Will your ABIL Claim be Successful?
Eight Common Situations for Successful Allowable Business Investment Loss (ABIL) Claims:
If you bought shares in or loaned money to a CCPC (Canadian Controlled Private Corporation) and the corporation became insolvent and did not pay you back or you sold the shares for less than you paid for them.
You invested directly in another person’s small business corporation (either as a shareholder, lender, partner, or joint venture participant) that failed outright or probably cannot repay the investment or loan in full when it becomes due.
You own or co-own a company (corporation) that is struggling financially or has become inactive and there is a low probability of ever recovering personal funds of yours or others who have invested or loaned funds to it. Remember that an inactive company can potentially be eligible for a loss claim because it has become insolvent; it is not necessary for it to enter in official bankruptcy or dissolution proceedings.
You were the victim of a scam or fraudulent business activity involving either real or phony business activities of a corporation resident in Canada. The business must have been active for one year.
You guaranteed a loan to a small business and were compelled to pay the company creditors personally. It has been settled by case law that it is helpful, but not necessary, to charge a guarantee fee to maintain eligibility for such a loss. Chares A. Brown v. The Queen, FCTD, No T-2712-91(96 DTC 6091); Byram v. The Queen, 95 DTC 5069 Subsection 39(12) of the Act, deems amounts owing by the corporation to the taxpayer honouring the guarantee to be debt owing to the taxpayer by a small business corporation.
You invested in an investment club and the club lost investments related to a Canadian Corporation.
Your corporation is in the business of trading in speculative securities in large volumes. In Robert G. Crompton and Lenora Crompton v. The Queen, 96 DTC 1703, it was found that “the fact the gains and losses had been reported on capital account was not sufficient to justify the conclusion that its transactions were on capital account or that there was no active business. E Ltd., was therefore, a small business corporation…and the taxpayer was entitled to the allowable business investment loss”.
You were personally assessed by CRA for the company’s withholding taxes (payroll taxes, GST/HST) you paid and your company was unable to pay you back for its tax obligations.
Note: You can also be assessed by CRA for unpaid corporate income taxes if you withdrew corporate funds personally (such as loans or dividends) that could have been used to pay the corporate tax debt.
Critical Factors
Is the Loss Acceptable to CRA?
It is the current circumstance of default (the lack of likelihood of recovery) that is a crucial determining factor in whether a loss occurred or not. Convincing CRA that you indeed did not recover the amount you are claiming, is important. Items that will be reviewed by CRA include corporate tax filings, documentation available to prove the original investment, tax treatment of other co-owners or lenders, and so on. This is standard procedure.
The CCPC Must Take the Loss into Income
The claiming of a personal loss related to a corporation usually requires the corporation to take the loss claim into income (debt forgiveness rules). However, there are usually unused losses in the corporation which are applied to this deemed corporate income. TaxWatch reviews the personal loss claim effect on the insolvent corporation’s tax position as well.
Timing is Crucial
The precise year(s) that the loss is claimed is important. The higher your tax rate the higher your refund will be. Step one is to claim the loss and get it approved, then determine what years the loss will be applied (you can tell CRA which years to apply the loss to). The loss claim years must bring the taxable income to zero; you basically lose the value of personal exemptions that would normally be available.
Fees are Deductible
Fees paid to a professional firm such as TaxWatch are tax deductible if the service involves tax appeals – which TaxWatch provides.
The 150% Difference
Each tax dollar retrieved or saved is the same as having to earn at least 150% of any tax refund produced. For example – to end up with $100 after tax, you must earn $150 and then usually pay at least 33% tax. That is why retrieving tax is so worthwhile.
ABIL Claims Can Fail
Loss claims submitted to CRA without proper representation fail because of lack of tax law knowledge and insight into the importance of proper procedures and documents required by CRA. Like everything else, you have to know the system.
How do I Claim an ABIL?
If your situation met the four qualifiers and any of the previous situations seem even remotely applicable, you have a good chance at a successful ABIL claim.
You have several choices for filing the claim:
On your own
Through your current accountant
Through TaxWatch Canada’s specialized ABIL Tax Refund Service. We are very experienced in this area and our service is quite affordable.
ABIL Tax Refund Service
Here is what our turnkey service offers:
Working with you to get the information and documentation needed.
Engaging with or communicating with CRA on your behalf starting with the initial loss claim submission and documenting your loss claim for response to CRA inquiries or questionnaires.
Evaluating the best filing position based on types, levels and timing of income that produces the best outcome (refund) for you.
We believe that valuing professional services based on billable hours expended on a client’s file does not provide the best value to clients in these loss claim situations. TaxWatch charges a flat fee for its services ranging from preparing the initial loss claim, to the notice of objection if the loss is initially denied. In fact, for these types of services involving CRA, a ‘billable hours’ process usually becomes too costly in several ways, most notably:
It reduces the client’s control and predictability over professional fees. Unanticipated challenges from any quarter may complicate your file and render your budgeted professional fees meaningless. Sooner or later, the client will face the difficult decision to either continue (and incur even higher fees with no increased certainty of intended outcome) or abandon the work because costs incurred to complete the task may outweigh or reduce the intended benefits.
It discourages clients (because of the billable hours potential cost) who otherwise want to claim losses because of the costs.
Clients understand that we have a practice that is motivated based on successful outcomes for clients; the manner in which we believe every business should be conducted.
We do not enter into engagements that we do not think have potential for succeeding, as discussed with our clients.
Read our previous post: What is an ABIL and do you Qualify for an ABIL?
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