It’s been more than four years now since I started calling on government to close the bare trust loophole which is being exploited to provide cover for anonymous real estate transactions as well as to avoid paying property transfer and, potentially, capital gains taxes.

A bare trust is a legal entity that allows for the separation of beneficial and legal ownership. The beneficial owner of a property is the person or persons who make all the decisions concerning such things as rent, repairs, management, sale etc.; they are also the person or persons who receive all the revenue from and arrange financing for the property. The trustee of the bare trust has no substantive decision-making capacity as they simply act upon the instructions of the beneficial owner. Typically the trustee is a corporation that has no other purpose but to act as a trustee for the bare trust and for which the beneficial owner owns all the shares.

Now here’s the loophole. Suppose you own a home or apartment building that you want to dispose of. If you simply transferred title, like most of us do when we sell a home, the purchaser would have to pay the property transfer tax.

But if instead the property is in a bare trust where the trustee is a company, then you will pay no tax. All you have to do is sell your shares in the company for 1$ (the company has no assets anyway), and sell the “beneficial ownership” rights of the property to a third party via a “bare trust agreement” which is not registered at the Land Title Office.  Since no change in title occurs, no tax is paid.

Today during budget estimates for the Ministry of Finance I asked the Minister once more as to what the hold up is. While I appreciate that government is now collecting data on beneficial owners and sharing that data with the Canadian Revenue Agency (thereby potentially giving the CRA the ability to crack down on capital gains evasion), she is still resistant to do what Ontario did ages ago and apply the property tax to transfer of beneficial ownership rather that to transfer of title.

Below I reproduce the video and text of our exchange.

Video of Exchange

Text of Exchange

A. Weaver: I’d like to pivot to the issue of beneficial ownership and bare trust, a key issue and aspect of both the B.C. NDP and B.C. Green election campaigns. As the minister will know, I’ve been calling on government — both past government and present government — to close this loophole for years now.

In this budget, we’ve taken some steps, which I recognize, requesting more information about beneficial ownership on property transfer tax forms, as well as establishing a beneficial ownership registry. But we need to do more than this, frankly, and rather than just collecting information on the beneficial ownership, we need to take steps to actually close the loophole — as was done decades ago in Ontario in direct response to seeing some shenanigans occurring in the real estate sector.

We know that the market has already discounted this, and the market had expected government to announce that the measures would have been taken in their budget.

I have two questions in this regard, and then I’ll conclude. What information are we currently collecting about beneficial ownership on PTT forms — that’s property transfer tax forms — and what additional information are we collecting now? When do these changes come into effect, and what are the purposes of collecting this additional information? What do you expect the impacts to be from gathering this information?

Hon. C. James: Thank you for the question. This is an issue that the member has been raising for a while, and it’s certainly a piece that we’re keen on moving on. I think there are some lessons to be learned from the Ontario example, where Ontario, again, didn’t do the collecting of the information and so had some challenges when it came to implementing the tax that they’re looking at.

We will be starting, as the member has said, with changes coming in the fall on information that’s collected. The best way probably to describe it is it’ll basically be look-through rules, so it will provide an opportunity for us to look at the owners of the land, regardless of what structure they’ve put in place. All that information will be held by the Ministry of Finance.

We will be bringing in, as well, information-sharing rules that will be put in place, particularly with the CRA, so we have the immediate opportunity to be able to look at tax loopholes or tax fraud if it’s there. That’ll give us a chance to be able to do that. Then, when we have the information, that gives us the next step to be able to look at. Whether it’s Ontario or other jurisdictions or other ideas and approaches, it’ll give us an idea of the challenges and the ability to be able to determine further action.

A. Weaver: To be fair, I frankly don’t think that’s good enough. We are, right now, proposing a speculation tax, which is causing chaos in the real estate sector because we don’t have information, and we’re making exemptions as we move along.

We have a clear understanding of what the bare trust loophole is being used for in the residential property. We know you don’t have to go and collect data to know exactly what’s going on. Talk to realtors. Talk to commercial developers. Talk to bankers. Talk to accountants.

We know that properties are being purchased in trust. Those shares are owned by a corporation, and those corporation shares are flipped and switched. We know that that’s happening with offshore companies as well, and we know that that is fuelling the speculation that we truly want to deal with in the housing market.

The spec tax is not dealing with speculation. The spec tax is a paper wealth tax. Whereas a measure that we could take to actually deal with speculation, a measure that was dealt with in Ontario…. I’m told it was dealt with in Ontario precisely because of concerns about money laundering that was happening at the time in the housing market there in Ontario. The tax went on to the beneficial ownership transfer.

It is critical, because you buy at home, a mega-home, and you buy it for, say, $2 million in a trust, and you can flip that five times. You can launder money in this flipping, and there is no record. You’re collecting information, sure. But there’s property transfer tax avoidance, which should be there to discourage this behaviour.

Now, the bare trust existed…. There are reasons historically why it was important to have these properties in trust, particularly in commercial properties. But it is being abused in the residential market.

I’ll conclude, then, by saying I don’t think it’s appropriate not to close a loophole now. I think we have a measure to truly deal with speculation right now. The Attorney General, the member for Vancouver–Point Grey in opposition, pointed this out. The government said they would do it. They campaigned on doing it. Here we are a year later. We’re collecting data about hypothetically doing it down the road while implementing, at the same time, a speculation tax that is actually not dealing with speculation.

So it’s a plea. Why is the minister not standing up and closing this loophole that is being exploited right now in British Columbia and is leading to speculation — instead, taking the steps to introduce a tax that doesn’t actually deal with speculation but instead conflates two issues? One is the issue of satellite families; the other, the issue of vacancy.

Hon. C. James: I appreciate the member’s urgency around this. We feel the same urgency, but we also want to make sure, as I said, that we provide the opportunity to really get at what we need to get at and to get at the individuals we need to get at. I think, as the member has described well, there is all kinds of discussion out there. There are all kinds of people talking about examples that they know of where people who are very sophisticated at tax planning are utilizing these opportunities.

What we’re doing first is figuring out who owns what. That’s a critical piece because right now there isn’t a registry in place. There isn’t an example in place that gives us that. The work we’re doing right now will help us to do that. It’ll help us to build a registry to determine who’s incorporating where. It’ll require people, when they incorporate, to actually register that. So again, we’ll have a tracking around where things have occurred, where people are utilizing the opportunity to be able to avoid paying the correct taxes.

Then the next step, obviously, is to take action. But this will still give us the opportunity to share that information with the CRA and go after existing taxes that are not being paid. I don’t want the member to believe that this does nothing. In fact, it provides us with the opportunity to share that information with the CRA to be able to deal with taxes that aren’t being paid now or opportunities that people are trying to utilize to not pay taxes now. This will give us a chance to do that by the fall.

Further steps then can come after we’ve got the registry in place and we have the opportunity to address it.