Principal Issues: (1) Whether subsection 15(1) applies to include the excess amount of salary ("Overpayment") that a corporation ("Payor") paid to an individual employee ("Recipient") who is not dealing at arm's length with a shareholder of the Payor ("Shareholder") in computing the income of: A) the Recipient, and B) the Shareholder? (2) Whether subsection 15(1) will apply to include the amount of the Overpayment that the Payor paid to a shareholder-employee ("Shareholder Employee") who is not dealing at arm's length with the Shareholder in computing the income of: A) the Shareholder Employee, and B) the Shareholder.
Position: (1) Subsection 15(1) will not apply to include the amount of the Overpayment in computing the income of: A) the Recipient and B) the Shareholder. (2) Subsection 15(1) will not apply to include the amount of the Overpayment in computing the income of: A) the Shareholder Employee and B) the Shareholder.
Reasons: 1A) Assuming that the Recipient does not own shares in the capital stock of the Payor and does not qualify as a contemplated shareholder of the Payor, and that the Overpayment qualifies as a benefit for the purposes of subsection 15(1), the amount of the Overpayment will not be included in computing the income of the Recipient pursuant to subsection 15(1) because such a benefit is not conferred on the Recipient in his/her capacity of shareholder of the Payor; 1B) The rule provided in paragraph 15(1.4)c) will not apply to include the amount or value of the benefit in computing the Shareholder's income pursuant to subsection 15(1) because the amount of the Overpayment is included in computing the income from employment of the Recipient; 2A) The full amount of the salary that is received by the Shareholder Employee will be included in computing his/her income from employment pursuant to section 5. If the Overpayment qualifies as a benefit conferred on the Shareholder Employee in his/her capacity of shareholder of the Payor, the amount of the Overpayment will also have to be included in computing his/her income pursuant to subsection 15(1) ("Shareholder Benefit"). However, subsection 248(28) will apply to prevent the amount of the Overpayment from being included twice in computing the income of the Shareholder Employee such that subsection 15(1) would not apply to tax the amount of the Overpayment as a Shareholder Benefit; 2B) The rule provided in paragraph 15(1.4)c) will not apply to include the amount or value of that benefit in computing the Shareholder's income pursuant to subsection 15(1) because the amount of the Overpayment is included in computing the income from employment of the Shareholder Employee.
2024 STEP CRA Roundtable – June 4, 2024
QUESTION 2. Salary to family members
Scenario A
If a corporation (“Payor”) pays wages (“Wages”) to an individual employee (“Recipient”) who is not dealing at arm’s length with a shareholder of the Payor (“Shareholder”) and a portion of the Wages is subsequently determined to be unreasonable pursuant to section 67 of the Income Tax Act (“Act”) (“Overpayment”), can the CRA confirm that:
(i) subsection 15(1) of the Act will not apply to include the amount of the Overpayment in computing the income of the Recipient because he/she is not a shareholder (or a contemplated shareholder) of the Payor?, and
(ii) for the purposes of subsection 15(1) of the Act, paragraph 15(1.4)(c) of the Act will not apply to include the amount of the Overpayment in computing the income of the Shareholder because it was included in the Recipient’s income?
Scenario B
If the amount of the Overpayment was paid to an individual shareholder of the Payor holding employment with the Payor (“Shareholder-Employee”) who is not dealing at arm’s length with a Shareholder, can the CRA confirm that:
(i) in accordance with subsection 248(28) of the Act, subsection 15(1) of the Act will not apply to include the amount of the Overpayment in computing the income of the Shareholder-Employee to prevent the same amount from being included twice in the income of the Shareholder-Employee?, and
(ii) for the purposes of subsection 15(1) of the Act, paragraph 15(1.4)(c) of the Act will not apply to include the amount of the Overpayment in computing the income of the Shareholder because it was included in the Shareholder-Employee’s income?
CRA response
Although the application of subsection 15(1) of the Act in a specific situation is a question of fact, we may provide the following general comments based on our understanding of the limited facts provided in the question.
Scenario A
Assuming that the Recipient does not own shares in the capital stock of the Payor or does not qualify as a contemplated shareholder of the Payor, and the Overpayment qualifies as a benefit for the purposes of subsection 15(1) of the Act, the amount of the Overpayment will not be included in computing the income of the Recipient pursuant to subsection 15(1) of the Act because such a benefit is not conferred on the Recipient in his/her capacity of shareholder of the Payor.
Moreover, the rule provided in paragraph 15(1.4)(c) of the Act will not apply to include the amount or value of that benefit in computing the Shareholder’s income pursuant to subsection 15(1) of the Act because the amount of the Overpayment is included in computing the income from employment of the Recipient.
Scenario B
The amount of the Wages that is received by the Shareholder-Employee will be included in computing his/her income from employment pursuant to section 5 of the Act. If the Overpayment qualifies as a benefit conferred on the Shareholder-Employee in his/her capacity of shareholder of the Payor, the amount of the Overpayment could also be included in computing his/her income pursuant to subsection 15(1) of the Act (“Shareholder Benefit”). However, subsection 248(28) of the Act will apply to prevent the amount of the Overpayment from being included twice in computing the income of the Shareholder-Employee such that subsection 15(1) of the Act would not apply to tax the amount of the Overpayment as a Shareholder Benefit.
Moreover, the rule provided in paragraph 15(1.4)(c) of the Act will not apply to include the amount or value of that benefit in computing the Shareholder’s income pursuant to subsection 15(1) of the Act because the amount of the Overpayment is included in computing the income from employment of the Shareholder-Employee.
François Mathieu
2024-100364