Tag Archives: Brian Higgins

A Primer On Canada’s Vacant Home Taxes For U.S. Citizens And Residents

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Disclaimer: This post is of a general nature. I will assume that the owner of the property is an individual person. This post does NOT address situations where the property is owned by a corporation, trust or other kind of entity. Vacant property regimes are different and may include enhanced rules for situations where residential property is NOT owned by people (including corporations, trusts, etc.). Under NO circumstances should the information in this post be considered to be complete. It is designed to provide an overview. In many cases you will be well advised to seek professional help. (I am thinking mainly of Canada’s Underused Housing Tax and the BC “Speculation And Vacancy” taxes.)

Outline:

Part I – Introduction – The Housing Shortage Of 2023
Part II – Impacts of Canada’s Underused Housing Tax on Canadian border communities
Part III – How Vacant Home Taxes Work – The Usage Of The Property ALWAYS Matters And Can Ensure The Tax Is Avoided
Part IV – How Vacant Homes Tax Differ – The Three Categories Of Taxes
Part V – The BC “Speculation And Vacancy Tax” – Moving To Canada
Part VI – Concluding Thoughts

Part I – Introduction – The Housing Shortage Of 2023

Vacant home taxes are a new kind of tax in Canada. They are the inevitable result of a rise in housing prices, a shortage of rental housing caused by short term rentals (AirBNB and others), a rise in rents (caused by the shortage of rental housing) and a political climate that is responsive to the housing shortage. This is NOT just a problem in Canada, but also in other countries. A recent New York Times article reported on similar conditions in Portugal (which interestingly resulted in the cancellation of Portugals “Golden Visa Program”).

Canada’s Family Of Vacant Home Taxes

Various Canadian governments have created a family of Canadian Vacant Home Taxes. Vacant Home Taxes are significant levies on owners who neither occupy their property as a principal residence nor rent the property to “arms length” tenants. The only true “safe island in an ocean of punitive taxation” is in circumstances where ALL owners occupy the property as a principal residence (except possibly in British Columbia). Vacant Home Taxes are levied by all three levels of government: Federal (Canada’s Underused Housing Tax), Provincial (BC Speculation And Vacancy Tax) and Municipal (Toronto, Vancouver, Hamilton and Ottawa, etc.). “Canadian Vacant Home Taxes” are becoming increasingly prevalent.

Property owners can be impacted by more than one tax. A U.S. resident owning a vacant home in British Columbia could be subject to each of: Canada’s Underused Housing Tax, Vancouver’s Empty Home Tax and the BC Speculation And Vacancy Tax. Each of these taxes is independently punitive. Some might argue that the combined effect of all three is confiscatory. For example a U.S. resident who owned a vacant condo in Vancouver valued at 3.3 million Canadian dollars would be subject to combined “vacant home taxes” of $264,000 CDN for the 2023 year. As the following tweet indicates:

Interesting! At the current rate of Vancouver’s vacancy tax (5%), and given BC’s vacancy tax (2%) and the federal underused housing tax (1%), the author’s condo (valued in 2017 at $3.3 million) could trigger additional annual tax of $264,000 for 2023 alone (if valued the same).

Part II – Impacts of Canada’s Underused Housing Tax on Canadian border communities

Canada’s vacant home taxes have been particularly upsetting to U.S. residents who own second homes in Canada.

In 2017 a U.S resident, in an article in the Wall Street Journal, referred to the Vancouver “Empty Home Tax” as “Canada’s Tax On Being American”.

The author, claiming that the tax is aimed at “foreigners” writes:

A few months later, Vancouver introduced an annual “empty home tax” equal to 1% of the property’s assessed value. Since the levy is inapplicable if your Vancouver home is your principal residence, it’s obviously aimed at foreigners like us. At our condo’s current valuation, the tax will cost us almost US$33,000 a year.

She makes the further claim that the Vancouver Empty Home tax is based on nationality:

Nationality-based taxes are among the worst kinds of protectionism. The North American Free Trade Agreement expressly covers real estate owned by Americans in Canada. For that matter, Nafta covers real estate owned by Canadians in the U.S., of which there is plenty.

Although the Vancouver Empty Home Tax is NOT based on nationality (although Canada’s “Underused Housing Tax” is based on nationality), the author is correct that citizenship/nationality taxes are offensive. That said, the United States is the only major country in the world that defines “tax residency” in terms of citizenship/nationality (making the author’s claim somewhat hypocritical).

More recently, New York Congressman Brian Higgins has been particularly aggressive in objecting to the application of Canadian vacant property taxes to U.S. residents. The Canadian Government held hearings on the “Impacts of the Underused Housing Tax on Canadian border communities”. The hearings took place on June 5, 8 and 19 2023 and may be accessed here. On June 5, 2023 Congressman Higgins was a witness at the hearing. His comments referenced the application of Canada’s “Underused Housing Tax” to U.S. residents living in upstate New York. A transcript of his comments may be read here. Congressman Higgins is requesting that his constituents in New York State be exempted from the tax. His closing statement at the hearing was:

Mr. Brian Higgins:

I think you’re correct in that I understand why Canada would impose a tax on large swaths of land because of the larger problem that it creates. What I believe about that is really not relevant. That’s for you to decide. I suppose what I would ask each of you to consider is whether or not this tax, the vacant and underutilized tax, was intended to affect communities. You refer to them as rural communities that are outside of the urban areas. I refer to them as cottage communities.

Was that the intent, and if it wasn’t, is there some way that could be contemplated as it relates to revising that to exclude certain properties, like seasonal properties, that this was seemingly not intended to include?

Citizenship Taxation

Canada’s Underused Housing Tax is NOT based on “tax residency”. Rather, Canada’s Underused Housing Tax is a tax based on “citizenship” or”immigration status”. The U.S Tax code imposes income taxes based on “citizenship” and “immigration status”. Significantly, the U.S. imposes taxation on the Canadian source income of those Canadian residents who are also U.S. citizens. It is therefore reasonable to conclude that:

1. Congressman Higgins is objecting to Canada applying “citizenship taxation” on U.S. citizens living in the United States; while

2. the U.S. applies “citizenship taxation” to many Canadian citizens living in Canada.

In any case, Congressman Higgin’s complaint is about “citizenship taxation“.

Part III – How Vacant Home Taxes Work – The Usage Of The Property ALWAYS Matters And Can Ensure The Tax Is Avoided

Generally every property owner (Canada’s Underused Housing Tax is the exception) is required to report every year and answer questions about the usage of the property. These who fail to report are subject to the maximum tax. Those who do report must demonstrate that they are either NOT required to pay the tax (principal residence, rented out or some other exemption) or not subject to the maximum tax (citizenship/immigration status or tax residency status). All vacant home taxes start with a presumption that the owner must pay the full tax. The property owner bears the burden (by filing the return and providing information about the usage) or demonstrating that it (he, she or an entity) is exempt or subject to a lower tax.

Vacant Home Taxes In Canada- Three Categories

Category 1. Based On Ownership: Targets ALL owners of the property and the tax is imposed based on the usage of the property – Targets people based on and only on being the owner of the property. The tax may be avoided based on the usage of the property (generally if used as a primary residence or if it is rented to tenants). (Municipal)

Category 2. Based On Ownership + Citizenship/Immigration status of the owner: Targets owners of the property based on the citizenship and immigration status of the owner (NOT being a Canadian citizen or Permanent Resident of Canada) – The tax may be avoided based on the usage of the property (Federal – Canada’s Underused Housing Tax).

Category 3. Based On Ownership + Citizenship/Immigration status + tax residency of the owner + source of the owner’s income – (British Columbia “Speculation And Vacancy Tax”)

Generally the BC “Speculation And Vacancy Tax” operates as follows:

Step 1: Targets all owners of the property and presumes they are subject to the maximum tax (every owner is required to file a return)

Step 2: Identifies those owners who are Canadian citizens or permanent residents. (Being a Canadian citizen or permanent resident” is a necessary BUT NOT SUFFICIENT condition to being subject to a lower rate of tax or being exempt from the tax.) An individual must be a “specified Canadian citizen” or “specified Permanent Resident” or “resident of British Columbia” to have preferential treatment or an exemption from the tax. (Note that if a Canadian citizen or Permanent Resident is is an “untaxed worldwide earner”, then that person cannot be a “specified Canadian citizen” or “specified permanent resident”.

Step 3: Determines whether the owner is an “untaxed worldwide earner. This is a determination based largely on the “tax residency” and income of of the owner. Generally an individual is an “untaxed worldwide earner” if more of his income (or combined income with his spouse) is NOT subject to tax in Canada than is subject to tax in Canada.

Step 4: Determines whether the owner is a “specified Canadian citizen” or “specified Permanent Resident” or “resident of British Columbia” and is therefore subject to a preferential tax rate or an exemption. Note that if the individual is an “untaxed worldwide earner” he cannot meet this requirement.

Significantly, the primary residence exemption is not available to an owner who is an “untaxed worldwide earner”.

Let’s examine each of the three categories in more detail …

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@RepBrianHiggins Begins Formal Challenge Of Canada’s Underused Housing Tax

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Prologue

Are Buffalo Cottage Owners Exempt From Canada’s Underused Housing Tax?

It’s Official – Congressman Higgins Begins Formal Claim That Canada’s Underused Housing Tax Violates the USMCA Free Trade Agreement

Mar 7, 2023
Press Release
Congressman Says Tax 1% Property Tax Violates Standing Trade Agreements

Congressman Brian Higgins (NY-26) is asking United States Trade Representative Katherine Tai to open formal consultations with the Government of Canada to explore if the Underused Housing Tax is inconsistent with the United States-Mexico-Canada Agreement (USMCA).

In a letter to Ambassador Tai, Rep. Higgins writes, “The United States and Canada have a longstanding, cooperative, and mutually beneficial relationship. Western New York and Southern Ontario exemplify this unique bond. The UHT’s impact on Americans who own property in Canada, however, threatens our binational community and appears to be inconsistent with the USMCA.”

One of the principles of the USMCA is the requirement that all parties not discriminate against each other or provide preferential treatment solely to domestic companies or citizens, including with respect to internal taxation. Canada’s Underused Housing Tax does not apply equally to Canadian and U.S. citizens and therefore may violate these principles. The USMCA stipulates parties can request consultations with another party when trade agreement disputes arise.

Canada recently imposed a 1% tax on “vacant or underused housing” owned by non-resident, non-Canadians. The intent was to target foreign investment speculation negatively impacting affordable housing in Canada, but it is impacting good-faith, longtime cottage owners who have maintained and enjoyed living among their Canadian neighbors for years.

Higgins began sounding the alarm about the Underused Housing Tax since it was first proposed in the Government of Canada’s Budget 2021. Most recently, Higgins asked the U.S. Secretary of State to object to the Underused Housing Tax in conversations with the Government of Canada.

Outreach from frustrated U.S. residents has increased in recent weeks as the April 30th tax form deadline approaches in Canada. Congressman Brian Higgins has heard from hundreds of U.S. residents negatively impacted by the Underused Housing Tax, including over 320 property owners who completed an online survey.

Congressman Higgins is a member of the House of Representatives Ways and Means Subcommittee on Trade and serves as Co-Chair of the Northern Border Caucus and the Canada – U.S. Interparliamentary Group. His Western New York district, which includes the Cities of Niagara Falls and Buffalo, borders southern Ontario. 

The Opportunity – Perhaps All Forms Of Citizenship Violate The Canada US Mexico Free Trade Agreement?

This is an opportunity to bring all issues of citizenship tax to the attention of those responsible for interpreting the free trade agreement.

PFIC anyone?

_____________________________________________________________

John Richardson – Follow me on Twitter @Expatriationlaw

NY Congressman Brian Higgins Draws Attention To The Injustice Of Citizenship Taxation By Challenging Canada’s Underused Housing Tax

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Introduction

You can see the complete twitter thread here.

A recent post describes how various Canadian Underused and Vacant property taxes might apply to unsuspecting U.S. residents (Toronto, Vancouver and Ottawa) and U.S. citizens (Canada’s Underused Property Tax).

Taxes that apply to ALL owners of property

The Toronto, Vancouver and Ottawa taxes apply to ALL owners (regardless of citizenship or residence) of residential property. Although these taxes apply to all owners, some U.S. citizen/residents have argued that they are disguised taxes on being American. The broad scope of these taxes makes them difficult to challenge.

Taxes that apply to property owners based on citizenship or immigration status

Interestingly Canada’s Underused Property Tax, by its express terms applies based on “citizenship” and/or “immigration status”. Specifically, it applies to people who are neither citizens nor permanent residents of Canada. In the same way that the United States imposes taxes on people based on and only on the status of being a U.S. citizen or permanent resident of the United States (Green Card holder), Canada’s Underused Vacant Property Tax is based on NOT being a citizen or permanent resident of Canada. Significantly, certain provincial human rights codes (presumptively) prohibit discrimination based on citizenship. The first case decided by the Supreme Court of Canada (Andrews) interpreting S.15 of Canada’s Charter of Rights struck down a British Columbia statute requiring Canadian citizenship to practise law in British Columbia. In 1974 – In Re Griffiths – the U.S. Supreme Court struck down a similar Connecticut provision requiring U.S. citizenship to be admitted to the bar in Connecticut. In the United States, classifications based on citizenship/alienage are “suspect classifications” and presumptively unconstitutional. Canada’s laws and judicial decisions are generally hostile to classifications based on citizenship.

To be clear: classifications based on citizenship clearly attract judicial scrutiny!
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US Residents Who Own Residential Property In Canada May Be Subject To Various Vacant And Underused Property Taxes

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Introduction And Purpose

Many Canadian cities are experiencing the combined effects of a shortage of affordable housing and a rise in housing prices. In short housing (whether to own or to rent) has become less available and more expensive. Factors contributing to this include: Investors preferring to “rent” their investment properties on short term rental platforms rather them releasing them into the rental market, Provincial Landlord and Tenant laws which impose laws on small landlords which are perceived as unfair, increases in property values (caused by low interest rates) which have caused an imbalance between the cost of buying residential real estate and the amount it can be rented for. (It makes no sense for a person to purchase a property for one million dollars and rent it for $2000 per month.)

Canadian Cities – Clear Laws And Easy To Understand And Significant Discontent From U.S. Owners

The above tweet references a fascinating article Wall Street Journal article written in 2017 by a U.S. owner of a Vancouver, BC condominium claiming that the tax was directed at Americans. It’s a fascinating read.

A reply to the above tweet pointed out that:

Interesting! At the current rate of Vancouver’s vacancy tax (5%), and given BC’s vacancy tax (2%) and the federal underused housing tax (1%), the author’s condo (valued in 2017 at $3.3 million) could trigger additional annual tax of $264,000 for 2023 alone (if valued the same)

As the $264,000 figure demonstrates, these “Vacant Property Taxes” are serious business which can create significant tax and penalty liability. In some cases, the taxes may force people to sell their properties!

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