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The-Last-Word

Fending off the greedy capital gains 'fairy'

Capital gains avoidance

I slipped it in a brief tax warning at the tail end of my last column.

I know, it was unfair to those struggling to stay awake to the bitter end.

So, let’s hit it head on. Buckle up. First, if you’re new to my column please read my last two, which explain how joint ownership can sidestep probate.

Canada is a fantasy land. A little fairy pops out the moment before we die and waves their magic wand. Poof! Everything we own has been sold and repurchased.

I’m not making this up.

Who did we sell everything to? The fair value monster. The monster pays us fair market value for everything we own.

The home Greg paid $440,000 for 10 years ago? The moment before Greg passes away, the fair value monster purchases it for $900,000, the exact amount it would sell for if listed for sale. Brilliant! No real estate commissions.

But Greg doesn’t get to keep the cash. The party “poofer” is Greg immediately buys it back for the exact same amount of money.

What does that have to do with tax? That fanciful little transaction triggered a capital gain.

A capital gain is when you earn money by selling something at a higher price than you bought it for. The capital gain Greg earned on the fanciful sale of his home was $460,000 ($900,000 market value minus the $440,000 he paid for it 10 years ago).

Thank goodness for the homeowner’s exemption or Greg would have to pay a boatload of tax on that massive capital gain.

Well, not Greg. He’s dead. That tax would be paid out of his estate.

But what if, when Greg purchased his home 10 years ago, he cleverly transferred title so it would be held in joint tenancy with his daughters, Maria and Grace, so they would avoid probate fees?

Over those 10 years, Greg owned only on-third of his home. As such, the little fairy trick triggers the homeowner exempt capital gain on only the 1/3 owned by Greg.

The joint tenancy trick works. Maria and Grace get the home fully in their names without having to pay probate fees.

But the massive capital gain on the two-thirds of the home Maria and Grace have owned for 10 years was not triggered. It will be triggered whenever Maria and Grace sell the home, and they will have to pay an amount of tax that makes probate fees look like chicken feed.

Does all this sound complicated? It gets much, much worse.

Let’s change things around. Instead of an owner-occupied home, it’s Greg’s Big White condo we re talking about and there is no homeowner exemption.

Greg puts the condo in joint names with only Maria because he has other assets of similar value that he’s going to give to Grace in his will. Maria is happy with getting a $900,000 condo because she and her family love to ski. Grace is happy as well, because she doesn’t like to ski and is getting $900,000 of other assets Hopefully they’re both sad about losing their dad, though.

The moment before Greg dies, the fairy trick triggers a capital gain on Greg’s 50% ownership of the condo. That’s a capital gain of $230,000 (50% of the $460,000.00 calculated above).

Whose capital gain is that? It’s Greg’s. And it’s paid out of his estate. That means it’s paid out of the $900,000 that was supposed to go to Grace. Not quite what Greg intended!

I’ve scratched only the surface of consequences of Canada’s little fairy, and only as related to real estate. The fairy’s wand applies to all assets—RRSPs, investment accounts, you name it.

And the fairy doesn’t care about fairness. There is a risk, with shares in closely held companies, of the fairy trick resulting in tax being paid twice on the same gain.

My head spins when delving into the nuances —and the clever strategies that estate tax accountants come up with to circumvent the fairy.

If you’re feeling the pressing need to consult with an estate tax accountant, I’ve achieved my goal.

Unless you’re way smarter than me and have the time to learn and stay up-to-date about the ever-changing tax laws, it’s dangerous not to get estate tax advice to avoid unfairness and ensure your estate passes the way you intend.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.



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About the Author

Lawyer Paul Hergott began writing as a columnist in January 2007. 

Achieving Justice, based on Paul’s personal injury practice at the time, focused on injury claims and road safety.  It was published weekly for 13½ years until July 2020, when his busy legal practice no longer left time for writing.

Paul was able to pick up writing again in January 2024. After transitioning his practice to estate administration and management.

Paul’s intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.

You are encouraged to contact Paul directly at [email protected] with legal questions and issues you would like him to write about.



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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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