Employee ownership trusts: A new opportunity for succession planning

With three out of four small business owners in Canada expecting to exit their business within the next ten years, the federal government’s proposals to introduce employee ownership trusts (EOTs) presents a new succession planning opportunity. An EOT is a Canadian-resident trust that holds shares of qualifying businesses for the benefit of employees to facilitate succession and promote employee ownership of small and medium-sized businesses.  

The proposed EOT rules will allow employees to borrow from the business to finance a buy-out with an extended repayment period and a longer capital gains deferral period for the retiring owners. This is intended to help employees overcome the challenge of having to finance the acquisition from their personal savings.  Canada’s proposal draws inspiration from successful models implemented in the US and UK.  

The Department of Finance revised the draft legislation on August 4, 2023, and if enacted, the EOT regime will come into effect on January 1, 2024. The federal government initially introduced EOTs in Budget 2022 and followed up with additional details in Budget 2023.  

What is a qualifying business? 

A qualifying business is a Canadian-controlled private corporation (CCPC) controlled by a trust, where:  

• no more than 40% of its directors owned 50% (or more) of the CCPC’s debt or fair market value (FMV) of any class of shares (whether directly or indirectly, or together with any related or affiliated persons or partnerships) before the CCPC became controlled by the trust; and 
• the CCPC deals at arm’s length and is not affiliated with any persons or partnerships who owned half or more of the CCPC’s debt or FMV of shares before it became controlled by the trust. 

Note that certain individuals, corporations, partnerships, and trusts may generally be considered “related” or “affiliated” with each other for tax purposes when there’s a controlling interest between them.  

What qualifies as an EOT? 

A trust is generally considered an EOT if it’s an irrevocable trust resident in Canada and meets the following requirements:  

Trust Property: The trust must hold a controlling interest in the shares of one or more qualifying businesses and the shares must account for 90% or more of the FMV of the property of the trust. Note that more than 50% of current employee beneficiaries must approve certain fundamental changes to the trust property, such as ceasing control of a qualifying business. 

Beneficiaries: The trust must be set up exclusively for beneficiaries that are either current or certain former employees of the qualifying businesses, who don’t own:  

• 10% or more of the FMV of any class of shares of the qualifying businesses (directly or indirectly)  
• 50% or more of the FMV of any class of shares of the qualifying businesses (alone or together with any related or affiliated persons or partnerships); and  
• 50% or more of the FMV of the shares or indebtedness of the qualifying business (alone or together with any related or affiliated persons or partnerships) immediately before the time the trust gained control of the qualifying businesses  

In addition, the capital and income interests of all beneficiaries must be calculated using a reasonable and equitable method based solely on any combination of their length of service, remuneration, and hours worked. An EOT can provide different distribution formulas for current versus former employees, for each of their income and capital interests in the trust. 

Trustees: Each trustee must be a Canadian resident individual, or a Canadian corporation licensed or authorized to serve as a trustee and must all have equal voting rights related to the trust. At least one-third of the trustees must be beneficiaries who are current employees of the qualifying business. Generally, all trustees must be elected within the past five years by certain current employees of the qualifying business; otherwise, at least 60% of all trustees must be at arm’s length with anyone who sold shares of the qualifying business to the EOT. Furthermore, the group of trustees must also not be comprised of individuals or corporate directors that held 50% or more of the FMV of the debt or shares of the qualifying businesses (alone or together with any related or affiliated persons or partnerships) before the time the qualifying businesses became controlled by the trust. 

What are the benefits of EOTs? 

The proposed EOT rules offer tax advantages to both the former owners and purchasing employees of a qualifying business. Even though EOTs are generally taxed like other personal trusts whose undistributed income is taxed at the top personal marginal tax rate, they offer the following benefits: 

• Doubled deferral period for capital gains: When proceeds from a sale are received over several years, the retiring owner has up to 10 years (instead of five) to claim the capital gains reserve resulting from a qualifying business transfer. Note that a qualifying business transfer occurs when a taxpayer disposes of shares to an EOT for no more than FMV.  
• Extended shareholder loan repayment period: A qualifying business can lend funds to an EOT to purchase shares with a repayment period of up to 15 years. Currently, the borrower must include the shareholder loan in their income if not repaid by the end of the following calendar.  
• Deemed interest benefit rule exemption: EOTs are exempt from the deemed interest benefit rules if it receives a low or non-interest-bearing loan from a qualifying business to purchase shares and the loan is repaid within 15 years. Currently, a shareholder is deemed to have received a benefit if the interest rate charged on a loan received from their corporation is lower than the prescribed interest rate. 
• 21-year rule exemption: EOTs are exempt from the 21-year ‘deemed disposition’ rule to avoid getting taxed on a deemed disposition of all trust assets every 21 years; however, if the trust no longer satisfies the EOT conditions, the 21-year rule would be reinstated until the trust qualifies as an EOT again. 

Takeaways 

While the government has proposed tighter intergenerational business transfer rules, the EOT rules present another succession planning opportunity. Selling to employees can be a great option if the owner is unable to find or doesn’t wish to sell to a third-party buyer, and when family members are uninterested in taking over the business.  

It’s important to note that the draft legislation for the proposed EOT rules has not been tabled, and the government may adjust the rules based on feedback from stakeholders. Various stakeholders have asked the federal government to consider including additional incentives for business owners to utilize EOTs, since they’ll likely receive payouts over time from an EOT instead of a lump sum payment in a third-party sale situation. We’ll continue to monitor and update this article with any further developments regarding these rules. 

If you’re planning to exit your business in the near future, we can help with your succession planning. For more information on whether you and your business can benefit from employee ownership trusts, contact your local advisor or reach out to us here. 

Disclaimer 

^{The information contained herein is general in nature and is based on proposals that are subject to change. It is not, and should not be construed as, accounting, legal or tax advice or an opinion provided by Grant Thornton LLP to the reader. This material may not be applicable to, or suitable for, specific circumstances or needs and may require consideration of other factors not described herein.}