not helpful to have a vague goal such as retirement in one’s early 60s with a comfortable lifestyle. Only by setting specific goals, time frames, and projections can a workable plan be put in place. An example might be; retirement at 60 with an income of $50,000.00 after tax in today’s dollars, assuming that inflation over the period averages 3%, investments will earn an average of 5% and that income will increase by an average of 3% per year over the period to retirement.
With specific and measurable goals, a financial planner can determine whether the goals are achievable and what measures must be undertaken to achieve the goal. Once implemented, the plan must be carefully monitored on a regular basis to ensure that the assumptions are still valid and that the plan is still on track.
The Canada Pension Plan
Contrary to widely held belief, it is likely that the Canada Pension Plan will survive and will be available for your retirement. Reforms introduced in the mid-1990s drastically increased the percentage contribution from earnings so that the plan is now actuarially solid. Required contributions are now 11.4% (combined employer and employee contributions) of the yearly maximum pensionable earnings. Regular monitoring of the plan and a much wider range of permitted investments both seek to ensure its ongoing integrity.
The current maximum payment for 2022 under the CPP for those who retire at 65 is $1,203.75, indexed annually to the consumer price index. The average is approximately one-half of this amount. Those who wish to retire before the age of 65 may start drawing their plan at retirement any time after the age of 60 with a reduction of .6% for every month before the age of 65. Those who wish to postpone drawing the pension until after 65 will receive an additional .7% for each month up to the age of 70.
There is a great deal of debate over when to start drawing the CPP, especially for those who continue to work past the age of 60 when the CPP is first available. There is no rule of thumb. The most important part of the calculation is the number of years that you will draw the pension while you are alive and that is, of course, unknowable. The other factors which are primarily future interest rates and inflation and marginal tax rates can only be estimated. Very generally speaking those who are optimists or whose family history indicates a life expectancy into or beyond the mid-80s should wait while those who are pessimists or who have a poor family health history should draw as soon as possible.
Old Age Security
Old age security payments are available to all Canadians who meet the defined residence criteria. The maximum for 2022 is $666.83. Some years ago the government introduce a “clawback” of OAS whereby those with incomes exceeding a certain level have all or a part of their OAS clawed back at the rate of $0.15 for every dollar of income over a specified level. For 2022, the clawback starts at $79,554.00 and the entire amount is clawed back for those who earn In excess of $129.757.00. There are numerous means of avoiding or minimizing the OAS clawback. For those who are interested, the internet provides a wealth of information on this topic.
For those who are turning 65 in 2022 or after the government has introduced a programme whereby the drawing of OAS can be postponed for up to 5 years for those who would otherwise be subject to the clawback. The amount of the payment is increased for each month of the deferral after you turn 65. An excellent explanation of the process of deferral can be found on the government’s website at: http://www.servicecanada.gc.ca/eng/services/pensions/oas/changes/deferral.shtml
Retirement planning starts with an analysis of the pension for those who are fortunate enough to have a plan through their employer. A financial planner will use the pension statement that the employer provides annually to make a projection of your pension at retirement. Some plans, particularly those in the public sector, are fully indexed and can be expected to fully fund retirement. Many private plans are woefully inadequate and require significant additional funding for a comfortable retirement.
For those who do not have pension plans or whose plans are inadequate, the best retirement savings plan is the RRSP. For those with no pension, a contribution of 18% of earned income up to a maximum for 2022 of $29,210.00 per year is permitted. The combination of an immediate tax deduction for the amount of the contribution and the accumulation of funds in the plan free of tax until withdrawal makes this the ideal retirement planning vehicle. Reforms to the regulations introduced in the 1990s allow unrestricted carry forward of unused contribution room. Those couples or individuals who simply have too many demands upon their limited resources in the early years have a chance to catch up later.
Most of us are aware of the “strategy” of borrowing to fund an RRSP contribution and then repaying the loan over the next year. While these plans may seem to make great sense, few of them provide much, if any, advantage over a simple plan to contribute monthly to an RRSP.
Tax-free Savings Accounts
In 2009, the government introduced the Tax-Free Savings Account (TFSA) as an alternate vehicle for savings. Under this plan, a taxpayer can contribute to a plan which will accumulate tax-free and can be withdrawn at any time. Maximum contributions were $5,000.00 per year for the years 2009-2012 and $5,500.00 for 2013 and 2014. The big difference between the TFSA and the RRSP is that the contributions are not deductible and withdrawals are not taxable. Money withdrawn in one year can be re-contributed in subsequent years as long as great care is taken to avoid the over-contribution rules.
Many studies have been done comparing the advantages of RRSPs and TFSAs over one’s lifetime. Similar to the studies on when to start taking CPP, the number of unknowns makes an accurate conclusion impossible. Suffice it to say that either is an excellent choice as a savings vehicle. There are many excellent sites and articles available online. A good start is a visit to the government site at http://www.tfsa.gc.ca/
Personal Tax Planning
At times, tax planning at all levels seems like an ongoing battle of wits between the innovative tax planners who dream up schemes for legally avoiding tax and the government which attempts to close loopholes. Some of the areas of tax planning for individuals which remain are summarized below. Keep in mind that tax planning and income tax rules are extremely complex and constantly changing. Proper advice is necessary before implementing any plan.
Due to Canada’s graduated income tax system, much tax planning involves schemes to split income with lower-earning spouses or children. Some basic means of splitting income are summarized in the following paragraphs.
Division of CPP Benefits: under current rules, spouses drawing CPP benefits can apply to have the portions accumulated during cohabitation equalized. This can be particularly important where there is a great disparity between pensions and a long marriage. A division of CPP benefits is also available upon separation and divorce.
Pension Splitting: most private pensions and payments from an RRIF or Annuity can be split with a spouse by the filing of a joint election. The idea should always be to equalize total taxable income in order to minimize the total tax payable.
Loans and gifts to spouses and children: while the income tax has a number of “attribution rules” that tax income on loans and gifts to relatives in the hands of the donor, a number of quite legitimate schemes remain and can be used by taxpayers to split income. Some examples are gifts to adult children and market-value loans to spouses for investment in that spouse’s business.
Spousal RRSPs: current RRSP rules allow contributions to the plan of a spouse. Careful planning and projection of retirement incomes can equalize incomes at retirement, thereby minimizing total tax.
Employment of family members: assuming that the family member actually performs a service for a business and is paid a market rate of income, employment of family members is a legitimate and useful means of splitting income and minimizing total tax.
Incorporation of a business is perhaps the most important single tax avoidance scheme which remains for those who can utilize it. Under current rules, taxpayers can shelter up to $500,000.00 of income from an active business within the business at a very significantly reduced rate of tax. A useful discussion of the small business deduction can be found at http://www.taxplanningguide.ca/tax-planning-guide/section-1-businesses/the-small-business-deduction/
Even more important, the first $900,000 of a gain from the sale of a qualifying business can be realized without tax. In some cases, the gain can be multiplied when shares pass to a new generation as part of an estate plan. The rules for qualifying businesses are very complex and professional advice is essential.
RRSPs and RESPs
These remain among the best tax planning schemes which remain for most taxpayers. Recall that contributions to RRSPs realize an immediate tax deduction and accumulate tax-free. Contributions to RESPs are not deductible but accumulate tax-free and also receive a grant of 20% of the contribution up to $500.00. The funds are taxed in the hands of the child when required for post-secondary education. Since most children do not earn enough income to attract tax, the funds are essentially tax-free upon withdrawal in most cases.
Postponing and Converting Income
Sometimes simply timing the receipt of income can have a significant effect on the tax payable. Since interest on investments up to one year is only taxed upon receipt, simple strategies such as the purchase of a GIC can postpone tax from a high-income year to a year of lower income.
Much tax planning revolves around converting income from employment to various types of investment income which permit taxation at lower rates and at a future time. Capital gains are now taxed at only 1/2 of regular income and only when the gain is realized. Dividend income from taxable Canadian companies receives a tax credit which reduces the overall tax.
Deductions and Tax Credits
Probably the most neglected means of reducing taxes is simply to ensure that all available deductions and credits are utilized. The tax guides that accompany your return are very helpful in alerting you to simple areas of available deductions. Inexpensive home tax preparation software is extremely useful and is well worth the cost for nearly everyone completing his or her own tax return.
Examples are the following:
Medical Expenses: Medical expenses are not necessarily restricted only to family members but may be claimed for a large number of dependent relatives. The list of eligible expenses is extensive and may be accumulated for any twelve-month period which ends in the tax year. Since the claim is reduced by 3% of taxable income, the medical expenses should always be claimed by the lower-income spouse, assuming that the spouse has sufficient income to use the deduction.
Disability Expense: Many people especially seniors are eligible for this important deduction. Many seniors who reside in retirement homes which provide medical care are able to deduct all or part of the costs of the residence. In the first year, a medical certificate must be obtained certifying the disability. In most cases, only disability or medical expenses may be claimed and a careful analysis of the return must be completed in order to determine the most advantageous claim and by whom the claim should be made.
Charitable Contributions: Make sure that you retain all of those receipts for donations. Since the deduction is greater for amounts in excess of $200.00, the contributions should be accumulated and claimed by one spouse. For those planning major contributions or contributions of assets other than cash, proper advice and advance consultation are necessary in order to maximize the tax deduction and the advantage to the charity. For the next year, significant advantages are available for the contribution of publicly traded shares to a charity.
Education expenses: Tuition fees and many ancillary expenses are eligible for a tax credit. Since many students have insufficient income to use the credit, it is important to ensure that the claim is transferred to a parent with sufficient income to utilize the benefit or carry it forward to a future year when the claim may be utilized.