2 General Tax Imposed

FORMS

Property Transfer Tax Form

Electronic Submissions

For electronic submissions, the electronic Property Transfer Tax Return (FIN 530) is the approved form to accompany an application for registration of a taxable transaction. Selection of the appropriate tax exemption from the drop-down menu enables the appropriate fields for completion. Payment of property transfer tax through the Electronic Filing System must be pre-authorized with the Property Taxation Branch by submitting a Property Transfer Tax Electronic Payment Authorization (EPA) form to EFS. For more information on pre-authorization, see the EFS User Guide posted on the LTSA website at http://help.ltsa.ca/myltsa-enterprise/electronic-filing.

The electronic Property Transfer Tax Return is available in Web Filing using a myLTSA Enterprise account, or can be downloaded from ltsa.ca. For information on completing the form, see the Property Transfer Tax Return Guide available at www2.gov.bc.ca by searching “Property Transfer Tax Returns Guide” from the search bar (and linked from the electronic Property Transfer Tax Return).

An additional property transfer tax is payable by “foreign nationals”, “foreign corporations”, or “taxable trustees” who acquire “residential property” in certain areas of the province. As of February 21, 2018, the additional property transfer tax is 20% of the fair market value of the property and applies to residential properties in the Metro Vancouver Regional District (other than the treaty lands of the Tsawwassen First Nation) and the Capital, Fraser Valley, Central Okanagan, and Nanaimo Regional Districts. If additional property transfer tax is payable, the Additional Property Transfer Tax Return (FIN 532) must be completed. See s. 2.02 of the Property Transfer Tax Act and the related commentary.

Effective February 21, 2018, residential properties with a fair market value of more than $3,000,000 were made subject to a further 2% property transfer tax on the portion of fair market value exceeding $3,000,000. If the further 2% tax is payable, the Property Transfer Tax Calculator for Residential Property over $3,000,000 (FIN 536) must be completed. See s. 3.01 of the Property Transfer Tax Act and the related commentary.

Effective September 17, 2018, the Property Transfer Tax Return requires additional information when a transaction is structured through a corporation or trust. The new reporting requirements apply to all property types, including residential and commercial. Exemptions apply for certain trusts (such as charitable trusts) and certain corporations, such as hospitals, schools, and libraries. See further the commentary below relating to “Collecting Information” and “Beneficiaries of Trusts and Corporate Interest Holders”.

Hardcopy Submissions

Hardcopy submissions are only accepted under the exemptions set out in E-filing Directions or on an exception basis as permitted by the registrar in accordance with E-filing Directions, available at https://ltsa.ca/wp-content/uploads/2020/10/E-filing-Directions.pdf.

For hardcopy submissions, the following returns are required under the Property Transfer Tax Act:

1. Manual Property Transfer Tax Return (FIN 579), which has replaced the previous paper returns (General Return, Special Return, and First Time Home Buyer’s Return);
2. Additional Property Transfer Tax Return (FIN 532), used when a foreign transferee is required to pay additional tax under s. 2.02;
3. If the further 2% tax is payable, the Property Transfer Tax Calculator for Residential Property over $3,000,000 (FIN 536) must be attached to the return.

Collecting Information

When the Property Transfer Tax Return or the Additional Property Transfer Tax Return (FIN 532) are completed, specific information must be provided, where applicable, about each purchaser, director, settlor, and beneficiary. Requested information includes:

1. legal names;
2. business number for corporations;
3. social insurance number for individuals (for Canadian citizens or permanent residents or, if applicable, foreign nationals);
4. individual tax number, if available (for individuals who are not Canadian citizens or permanent residents);
5. date of birth; and
6. country of citizenship.

See the Property Transfer Tax Return Guide to find out more about the specific information that must be provided. See also the Information Collection Regulation, B.C. Reg. 166/2018, effective September 17, 2018, pursuant to Ministerial Order No. M287/2018, which is set out in the commentary to “12.14 Ministerial regulation-making power” in this chapter.

Beneficiaries of Trusts and Corporate Interest Holders

Effective September 17, 2018, certain types of trustees and corporations that acquire property must identify all individuals with a significant interest in the corporation or trust on the property transfer tax return. For each individual identified, the following information must be provided:

1. name;
2. date of birth;
3. citizenship information;
4. contact details; and
5. tax identifiers (such as a social insurance number).

See s. 12.13 of the Property Transfer Tax Act. See also the Information Collection Regulation, B.C. Reg. 166/2018, effective September 17, 2018, pursuant to Ministerial Order No. M287/2018, which is set out at “Ministerial regulation-making power” in this chapter.

Verifying Citizenship

Where transactions involve Canadian citizens and permanent residents, their identity must be verified using official government-issued identification. When a practitioner electronically certifies the returns, the practitioner is confirming that the practitioner used due diligence to identify and verify citizenship information. If it is determined that the practitioner assented to or participated in a false or deceptive statement in a return, penalties may apply (see s. 34.2 of the Property Transfer Tax Act).

A social insurance number (SIN) must be recorded on the Property Transfer Tax Return for Canadian citizens or permanent residents, and, if available, for foreign nationals. A taxpayer can contact Service Canada to receive a SIN or replacement SIN card (paper). Invalid SINs or other discrepancies on a return will lead to an audit and investigation of the transaction.

Instruction Guides from the Property Taxation Branch

The Property Taxation Branch of the Ministry of Finance publishes instruction guides for the completion of the return forms. Refer to the relevant instruction guide when completing a return. Both the return forms and instruction guides are revised periodically by the ministry.

Filing of Returns

Sections 2, 3, and 4 of the Property Transfer Tax Regulation, B.C. Reg. 74/88, provide:

Filing of return

• 2 Except as provided in this regulation, a return shall be filed with the registrar of the land title office at which the application for registration of a taxable transaction is made.

Crown grant or Crown lease agreement

• 3 In the case of a transfer by a Crown grant or Crown lease agreement that is to be submitted directly by the Ministry of Agriculture and Lands to the land title office for registration on behalf of a transferee, the transferee must, on demand made by the administrator, remit tax and file a return with the administrator.

Municipal tax sales

• 4 In the case of a transfer of the fee simple interest in land by notice under section 663 [registration of tax sales purchaser as owner] of the Local Government Act, the transferee shall, on demand made by the administrator after being notified by the municipality under the Local Government Act that a notice under section 663 of that Act has been forwarded to the registrar of land titles, remit tax to and file a return with the administrator.

Prescribed Period for Filing Returns

Because no period has been prescribed under subsection (5) for filing a return following a taxable transaction that is not registered at a land title office, no tax is payable. See s. 2(7).

Treaty First Nation Exemptions

The Treaty First Nation Property Transfer Tax Exemption Regulation, B.C. Reg. 58/2011, exempts certain treaty First Nations and other persons from the requirements of filing a return under s. 2(1)(b) of the Act or from paying the tax on a taxable transaction. See ss. 2 and 3 of the Regulation.

The Property Transfer Tax Exemption Regulation No. 10, B.C. Reg. 202/08, makes similar provisions for the Tsawwassen First Nation with respect to exemptions from filing and from the payment of tax.

PRACTICE

Review of Property Transfer Tax Returns by Registrar

Where an applicant applies to register a transfer at a land title office and submits a property transfer tax return, the following general rules apply.

Electronic Submissions

The electronic filing system requires an electronic Property Transfer Tax Return to accompany all taxable transactions. Note that a single transaction that covers more than one parcel of land may have only one return accompanying it. The taxes payable, if any, are automatically debited from the user’s authorized account by the Ministry of Finance.

Hardcopy Submissions

Hardcopy submissions are only accepted under the exemptions set out in E-filing Directions or on an exception basis as permitted by the registrar in accordance with E-filing Directions, available at https://ltsa.ca/wp-content/uploads/2020/10/E-filing-Directions.pdf).

For hardcopy submissions, the following general rules apply:

1. The registrar does not accept the application unless the taxpayer provides a fully completed and signed property transfer tax return.
2. Where a single taxable transaction covers more than one parcel of land, the taxpayer may choose to file a separate property transfer tax return for each parcel.
3. The registrar marks the property transfer tax return with the running serial number assigned to the instrument submitted for registration.
4. The registrar checks the property transfer tax return to ensure that:
   1. the amount of tax payable is in the space provided in the top right-hand corner on page 1; and
   2. the taxpayer, or any person on the taxpayer’s behalf, has signed the return.
5. The registrar collects the tax payable, if any, on behalf of the Property Transfer Tax Office, Ministry of Finance.

Declaration of Fair Market Value

The Act defines fair market value which a taxpayer must declare on the property transfer tax return. The registrar does not question a fair market value declaration on a return.

Exemptions

First Time Home Buyers

Sections 5, 6, and 7 of the Act provide for exemptions or refunds for first time home buyers who use a home as a principal residence for a period of one year. An eligible taxpayer who claims an exemption or refund under these sections must apply for exemption on the Property Transfer Tax Return and file the return at the land title office. If all of the transferees involved in the taxable transaction are eligible and apply for the exemption, no tax needs to be remitted with the form. If the conditions of these sections are not met, the transaction becomes taxable.

Newly Built Home Exemption or Refund

Sections 12.01 to 12.08 of the Act provide certain exemptions and refunds for Canadian citizens and permanent residents who purchase a new home, valued at less than $750,000, as a principal residence. Section 12.10 prohibits a purchaser from applying for exemptions as both a first time buyer and a new home buyer. Sections 12.11 and 12.12 set out procedures for cancelling applications for the first time buyer exemption and instead substituting an application for the new home refund.

Where a transferee applies for an exemption at the time the transfer is registered in the land title office, the transferee enters the exemption code on the Property Transfer Tax Return. Where the transferee applies for a refund after the tax has been paid, the transferee completes the Newly Built Home Application for Refund (FIN 272) and submits the completed form to the Ministry of Finance.

Other Exemptions

Sections 14 to 16 of the Act provide for exemptions for some other kinds of taxable transactions. An eligible taxpayer who claims an exemption under one of these sections must make that claim on a Property Transfer Tax Return and files the return at the land title office.

Purchase of Land by the Crown

A purchase of land by the Crown is a taxable transaction and a property transfer tax return must accompany the transfer application.

Electronic Submissions

The electronic Property Transfer Tax Return contains a check box in section J where the tax will be paid by journal voucher. When checked, the Ministry of Finance prepares a journal voucher to the purchasing ministry for the funds owing.

Hardcopy Submissions

Hardcopy submissions are only accepted under the exemptions set out in E-filing Directions or on an exception basis as permitted by the registrar in accordance with E-filing Directions, available at https://ltsa.ca/wp-content/uploads/2020/10/E-filing-Directions.pdf.

The registrar enters, at the top right-hand corner of the completed return, the words “Journal Voucher Required”. The Ministry of Finance prepares a journal voucher to the purchasing ministry for the funds owing.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

The Bulletins referenced under this heading are published by the Property Transfer Tax Office, Ministry of Finance. These bulletins may be accessed at www2.gov.bc.ca/gov/content/taxes/property-taxes/property-transfer-tax/publications.

First Time Home Buyers’ Program

See the Guide to the First Time Home Buyers’ Program (FIN 269) regarding the circumstances in which individuals are considered eligible for exemption from all or part of the property transfer tax under the First Time Home Buyers’ Program. The Guide is published by the Property Taxation Branch, Ministry of Finance. It is available at www2.gov.bc.ca/gov/content/taxes/property-taxes/property-transfer-tax/publications.

Newly Built Home Exemption

See the Newly Built Home Exemption Guide and the Newly Built Home Application for Refund.

Application of the Act

See the following Bulletins regarding the application of the Act:

1. Application of the Act to Multiple Transactions in Respect of the Same Land, Bulletin PTT 014, January 2000
2. Application to Multiple Leases in Respect of the Same Land, Bulletin PTT 015, January 2000
3. Municipal Tax Sales, Bulletin PTT 016, March 2016
4. Exemptions for First Nations (previously published as Bulletin PTT 017, July 2009)
5. Application of the Act to Sales of Crown Land, Bulletin PTT 018, May 2006

Advance Rulings (Bulletin PTT 021)

If requested by a taxpayer, the Income Taxation Branch will provide an advance ruling on the application of the tax and exemption provisions of the Property Transfer Tax Act to a specific transaction or series of transactions. The Branch charges a fee, payable in advance, for costs in connection with the preparation of the ruling.

The ruling applies only to the transaction described in the request and the transaction must be completed in accordance with the proposal in the request. Where these conditions are met, the ruling is binding on the administrator of the Act. See Bulletin PTT 021, Advance Tax Rulings, April 2018, which may be accessed at www2.gov.bc.ca/gov/content/taxes/property-taxes/property-transfer-tax/publications.

Confidentiality of Tax Returns

Tax returns are confidential and are not available for inspection by any person. Once filed, a property transfer tax return is the property of the Minister of Finance. The registrar may not return the form to the taxpayer for any reason, including withdrawal of the application. See s. 32 of the Act regarding the limitations and exceptions relating to the use of information or records received under the Act.

CASE LAW

Fair Market Value of Land Held in Trust

Fair Market Value of Bare Legal Interest

Notes on Case Law: In response to the decision in Shon Yee, annotated below, amendments were made to the definition of “fair market value” in s. 1(1). Subsection 1(3) was added to the Act to prevent the further avoidance of tax liability in similar circumstances involving transfers from a trustee to a beneficiary. For further information, see Bulletin PTT 019, Fair Market Value of Land Subject to a Trust Agreement, January 2000, which may be accessed at www2.gov.bc.ca/gov/content/taxes/property-taxes/property-transfer-tax/publications.

While a trustee has something less than an estate in fee simple as it was understood at common law, it does have an estate in fee simple as referred to in s. 23(2) of the Land Title Act. Therefore, a transfer from a trustee to the beneficiaries is a taxable transaction for the purpose of the Property Transfer Tax Act. However, the fair market value of the land transferred must be calculated subject to the trust.

Where the trust deed does not secure the payment of money or the performance of an obligation, the trustee is a bare trustee with no interest in the land except for the obligation to convey it to the beneficiaries. The parties agreed that the amount that a willing purchaser would pay for such an interest was “nil” (Shon Yee Benevolent Assoc. of Canada v. British Columbia, 1991 CanLII 2291 (BC SC)).

A transfer of real property by an owner who holds it in trust is a taxable transaction under the Act. However, the amount of tax payable is based on the “fair market value” of the interest to be transferred. In this case, the interest is a fee simple subject to an unregistered declaration of trust. Such an interest is of “nil” value to a purchaser. Accordingly, no tax is payable on transfer (Simkin v. British Columbia, 1993 CanLII 338 (BC SC) (Master), appeal allowed 1993 CanLII 1066 (BC SC), reversed 1995 CanLII 248 (BC CA); see also the annotation for this decision under s. 180 of the Land Title Act).

Fair Market Value of Beneficial Interests

The words “free of any trust” in paragraph (a) of the definition of “fair market value” refer only to interests encumbered by a trust as opposed to interests under a trust. Consequently, the registered interests of beneficiaries of a trust, whose trustee was obliged to transfer a strata lot title to each after completing subdivision of the trust property, were interests free of any trust within the meaning of s. 1(1). The words “free of any trust” did not operate to reduce the fair market value of the beneficiaries’ registered interests to “nil” such that the fair market value could only be attributed to the trustee for the purposes of the Act (Rowan v. British Columbia, 1992 CanLII 1674 (BC SC), affirmed 1993 CanLII 1860 (BC CA)).

Fair Market Value of Land with Improvements

General

Land owned by C was leased to S, a related party who constructed an apartment building on the land. The petitioner entered into a non-arm’s length agreement with C to acquire an unencumbered fee simple interest in the land and with S to acquire the apartment building. Although the petitioner claimed that the transfer document provided by C only conveyed the land at the price allocated to the land under the terms of the agreement, the document complied with the requirements of the Land Title Act and, under s. 186 of that Act, was deemed to be made in pursuance of the Land Transfer Form Act, R.S.B.C. 1996, c. 252. Section 3 of that Act provides that such a transfer includes all buildings unless the transfer specifically excludes a building from the transfer. Because the transfer at issue did not specifically exclude the apartment building, it conveyed both the land and the building to the petitioner and the whole transaction was a taxable transaction under the Property Transfer Tax Act. Tax was payable on the fair market value of both the land and the building. Furthermore, the petitioner could not reduce the fair market value on account of the unexpired term of the lease when the agreement provided that the lease would be immediately discharged. Although the lease was not discharged until after the transfer was registered at the land title office, an arm’s length purchaser of the land would not have registered the transfer unless a discharge of the lease was also available at that time, and the very basis of a determination of fair market value is that the transfer be made between arm’s length parties. The essential nature of the taxable transaction could not be obscured by how the parties described the transaction or how they chose to allocate the purchase price (Westland Holdings Ltd. v. British Columbia, 1991 CanLII 2256 (BC SC), affirmed 1992 CanLII 1007 (BC CA)).

The time for determining the fair market value of property to assess the amount of tax payable under the Act is the date of registration of the transfer. The words “fair market value of property or interest in property” on the property transfer tax return form refer to the interest to be transferred. Where the interest to be transferred is the estate in fee simple as that term is used in s. 23 of the Land Title Act, buildings are included in the estate in fee simple. In this case, a construction company purchased vacant land, took immediate possession of it, and built a house, but did not receive or register a transfer for the lot until several months later, after the house was built. When the transfer was registered, the estate in fee simple consisted of both the land and the building. Tax was payable on the value of the developed lot, even though the transfer from the original vendor to the construction company indicated consideration only for the vacant land and despite any understanding between the parties about the ownership of the building (Woodspan Construction Ltd. v. British Columbia (Minister of Finance and Corporate Relations), 1991 CanLII 230 (BC SC)).

The petitioner leased land from the respondent municipality and agreed to and did build, at its own expense, certain buildings on the land. Under the lease, the municipality owned the land and the petitioner owned the buildings. The petitioner entered into a subsequent agreement with the municipality to purchase the land. The court found that, even though the lease was registered in the land title office, the lease did not operate to exclude the value of the buildings when assessing the fair market value of the taxable transaction for the purposes of the Property Transfer Tax Act. That value was to be determined on the date of the registration of the transfer in fee simple and, on that date, the fee simple included both the land and the buildings (Millennium Southeast False Creek Properties Ltd. v. British Columbia, 2010 BCSC 1156, affirmed 2011 BCCA 206).

Crown Grants

Notes on Case Law: See Bulletin PTT 018, Application of the Act to Sales of Crown Land, May 2006. It may be accessed at www2.gov.bc.ca/gov/content/taxes/property-taxes/property-transfer-tax/publications. This bulletin, and the cases below, address the payment of tax on the fair market value of both land and improvements when Crown land is transferred, regardless of whether the purchaser was the previous lessee or not.

The purchasers had occupied Crown land under a licence of occupation for 10 years before purchasing it from the Crown. The licence, which had not yet expired at the time of purchase, had provided that upon its expiry the land was to be delivered back to the Crown, and all buildings, machinery, plant equipment, and apparatus or other improvements were to be removed and the surface of the land was to be restored. If any improvements were not removed they would be absolutely forfeited to and become the property of the Crown. The purchasers claimed that they were only required to pay property transfer tax based on the consideration paid to the Crown for the land and not on the value of both the land and the substantial improvements which had been placed on it during the term of the licence. The court disagreed and, following Woodspan Construction Ltd. v. British Columbia, ordered that the purchasers pay property transfer tax on the value of both the land and the improvements (Allen v. British Columbia, 1994 CanLII 3136 (BC SC)).

The petitioner paid property transfer tax based on the purchase price of mining property obtained from the Crown and registered under the Land Title Act. The purchase price was based on the fair market value of the property as vacant land. However, on the face of the register, the Crown grant transferred the whole fee simple interest both in the land and in costly improvements which had previously been made by the petitioner. Even though the petitioner had been in possession of both with a legal right of occupation and use by reason of a leasehold interest, the lease had not been registered and registration of the Crown grant gave the petitioner registered title to both the land and the improvements for the first time. As a result, the fair market value of the petitioner’s improvements were to be included for tax purposes under s. 3 of the Property Transfer Tax Act. However, the fair market value of the improvements was negligible. “Fair market value” is explicitly limited to the market value as between a willing seller and a willing purchaser; the market value of the improvements at issue, as distinct from their special value to the petitioner as part of the going concern of its mine, was limited to their value without a mine because there was no suggestion that the improvements would have any use to a prospective purchaser other than mining the petitioner’s coal reserves, which were not located on the granted property. The concept of willing seller and willing purchaser also excluded consideration of a sale to a third party who could hold the petitioner to ransom and extract the special value of the improvements to the petitioner. The concept is not to be equated with cost less depreciation. In this case, the best evidence of the fair market value of the transaction was what the parties themselves had negotiated at arm’s length. Their negotiation of a price that ignored the improvements was consistent with a realistic view that the improvements did not have any significant market value and that their only real value was to the petitioner as part of its mine (Fording Coal Ltd. v. British Columbia, 1995 CanLII 2488 (BC SC), affirmed 1996 CanLII 1686 (BC CA)).

Taxable Transactions Involving Multiple Transferees

The three petitioners purchased land and filed a single application to register the transfer of the fee simple. With the application for transfer, they filed property transfer tax returns. To take advantage of the lower tax rate on the first $200,000 of the fair market value, each of the petitioners filed individual returns for their respective shares in the property. Had they filed one return, the total tax due would have been $4,000 higher. The administrator under the Act notified the petitioners of the balance owing. They appealed unsuccessfully to the Minister of Finance and then appealed to the court under s. 21(1) of the Act. The court upheld the minister’s decision that a single transfer document constitutes a single taxable transaction under s. 2 of the Act regardless of how many names are registered on title. Therefore, the petitioners were required to pay the tax in accordance with s. 3 (Meek v. British Columbia (Ministry of Finance and Corporate Relations), 1997 CanLII 2505 (BC SC)).

Taxable Transaction Includes Extension if Agreement Prolongs Subsisting Lease

The petitioner leased land from a third party for a term of 20 years ending in 1993. The lease was extended by agreement for an additional 10 years ending in 2003 and then extended again for a further 10 years ending in 2013. The petitioner filed a property transfer tax return with the second extension agreement claiming that no tax was payable because the second extension agreement was for less than 30 years. The property tax administrator appealed. The court found that, as a matter of statutory interpretation, paragraph (c) in the definition of “taxable transaction” includes the extension of the term of a lease if the lease modification agreement prolongs a current or subsisting lease. The reference to a lease agreement in s. 10(2)(a) of the Property Transfer Tax Regulation, B.C. Reg. 74/88, is to be interpreted as referring to the original lease as it has from time to time been extended up to the date of the modification agreement. In the petitioner’s circumstances, the lease and the first extension agreement covered a period of 30 years. By its terms, the second agreement extended the terms of the original lease which had previously been extended by the first agreement. In reading all three agreements together, the court found that the second extension agreement gave the petitioner the right to occupy the property for a period in excess of 30 years and, therefore, that the transaction was subject to property transfer tax (Ford Motor Co. of Canada v. British Columbia, 2005 BCSC 1417).