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Peter’s Blog

Often the use of a Corporate Lawyer comes about as a result of challenges in business situations. Peter’s blog has been created to demonstrate the range of business situations that require the introduction of a corporate lawyer early in the process to prevent the often complex problems businesses find themselves in. Short succinct examples on asset protection, estate planning, succession planning and a variety of other matters will be addressed interspersed with some fun tongue and cheek responses to the media on issues of corporate law. Enjoy!

Proper Documentation for Business

Brothers Charles and Henry embark on a business plan of buying and renting residential properties. The first is a family residence, with 2 tenants in the basement, but all of Charles’ and Henry’s family also occupy the property as a principal residence.  Their Dad and Mom, their wives and their collective 4 children, a total of 12 people including the tenants in 1 house. 

They take title as joint tenants (which means, if Charles dies, Henry owns the whole house with no credit to Charles, his wife or kids).

Clearly fraught with risk to say nothing of the possibility of brotherly discord or Canada Revenue Agency’s interpretation of “principal residence”.

Then Charles and Henry go on to buy 6 other houses, each in a machination of joint tenancy ownership and tenancy in common (which means, contrary to joint tenancy, each of Charles and Henry has a specific direct percentage ownership in each house and death of either of them doesn’t matter – his respective interest passes to his next of kin).

What were they thinking?  Well, first, do it on the cheap, presumably.  Then, “nothing will go wrong”; it’s family after all.

Well, that’s 3 recipes for disaster.  What should have occurred?

Get it all in writing right from the beginning.  Should have had accounting and legal advice.  When the inevitable occurs, the unwind costs and the process will definitely be both a multiple (possibly 10 x’s) of the costs of proper set up, but also total family discord.

Call us before you embark.

Business Set-up

We are approached frequently by budding entrepreneurs seeking to set up a business.  Almost invariably, the issue of costs arises, equally frequently with limited funds.

A substantial number of introductions involve “partners” joining forces to start a business.

What to do?

First, the usual default structure is to incorporate:  Tax advantages; liability avoidance; limitations on economic exposure; ease of structural arrangements among participants.

But:  (i) costs upfront.  First, about $1,800 to incorporate in Ontario.  Then a unanimous shareholders agreement – possibly $3,500 – $8,000 to complete.  Obviously, a heavy front-end expense.

But:  (ii) given the downside of personal exposure, these set-up costs ought to be viewed as insurance.

Further, if the business is, among others, a food consumable, a product delivery with representations, medical services, financial investments and a raft of other types of businesses where litigious exposure exists, there should be no doubt that your personal assets need to be protected.  If the business is importation of cotton, distribution of electronics, or much similar lesser personal exposure types of businesses, nevertheless, why forego the advantageous tax treatment?

As a wise adage offers:  Never do a deal for tax advantages only.

Similarly, I suggest, never begin a business without proper set-up.

Private Corporation “Liquidity”

“Liquidity” means the capacity of a shareholder to liquidate his interest in a corporation.  In a publicly traded corporation, a shareholder can place his shares with a broker for a trade in a stock exchange and receive the market value of his shares.

By stark contrast, not only are the majority of corporations in Ontario “private” corporations (which means not on any stock exchange), but in addition, there is no certainty of “liquidity”.

In the absence of one or two exceptions, a shareholder in a private corporation has no right to require a corporation or fellow shareholders or any third party to buy out his shares.  Essentially, if the “bloom falls off the rose” in a private corporation, a shareholder, who seeks to exit, has no capacity to get paid out either his original investment or any value of his shareholdings.

That’s one of the main reasons why most commercial lawyers recommend “Unanimous Shareholder Agreements” (a “USA”) which could provide for the liquidity that is not available generally to any investor in a private corporation.  A USA can provide for resolutions of shareholder disputes and potential “liquidity” for a shareholder who desires to leave the entity by way of “shot-gun” clauses, “puts” or “redemption”.

Shareholder disputes involving a shareholder who wishes to leave the corporation for whatever reason are extremely difficult to resolve and can be fraught with the same emotional attachments arising in matrimonial breakdown.  There is a parallel with a loss of trust and confidence and a desire to go separate ways.

So, starting from the proposition that there are no rights of a shareholder to require either other shareholders or the corporation to allow a shareholder to exit with a repayment of shareholder loans, repayment of share purchase price, division of spoils, fair market value or a share of the assets of the corporation, negotiating, on behalf of a shareholder who wishes to leave, necessitates pressure on the remaining shareholders. In the absence of a fair and reasonable resolution, the shareholder seeking to depart may have to initiate a process potentially causing or resulting in the dissolution or wind-up of the corporation.  In the absence of justification (such as, oppression, inappropriate behaviour, or conduct justifying the shareholder desiring to leave being protected by the Courts), liquidity is far from certain.

This is reinforcement for the proposition that:

  1. When you invest in a private corporation, recognize that your investment may never be realized, regardless of the success of the business; and
  2. When you get in, figure how you are going to get out.  And get it in print.

Land Purchase Options

It’s not infrequent that commercial tenants have options in their leases to purchase either contiguous property or even the subject matter property of the Lease.  The issue is: What can be set out in the option at the time of its creation that makes the option fully capable of being enforced?

There is a relatively simple process to eliminate this disadvantage to the “Tenant” who holds the “option to purchase”.  The document comprising the option can expressly state what the option amount should be by way of a ratio to a third party purchaser or alternatively a purchase price which is good for a period of time and thereafter subject to an index such as the consumers price index.

It is equally conceivable that the land owner who is subject to an option to purchase in favour of his tenant, may never have had the option registered on title and might very well sell the property to a third party who, of course, takes subject to the Lease on the property where there is actual notice that the Lease exists.

That is hardly secure for the Tenant of property which includes an option to purchase.  Valuation is always critical with respect to exercising an option to purchase.

The Take-away:  My suggestion is that the option expressed in the principal document (Lease or other business relationship) sets out precisely what the terms for exercising the option are and the terms for the purchase of the optioned lands, possibly using a factor or a multiple of the existing Lease and at the minimum some form of correlation to the method of calculating the value of the principal property that is under Lease using square footage.  Simply leaving the price and payment requirements to be determined later merely exposes the option to abuse.

We’ve had too many cases where the option grants to the Tenant the right to purchase but the land owner demands far more than realistic.  Options should specify fully what it is to mean and how much.

Estate Administration Tax – Early Payment and Recent Reforms


As you may know, the appetite of persons to be the Estate Trustee of an Estate has been significantly dissipated as the result of recent changes relating to obligations for the payment of Estate Administration Tax.  In an abbreviated form, the Estate Trustee/Executor named in the Will has a responsibility to report to the Minister of Finance, Ontario, within 90 days following the issuance of “Probate” by way of an Estate Administration Tax Return.  The Return must report exactly what is due by the Estate and the Beneficiaries for “Probate Fees” on the Estate.  The penalties to the Estate Trustee for failing to report or to under report are personal.  Both penal and financial. Yet the Estate Trustee, himself/herself, may never receive any compensation whatever for assuming the personal liability.

So here is the abbreviated version: Estate Administration Tax is payable at the moment of the Application for “Probate” either with or without a Will.  Regardless of the time it takes to obtain “Probate” (variously, on average, 6 weeks to 12 weeks), the Estate Trustee as Applicant for Probate has a personal responsibility to both the Beneficiaries as well as to the various levels of government.  Accurate reporting of the value of the Estate upon which the calculation is made for the payment of the Estate Administration Tax is critical.

But here is the reality: To overpay Estate Administration Tax at the time of application gives rise to an entitlement for an application for refund of the overpayment.  The problem is that the overpayment will take at least 6 months and maybe as much as a year to obtain back from the government.  They like to receive the money; they just don’t like to pay it out.

Accordingly, I strongly encourage the underpayment of the Estate Administration Tax at the time of the filing of the Application.  If it turns out that the assets of the Estate are higher than what was initially submitted at the time of the filing of the Application, simply pay the surplus that was not included earlier.  No requirement for Refund.  No 6-10 months waiting.  Remember there is still, within 90 days following the date of the issuance of the Certificate of Appointment of Estate Trustee the necessity to file the Estate Administration Tax Return with the Minister of Finance but even that can be done based upon the original valuation and “topped-up” later.

Here’s an example: Gentleman Matthew dies intestate (without a Will) in 2014 leaving wife and daughter but owning at the date of death shares in a privately held Corporation the value of which is largely not capable of being determined until either the remaining Shareholders buy out the Estate or the shares are sold to a third party or potentially the entire business is sold to a third party.

The widow makes Application for Probate by way of a Certificate of Appointment of Estate Trustee without Will which was granted but only upon payment of the Estate Administration Tax estimated by the widow at the top end of what could potentially be the value of Matthew’s 60% shares in his Company.

It turned out that the estimate was significantly higher than the actual value achieved years later upon the sale of the Estate’s shares.

A large refund was requested upon the overpayment of the Estate Administration Tax paid at the time of the Application (which was necessary in order to permit the widow to even deal with the Estate and all the other items within the Estate). 

The Application for refund was filed in March 2016 and eventually in September 2016, the Court finally got around to issuing a refund.  In the interval, the widow, who did not have any other source of income, has overpaid the Estate Administration Tax from resources that could well have been spent better in underwriting the surviving family members.

The take-away:  I strongly recommend that the Estate Administration Tax be understated upon its payment. That takes nothing away from the obligations of the Estate Trustee to provide a payment of the Estate Administration Tax as finally determined based upon the value of the assets as eventually determined.

Foreign Investments

Welsh Law Asset Protection and Creditor ProofingWhile largely remote to most Canadian clients without investments/houses/properties in sunny climate environments, for those that have taken that initiative, please read on.

Recently, a Canadian resident/citizen bought his dream home in Barbados. After investing heavily in both the purchase as well as improvements and the retention of locals for various services, it came time to move on in his retirement plans which, in this case, did not mean living happily ever after in Barbados. No reflection; just new plans.

That, of course, involved the sale of his property. That’s when the rub started.

First, as it turned out, his original purchase was not properly recorded. In fact it wasn’t recorded at all despite the retention of a Barbados lawyer to do so. The lawyer neglected to register and the client neglected to require full reports on his purchase, relying, as he did, on his Barbados lawyer.

Then, upon his efforts to sell, his source of ownership (previous deeds, title documents, etc) did not even exist. That required a “Rectification Deed” and a change to the title which was, at considerable cost, eventually obtained to place him in the position that he should have been in at the time of acquisition.

But then here’s the message: Currency control.

While purchased (and later sold) in US Dollars, the extraction of the client’s US Dollars was held up by the Barbados authorities.

Whether currency conversion shortages or mere obstreperousness, there was a reluctance to provide US Dollars and preference to provide the client with the equivalent in Barbados dollars which of course have lower currency recognition than do US Dollars.

Eventually, our client did receive his US Dollars but only after another Barbados law firm went to bat for him.
Only as the result of extensive (and expensive) legal maneuvers did the client receive what he should have received.

THE TAKE-AWAY:

Remember always 3 points must be considered when investing in a foreign jurisdiction: Getting in; Getting along (with local authorities) and Getting out. And getting out means not only getting out personally, but also with your investment.

Be sure you address all of these and never overlook the one relating to getting out.

Estate Administration Tax: The Final “Cash Grab” by the Government of Ontario

http://www.dreamstime.com/royalty-free-stock-image-estate-planning-attorney-law-office-wills-services-trusts-probate-image42426556

As we all know, Estate Planning, to minimize taxes, has long been the “mantra” of professional advisors. Sadly, current reports suggest no more than 50% of Canadians even have Wills. Without harping on that, read on for this tragedy.

Bob and Mabel, married over 50 years, with 3 grown children, dutifully prepared their Wills in 1994. The Wills were reciprocal and dealt essentially with identical items.

JUST ONE TRAGIC CASE

Bob died in 2016. Mabel wished to sell their family home to downsize. To her astonishment (and despite all of the right things about joint accounts, designated beneficiaries on investments outside the Estate and with full expectation that whatever was “his” would be “hers” and vice versa) the family home was registered as Tenants in Common.

What does that mean? It means that Bob owned 50% and Mabel owned 50%. Upon Bob’s death, Bob’s Estate owned 50%. Mabel did not own Bob’s 50%.

However, the house was registered Tenants in Common also referenced, to their ignorance (obliquely) in their reciprocal Wills in 1994. If the house were registered as Joint Tenants, on Bob’s death, Mabel would own the house with no costs.

To Mabel’s astonishment (and significant cash cost) the family home could not be sold without “probate” on Bob’s Will. She needed to mortgage the family home to raise money to buy a downsized house, but could not without probate on Bob’s 50% interest in the family home.

The Wills provided the survivor would leave the family home to the surviving spouse to live in as long as he/she wished, and to decide on when or if to sell but then 50% only of the interest (in this case, of Bob) would go to Mabel and the remaining 50% would go to Bob’s 3 children. That meant Bob’s 50% ownership in the house is split into two: effectively 25% to Mabel and 25% to be held by the children. Mabel did not control Bob’s 50% or even inherit it fully.

Mabel must get probate on Bob’s Estate. Cost: Estate Administration Tax at 1.5% of Bob’s 50% interest in the house. That probate fee is totally thrown away had it been that Bob and Mabel had taken the title as Joint Tenants. The probate fees Mabel has to pay on Bob’s share of the house together with her legal costs to file the Application in order to get probate were necessary in order to deal with the sale of the house. Mabel’s costs thrown away in this case: $20,650 plus costs; all taken away by the government without any benefit to the wife or the kids.

THE TAKE-AWAY

1. If you expect “what’s his is mine”, check to be sure; may not be so;

2. A 1994 Will is woefully overdue for review and update;

3. Estate Administration Tax is nothing less than a cash grab on whatever has been saved by the deceased and ought to be avoided at all costs and every time. That means to avoid probate fees.

This tragedy could have totally been avoided had Bob and Mabel reconsidered the contents of their Wills in the last 25 years or for that matter reaffirmed exactly what their intentions were to be sure that their testamentary wishes were matched by what they had actually prepared in 1994.

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