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Will You be ABIL to Use Your Capital Gains Exemption?

Subject: ABILs and the Capital Gains Exemption Number: 12-34 Date: 11/2/2012

It is important to remember the interaction of ABILs and the CGE

Under the Income Tax Act, a “business investment loss” (BIL) is a capital loss resulting from a debt or share investment in a “small business corporation”. This is a Canadian-controlled private corporation that meets certain conditions relating to the use of its assets in an active business carried on in Canada (it need not actually be “small”).

Half of the BIL is called an “allowable business investment loss”, or ABIL. Unlike regular allowable capital losses (which can be deducted only against taxable capital gains), an ABIL is deductible against all types of income for up to 10 years. After that the ABIL becomes a net capital loss that can only be used against taxable capital gains.

ABILs provide preferential relief because they convert capital losses into losses that can be used against regular income such as business or employment income.  However, the Department of Finance decided that this preferential treatment is significant enough that it would be too generous to allow an individual to use their capital gains exemption (CGE) to the extent they had already claimed an ABIL.  Similarly, the  Department of Finance sees the CGE to be beneficial enough to require that the amount of ABIL that can be claimed be reduced to the extent of CGE that the taxpayer has used.  Therefore, the Income Tax Act has provisions preventing both kinds of deductions. In both cases there are mechanisms in place that provide for full ABIL or CGE claims once the losses or gains exceed the  ABIL’s or CGE’s claimed in prior years .

It is important to remember the interaction of ABILs and the CGE.  As noted in Tax Tip 10-15, we have seen cases where an individual crystallized their capital gains exemption to trigger a notional gain that was tax-free (without actually selling to a third party), and was dismayed to find out later that they couldn't claim an ABIL on a real loss.  Similarly, if someone was expecting to be able to use the full capital gains exemption, they will be unpleasantly surprised if they find that a previous ABIL reduces their entitlement.

Please consult your TSG advisor for further assistance.

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