Stop using TFSA to frequently trade stocks — the CRA might see it as business-oriented

Whether you invest in stocks, bonds or mutual funds, you generally expect that any profits realized from the sale of those securities will be taxed as capital gains at 50 per cent of your marginal tax rate rather than being 100 per cent taxable as business income. But, depending on your particular circumstances, you may be surprised to learn that your trading activity could constitute a business, even if it’s done inside a tax-free savings account.

Under the tax rules, if a TFSA carries on a business then it must pay income tax on its business income. This has been a focus of recent audit and reassessment activities where the Canada Revenue Agency has been targeting taxpayers who actively traded securities in their TFSA.

Last week, at the annual conference of the Society of Trust and Estate Practitioners held in Toronto, the CRA was asked to provide an update on the result of its audits and whether it has any plans to educate the public on what the acceptable limits are on securities trading to prevent a TFSA account from being considered to be “carrying on a business.”

The CRA said that “millions of additional taxes have been recovered as a result of audits of TFSAs,” and referred to a recently- released Income Tax Folio which indicates that “the determination as to whether a particular taxpayer carries on a particular business is a question of fact that can only be determined following a review of the taxpayer’s particular circumstances.”

The CRA then quoted its Interpretation Bulletin entitled “Transactions in Securities,” which sets out factors developed by the courts that are relevant in determining whether transactions in securities constitute carrying on a business. It concludes that “as there is nothing unique about TFSAs in the context of securities trading, there is no plan to provide any additional guidance specific to TFSAs.”

So, what are the factors that must be taken into account when determining whether a taxpayer’s gains from securities constitute carrying on a business?

The factors that the CRA looks at include: the frequency of the transaction; the duration of the holdings; the intention to acquire the securities for resale at a profit; the nature and quantity of the securities; and the time spent on the activity.

For an example of how the CRA applies these factors to an individual’s particular circumstances, let’s take a look at the recent case of a taxpayer who found himself arguing for capital gains treatment in the face of a CRA reassessment.

The taxpayer, a certified financial analyst, was the co- head of institutional trading at a Canadian investment firm and an investment industry veteran with over 25 years of experience. He was licensed by securities regulators in several Canadian and U. S. jurisdictions, including as a trader and dealer in securities.

In the first two months of 2009, he liquidated his holdings in both of his brokerage accounts and converted them to cash. He testified he did this because he originally intended to pay down his mortgage when it was scheduled to renew. Instead, he saw “an unprecedented opportunity to invest in stocks that met his invest- ment criteria given that the market was considered by many to have bottomed out in its decline during the financial crisis that started to hit the markets in 2008.”

In the remaining 10 months of 2009, he bought and sold stocks of 34 issuers costing about $2,500,000, involving 38 purchase transactions and 50 sale transactions, realizing a total gain of about $ 550,000. His average hold period of stocks was about 50 days and his average return on any particular stock was about 30 per cent.

He testified that he gleaned information on the markets from his day job, even though he did not necessarily need to know this information to do his job. In addition, he estimated he spent about 45 minutes daily reading and watching business and market news. He also followed market analysts and research.

In five cases, he sold his stock positions within the first week of buying them. In 10 cases, sales began within 30 days of purchase and in 20 cases, within 60 days. In at least one other case, he started selling the day after he bought — even before his purchase settled — for a gain of less than one per cent. In his Canadian account, the longest hold period was 274 days while in his U.S. account, the longest hold period was under 30 days.

The taxpayer reported the $550,000 profit on his 2009 personal tax return as a capital gain but was reassessed by the CRA as business income on the basis that the taxpayer was buying and selling securities as either a business activity or as an “adventure in the nature of trade.”

In court, the taxpayer testified that his investment strategy has always been to invest in diversified securities that he feels have the potential for 30 per cent returns, including distributions and growth, within what he thinks will be a “certain reasonable time frame.”

The judge quoted prior jurisprudence which stated that “All of these cases turn on their own facts and illustrate the importance of the factual underpinning that supports a finding that a person has crossed the line from investing to trading.”

Or, as tax law professor Vern Krishna wrote in his monumental tome on tax principles, “Was the taxpayer intending to trade ( do business) or invest (hold property)?”

Weighing all the evidence, the judge concluded that the taxpayer was trading in the securities as a business activity, or, at the very least, was buying and selling the securities as part of an adventure in the nature of trade. He reached this conclusion by considering that the taxpayer’s primary intention when purchasing the securities was to sell them at a profit as soon as a reasonable return could be realized. The taxpayer also spent “considerable time” daily monitoring markets beyond what he testified was required for his job. He was buying and selling regularly throughout the year and his holding periods were “clearly short and often very, very short.”

As a result, the judge held the taxpayer’s profits to be 100 per cent taxable as business income.