CANADIAN CRYPTOCURRENCY-TRADING BUSINESSES: AN OVERVIEW

Canadian cryptocurrency-trading businesses are confronted with particular difficulties. The markets for cryptocurrencies, non-fungible tokens (NFT), and blockchain are mostly uncontrolled, which increases the risk of fraud and cybercrime. Smart contracts, cryptocurrency liquidity mining and yield farming, and non-fungible tokens (NFT), to mention a few, are only a handful of the opportunities, arrangements, and assets that have been made possible by advancements in blockchain technology. Additionally, some cryptocurrency traders declare their profits as capital gains even though they aren’t operating a business.

This article is intended for knowledgeable Canadians who are interested in learning more about the tax benefits of running their cryptocurrency trading businesses as corporations. So, it is assumed in this article that part or all of your cryptocurrency, NFT, or other blockchain transactions result in business income rather than capital profits. (See our article “Canadian Income-Tax Consequences of Buying and Selling Blockchain Non-Fungible Tokens (NFTs)” if you’re unsure whether your cryptocurrency or NFT profits are considered business income or capital gains.  You might also want to get guidance from one of our knowledgeable Canadian tax lawyers.)

This article first explores the possibility that a corporate vehicle could give a Canadian cryptocurrency trader access to the small-business deduction tax rate and provide them with chances for tax deferral. The remainder of this article examines the tax-deferred transfer of cryptocurrencies, non-fungible tokens, and other blockchain-based assets to corporations under section 85 of the Canadian Income Tax Act. It ends by providing expert advice on Canadian taxes for Canadian taxpayers intending to incorporate a cryptocurrency trading business.

CRYPTOCURRENCY, NON-FUNGIBLE TOKENS (NFT), & OTHER BLOCKCHAIN-BASED ASSETS TRADERS: CANADIAN TAX BENEFITS UNDER CANADIAN-CONTROLLED PRIVATE CORPORATIONS

By forming a corporation, a Canadian taxpayer who runs a cryptocurrency trading business is likely to save on two types of taxes. The small business deduction (SBD) is available to Canadian-controlled private corporations (CCPCs), and it lowers the tax rate on the first $500,000 of active business income. Second, to the degree that retained earnings remain within the corporation, individual owners may postpone paying shareholder-level tax.

Following a discussion of the small business deduction and an explanation of what a “Canadian-controlled private corporation” is, we provide an example of the tax-deferral benefits of operating a corporation-based cryptocurrency trading.

CANADIAN-CONTROLLED PRIVATE CORPORATIONS (CCPC) & SMALL BUSINESS DEDUCTION (SBD): A CLOSER LOOK

The basic federal corporate tax rate is currently fixed at 38 percent of a corporation’s taxable income by subsection 123(1) of the Income Tax Act of Canada. However, subsection 124(1) lowers the federal rate by 10% for any income a corporation receives from a Canadian province. The corporation’s provincial or territorial tax burden is lessened by this 10% reduction. The lowering of the general tax by 13 percent provides additional relief from provincial and territorial taxes. A Canadian corporation’s net federal tax rate is 15 percent of its taxable income as a result of the 10 percent provincial abatement and the 13 percent general-tax decrease.

Yet some corporations and sources of income have more favourable rates due to tax policy considerations. In a few specific situations, subsection 125(1) offers a “small business deduction”. Simply expressed, the first $500,000 of active business income of a private corporation controlled by Canadians is eligible for an extra tax credit. As a result, up to $500,000 in active business income is subject to federal tax at a rate of 9% for Canadian-controlled private corporations.

Similar small business deductions are provided by Canadian provinces and territories. For the active business income of a Canadian-controlled private corporation, for instance, the Ontario small business deduction lowers the corporate provincial income tax rate to 3.2 percent. (The combined SBD tax rate for the federal government and Ontario is 12.2 percent as of May 10, 2021.)

Small Business Deduction, or SBD, is an incorrect term. A deduction is first claimed against income to lower income, and credit is first claimed against taxes owed to lower taxes owed. So, the small business deduction is actually a tax credit rather than a deduction. Second, not all businesses are eligible for the small business deduction. Only specific corporations are eligible for the tax benefit. A corporation does not have to be small to qualify for the small business deduction, as a last point. As long as a qualified corporation’s “taxable capital employed in Canada” is under $10 million, it is eligible for the full small business deduction tax credit. The small business deduction for the corporation is then linearly decreased until its taxable capital reaches $15 million. At that moment, the tax benefit for small business deductions is eliminated.

A corporation must be a “Canadian-controlled private corporation” with active business income in order to be eligible for the small business deduction (SBD). A “Canadian-controlled private corporation,” as defined in Section 125(7), is a business entity that satisfies three requirements.

• It must be a private corporation. In essence, its shares are not permitted to be listed on a certain stock exchange.
• It has to be a Canadian corporation. Simply described, a Canadian corporation is one that is both incorporated and resident in Canada.
• It cannot be managed by a public corporation, a non-resident individual, or any combination of the two.

Interestingly, despite its name, a Canadian-controlled private corporation need not be controlled by Canadians. As long as it is not controlled by non-residents, public corporations, or a mix of non-residents and public corporations, the corporation may still be considered a “Canadian-controlled private corporation”. Assume, for instance, that a public corporation owns the remaining 50% of a Canadian corporation that is not publicly traded and that a Canadian resident individual owns the remaining 50%. Due to the fact that it is not controlled by non-residents, public corporations, or a mix of public corporations and non-residents, the Canadian corporation continues to meet the requirements for CCPC status.

Other regulations that support the CCPC definition are also found in the Income Tax Act. When a private Canadian corporation is subject to intricate ownership structures, these regulations apply. The Income Tax Act also contains complicated definitions stipulating what constitutes an “associated corporation” and Canadian courts have made a number of decisions about how these tax rules apply in particular cases. Furthermore, because associated corporations must share the small business deduction, associated corporations must also be defined in the Income Tax Act. You should consult with a Canadian tax lawyer who is a Certified Specialist in taxation for more information.

WHAT TO ENJOY IN INCORPORATING A CRYPTOCURRENCY-TRADING BUSINESS IN CANADA: TAX-DEFERRAL ADVANTAGE

We analyze the income-tax implications for a Canadian trader of cryptocurrencies, NFT, or blockchain assets who works as a sole proprietor on the one hand, and as a corporation on the other, to demonstrate the tax-deferral advantage of doing business through a corporation.

Assume a Canadian taxpayer earned $2.1 million in business income in 2020 from trading cryptocurrencies such as Litecoin (LTC), Ethereum (ETH), or Bitcoin, from trading non-fungible tokens, or from creating and trading NFTs. Also, we’ll presumptively apply the appropriate combined federal and Ontario tax rates to the $2.1 million.

We’ll start by examining the income-tax implications for the Canadian cryptocurrency trader who generates $2.1 million in business profit while acting as a sole proprietor (that is, without employing a corporate vehicle and while conducting business personally).

The top marginal tax rate for individuals in the federal and Ontario combined in 2022 was 53.53%. So, the Canadian cryptocurrency trader receives the following tax treatment if operating as a sole proprietor:

• Trading in cryptocurrencies generated net income: $2,100,000
• The personal tax rate is 53.53% = (1,124,130)
• Net cash left after deducting taxes: $975,870

In other words, the Canadian cryptocurrency trader would pay $1,124,130 in federal and Ontario income taxes on the sole proprietorship’s $2.1 million earnings in 2020, leaving $975,870 in after-tax gains.

Now consider the income-tax implications made through a Canadian-controlled private corporation by a Canadian cryptocurrency trader who generates $2.1 million.

The corporate income tax system in Canada has two facets: (1) a tax at the corporate level when the corporation receives income; and, (2) a tax at the shareholder level when the corporation distributes its retained earnings to shareholders as a dividend.

As was already mentioned, a CCPC benefits from a tax rate that is more favourable for small businesses on the first $500,000 of active business income. SBD rates for the federal and Ontario combined in 2020 were 12.2%. Any income earned by the corporation that exceeds $500,000 is subject to the standard corporate tax rate. Ontario’s general corporation and federal rates were 26.5% in 2022. Thus, the corporation obtains the following tax benefit if the Canadian cryptocurrency trader runs the business via it:

• Trading in cryptocurrencies generated net income: $2,100,000
• SBD tax on $500,000 at 12.2% = (61,000)
• Income that is taxed at the general corporate rate = 2,100,000 – 500,000 = $1,600,000
• $1,600,000 with general corporate tax at 26.5% = (424,000)
• Net cash left after deducting taxes = 439,000 + $1,176,000 = $1,615,000.

In summary, a corporation with $2.1 million generated income in 2020 would have total tax payables of $485,000 to Ontario and federal income tax, with $1,615,000 as retained earnings.

The personal income tax that a shareholder is responsible for paying when he or she receives a dividend made up of the corporation’s retained earnings is covered under the second facet of Canada’s corporate income tax regime. (For discussion purposes, it is assumed here that a shareholder is a natural person. If the shareholder is a corporation or trust, the tax rules will differ. For example, corporate shareholders can essentially receive dividends on a tax-free basis, but this doesn’t apply to portfolio dividends, which subject the corporate shareholder to Part IV tax liability.)

The dividend is taxed in accordance with the shareholder’s taxable income. The shareholder does, however, also receive a dividend-tax credit, which lowers the amount of tax that would otherwise be due by a sum roughly equal to the income tax that the corporation paid on the profits that served as the basis for the dividend. The end result is a regime that roughly integrates the total tax owed by the shareholder and the corporation.

But, the corporation is not obligated to pay a dividend. The directors of the corporation retain the authority to declare dividends. So, the shareholder is exempt from paying tax on the corporation’s retained earnings until the corporation distributes a dividend.

Hence, by retaining the income from cryptocurrency trading inside the corporation, the incorporated Canadian trader benefits significantly from tax deferral. The cryptocurrency trading corporation that made $2.1 million in revenue pays $485,000 in total in federal and Ontario income taxes, leaving it with $1,615,000 in retained earnings after taxes. Contrarily, the sole proprietor pays $1,124,130 in federal and Ontario income taxes, leaving $975,870 in after-tax profits. Hence, by deferring a dividend payment and keeping the 2022 cryptocurrency trading profits in the corporation, the incorporated Canadian cryptocurrency trader holds onto an extra $639,130 in after-tax cash as opposed to the sole proprietor cryptocurrency trader.

TRANSFER OF CRYPTOCURRENCY, NON-FUNGIBLE TOKENS, AND OTHER BLOCKCHAIN-BASED ASSETS TO YOUR CORPORATION: A MATTER OF CRYPTOCURRENCY TAX PLANNING

The Income Tax Act of Canada generally considers a non-arm’s-length transfer to have occurred at fair market value. This indicates that you will experience a taxable capital gain if you transfer appreciated assets to a corporation. But, the Income Tax Act‘s Section 85 supersedes this fundamental principle.

The incorporation of an existing sole proprietorship business, including a business that deals in cryptocurrencies, is allowed under Section 85 of the Income Tax Act. Section 85 permits the taxpayer and the corporation to agree upon a sum other than the fair market value for each transferred asset when a taxpayer transfers assets to a corporation in exchange for shares in that corporation. The agreed-upon sum becomes, subject to certain limitations, the vendor’s deemed proceeds of disposition for the transferred assets and the purchasing corporation’s tax cost base for acquiring that asset. Consequently, section 85 gives the vendor some discretion over how much profit results from the transfer within specified bounds. Section 85, in further detail, permits the asset transfer to take place at the vendor’s cost base, resulting in a tax-deferred rollover with no immediate tax due.

A Canadian taxpayer who wants to incorporate a cryptocurrency trading business but does not retain an experienced Canadian crypto tax lawyer often will fall into a number of tax traps due to the complexity of the tax rules surrounding section 85. According to the shareholder-benefit rule in subsection 15(1) or the indirect-benefit rule in paragraph 85(1)(e.2), an improperly planned transaction may result in an unanticipated tax burden. When a shareholder transfers cryptocurrency, non-fungible tokens, or other blockchain assets to a corporation, for instance, the fair market value of the blockchain assets must align with the fair market value of the shares and other considerations received from the corporation. The excess value is a taxable shareholder benefit if the value of the corporation’s consideration exceeds the value of the cryptocurrencies, non-fungible tokens, or other blockchain assets. The shareholder must declare that excess value as income in accordance with subsection 15(1) of the Income Tax Act of Canada. The indirect-benefit rule in paragraph 85(1)(e.2) may apply to the shareholder if the value of the cryptocurrencies, non-fungible tokens, or other blockchain assets exceeds the value of the corporation’s consideration. The indirect-benefit rule seeks to restrict the vendor shareholder from providing a financial benefit to a related individual who also holds stock in the purchasing corporation. If the indirect-benefit rule is in place, the vendor shareholder will experience a taxable gain equal to the value of the benefit provided to the related party. The ACB of the vendor’s share consideration from the corporation is not increased by the ensuing taxable gain, either. To put it another way, paragraph 85(1)(e.2) has the effect of making a punitive one-sided adjustment.

Additionally, transferring assets to an offshore corporation is not permitted using the section 85 rollover. Only transfers of assets to “taxable Canadian corporations” are subject to the provisions of Section 85. A corporation is deemed to be a “taxable Canadian corporation” if it is incorporated in Canada, either under the Canada Business Corporations Act or the corporate laws of a Canadian province or territory. You cannot use section 85 if you move your cryptocurrency to an offshore corporation, and the Income Tax Act of Canada considers that you have sold your cryptocurrency for its fair market value. Hence, if the value of the cryptocurrency exceeds your tax liability, you will become subject to Canadian taxation. You should speak with our Certified Expert in Taxation Canadian crypto tax lawyer for guidance on the potential tax implications and tax planning strategies before moving forward with any cryptocurrency transactions with offshore entities.

TAX PRO TIPS – A CANADIAN TAX LAWYER’S TOP-NOTCH CANADIAN TAX-PLANNING ADVICE: EXPLORE SECTION 85 ASSET-TRANSFER AGREEMENTS, FORM T2057, PRICE-ADJUSTMENT CLAUSES, TAX ON SPLIT INCOME (TOSI), & UPDATED WILL

You can access the SBD tax rate and take advantage of tax-deferral opportunities by running your cryptocurrency trading firm through a Canadian-controlled private corporation. You can transfer cryptocurrencies, non-fungible tokens, or other blockchain assets to your corporation at cost and defer paying personal tax on any accumulated, unrealized gains by doing so, according to Section 85 of the Income Tax Act.

Section 85, for instance, mandates that the transferor and transferee corporations jointly file a form T2057 with their respective earliest due tax returns. These regulations are complicated, and you must comply with certain formal requirements. The T2057 election form may be submitted up to three years after the due date, however, there is a late filing penalty. The lesser of the following two values constitute the T2057 late-filing penalty:

• 25% of the difference between the value of the transferred property and the amount eligible for a section 85 election, multiplied by the number of full or partial months the election is late; and
• up to $8,000, $100 for each month or a fraction of a month the election is delayed.

According to this formula, the maximum late-filing penalty for the T2057 form is $8,000 after it is more than six months late.

The Canada Revenue Agency requires both the $8,000 late filing penalty and a written justification for the delay if the T2057 election form is submitted more than three years late. The CRA will only accept the late filing if it finds that doing so is “just and equitable.”

Consult with one of our top Canadian tax lawyers to determine your best course of action. Several clients have received incorporation assistance from our expert Canadian tax lawyers. Also, you may seek advice from one of our experienced Canadian tax lawyers to learn whether incorporation may be advantageous for your cryptocurrency-based business. We can assess whether incorporating your business makes sense for it, evaluating the tax advantages against the compliance expenses. Also, by carefully planning the incorporation and section 85 asset transfer, tax pitfalls can be avoided. Also, we can establish your corporation and write the necessary asset-transfer agreements and corporate records.

As previously explained, a Canadian taxpayer looking to establish a cryptocurrency trading business may fall into one of several tax traps caused by the tax regulations surrounding section 85. The corporation’s acquisition of cryptocurrencies, non-fungible tokens, or other blockchain assets must have a fair market value that corresponds to the fair market value of the shares and other compensation it gave in exchange. Under the shareholder-benefit rule in subsection 15(1) or the indirect-benefit rule in paragraph 85(1)(e.2), a mismatch in value may result in tax liability.

By including a price-adjustment clause in section 85 asset-transfer agreement, you can prevent some of these issues. But, the CRA won’t abide by such a clause unless specific requirements are met by both parties. To transfer the property at fair market value, for instance, the parties must have a genuine intention to do so. Speak with one of our top Canadian crypto tax lawyers today to learn more about how the price-adjustment clause can guarantee the success of your section 85 rollover. Your section 85 asset-transfer agreement will be drafted by our skilled Canadian crypto tax lawyers so that it can withstand examination by the Canada Revenue Agency.

You might be able to transfer income to family members in a lower tax bracket by using a corporation. However, section 120.4, formerly known as the “kiddie tax,” which imposed a top-rate tax on minors who received profits from private corporations, was dramatically changed by the Canadian Parliament to prevent income splitting. Adults are now covered by section 120.4. The tax on split income (TOSI) under section 120.4 now specifically targets income distribution to adult family members, which is commonly done by releasing dividends from a private corporation. Any “split income” received during the year is subject to top-rate tax if the TOSI rule applies.

Depending on the person’s age at the start of the calendar year in which he or she earned the contested income, the TOSI rule provides a number of exceptions. For instance, if a person receives a dividend from a private corporation and is at least 17 years old, that individual will be subject to top-rate tax unless he or she was “actively engaged on a regular, continuous, and substantial basis in the activities” of the corporation’s business during the year or any five prior years. The person will be deemed to be “actively involved” if he or she “works in the business for at least an average of 20 hours per week during the period of the year in which the business operates,” However, the 20-hour-per-week requirement is not necessary. In other words, even if a person does not spend at least 20 hours a week working for the business, he or she may still meet the “actively engaged” standard.

The TOSI regulations need meticulous planning from a knowledgeable advisor. Numerous Canadian taxpayers have received assistance from our Certified Specialist in Taxation Canadian tax lawyer in structuring income-splitting arrangements that are exempt from TOSI regulations. Make an appointment for a privileged, confidential consultation with one of our knowledgeable cryptocurrency tax lawyers for guidance on income-splitting possibilities and avoiding the TOSI regulations.

Finally, once your cryptocurrency, NFT, or blockchain-asset portfolio has been incorporated, you will hold a new asset: shares in your cryptocurrency-trading corporation. As a result, if you do not update your will, your shares may pass into intestacy and end up in the hands of an unanticipated beneficiary. Don’t forget to update your will to account for your cryptocurrency-trading corporation’s shares. Contact one of our knowledgeable Canadian tax lawyers about updating your will and pursuing other estate tax-saving alternatives.

FREQUENTLY ASKED QUESTIONS (FAQs)

I’m a sole proprietor in Canada who trades cryptocurrency, NFT, or blockchain assets. How can my Canadian income tax on profits from cryptocurrency trading be lessened?

By establishing your cryptocurrency trading business, you may be able to reduce your Canadian income tax liability. A corporation provides two tax benefits to a Canadian taxpayer who runs a cryptocurrency-trading business. First, a Canadian-controlled private corporation (CCPC) is eligible for the small business deduction (SBD), which provides a lower tax rate on the first $500,000 of active business income. Second, individual shareholders can defer paying shareholder-level taxes to the degree that retained earnings remain in the corporation.

Is income-splitting allowed if I use a corporation?

You might be able to transfer income to family members in a lower tax bracket by using a corporation. But the Canadian Parliament enacted new tax laws to prevent income splitting. The tax on split income (TOSI) described in section 120.4 of the Income Tax Act now applies to income distributed to adult family members, which is commonly done by issuing them dividends from a private corporation. If the TOSI rule is in effect, any “split income” received by the receiver throughout the year is subject to top-rate tax. Depending on the person’s age at the start of the calendar year in which he or she earned the contested income, the TOSI rule provides a number of exceptions. However, these exclusions are infamously complicated, demanding various requirements for those under the age of 17, individuals between the ages of 17 and 24, and those over the age of 24. The TOSI regulations need meticulous planning from a knowledgeable advisor. Several Canadian taxpayers have received assistance from our Certified Specialist in Taxation Canadian tax lawyer in structuring income-splitting arrangements that are exempt from TOSI regulations. Make an appointment for a privileged, confidential consultation with one of our competent Canadian tax lawyers for guidance on income-splitting options and avoiding the TOSI regulations.

I run a sole proprietorship engaged in the trading of cryptocurrencies, and I plan to transfer my cryptocurrency inventory to an offshore corporation. Is section 85 of the Income Tax Act applicable when I transfer my cryptocurrencies to an offshore corporation to avoid paying taxes? 

No. Only asset transfers to “taxable Canadian corporations” are eligible for the section 85 rollover. The corporation must be incorporated in Canada, either under the Canada Business Corporations Act or the corporate statutes of a Canadian province or territory, in order to be considered a “taxable Canadian corporation”. The Canadian Income Tax Act considers you to have sold your cryptocurrency at its fair market value if you transfer it to an offshore corporation, preventing you from using section 85. Hence, if the value of the cryptocurrency exceeds your tax liability, you will become subject to Canadian tax. You should speak with our top Certified Specialist in Taxation Canadian crypto tax lawyer for guidance on Canadian tax consequences and tax-planning possibilities before moving through with any cryptocurrency transactions with offshore entities.

I’ve already transferred non-fungible tokens and cryptocurrencies for shares with my corporation in accordance with section 85 of the Income Tax Act, but I didn’t submit the T2057 election form by the due date. Is the transaction invalid as a result?

No, not always. The T2057 election form may be submitted up to three years after the due date, however, there is a late filing fee. The T2057 late crypto tax filing penalty is equal to the lesser of the following amounts: (A) $100 for each month or part month the election is late, up to a maximum of $8,000; or (B) 25% of the amount by which the value of the transferred property exceeded the section 85 election amount, multiplied by the number of months or part months. In other words, the maximum late-filing penalty for the T2057 form is $8,000 after it is more than 6 months late. The Canada Revenue Agency demands a written justification for the delay in addition to the $8,000 late filing penalty if the T2057 election form is submitted more than three years late. The CRA will only accept a late filing if it finds it to be “just and equitable.” Several taxpayers have received help from our knowledgeable Canadian tax lawyers in persuading the CRA to accept T2057 election documents that were submitted more than 3 years late. In addition to increasing the likelihood that the CRA will accept your late-filed T2057 form, properly prepared written submissions also establish the framework for a judicial-review application to the Federal Court in the event that the CRA unjustly rejects your T2057 filing.

Disclaimer:

“This article just provides broad information. It is only up to date as of the posting date. It has not been updated and may be out of date. It does not give legal advice and should not be relied on. Every tax scenario is unique to its circumstances and will differ from the instances described in the articles. If you have specific legal questions, you should seek the advice of a lawyer.”