Summary
On July 9, 2020 the CEWS FAQ was updated to discuss:
the government has approved regulations that allows all rules to the wage subsidy for the 4th period (June 7 to July 4, 2020), to be identical to the ones for the preceding third period (May 10 to June 6, 2020). New rules for the 5th and 6th period will be announced shortly;
the change in eligibility requirements for trusts that are employers for periods beginning on or after May 10, 2020;
the availability for newly amalgamated corporations;
exchange rate fluctuations and functional currency reporting;
the attestation form to be used for elections (RC 661);
whether sick pay, vacation pay and statutory holiday pay are included in eligible remuneration; and
the recourse process when CRA denies part or all of the wage subsidy amount claimed by an employer.
New Questions added:
3-01. Are all trusts eligible to claim the wage subsidy?
For a claim period that begins on or after March 15, 2020 and ends before May 10, 2020, trusts may be eligible employers.
For a claim period that begins on or after May 10, 2020, it is proposed that the following trusts are eligible employers:
a trust that is not exempt from tax under Part I of the Act and is not a public institution;
a trust that is exempt from tax under Part I of the Act (other than a public institution) because it is a registered charity or is one of the other types of eligible tax-exempt entities;
a trust that is a public institution if it is a prescribed organization (see Q3-2).
A trust that is an eligible employer may be able to claim the wage subsidy if it satisfies all the conditions (see Q4) to qualify for the wage subsidy in respect of that claim period. These proposed changes will only be administered and applied once the legislation has received Royal Assent.
6-4. Can a corporation formed on the amalgamation of two or more predecessor corporations, or where one corporation is wound up into another, qualify for the wage subsidy?
Yes, in accordance with proposed legislation, a new corporation formed on an amalgamation of two or more predecessor corporations (pursuant to subsection 87(1) of the Act), or where one corporation is wound up into another on a tax-deferred basis (pursuant to subsection 88(1) of the Act), may be eligible for the wage subsidy provided all other required conditions (see Q4) have been satisfied.
For the purposes of the wage subsidy, a new corporation formed on an amalgamation of two or more predecessor corporations pursuant to subsection 87(1) of the Act, is deemed to be the same corporation as, and a continuation of, each predecessor corporation. Consequently, the new corporation will use the combined qualifying revenue of the predecessor corporations to calculate its qualifying revenue for each relevant reference period in a particular claim period to determine if it has experienced the required reduction in revenue to qualify for the wage subsidy for that claim period. In the case of a subsidiary corporation that is wound up into its parent on a tax-deferred basis in accordance with subsection 88(1) of the Act, the parent’s qualifying revenue will be combined with its subsidiary’s qualifying revenue for each relevant reference period in a particular claim period to determine if it has the required reduction in revenue for a particular claim period.
However, in either of these situations, the wage subsidy will be denied if it is reasonable to consider that one of the main purposes for the amalgamation (or the wind-up) was to qualify for the wage subsidy.
This rule applies to the claim period starting March 15, 2020 and subsequent claim periods. These proposed changes will only be administered and applied once the legislation has received Royal Assent.
6-7. How do foreign exchange rate fluctuations affect the computation of qualifying revenue?
The qualifying revenue of an eligible employer is determined in accordance with its normal accounting practices. Where an eligible employer’s normal accounting practice is to convert the inflow of cash, receivables and other consideration to Canadian currency from a foreign currency, then the eligible employer would be expected to use the Canadian currency equivalent of the amounts in the computation of qualifying revenue.
6-8. How will an eligible employer that files its income tax returns using a functional currency compute its qualifying revenue?
Where an eligible employer that is a corporation files its income tax return using a functional currency, that currency is the primary currency in which the eligible employer maintains its books and records for financial reporting purposes, and using that currency would likely be part of its normal accounting practice. Since the qualifying revenue of an eligible employer is determined in accordance with its normal accounting practices, and on that basis, it should be determined in such currency.
8-01. Where an eligible employer elects to calculate its qualifying revenue using the special rule (see Q8 relating to deriving substantially all revenue from non-arm’s length persons or partnerships), can a non-resident’s qualifying revenue be computed using a foreign currency?
Special rules exist to calculate the qualifying revenue of an eligible employer that derives all or substantially all of its revenue from one or more particular persons or partnerships with which it does not deal at arm’s length. Under this special rule, a weighted average approach includes the qualifying revenue of the particular non-arm’s length person or partnership in the calculation (see Q8). The qualifying revenue of an entity is determined in accordance with its normal accounting practices. Where the particular non-arm’s length person’s or partnership’s normal accounting practice is to maintain books and records in a foreign currency, the eligible employer may use the foreign currency amounts used by the non-resident person or partnership to maintain its books and records to determine the particular non-arm’s length person’s or partnership’s qualifying revenue for the prior reference period and the current reference period.
12-2. Is there a specific form where an eligible employer could attest that appropriate elections have been made?
Eligible employers will use form RC661 Attestation for owner/managers and/or senior employees (comptroller/VP Finance/CFO) of an eligible employer applying for the Canada Emergency Wage Subsidy, to certify and attest that the wage subsidy application is complete and appropriate elections have been made (or that no election is required). The elections, where applicable, must be made and retained with the eligible employer's other books and records (see Q33), in support of its wage subsidy claim and eligibility, and the individual who has principal responsibility for the eligible employer's financial activities must attest that this is the case.
17-3. Are sick pay, vacation pay and statutory holiday pay included in eligible remuneration?
Amounts paid by an eligible employer to an eligible employee as sick pay, vacation pay or statutory holiday pay is generally considered part of an employee’s normal salary, wages, and remuneration and would qualify as eligible remuneration.
However, to be eligible for the wage subsidy, the eligible remuneration paid to an eligible employee must be in respect of a week in a claim period (see Q26-1). Therefore, to qualify for the wage subsidy, the sick pay, vacation pay or statutory holiday pay must have been paid to the eligible employee in respect of a particular week in the claim period. This would generally be the case where an eligible employee is absent from work on paid sick or vacation time during a week in the claim period or when a statutory holiday falls during a week in the claim period. If an eligible employee’s vacation pay entitlement is paid out in addition to their base salary or wages on every paycheque (for example, if 4% is added to each paycheque in lieu of paid vacation time off), the vacation pay would be considered in respect of the same week as the salary or wages paid and also qualify for the wage subsidy.
Sick pay or vacation pay would not be considered in respect of a week in the claim period and would not qualify for the wage subsidy where an employee receives a lump-sum amount that accrued in a prior period. However, where an eligible employee receives a lump-sum amount of vacation pay for a week when the employee is taking what would otherwise be unpaid vacation time, a reasonable amount of the lump-sum may be considered to have been paid in respect of the week (see Example 9-3).
Note: If an eligible employer enters into an arrangement to change the method used for paying an eligible employee’s vacation pay or uses accrued vacation pay to increase the employee’s remuneration during a claim period when the employee is not taking vacation time, the amount may be excluded from the employee’s eligible remuneration.
Example 9-3
Chad works part time and earns $350 per week before vacation pay. Chad is entitled to two weeks of unpaid vacation time a year and 4% vacation pay (accrued on his gross wages). Under an agreement with his employer, Chad may request to have all or a portion of the accrued vacation pay paid out at any time.
Chad took one week of unpaid vacation time between May 3 and May 9, 2020. On May 3, 2020, Chad had a $600 balance of accrued vacation pay and requested that $500 of that balance be paid out for the week of May 3, 2020. In this scenario, $350 of the $500 vacation pay Chad received would generally be considered to be in respect of the week of May 3, 2020 and will qualify for the wage subsidy.
Example 9-4
Angelica receives an annual salary of $31,200, or the equivalent of $600 per week. Angelica is also entitled to four weeks of paid vacation time a year. Under Angelica’s contract of employment, she is not allowed to carry over more than six weeks of vacation time into her employer’s following fiscal year. All accrued vacation in excess of six weeks is paid out in cash at the employee’s current rate of pay. On April 30, 2020, the fiscal year end of her employer, Angelica had eight weeks of accrued paid vacation time. Angelica’s employer will therefore pay out her excess two weeks of vacation, and proposes to do so in a lump sum payment of $1,200 on her next paycheque in addition to her normal salary for the pay period. In this scenario, the $1,200 lump sum payment for Angelica’s excess vacation will not qualify for the wage subsidy.
36. What is the recourse process when the CRA denies part or all of the wage subsidy amount claimed by an employer?
If an employer disagrees with the decision made by the CRA in regard to the wage subsidy claim, the employer may request a second level review of the claim application. The request for a second level review must include all supporting documents (see Q33), and be submitted within 30 days of the date of the letter that communicated CRA’s original decision. The second level review is conducted by someone other than the original decision-maker.
Employers should submit their request online by logging into My Business Account and selecting “Register a formal dispute”. While the CRA’s Appeals Branch (“Appeals”) portal is being used to expedite receipt and processing of all second level review requests, the review itself will not be undertaken by Appeals.
Once a Notice of Assessment or Notice of Determination, as applicable, has been issued for the employer’s income tax return for the taxation year in which the claim period ends, formal recourse rights (notice of objection, and appeal to the Tax Court of Canada), through Appeals will still be available if the employer disagrees with the second level review decision.