“Certain conditions are necessary to claim capital losses on loans to family members..”
There have been a few recent cases which clarify that lending money to family members at no interest will mean that the lender cannot claim a capital loss if that loan becomes un-collectable. In one recent case of Curtis (2004 DTC 2445), the taxpayer mortgaged his home to lend funds to his son. The son used those funds to purchase a restaurant franchise. The son had made the taxpayers mortgage payments until the taxpayer’s son became bankrupt. Once the taxpayer’s son became bankrupt, the taxpayer himself started to repay his mortgage. The taxpayer claimed a capital loss on the mortgage repayments that he had to make. The son’s payments were the same amount as the taxpayer’s mortgage payment. In other words, there was no additional income to be earned by the taxpayer.
In order for a loss to be a capital loss, the property itself must be capital property in the first place. This means that property must be a property from which income can be earned. On a loan, income can generally be earned in one of two ways:
- Interest income on the loan;
- Dividends to be received as a shareholder of the company to whom the loan was made.
It is a common situation for a wife to lend funds to her husband in order for the husband to invest in a business or for the wife to lend funds directly into the husband’s business. If there is no interest charged and if the wife is not a shareholder then there is no way for the wife to earn income from the loan and therefore any loss on that loan is not a capital loss.
In the Curtis case, the judge determined that the loan was simply a family loan and there was no way for the father to earn any income on his loan. This case is interesting because there was an interest portion in that the total amount that had to be repaid to the bank had a principal and an interest portion. However, the judge was very clear that the father cannot make any money on this as the amounts coming in were the same as the amounts going out.
It is very important to emphasize that where loans between family members are not interest bearing, there is no tax write off available. It is prudent to charge a business rate of interest in order to have the ability to write that loan off in the future.
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