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In my last article, we discussed superficial and denied-loss rules that prevent clients from claiming capital losses when they make in-kind transfers of depreciated securities to registered plans. In this article, we’ll discuss other key aspects of the superficial loss rule and identify a common pitfall for clients in employee share purchase plans.

Under the Income Tax Act (ITA), a superficial loss occurs on the disposition of a property where, during the period that begins 30 days before the disposition and ends 30 days after the disposition, the taxpayer (or a person affiliated with the taxpayer) acquires property that is identical and continues to hold the property beyond the superficial loss period.

Read: Tax loss selling: Using Canadian-listed ETFs to defer taxes on capital gains

Affiliated persons normally include a spouse or common-law partner and certain corporate, partnership and trust relationships, including RRSPs, RRIFs, TFSAs and RESPs. When a taxpayer’s capital loss is superficial, the loss is deemed to be nil and cannot be claimed for tax purposes. Consider the following example:

On January 2, Janet sold 25 shares of XYZ corporation. Since their purchase, the shares decreased in value, triggering a $1,000 capital loss. On January 25, Janet had a change of heart and repurchased all 25 shares of XYZ corporation. Because the repurchase occurred during the superficial loss period, Janet’s $1,000 capital loss was deemed to be nil.

While the rules prevent these losses from being immediately claimed, for individual taxpayers, denied losses are normally added to the adjusted cost base (ACB) of the reacquired property, allowing use of the capital loss on a future sale.

So, although Janet’s capital loss was deemed to be nil, the ITA lets her add the $1,000 loss to the ACB of her reacquired shares, allowing for future use of the loss on the eventual disposition of the shares.

Note that it’s up to Janet to recognize and account for superficial losses accordingly, as well as to adjust the ACB of her shares. This information will not necessarily appear on her T5. This is where the skills of a reputable tax preparer can really add value.

Read: Avoid superficial loss problems with registered plans

Defining identical property

When discussing the superficial loss rule with clients, the question of identical property might come up. What defines identical property in this context? CRA defines identical property as “properties which are the same in all material respects, so that a prospective buyer would not have a preference for one as opposed to another.” CRA adds it is necessary to compare the inherent qualities or elements that give each property its identity; such determinations are based on the details of each situation.

It’s likely the superficial loss rule will apply where purchased property is the same in all respects to property that was, or will soon be, sold. A few points to note:

  • CRA considers index-based mutual funds from different financial institutions to be identical if they track the same index (e.g., S&P/TSX).
  • Two properties that are otherwise identical do not cease to be so merely because one is subject to a charge that may affect its price while the other is not, provided the difference does not change any of the constituent elements of the property (e.g., different series of the same mutual fund).
  • While their investment mandates might be similar, a mutual fund trust and a similar class fund from a mutual fund corporation would not normally be considered identical properties for these purposes.

While we often talk about the superficial loss rule when describing the sale and repurchase of properties that are the same in characteristics and amount, in many cases partial dispositions can complicate the superficial loss calculation. Clients can also get caught off guard when participating in employer-sponsored plans. Consider the following situation:

Justin, an employee of STACKIT!, a publicly traded company, is part of the company’s employee share purchase plan. Justin contributes to the plan on a quarterly basis, resulting in the purchase of the company’s common shares. On May 15, Justin owned 90 common shares of STACKIT! with an adjusted cost base of $20/share and a fair market value of $5/share. Despite the decreased value of the shares, Justin needed cash and decided to sell 50 shares at that time, resulting in a $750 capital loss. Then, within 30 days of the sale, Justin automatically repurchased 20 identical shares through the share purchase plan.

Justin triggered a capital loss by selling the common shares. Given that identical property was purchased within the superficial loss period (i.e., beginning 30 days before the disposition and ending 30 days after), was Justin’s capital loss a superficial loss? If yes, what portion of the loss is deemed to be nil given that Justin did not repurchase all the shares that were sold?

CRA has a formula to determine the amount of a superficial loss in cases of partial purchase of identical property:

SL = (least of S, P and B)/S x L, where:
SL is the superficial loss;
S is the number of items disposed of;
P is the number of items acquired in the 61-day superficial loss period;
B is the number of items left at the end of the period; and
L is the loss on the disposition as otherwise determined without regard to the superficial loss rule.

Applying this formula to Justin’s case, his capital loss would indeed be a superficial loss. Of the $750 capital loss, only $450 (or 60%) can be immediately claimed with $300 (or 40%) being deemed superficial. The calculation is as follows:

SL = (least of S (50), P (20) and B (60))/ S (50) x L ($750) = $300

Again, Justin and his tax advisor are responsible for these calculations.

Read: Drafting a compensation plan for a CEO

It is unlikely that many clients are aware of the potential impact of the superficial loss rule when buying and selling shares within employer share purchase plans. This can lead to tax reporting challenges. Where clients do get caught by the superficial loss rule, they can take some comfort in knowing their superficial loss can be added to the ACB of their repurchased property, allowing for use of the loss on a future sale.

Wilmot George, CFP, TEP, CLU, CHS, is vice-president, Tax, Retirement and Estate Planning, at CI Investments. Wilmot can be contacted at wgeorge@ci.com.
Originally published on Advisor.ca
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