BC's HST and Real Estate

By Clark Wilson LLP's Commercial Real Estate Group July 28, 2009

On July 23, 2009, the B.C. government announced that it has reached an agreement with the federal government to combine the 7% B.C. PST with the 5% GST to create a single harmonized sales tax (HST). The new tax will come into effect on July 1, 2010. This article focuses on the effect of the HST on the real estate industry.

General

• The HST rate will be 12% (5% federal + 7% provincial)
• The PST will be eliminated completely
• There will be a partial rebate of the provincial portion of the HST of up to $20,000 on new housing
• Input tax credits will be available of HST in the same manner as under the current GST

New Housing

Currently under the GST, new housing is taxed while used housing is not. No housing sales are directly taxed under the PST, although the B.C. Ministry of Finance states that there is currently an average of 2% PST embedded in the cost of new homes from PST charges on construction materials. Under the HST, there would be no embedded tax but the full 12% HST would apply to new housing.

An HST partial rebate on new housing will be provided to purchasers in an amount equal to 5% of the purchase price up to a maximum rebate of $20,000. The Ministry's rationale is that because purchasers currently pay 2% embedded PST, the rebate would eliminate any tax increase on new housing sold for a purchase price of up to $400,000. The embedded PST aside, homes under $400,000 will be subject to a tax 2% higher than under the current system. Homes over $400,000 will be taxed at a rate 7% higher than under the current system, less a flat $20,000 rebate (in addition to the currently available GST new housing rebate currently available for prices up to $450,000). According to the Ministry of Finance, roughly half of new housing in urban B.C. is sold for over $400,000.

1. New home buyers may be eligible for the federal GST new housing rebate, which generally equals 36% of the tax paid on the first $350,000 of the purchase price. The amount of the GST rebate is phased out on a straight-line basis for homes priced between $350,000 and less than $450,000.

2. British Columbia proposed rebate for new housing is equal to 5% of the purchase price up to a maximum rebate of $20,000.

In order to avoid the increased tax burden on homes priced over $400,000, vendors and purchasers may consider, wherever possible, completing the sales of new homes prior to July 1, 2010 when the new HST comes into effect. See transitional rules below for more details.

Buyers in the market for a home may be considering purchasing resale properties in order to avoid the increased tax burden on new homes. While the tax on resale properties is not directly affected by the new HST, the cost to the purchaser of these homes may still increase slightly because services associated with the purchase may be subject to increased tax. For example, home inspection charges would be subject to HST.

Apartment Buildings

Residential landlords will face increased costs under the HST, since some goods and (especially) services not currently subject to the PST and necessary in the operation of apartment buildings will be taxed under the HST. As is currently the case with GST, landlords will not be able to claim input tax credits for HST paid and will not collect HST from tenants. Expenses such as maintenance, electricity and other services required by landlords will be taxed at 12% starting July 1, 2010.

Building Lots

Builders of new homes will be entitled to claim input tax credits for most HST paid on their inputs, such as raw land, just as they currently do with the GST. However, new homes in B.C. that are currently subject to the GST will become subject to HST as described above under the New Housing heading. These rules may be subject to anticipated transitional rules.

Commercial Sales and Leasing

Commercial sales and leases will not be materially impacted by the new system. The 12% HST will apply on commercial sales and leases just as the 5% GST does under the current system and input tax credits will be available to tenants and purchasers for the full amount paid.

Real Estate Commissions

Commissions will be subject to HST in the same manner as they currently attract GST. Commercial vendors will be able to claim input tax credits on HST paid to agents, while individuals selling personal use property will not.

Transitional Rules for Pre-Sales

On July 1, 2010, many homes in B.C. will be partially constructed or the subject of incomplete transactions. Although no transitional rules have been announced by the B.C. government to date, rules applicable to such homes will undoubtedly be announced in the future. In Ontario, where a similar HST will come into effect on July 1, 2010, transitional rules were recently released as follows:

• 5% GST will apply to sales where title or possession of new housing is transferred prior to July 2010
• 12% HST will apply to sales where title and possession of new housing is transferred after June 2010 unless grandfathered
• Sale agreements entered into prior to a specified date where title and possession of new housing is transferred after June 2010 will be grandfathered. In Ontario, that specified date is June 18, 2009, the date the transitional rules were announced. If the same approach is taken here, BC's rule will be effective the date its rules are announced or alternatively the July 23, 2009 announcement date (more likely the former than the latter)
• Where a sale is grandfathered and the building is wholly or partially completed after June 2010, the builder will be liable to pay a transitional tax intended to ensure the building has a tax content equal to what it would have had if constructed wholly prior to July 2010 (i.e., PST paid on all materials). Ontario has adopted an approach to dealing with condominiums whereby the builder must pay 2% of the selling price of the unit (Ontario's estimate of the PST content) and then claim a PST transitional credit for the estimated PST paid on materials prior to July 2010 (formula based). It is unknown if BC will adopt the same approach
• Where a sale is subject to HST and construction commenced prior to July 2010, the builder will be entitled to a PST transitional credit for the estimated PST paid on materials prior to July 2010 (formula based)
• Detailed information on the Ontario transition rules is available here

http://www.bcrelinks.com/articles/dtd10.htm