Author Segal LLP

Price Sale Items Carefully

thmb_gate_chain_link_padlock_field_MBVendors beware: Truth in advertising isn’t just a slogan for the Canadian Competition Bureau, which is determined to enforce the ordinary selling price provisions or the Competition Act.

Those provisions state that before a company advertises items on sale, it must sell a substantial volume of the items at the pre-sale price for a period of time. Specifically, a retailer cannot claim that a price is the ordinary selling price when the company has not:

The Competition Act contains criminal and civil provisions to address false or misleading representations and deceptive marketing practices.

The criminal provisions prohibit all materially false or misleading representations made knowingly or recklessly, deceptive telemarketing and notices of winning a prize, double ticketing, and pyramid sales schemes.

The civil provisions also ban all materially false or misleading representations and specifically prohibit performance representations that are not based on adequate and proper tests, misleading warranties and guarantees, false or misleading ordinary selling price representations, untrue, misleading or unauthorized use of tests and testimonials, bait and switch selling, and the sale of a product above its advertised price.

1. Sold a substantial volume of the product at that price or a higher price within a reasonable period of time before or after making the representation.

2. Offered the product at that price or a higher price in good faith for a substantial period of time recently before, or immediately after, making the representation.

To be considered an ordinary price, at least half the merchandise must be sold at that price during the previous six months, or offered at the price for half the time.

The landmark ruling that underscores the federal agency’s determination to enforce the law was the Competition Tribunal’s finding that Sears Canada at one point used false discounts to sell tires and exaggerated the possible savings to consumers.

In its ads, Sears claimed it was offering discounts as deep as 45 per cent on five types of tires. The retailer later conceded that it sold less than two per cent of the tires at the full regular price before they were advertised on sale. Sears stated that the original price in its ads reflected the price at which competitors regularly offered the tires for sale.

However, the tribunal found that the company could not have truly believed that its regular tire prices were genuine and bona fide prices that the market would validate.Sears was ordered to pay a $100,000 penalty as well as $387,000 toward the Competition Bureau’s legal costs.

In handing down the ruling, the tribunal also upheld the constitutionality of the ordinary price provision of the law, stating that false or misleading ordinary selling price claims can harm consumers, business competitors who do comply with the law and competition in general.

The ruling was a powerful message to be careful when your business uses comparative-price advertising. There is no need to stop using these powerful marketing tools, but be sure your enterprise can legitimately establish that ordinary selling price representations are offered in good faith and not misleading. Fortunately, the Competition Bureau offers guidance to that end, including:

The general test: Would a reasonable consumer conclude that the comparison price is the one at which the item was ordinarily sold? If the comparison price isn’t the regular market price, the business is liable for prosecution.

Such phrases as “Compare to,” “Was,” “$X or X? off,” “Special” and “Value” generally convey the impression that the comparison price is the one at which the product has been ordinarily sold.

If a business doesn’t know the market price and the sale price is a reduction from its price, the comparison price should be qualified by saying, for example, “our regular price.” Moreover, a business shouldn’t compare its prices to those in another region. An Ottawa retailer should not rely on a Toronto regular price.

Don’t rely on out-of-date pricing history. The comparison price should be one from a period that is sufficiently recent. If a business is setting an introductory price, the price should not be offered for a prolonged period of time.

Consumer savings alone aren’t sufficient to avoid liability. If the actual market price, say, was $15, a business would be liable for prosecution if its ads claimed, “Reg. $20.00 — Sale price $10.00,” even though an actual $5 saving was involved.

Using the term Manufacturer’s Suggested List Price can be deceptive when it doesn’t reflect a product’s ordinary selling price. The list price is also not reliable as a market price indicator because it is often significantly higher than the market price.

Blog Your Way to Sales and Customer Loyalty

thmb_laptop_technology_screen_bzUp Front and Personal

A while back, Internet aficionados started keeping diaries online, often just personal commentaries, about what was going on around them. The journals were called weblogs.

That was in the late 1990s, pretty much the Stone Age in Web time. Since then, the term has been shortened to “blog,” the writers are called bloggers, the action is blogging, the universe is the blogosphere, and companies are joining in left and right.

Blogging Guidelines

The casual nature of blogging can result in employees inadvertently giving out confidential information, breaking the law, or embarrassing your company. To help avoid problems, set up guidelines on appropriate content. Here are some tips:

  • Employee behaviour that is inappropriate in other situations and is included in your employee manual should be banned from a blog. If employees have questions about content, they should consult with their managers.
  • Employees should identify themselves in blogs and make it clear they speak for themselves, not for the company.
  • Bloggers should get permission to use company trademarks and reproduce company material.
  • Avoid ethnic slurs, personal insults, profanity and vulgarity, as well as sensitive topics such as politics and religion.
  • Bloggers must respect the company’s confidentiality, as well as proprietary and financial information, customers, partners, suppliers and competitors.
  • Bloggers should accept the fact that occasionally the company might bar certain topics for confidentiality or legal reasons.

Consult with your legal counsel to ensure that your guidelines don’t violate laws.

Blogging Mistakes

Blogging has protocols. Here’s a list of mistakes to avoid:

No RSS feed. Many readers access blogs through RSS (Really Simple Syndication) feeds rather than actually visiting the blog. This is standard procedure and is important in picking up more regular readers.

Comment space. If you don’t let readers leave comments, you send the message that you aren’t interested in their opinions.

Infrequent updating. This not only keeps the search engines away, it can bore readers and cause them not to come back.

No links. Blogging is about sharing and communicating. Linking shows you are involved in the community and gives your readers a chance to read content you like.

No contact information. Readers may not want to leave a comment on your blog, but they may want to contact you. Leave an e-mail address or set up a contact page.

Businesses are drawn to blogging because it’s a quick and inexpensive way to reach new customers, expand mature markets, and build loyalty.

Canada’s business blogosphere includes, but is not limited to, bankruptcy, investing, taxation, finance, personal finance, entrepreneurship and real estate. The blogs are written by consultants, lawyers, accountants, bankruptcy trustees, real estate brokers and others.

Companies maintain blogs for various reasons, including:

Visibility – Search engines target blogs because they are updated frequently and search engines always need new information. Your blog could wind up on Google or Yahoo in a matter of hours and be listed among the top results. This increased visibility can drive traffic to your Web site and translate into sales.

Alternative Media – You can bypass traditional media and present your side of a story or issue.

Broader Reach – Your company can potentially reach more people with a blog than with traditional marketing and public relations techniques. More people are likely to read a blog than will hear your speech at an industry gathering or meeting. And you can reach people who might not be in the habit of scanning business pages or trade magazines.

Customer Loyalty – Starting two-way, online chats with customers and others can generate buzz, build brand loyalty, and even generate ideas for your business.

Competition – If your competitors are blogging, you risk losing customers because the competition is reaching them faster and more efficiently.

If you are considering joining the corporate blogosphere, be prepared. Know what you want to achieve, particularly if you plan to invite comments and the blog is written by rank-and-file employees. Which employees have the talent to write in a casual, personal style? Blogs that sound like dull, dry press releases won’t win readers.

Here are eight other tips that can help your business be successful at blogging:

1. Check the facts. If you send out inaccurate information and readers accept it at face value, they may in turn blog the data on their own sites. Before you know it, thousands of people have taken inaccurate information as truth and it can be traced back to your company blog. This is what happened when one blogger erroneously wrote that a major technology company was planning to buy a phone company.

2. Be honest. Readers want frankness and if they find you have been less than straightforward, they will likely let other bloggers know. That can hurt your credibility.

3. Show sincerity. Blogs are meant to show transparency, so don’t post entries that are simply press releases. That tactic will backfire. That’s not to say you can’t get suggestions from your PR professional or let them edit your blogs lightly. But be sure that the words and thoughts belong to you or whoever is actually writing the entries.

4. Deliver high-value content. Include information about your company, its products or services, the latest efforts, your expertise, or your thoughts on an industry development. The key is to provide information that goes beyond what readers already know.

5. Accept criticism. You must be willing to cope with some negative comments. Criticism can help shift your business’s perceptions of its customers and your responses to it can help change public perception of your company. Comments should generally not be edited other than to remove profanity or personal attacks.

6. Respond to comments. You may lose customers if you ignore their questions and comments. Giving them answers lets them know you care, help build community and loyalty, and makes the blog more dynamic.

7. Update often. Stale blogs drive readers away and give the impression no one is paying attention at your company. Fans may check in every day looking for fresh information. This brings up a problem: Writing new blog entries, finding links, and responding to reader comments can be time-consuming. Don’t commit to blogging unless you are willing to put in the time to maintain and manage a blog that will add lustre to your company’s reputation.

8. Watch comments. Bloggers may unwittingly violate trademark, and copyright law, break securities regulations, leak proprietary secrets or libel employees, customers or competitors. Even if you post a disclaimer, it may not hold up in court. If you plan to have rank-and-file employees add to your blog, or they set up personal blogs related to the company, establish guidelines that help prevent legal liability and protect rights.

Consider the Benefits of EI for the Self-Employed

lores_canada_coins_currency_cash_dollars_close-up_mbIf you’re self-employed, you benefit from several tax advantages, but suffer from one big drawback: You’re not eligible for regular Employment Insurance (EI).

You can, however, voluntarily contribute to become eligible for EI special benefits, which cover 55% of your average weekly earnings for:

  • Maternity (as long as 15 weeks);
  • Parental Leave (as many as 35 weeks for either parent, or shared between spouses or common-law partners, to care for their new child);
  • Sickness or Injury (15 weeks); and
  • Compassionate Care (as long as six weeks to care for a dying family member).
  • Parents of critically ill children benefits are for parents who must be away from work to care for or support their critically ill or injured child. Either parent can receive benefits or they can share benefits between them (up to 35 weeks).

Any Canadian who runs an unincorporated business or is a shareholder of a private corporation may opt in. After paying premiums for 12 months, you will be eligible to receive the special benefits. The premiums match those paid by regularly employed individuals. You pay a set percentage of your net business income (owners of unincorporated companies) or of your wages (shareholders in private corporations). The percentage is set annually by the federal government.

You pay the premium as part of your income tax return at the end of the year. It’s worth noting that as a regular employee, not only would you have to pay your premium (deducted from your paycheque) but your employer also has to pay a larger portion for you. As a self-employed person, you only need to pay your own portion to access the special benefits.

Another important distinction for shareholders is that the premiums and benefits are based only on the uninsurable wages taken from your company. Dividends you take are not taken into account.

This program can be very attractive to people in certain life positions. For example, a self-employed woman in her 30s with income of $30,000 a year will;

  • Pay $549 in special EI premiums each year to potentially access $317 a week in EI special benefits; and
  • Receive $15,850 if she has a baby and takes a total of 50 weeks for maternity and parental leave.

Assuming her income and the EI rates remained the same, she could contribute for almost 30 years, and still be ahead.

There are downsides to the program. For instance, if you change your mind after enrolling you still must pay a full year of premiums unless you withdraw right away. An even larger downside is that if you enroll and at some point take benefits, you must remain in the program for the remainder of your self-employed career.

An example: A 25-year-old man registers while he is a self-employed painter and takes compassionate care benefits when his parents become gravely ill. Eventually his parents, die, he gets an inheritance and stops painting to attend dentistry school. When he graduates, he starts his own company and takes wages. He has no choice but to pay EI premiums on those wages and he still will qualify only for the special benefits, not regular benefits.

Individuals who work for an employer are eligible for those regular benefits, which they receive if they lose their jobs through no fault of their own, such as a shortage of work or layoffs, and are available and able to work but cannot find a job. Regular benefits also generally pay out 55% of average weekly wages and last anywhere from 14 to 50 weeks, depending on:

  • The unemployment rate in the region where the person lives; and
  • The number of hours of insurable employment that the person accumulates during the 52 weeks before the start date of the claim.

Full-time employees also are eligible for the maternity, parental leave, sickness, compassionate care benefits and parents of critically ill children benefits.

Enrolling in this optional EI program is an important choice for every self-employed person. For many, the thought of deliberately paying more to the government seems preposterous, but there are those for whom this system could really be helpful when they need a financial safety net.

If you think this might be a valid option for you, speak to your financial adviser or accountant for a second perspective on your situation before you take the plunge.

Properly Account for Asset Transfers

lores_hr_employee_business_man_reading_paper_work_amIf you are incorporating a partnership or a sole proprietorship, you will likely transfer assets. When you do that, take precautions so you don’t pay too much in taxes.

The transfer of physical assets into a corporation is considered a disposition at fair market value (FMV). You cannot assign little or no value to the assets. If you do, Canada Revenue Agency can later determine that you not only owe taxes but also must pay penalties and interest. Transfers of assets can generate gains or losses, and the tax treatment depends largely on whether the property has been previously used in a business.

Income Taxes

Gains: The transfer of assets that were not previously used in a business will generally produce capital gains, in which case fifty per cent of the difference between FMV and the original cost will be taxable income.

In cases where the property had already been used in a business, the transfer is taxed in two steps:

1. The gain is first accounted for as a recapture of previously claimed Capital Cost Allowance (CCA) and taxed as business income.

2. If the FMV of the asset exceeds the original purchase price plus improvements, the excess will be a capital gain.

Losses: If an asset was not already used in a business, a loss from the transaction won’t be deductible because it will be considered a loss on a personal-use asset.

Property that was used in a business can generate two types of losses, depending on the nature of the asset. For example, land will produce a deductible capital loss while buildings vehicles, equipment or tools will produce a terminal loss.

Stop-loss rules may apply when transferring assets. Consult with your accountant before transferring any assets.

Section 85 Elections: To avoid taxes immediately on asset transfers, you can make an Election on Disposition of Property by a Taxpayer to a Taxable Canadian Corporation. This allows many, although not all, assets to be transferred to a corporation without triggering taxes.

The corporation is deemed to have acquired the assets at the original cost and to have taken Capital Cost Allowance in prior years. If the corporation later disposes of the assets, it will add the CCA recapture to income and either pay a capital gains tax, deduct a terminal loss or claim a capital loss, depending on the situation.

Excise Taxes

The Excise Tax Act allows for a tax-free transfer of the assets of one business to another, as long as both are GST/HST registrants. You must file an Election Concerning the Acquisition of a Business or Part of a Business.

Personal assets not used for business purposes before transferring them to a corporation or using them in a proprietorship aren’t subject to GST/HST on the transfer. These assets may qualify for input tax credits when the business starts to use them. The most common example of this is when you start to use your personal vehicle for commercial purposes.

The tax implications of asset transfers can be complicated. Talk to your accountant about the transaction before you incorporate. Waiting until it’s time to file a tax return could cost you money.

Hold a Mortgage in Your Retirement Plan

Many people have two main investments: a home and retirement savings, the latter usually in either a Registered Retirement Savings Plan (RRSP) or a Registered Retirement Income Fund (RRIF).

lores_building_home_house_white_green_shutters_residential_am

Q. Can I use my RRSPs for the Home Buyers Plan at the same time as the Lifelong Learning Plan?

A. Yes, you can participate in the Home Buyers’ Plan, even if you have withdrawn funds from your RRSPs under the Lifelong Learning Plan and you have not yet fully repaid the balance owed.

– Source: Canada Revenue Agency

The natural question then is whether you use those retirement plans to buy a home or other property? The answer is a qualified yes, under two circumstances.

1. Direct Purchase

If you have an RRSP, you can take advantage of the Home Buyers Plan and withdraw a maximum of $25,000 to buy a home (RRIFs are not eligible).

To participate in the Home Buyers Plan you must meet certain qualifications:

  • Unless you are disabled, you must be a first-time homebuyer. That means you or your spouse cannot have owned and occupied a home as a principal residence in the five years preceding the RRSP withdrawal.
  • You must have entered into a written agreement to build or buy a qualifying house before withdrawing the funds, and you must actually buy or build the house prior to October 1 of the year following the withdrawal.
  • Your Home Buyer Plan balance on January 1 of the year of withdrawal must be zero.
  • Neither you nor your spouse can own the home more than 30 days prior to the withdrawal being made. Also, you must make all of the withdrawals in the same calendar year.
  • You cannot buy a rental property or any other property that is not your principal residence.

2. Holding a Mortgage

Qualified investments in RRSPs and RRIFs include mortgages. So you can hold a mortgage inside your retirement plans and access more than the Home Buyers Plan maximum. However, you must meet the following strict requirements:

  • A lender approved under the National Housing Act must administer the mortgage. This includes most banks and credit unions, and many trust companies. The cost for this service varies, but typically is at least several hundred dollars a year.
  • You must insure the loan under the Canada Mortgage and Housing Corporation (CMHC) or through a private insurer licensed under the National Housing Act. The insurance may cost 2.9 per cent or more of the mortgage amount.
  • The amount of the mortgage payment, interest rate, and other terms of the loan must be in line with normal commercial practice. The interest rate must match rates in the market and other terms must match mortgages from financial institutions.

This approach does have a couple of disadvantages, including:

  • The extra cost and paperwork involved may make it unattractive.
  • Mortgages in your retirement plan may generate less income than other investments. If you would ordinarily hold investments yielding higher returns, the lost income could amount to a considerable sum over the term of the mortgage.

If you think that you want to hold your mortgage in your RRSP or RRIF, consult with your accountant to help determine the costs and how the restrictions might affect you.