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Last updated: May 19/17

To help real estate lawyers take steps to comply with the recent changes to the Land Transfer Tax and the new Non-Resident Speculation Tax (NRST), LAWPRO has assembled a list of answers to the questions we are hearing most frequently from Ontario lawyers. We are maintaining an ongoing and helpful dialogue with Ministry of Finance officials and other stakeholders, and we will update this page on an ongoing basis as we receive new information or clarifications to outstanding questions. To help you identify new information, a last updated date will appear at the top of the page, and recent updates will be highlighted.

While some details can be found in Bill 134, An Act to implement 2017 Budget measures [Updated May19/17], if you are looking for an overview of the LTT and NRST changes, the Bulletin on the Non-Resident Speculation Tax in the Ministry of Finance’s website is a good starting point. The Prescribed Information for the Purposes of Section 5.0.1 Form page on the Ministry’s website has detailed information on the PIPS5 Form. See also this Teraview Newsletter (dated April 13, 2017) for more information on how to login to Teranet eXpress and access the PIPS5 Form.

Risk management advice

LAWPRO encourages Ontario lawyers to carefully review the information released by the Ministry of Finance and Teranet on the changes to the LTT and the new NRST. Lawyers may face some challenges in implementing these changes into the handling of a file, in particular, trying to take all appropriate steps to comply with legislation that hasn’t even been released in draft form yet. As you will see in the frequently asked questions below, there are some scenarios where it is not clear what the legislation will require based on the information released by the Ministry of Finance thus far. Lawyers who find themselves facing questions on what they should do to comply with the LTT and NRST changes are encouraged to seek direction from the Ministry of Finance at the contact noted in the next paragraph.

 

Where can I find or get information from the Ministry of Finance?

  • Who can answer my LTT and NRST questions? The government has directed that lawyers who have questions or are looking for assistance on the LTT and NRST changes should contact:

    Ministry of Finance Manager,
    Land Taxes
    33 King Street West,
    PO Box 625
    Oshawa ON L1H 8H9
    Toll-free: 1-866-ONT-TAXS (1-866-668-8297)
    Teletypewriter (TTY): 1-800-263-7776
    Fax: 905-433-5770
    Ministry website: ontario.ca/finance

  • How do I know when the Ministry of Finance publishes new information? You can subscribe to receive email alerts from the Ministry here: www.fin.gov.on.ca/en/alerts.html.

 

FAQs on the now passed transition periods

  • When did the LTT and NRST transition periods end? The transition periods for both LTT and NRST changes ended as of close of registration, Friday, May 5, 2017. Any transfers registered on or after May 8, 2017, are required to have relevant LTT and NRST statements in them.
  • How do you handle previously signed/approved documents? As transfers registered on or after May 8, 2017, are required to have relevant LTT and NRST statements, you must add this information to previously signed and approved documents that do not have it. Adding this information will cause them to lose their signed status so they will have to be signed again.
  • Did the NRST have to be paid during the transition period? While there was no obligation to collect or submit NRST information in the transition period, the NRST must have been paid if applicable.

 

Legislation interpretation FAQs

  • Do any of these changes apply to me – I only handle deals on properties outside the Greater Golden Horseshoe? All Ontario lawyers need to take steps to understand these changes as the LTT changes and gathering of information via the PIPS5 Form apply to transactions across the entire province. The NRST only applies to properties in the Greater Golden Horseshoe (see the map of the Greater Golden Horseshoe in this Ministry of Finance Bulletin).
  • What level of due diligence by lawyers is required for the collection of LTT and NRST information? When receiving information from a client, lawyers are typically able to rely on what a client has told them (e.g., the spousal status statement on a transfer – which the LTT Regs make clear is client statement, not a lawyer statement), absent some knowledge or indication that the information provided by the client is not accurate, which would trigger an obligation to ask further questions. Depending on the circumstances and type of information, lawyers may ask for documents to confirm the information provided by a client. With respect to the LTT and NRST, the Ministry of Finance advises that it expects lawyers to review original all independent source documents provided by a client and to retain a photocopy for audit purposes. Examples of original independent source documents that may be used to verify the status or legal circumstances of a client can include a passport, birth certificate, permanent resident card, articles of incorporation, notice of change of directors, and/or certificate of corporate status. The Ministry of Finance is to provide further confirmation on what documentation must be obtained to support NRST filings. Bill 134 provides for a fine of up to $10,000 for anyone who makes or assists in making false or misleading statements when providing the information required for the NRST. See Penalty provisions FAQs below for more details. [Updated May19/17]

    Risk management advice: Lawyers are encouraged to take detailed notes and to obtain appropriate documentation from clients with respect to the information required for the LTT changes and the new NRST. In the case where no documentation is available, lawyers could consider having their client sign an affidavit to satisfy the specific requirement. Some lawyers have indicated they plan to have clients complete the paper version of PIPS5 Form which is itself in affidavit form and can be signed as such by a client.

  • How will the audit process work and what are the expectations for documentary verification of the information collected by lawyers? See comments in the previous FAQ. The Ministry of Finance is to provide further information.
  • What is “agricultural land”? From the page on the PIPS5 Form on the Ministry website, agricultural land is farm lands used for farm purposes by the owner, or used for farm purposes by a tenant of the owner and buildings thereon used for farm purposes, including the residence of the owner or tenant and of the owner’s or tenant’s employees and their families on the farm land.
  • What is a “legal name”? Traditionally, land registrations have required that you enter the name(s) of the transferee(s). Under the NRST there is a requirement for a “legal name” to be used. This is not a defined term. As the province issues birth certificates and driver’s licenses which might be in different names for the same person (e.g., Michael on one and Mike on the other), the Ministry of Finance advises that the legal name of an individual is best evidenced by the birth certificate. If a birth certificate is unavailable, then other government ID such as a passport or driver’s license would evidence the legal name. The Ministry of Finance is to provider further direction on this requirement.
  • For a purchase to which the NRST applies, how is the “value of consideration” determined? The Minsitry of Finance advises the normal LTT rules apply, for example, for new homes see (New Home) Bulletin LTT 1-2006, published June, 2010.
  • What percentage of directors or voting shares or both is needed in order for a corporation to be “controlled in whole or in part by a foreign national or other foreign corporation”? The Ministry of Finance is to provide clarification.
  • Are “non-share capital corporations” such as Condominiums or Co-operatives subject to the NRST? The Ministry of Finance is to provide clarification.
  • On what basis do you calculate apportionment of consideration attributable to residential (subject to NRST) and non-residential (not subject to NRST)? Bill 134 provides that where part of a property that is subject to NRST is used for other than residential purposes, the Minister may, to the extent that the Minister considers it practicable, determine what amount of the value of the consideration for the conveyance is reasonably attributable to the land used in connection with a single family residence, and the person tendering the conveyance for registration is liable for any additional tax imposed based that consideration amount. [Updated May19/17]

    Risk management advice: No specific direction on how to calculate this apportionment is provided. LAWPRO suggests lawyers use a method that is reasonable in the circumstances, and that the reasoning and calculations be carefully documented in case the apportionment is questioned after closing. While the section doesn’t address it, query whether a post-closing reapportionment by the Minister could result in a refund if the NRST amount owing is determined to be less than the amount that was paid. [Updated May19/17]

  • If an agreement of purchase and sale is entered into before April 21, does an assignment of the agreement on or after April 21 alter the grandfathered status of the purchase transaction? Bill 134 indicates the answer to this questions is no.  [Updated May19/17]
  • If an agreement of purchase and sale is entered into on or after April 21 by a foreign entity and subsequently assigned to a Canadian citizen or permanent resident, does NRST have to be paid by the Canadian citizen or permanent resident? The Ministry of Finance is to provide clarification.
  • Do the LTT statements apply to transactions with nominal consideration? The Ministry advised us (in response to a call to the Oshawa Land Taxes Office) that they want information on all prescribed transfers, including those for nominal consideration, for the purpose of statistical analysis and to aid in policy development.  [Updated May19/17]

Penalty provision FAQs

  • When will lawyers be subject to penalties? The LTT and NRST details requested are the client’s statements of fact for which the lawyer typically relies on information provided by the client. The Ministry of Finance takes the position that a lawyer must have had knowledge that the client lied to be subject to NRST penalties.

    Risk management advice: Lawyers should take steps to make sure their clients are aware of the very significant penalties for not providing the required information, or for providing inaccurate information. Section 6 of the LTT Act, provides for one or both of a fine or imprisonment. The fine is a minimum of the greater of $1,000 or 50% of the tax, to a maximum of the greater of $1,000 or twice the tax. Imprisonment could be for a term of up to two years.

  • Will the LAWPRO policy cover penalties imposed under the new LTT/NRST regime? Please remember that the LAWPRO Policy does not cover fines or penalties, except to reimburse, after final resolution, certain expenses in the successful defence of certain prescribed penalties under the Income Tax Act and Excise Tax Act. See the LAWPRO Policy for more details.

How to complete the Prescribed Information for Purposes of Section 5.0.1 of the Land Transfer Tax Act Form

  • Is it possible that the PIPS5 Form in Teraview eXpress could be configured to allow it to be saved as a draft? This would be very helpful as it would allow law firm staff to enter the information, to allow lawyers to review it for correctness, and to get clients to review and approve it. The Ministry of Finance is considering this and will provide feedback.

    Risk management advice: After completing the PIPS5 Form in Teraview eXpress, you have the option to save a copy of the form as a PDF. Lawyers are encouraged to keep a copy of what was submitted, and to review the information provided with the client to ensure it is accurate. Lawyers are also encouraged to have the client sign or initial the copy of the submitted PIPS5 Form to document that the client did indeed review and acknowledge as correct the information in the Form.

  • As LTT and NRST information comes from the purchaser’s lawyer, can there be a process change or workaround within Teraview so that the vendor’s lawyer can sign for completeness without getting a LTT confirmation number and NRST receipt number? The Ministry of Finance is considering this and will provide feedback.
  • When will the NRST statement become a mandatory part of the transfer form (i.e., when will the system prevent you from submitting it unless one of the required NRST statements is made)? Ministry staff advise this is likely to happen by the fall.

    Risk management advice: At the present time the NRST statement is entered manually in section 9151. While one of the NRST statements must be included on all transfers made on or after May 8, 2017, Teraview will not stop you from completing a transfer that does not have the required NRST statement in section 9151. Lawyers are encouraged to take steps to make sure that all transfers have an NRST statement in them.

  • If the LTT statement on a transfer is that prescribed information is not required, is there still an obligation to provide it? And, is a confirmation number still required in this circumstance? The Ministry of Finance advises that the answers to both these questions are no.
  • How do I complete the PIPS5 Form for a property with 2 or more PINs? While some properties contain multiple PINs, at present the Form accepts only a single PIN. The Ministry of Finance is to provide clarification. Note, the Ministry has indicated that PINs for parking spaces, storage lockers, rights of way or easements (not exhaustive list) are not to be included.
  • Will there be separate PIPS5 Forms and confirmation numbers if there is a flip of the same property on the same day? The Ministry of Finance is to provide clarification.
  • In what circumstances is the “paper” PIPS5 Form on the Ministry website to be used? The Ministry of Finance has indicated that if not all the information is known at the time of electronic registration, an exceptional circumstance from the Ministry’s point of view, you should select the statement in the LTT affidavit that the information cannot be provided prior to registration and will be provided in paper form and submitted directly to the Ministry of Finance. A paper version of the PIPS5 has been provided by the Ministry for this purpose and available here.
  • If the “provide information later” statement is made, is it the lawyer or client who has responsibility to provide information afterwards? The Ministry of Finance is to provide clarification.
  • How should the PIPS5 Form be completed in order to authorize payment of the NRST by a representative? As the NRST is not yet law, the authorisation form to be presented by someone appearing in Oshawa on behalf of a client does not contain an authorization specific to NRST. The Ministry of Finance has advised that as the NRST is a subset of the LTT, users wishing to pay the NRST should indicate they are paying the LTT in Part 1 of the form. Part 2 asks for an “appropriate account or reference number” and the “Scope of Authorization”. The Ministry is to provide further information clarifying how to complete Part 2.

Payment of NRST FAQs

  • Does the NRST have to be paid before legislation creating it is enacted? The Ministry of Finance takes the position that is prudent to pay as the expectation is that it will be enacted and will be retroactive, and clients could be subject to interest and penalties in the event of late payment or non-payment.

    Risk management advice: At the present time it looks fairly certain that this legislation will be passed and that the NRST will be implemented. Lawyers should document discussions with clients on the requirement to pay the NRST and the implications for not doing so, especially if a client instructs that the NRST should not be paid before the legislation is passed. And as a reminder, the LTT will need to be paid when you are paying the NRST.

  • Will the Ministry of Finance Compliance Branch office in Oshawa accept NRST payment before legislation is passed? Yes, the Oshawa office will accept payments. The Ministry of Finance has stated that receipt numbers will generally be provided for walk-ins on the same day, but that it might take as long as 5 business days. The lawyer, client or an agent may attend in Oshawa to pay the tax. The Ministry is to clarify how they will provide the receipt number for payments sent in by courier or mail.

    Risk management advice: To avoid delayed closings, lawyers should assess the extra time needed to make sure the NRST is paid sufficiently early so that a receipt number is received in time to allow the deal to close on schedule.

  • Will there be an option to pay the NRST via Teraview? Yes, the Ministry advised that eventually you will be able to pay the NRST via Teraview.

 

Confidentiality and privilege FAQs

  • Is there an obligation to share any of the client information I collect for purposes of the PIPS5 Form with the lender? With the changes to the LTT and the new NRST, lawyers will be collecting extensive information from clients that would not typically have been obtained for a real estate deal in the past. Lawyers are reminded that they are in a joint retainer situation if they are also acting for a lender on a deal, and that any information obtained from the client that would be relevant to the lender’s underwriting and security would have to be shared with the lender.

    Risk management advice: Lawyers are encouraged to make sure clients understand that any relevant information obtained from the purchaser-client must be shared with the lender-client.

LAWPRO will update this page on an ongoing basis as we receive clarifications to outstanding questions or new information. Please visit again to get updated information.

Categories: Real Estate