(i) Can an organization that qualifies for an exemption from tax under paragraph 149(1)(l) of
the Act compete against taxable entities?
(ii) Can an organization earn a profit and continue to be exempt from tax under paragraph
149(1)(l) of the Act? Can an organization intentionally earn a profit, and still be exempt
from tax under 149(1)(l), as long as that profit is used solely for the purpose of
supporting its objectives?
(iii) Is it possible for an organization to incorporate under Part III of the Ontario Corporations
Act, but not qualify for the exemption from tax provided under paragraph 149(1)(l) of the
Act?
In answering these questions, the CRA official who wrote the opinion advanced a position that represents
a more restrictive approach to non-profit organizations and business activities than that taken in IT 496R.
The opinion letter states:
“...where an organization intends, at any time, to earn a profit, it will not be exempt from tax
under paragraph 149(1)(l) even if it expects to use or actually uses that profit to support its notfor-profit
objectives.”
It goes on to state that non-profit organizations can earn a profit, but that:
“the profit should generally be unanticipated and incidental to the purpose or purposes of the
organization. For example, an organization might budget with the intention of not earning a
profit, but ultimately find itself with a profit because of expenses that were less than anticipated
or that were reasonably expected but not incurred.”
This approach could prove to be problematic for non-profit organizations that engage in business
activities to generate income in order to cross-subsidize other community, charitable, or social activities. I
expect that many non-profit organizations in Canada do intentionally earn profits from business activities
and use those profits to support their “not-for-profit objectives”, on the assumption that if there is no
overall profit, then non-profit status can be maintained. With this more restrictive CRA view of business
activity and profit, those entities would therefore be off-side with this CRA interpretation, and could
potentially lose their non-profit status, exposing themselves to taxation on those profits.
The November 5, 2009 opinion letter includes this qualification: “Please note that the following
document, although believed to be correct at the time of issue, may not represent the current position of
the CRA.” It remains to be seen whether it will become the official position of the CRA; whether IT
496R will prevail or perhaps be modified to reflect this more restrictive approach; or whether the CRA
will take any enforcement steps on this point. Enforcement would no doubt result in appeals to the courts,
and judicial clarification of the issue, or ultimately to clarification by legislative amendment.
In the meantime, people interested in community enterprise must be careful not to assume that a nonprofit
organization is the ideal vehicle for that work. The freedom to cross-subsidize internally with
profits from business activities is in doubt.