Proposed Changes to the Trust Reporting Requirements

Executive summary

The Department of Finance has proposed amendments to new trust filing rules introduced last year to relieve certain trusts from the obligation to file or to report certain information.

 

The types of trusts obligated to file a T3 tax return and information trusts must disclose were expanded for taxation years ending after Dec. 30, 2023. The changes were criticized as being overly broad and unclear, eventually resulting in the CRA administratively waiving the new filing requirement for bare trust arrangements just days before the filing deadline. On Aug. 12, 2024, the CRA released proposed technical amendments to the legislation (August Draft Legislation) to narrow the scope of the trusts required to file a T3 return. As these are only proposed amendments at the date of this article, they are subject to change.

Current Reporting Requirements

For taxation years ending after Dec. 30, 2023, Canadian resident express trusts must file a T3 return. For any trust which is a listed trust or is not a Canadian resident express trust, a T3 return must only be filed where income from the trust property is subject to tax and the trust:

  • has Part I tax payable,
  • is a Canadian resident trust who has a taxable capital gain or disposed of capital property in the year,
  • is a non-resident trust who, except for excluded dispositions, has a taxable capital gain or disposed of Canadian capital property in the year, or
  • Meets another criterion listed in the Canada Revenue Agency’s T3 Trust Guide (Guide).

Listed trusts include:

  • Trusts in existence for less than three months during the year.
  • Trusts who hold $50,000 or less in certain assets, including money or shares of a publicly traded company, throughout a year,
  • General trust accounts for lawyers and;
  • Non-profit organizations and graduated rate estates.

Additionally, these new rules introduce a filing requirement for bare trust arrangements.

All trusts which are not listed trusts must disclose information, including names and addresses, of each trustee, beneficiary, settlor and person who has the ability to exert influence over the trustees’ decisions regarding the appointment of income or capital of the trust. (Schedule 15 Requirement)

Proposed Amendments – Listed Trusts

Listed trusts are only required to file a T3 where they meet one or more criterion listed in the Guide and are exempted from the Schedule 15 Requirement. As a result, a listed trust will have less trust reporting requirements than other Canadian resident express trusts.

The August Draft Legislation amended the listed trusts to remove the restriction concerning type of assets for trusts at or below the $50,000 asset value limit mentioned above. As such, trusts who hold assets valued at $50,000 or less throughout the year, irrespective of the type of assets, will be considered listed trusts. The August Draft Legislation also proposed the following additional listed trusts:

  • Trusts where:
    • All trustees and beneficiaries where individuals and the beneficiaries are related to each trustee,
    • The trust only holds certain types of assets, which includes money, GICs, shares of a publicly traded company, or personal use property throughout a year, and;
    • The value of those assets does not exceed $250,000 throughout the year.
  • Trust that are required under rules of professional conduct or federal or provincial law to hold funds for the purposes of activities that are regulated under those rules or laws, provided the trust account that holds only $250,000 or less in money4 throughout the year, and no other assets. This would include lawyer’s trust accounts held for specific client(s).

and clarified that trusts created by statute, such as bankruptcy trustees or provincial guardians, will be considered listed trusts.

These amendments are proposed to apply to taxation years ending after Dec. 30, 2024.

Proposed Amendments – Bare Trusts

A bare trust arrangement is effectively where a trustee is acting as an agent of the trust beneficiaries in respect of the trust property. The trustee holds legal title of the trust property and deals with the property at the direction of the beneficiaries. These arrangements are common in the real estate, oil, gas and mining industries and partnership and joint venture business structures but may be used elsewhere, even unknowingly. Bare trusts are largely ignored for tax purposes, including that no tax is paid by the trust. Instead, any income of the bare trust is included in the beneficiaries’ taxes for the year.

The August Draft Legislation repeals the requirement for bare trust arrangements to file a T3 return for their 2024 taxation year. For the 2025 taxation year onward, it proposes that “deemed trusts” will be treated as express trusts for the purposes of filing an income tax return. As such, all Canadian resident deemed trusts will be required to file a T3 return if they are not a listed trust. Listed trusts and non-Canadian resident deemed trusts must file where income from the trust property is subject to tax and a criterion in the Guide is met. The Schedule 15 Requirement will apply to all deemed trusts who are not listed trusts.

Deemed trusts are bare trusts. However, the legislative definition is intended to be clearer and better rely on existing ownership concepts in trust law than the current definition of bare trusts in the Income Tax Act.

A deemed trust is defined as:

An arrangement where one or more persons (trustees/legal owners) have legal ownership of property that is held for the use of, or benefit of one or more persons or partnerships (beneficiaries), and the trustees can reasonably be considered to act as agent for the beneficiaries.

It also exempted the following arrangements which would otherwise be captured by the above definition:

Arrangement

Example

All legal owners are also beneficiaries

A joint spousal bank account

Legal owners are individuals and related persons, and the trust property is the principal residence of one or more of the legal owners.

A parent goes on title of their child’s house due to mortgage requirements. Child is also on title of the house.

The legal owner is an individual and the property would be their principal residence for the year (under the Income Tax Act), and the property is used by or held for for the benefit of their spouse or common-law partner.

A husband is solely on title of the family home where he and his spouse live.

A partner (other than a limited partner) holds property solely for the use of, or benefit of the partnership.

Two companies form a limited liability partnership to develop a piece of real estate and incorporate a general partner. The general partner goes on title for the piece of real estate.

The legal owner is holding the property due to a court order.

 

Canadian resource property is held for the use or benefit of one or more publicly listed companies (or subsidiaries or partnerships of such companies)

A publicly traded corporation holds the rights to explore and drill for petroleum at a particular site in Canada and allows use of that right by its wholly own subsidiaries.

A non-profit organization holds funds it received from federal or provincial governments for the use or benefit of other non-profits.

 

These amendments are proposed to apply to taxation years ending after Dec. 30, 2025.

 


This article was written by Cassandra Knapman, Deanna Fisher and originally appeared on 2024-09-10. Reprinted with permission from RSM Canada LLP.
© 2024 RSM Canada LLP. All rights reserved. https://rsmcanada.com/insights/tax-alerts/2024/proposed-changes-to-the-trust-reporting-requirements.html

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The information contained herein is general in nature and based on authorities that are subject to change. RSM Canada LLP guarantees neither the accuracy nor completeness of any information and is not responsible for any errors or omissions, or for results obtained by others as a result of reliance upon such information. RSM Canada LLP assumes no obligation to inform the reader of any changes in tax laws or other factors that could affect information contained herein. This publication does not, and is not intended to, provide legal, tax or accounting advice, and readers should consult their tax advisors concerning the application of tax laws to their particular situations. This analysis is not tax advice and is not intended or written to be used, and cannot be used, for purposes of avoiding tax penalties that may be imposed on any taxpayer.

Canada Pension Plan: Timing of Starting Payments

Individuals can start collecting Canada Pension Plan (CPP) retirement benefits as early as age 60. However, benefits are decreased by 0.6%/ month (7.2% per year) prior to age 65 for a maximum reduction of 36%. They are increased by 0.7%/month (8.4% per year) that CPP is delayed past age 65 to a maximum increase of 42% if collection is deferred to age 70. In other words, monthly retirement benefits are more than 2.2 times as large for someone who waits until age 70 rather than collecting at age 60.

A recent National Institute on Aging report indicated that an individual with median CPP benefits and an average life expectancy loses over $100,000 of CPP benefits, in current dollars, by starting CPP at age 60 instead of 70. The report noted that 9 out of 10 individuals opt to start CPP by age 65 or earlier.

The report also noted that collecting earlier may be a rational decision for individuals with financial hardship or poor health, resulting in reduced life expectancy. However, it suggested that most individuals would be better off drawing on other savings (such as RRSPs) to bridge the gap until reaching age 70. The report indicated that 4 in 5 individuals with RRSPs or RRIFs would receive higher lifetime income using this approach.

Consider the lifetime benefits and costs when deciding at what age to commence CPP payments.

Do We Need an Audit? An Overview of Not-for-Profit Organizations and Their Financial Statement Requirements

UPDATE: The end of the three-year transition period is coming in October 2024, after which all Ontario not-for-profit corporations are expected to conform with the Ontario Not-for-Profit Corporations Act (ONCA) as discussed below. Another area this applies is with regards to the location of board meetings. Electronic meetings are allowed (unless by-laws or articles do not allow), however meetings cannot be held over e-mail. The technology used must allow everyone attending the meeting to reasonably participate and communicate with each other.

If your organization was incorporated prior to October 19, 2021, the by-laws or articles may not be in compliance with ONCA. Governing documents need to conform with ONCA by October 2024, after which they are deemed amended to comply.

Please contact your DJB advisor if you require any further information or explanation.

There have been a number of changes in recent years to modernize the laws governing corporations without share capital. These corporations were previously governed by the Corporations Acts in the various jurisdictions, but the laws and regulations created for business and for-profit enterprises were not effective at times for the not-for-profit sector. In 2011, the new Canada Not-for-Profit Corporations Act (CNCA) came into force to govern the not-for-profit corporations incorporated federally. Ontario created a similar Act, the Ontario Not-for-Profit Corporations Act (ONCA) that received Royal Assent in 2010 and was finally brought into force on October 19, 2021. There is a three-year transition period during which all existing not-for-profit corporations registered in Ontario have to make any necessary changes to their incorporation and other documents to bring them into conformity with ONCA.

There are a number of various legal changes addressed in the new legislation, but we wanted to focus on the section on Financial Statements and Review. A corporation must prepare financial statements each year which comply with the requirements of the Not-for-Profit Act. The financial statements must be prepared in accordance with the Canadian Generally Accepted Accounting Principles (GAAP) as set out in the CPA Canada Handbook.

There are new guidelines introduced in both the CNCA and the ONCA on the level of public accounting assurance required. We have summarized these below in a chart and included some important definitions.

The ONCA classifies not-for-profit corporations into two categories – public benefit corporations and non-public benefit corporations. A corporation is considered to be a public benefit corporation when it is a charitable corporation or when it has received more than $10,000 in revenue from public sources in a single financial year. Public sources include gifts or donations from people who are not members, directors, officers or employees, grants from all levels of government and funds from another corporation that has also received income from public sources. A non-public benefit corporation is a corporation that has received no public funds or less than $10,000 in public funds in each of its previous three fiscal years. The CNCA has the same requirements and classifies these as soliciting and non-soliciting corporations.

The differentiation is important as the government wants to ensure that organizations receiving public funds are sufficiently transparent and accountable for that income.

Private foundations may be considered a non-public benefit corporation, depending on their revenue sources.

As a reminder, all corporations governed by the ONCA and CNCA must send a summary of their annual financial statements or a copy of a document reproducing the required financial information (such as an annual report) to the members not less than 21 days or a prescribed number of days, before the day on which the annual meeting of members is held, or the day on which a resolution in writing is signed by the members to all members who request a copy.

A soliciting corporation incorporated federally must provide its annual financial statements to Corporations Canada not less than 21 days before the annual general meeting of members or without delay in the event that the corporation’s members have signed a resolution approving the statements, instead of holding a meeting. The date must also not be later than six months after the corporation’s preceding financial year.

Incorporated Federally
Type of Corporation Gross Annual Revenue per Financial Year Appointment of Public Accountant by Members Financial Review Required
Soliciting $50,000 and less Must appoint a public accountant by ordinary resolution unless members waive appointment by annual unanimous resolution Public accountant must conduct a review engagement; but members can pass an ordinary resolution to require an audit instead. If no public Accountant is appointed, then only a compilation is necessary.
Soliciting $50,001 to $250,000 Must appoint a public accountant by ordinary resolution at each annual meeting Public accountant must conduct an audit; but members can pass a special resolution to require a review engagement instead.
Soliciting more than $250,000 Must appoint a public accountant by ordinary resolution at each annual meeting Public accountant must conduct an audit.
Non-Soliciting $1,000,000 and less Must appoint a public accountant by ordinary resolution unless members waive appointment by annual unanimous resolution Public accountant must conduct a review engagement; but members can pass an ordinary resolution to require an audit instead. If no public Accountant is appointed, then only a compilation is necessary.
Non-Soliciting more than $1,000,000 Must appoint a public accountant by ordinary resolution at each annual meeting Public accountant must conduct an audit.

These rules were effective as of October 2011 when the CNCA came into force.

Incorporated in Ontario
Type of Corporation Gross Annual Revenue per Financial Year Appointment of Public Accountant by Members Financial Review Required
Public benefit corporation $100,000 and less Must appoint a public accountant by ordinary resolution unless members waive appointment by an extraordinary resolution (at least 80% approval) Public accountant must conduct a review or audit engagement. If no public accountant is appointed, then only a compilation is necessary.
Public benefit corporation $100,001 to $500,000 Must appoint a public accountant by ordinary resolution at each annual meeting Public accountant must conduct an audit; but members can pass an extraordinary resolution to require a review engagement instead.
Public benefit corporation more than $500,000 Must appoint a public accountant by ordinary resolution at each annual meeting Public accountant must conduct an audit.
Non-Public Benefit $500,000 and less Must appoint a public accountant by ordinary resolution unless members waive appointment by annual unanimous resolution Public accountant must conduct an audit or review engagement. If no public accountant is appointed, then only a compilation is necessary.
Non-Public Benefit more than $500,000 Must appoint a public accountant by ordinary resolution at each annual meeting Public accountant must conduct an audit; but members can pass an extraordinary resolution to require a review engagement instead.

These rules were effective as of October 19, 2021, when the ONCA came into force.

These rules allow members in Ontario corporations with $100,000 and less in annual revenue to pass an extraordinary resolution (80% approval) to waive both the audit and review engagement requirements.

Before a Board of Directors decides to take advantage of these new rules allowing the organization to be exempt from an audit (presumably to reduce annual professional fees), it is important to remember that an independent, external review of management’s financial reporting is an effective tool to fulfill a Board member’s governance responsibilities. We would also caution against moving away from an audit if you anticipate your organization’s revenues to exceed the minimum thresholds that require an audit in the near future. The costs of transitioning to and from an audit in a short period of time generally exceed the cost savings from moving away from an audit.

If you require any further information or explanation with regard to recent changes for your organization’s external financial reporting requirements, please contact your DJB advisor.

Choosing the Right Software

One of the most important things in any business is making sure you have enough money to pay your bills; this is why it is imperative to choose the correct software for your bookkeeping.  Take your time choosing the right software because it can be costly having to repeat this process.  You need a system that will track all your day-to-day transactions, such as invoicing, recording payments, tracking expenses, HST, payroll, and reconciling transactions.  The more accurate the information is, the better the reports will be and the more insight you will have into your business performance.

Choosing the best accounting software for your individual business is challenging. Each program includes a different set of features. Depending on those features and the number of users, will determine the price point.  Some of the questions you have to ask is:

  • Would you like your program to be cloud based so you can access it from anywhere on multiple devices?
  • What kind of features are you looking for?
  • What kind of reporting are you looking for?
  • Do you need to track inventory, payroll, HST?
  • Do you invoice and pay bills out of the system?
  • How many users will be using the system?
  • What is the price point you would like to stay within? 

Creating a list of needs and wants will help you determine which software is best for you.  Reach out to other business owners and ask them what they use and what they like and dislike about the system.  Check to see if the system has a free version; see if it can do all the things you want it to do.  Talk to your accountant or bookkeeper, they will have suggestions as well.  Don’t be afraid to ask the questions.

Once you have made the decision on the software, make sure that the setup is correct.  An incorrectly set-up system can be just as costly as choosing the incorrect system.

 

Real Estate: CRA Audit Activity

CRA uses a combination of risk assessment tools, analytics, leads, and third-party data to detect noncompliance in the real estate sector. They have identified ten areas where they perceive that there is a significant risk of non-compliance, as follows:

  • reported income does not support lifestyle (e.g. acquiring expensive assets like real estate without an obvious income source to support it);
  • property flipping (buying and reselling homes within a short period with the intention of selling them for a profit; CRA has identified three main categories of flippers: professional contractors, or renovators speculators, or middle investors, and individual renovators);
  • unreported capital gains on the sale of property;
  • unreported capital gains on property sold by non-residents and insufficient withholdings, if required, when purchasing property from non-residents;
  • unreported worldwide income by Canadian residents;
  • unreported GST/HST on the sale of a new or substantially renovated home;
  • improperly claimed GST/HST rebates (e.g. when a taxpayer applies for a new housing or rental rebate but actually intended to flip the property for a profit);
  • not classifying oneself as a land developer; • not properly reporting/claiming the principal residence exemption on an individual’s personal tax return; and
  • an individual’s status as a realtor (as a realtor’s main revenue stream is from the sale of real estate, CRA has identified them as a higher-risk population).

Based on a historical review of CRA’s webpage, it appears that the following three points were added in 2024: land developer, principal residence exemption, and status as a realtor.

In 2015, CRA increased its focus on real estate non-compliance in major centres, such as the greater Toronto area and British Columbia’s Lower Mainland (the greater Vancouver area). From 2015 to the Spring of 2023, CRA reported that the cumulative total of additional taxes and penalties assessed was $2.7 billion, derived from approximately 75,000 audits. While British Columbia only has about a third of the population of Ontario, CRA identified roughly the same amount of tax non-compliance over the past eight years ($1.4 billion in BC and $1.3 billion in ON). Non-compliance in British Columbia is largely related to income tax, while in Ontario, it is largely related to unpaid GST and HST on new homes or inappropriately claimed rebates on those taxes. More recently, during the 2022 to 2023 fiscal year, CRA identified $426 million in additional tax and penalties in the real estate sector in Ontario and British Columbia.

Ensure that all real estate earnings and dispositions are properly reported and supporting documents retained. Be prepared for extra CRA scrutiny and review.

 

Online Reviews: Employees Must Disclose their Connection to the Business

Under the Competition Act, employees posting reviews online about their employer or the competition must disclose their connection to the business, even if the individual provides their honest opinion. This requirement applies to all types of reviews, including testimonials. A January 18, 2024, Competition Bureau Canada News Release (Online reviews posted by employees: businesses could be liable) recommended that businesses establish policies and provide employee training to reduce the risk of liability. The release also recommended that if an employee cannot make the connection clearly visible in a review, they should avoid posting it. This may occur when an employee intends to provide a star rating for a product or service but cannot disclose their connection with the provider.

Ensure employees are aware of this requirement under the Competition Act and properly disclose relevant connections when posting online reviews.

Unnamed Persons Requirement: Another CRA Compliance Tool

In 2023, CRA issued Shopify an unnamed persons requirement (UPR) that required Shopify to provide information on more than 121,000 Canadian vendors for the past six years. CRA uses this information to verify whether the unnamed persons for whom it received information have fulfilled their income tax and GST/HST obligations.

CRA has recently been using UPRs to detect non-compliance in several other industries, such as construction, crypto-assets, and real estate. They can request various types of information in a UPR, including client information (e.g. names, addresses, phone numbers, date of birth) and books and records (e.g. sales and purchase records and legal and public records). CRA reiterated that a UPR differs from an audit as information requested from a business in an audit generally only pertains to the specific entity. However, for a UPR, the requested information typically pertains to an identified group of the business’ clients.

Taxpayers who have not complied with their tax obligations may qualify for penalty relief through the voluntary disclosure program. However, the program does not apply if CRA has commenced an enforcement action, such as a UPR, or received information about potential tax non-compliance.

Ensure you properly report all of your income. Once CRA commences an enforcement action, including receiving information about noncompliance, the voluntary disclosure program is no longer an option.

How Does GST/HST Apply to Airbnb/Short-term Rentals?

The popularity of Airbnb, short-term rental pools for cottages and vacation properties continues to grow.  One aspect of venturing into the short-term rental game is how GST/HST applies.  The volume of rental income and the length of the rentals is the determining factor on whether you will need to charge GST/HST.

Essentially, long term-rentals are exempt from GST/HST, while short-term rentals are subject to the tax.

What is considered a short-term rental?

A short-term rental is generally one where the period of occupancy is less than one month and the consideration for the supply is more than $20 a day.

Am I considered a small supplier?

If you are supplying short-term rentals, you will need to determine if you are considered a small supplier for GST/HST purposes.  A small supplier is one whose worldwide annual GST/HST taxable supplies, (including zero-rated supplies and including the sales of any associated parties) are less than $30,000, or less than $50,000 for public service bodies (colleges, non-profit organizations, charities, hospitals).

One of the most common oversights we see is forgetting to include any other associated business revenue into the small supplier test.

Should I voluntarily register for GST/HST?

If you are under the $30,000 of taxable supplies for your associated group, you can elect to voluntarily register for GST/HST.  The benefits of this would be to enable the claim of any GST/HST paid on expenses related to your short-term rental income.  It may also permit you to recover some or all of the GST/HST you may have paid on the unit.

But be aware – if you choose to register, you will be required to collect and remit the GST/HST on your short-term rental income.

There are many factors to consider when venturing into this market; especially if you will be using a portion of your principal residence.

US Tax Issues for US Citizens and Green Card Holders Living in Canada

Filing Requirement

 The liability for US tax is based on both citizenship and residence. Therefore, as a US citizen, you must file annual US income tax returns regardless of where you live. The deadline for filing a US return is April 15th of the following year. However, there is an automatic extension until June 15th if you are a resident outside the US. Alternatively, you can also file a 6-month extension request, which would mean your US return would be due on October 15th.

Failure to file the annual US return and all related forms (noted below) can result in serious financial penalties.

Common Tax Issues

Registered Education Savings Plan (RESP)

  • There may be negative US tax consequences for individuals that have set up these accounts as you cannot elect to defer the taxation of income earned in the account.

Tax-Free Savings Accounts (TFSA)

  • Like the RESP, you cannot elect to defer the taxation of the income earned in the account. In addition, many US advisors also consider the TFSA to be a foreign trust for US purposes, which as noted above, would mean additional reporting requirements for foreign trusts (Form 3520 and 3520-A).

Canadian Mutual Funds, ETFs & REITs

  • If you own Canadian mutual funds, ETFs, and or REITs, the US may consider such investments to be a Passive Foreign Investment Company (PFIC). If you have invested in a PFIC, you are required to complete additional US forms for each PFIC that you own as part of your US return (Form 8621).

Foreign Financial Assets

  • Depending how many foreign financial assets you own, you may be required to complete disclosure forms explaining the nature of the investments and the income that each has generated as part of your tax return (Form 8938).

Foreign corporations

  • If you own shares of, or control a Canadian private corporation, there can be several implications for your US return ranging from disclosure of information about the Canadian company to the accrual of passive income earned by the Canadian company on your US return (Form 5471).

US Treasury Reporting

  • If you have foreign financial assets in excess of $10,000 at any time in the year you must complete the US treasury forms and submit them electronically every year by June 30 of the following year. These forms require details regarding your financial institutions, account numbers, addresses, and highest balances in the accounts (FinCEN report 114, formerly TD F 90-22.1 aka FBAR).
Voluntary Disclosure

If you have not filed US returns, action should be taken immediately. The IRS has set up a voluntary disclosure program called the Streamlined Filing Compliance Procedure. Under this program, if the taxpayer qualifies, they can file the three previous US returns and 6 previous FinCEN reports to get caught up without penalties.

US Estate Tax

US citizens and long-term green card holders are subject to the US estate tax regime. Unlike the Canadian tax system which taxes accrued gains upon death, the US estate tax regime is a wealth tax based on the value of the deceased’s estate. For 2024, every US citizen receives an exemption of $13,610,000 (indexed annually). For estate’s exceeding $13,610,000, the excess will be taxed at the highest estate tax rate of 40%. US citizens living in Canada that have wealth in excess of the exemption should consider estate and tax planning strategies to minimize their US estate tax exposure.

 

 

Starting a Business? We Can Help Guide You in the Right Direction.

DJB provides guidance and assistance with all of your business start-up, tax, and accounting needs including:

SELECTING THE LEGAL ENTITY FOR YOUR ENTERPRISE

There are 3 options for the legal entity of your business, we can help you determine what’s right for your business.

  • Sole Proprietorship
  • Partnership
  • Corporation
REGISTERING WITH THE TAX AUTHORITIES

We can help you register with the following tax authorities:

  • Canada Revenue Agency (CRA)
  • Ministry of Finance – Ontario (EHT) – Employer Health Tax
  • Workplace Safety and Insurance Board (WSIB)
  • Sales Tax (GST/HST)
TAX CALENDAR

The creation of a tax calendar is an important part of starting your business. DJB will help setup your tax calendar for services such as, Income Tax, Sales Tax (GST/HST), Ontario Employer Health Tax (EHT), Ontario Workplace Safety and Insurance Board (WSIB), and Employee Withholdings Tax (Source deductions), so that you won’t miss any filing dates and prevent penalties and/or late charges.

SELECTING A FISCAL PERIOD (YEAR END)

DJB will help you setup and plan your fiscal period. This is crucial to any business and can be stressful and costly if setup incorrectly.

Contact a DJB Professional today to get started!