ILN: BUYING AND SELLING REAL ESTATE - AN INTERNATIONAL GUIDE

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[BUYING AND SELLING REAL ESTATE IN CANADA - ONTARIO]

Section 116 of the Income Tax Act imposes liability on both the seller and buyer during the property transaction. The seller is responsible for potential tax liability for profits earned from selling the property. This section imposes the same liability on the buyer if a non-resident, as defined in the Income Tax Act , fails to remit the tax to CRA. The buyer is obligated under the Income Tax Act to make reasonable inquiry as to the residency of the seller. A statutory declaration from the seller confirming the seller is not a non-resident is obtained on closing and delivered to the buyer. This is usually sufficient to protect the buyer from the tax liability. However, if the seller has signed the documents outside of Canada or provides an address outside of Canada for service, further inquiries must be made, or the buyer may become liable for the tax amount owing. If the buyer has actual notice that the seller is a non- resident, the buyer cannot rely on the statutory declaration. If the seller is a non-resident, the seller must provide a "certificate of compliance" (CRA form T2062, often referred to as a "compliance certificate or "s. 116 certificate") on closing certifying that all tax has been paid to CRA or security has been given for payment. If the certificate of compliance is not available on the closing date, the buyer's lawyer must withhold in trust from the sale price the maximum amount of the tax liability for which the buyer could be responsible for if the seller failed to pay the tax (currently 25% of the sale price) until receipt of the certificate of compliance is received. In practice, if a large tax amount is owing, the seller may need to use the holdback to pay the tax liability and will apply to CRA for a certificate of compliance. When CRA sends a tax statement/letter to the seller's lawyer or accounting stating that upon its receipt of the unpaid tax it will issue a certificate of

compliance, the buyer's lawyer will issue payment to CRA of the unpaid tax from the holdback. The seller's lawyer usually undertakes to deliver the certificate of compliance upon its receipt of same. XII. CLOSING COSTS In addition to legal fees and disbursements and title insurance policy premiums paid by the buyer, purchase transactions in Ontario are subject to land transfer taxes as set out below. The seller is typically responsible for their own legal fees and the agent/brokerage commission, if applicable. Land Transfer Tax A buyer in Ontario is required to pay a land transfer tax on the registration of any transfer/deed. For commercial properties, the tax is currently calculated at the following rates: -one-half of 1% on the first $55,000 of the purchase price; 1% on the balance of the purchase price up to and including $250,000; 1.5% on the balance of the purchase price up to and including $400,000; and 2% on the balance of the purchase price at $400,001 and above. For residential properties, the tax is calculated at the same rates as for commercial properties, except where the land contains one or two single-family dwellings, and the property is valued at more than $2,000,000. For such transactions, the 2% tax rate only applies from $400,001 up to and including $2,000,000, and a 2.5% tax rate applies to the balance of the purchase price for the property. In the City of Toronto, a municipal land transfer tax is also due on the registration of a transfer/deed in addition to the provincial land transfer tax. This municipal land transfer tax is calculated as follows:

ILN Real Estate Group – Buying and Selling Real Estate Series

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