22 June 2015 Internal T.I. 2014-0553731I7 - Deduction of Terminal Loss - Wind-up

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.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Principal Issues: Whether the Terminal Loss was deductible under subsection 20(16) in computing Parentco's income for purposes of the Act.

Position: The Terminal Loss should be allowed as a deduction in computing Parentco's income in its XXXXXXXXXX taxation year by virtue of subsection 20(16).

Reasons: Parentco should be entitled to deduct the Terminal Loss based on a textual, contextual and purpose interpretation of the relevant provisions, on case law and on previous CRA positions.

June 22, 2015

XXXXXXXXXX Income Tax Rulings
Canada Revenue Agency Directorate
Y. Moreno, I. Schnitzer
(613) 670-9009

2014-055373

Deduction of Terminal Loss - Wind-up

Dear Sir:

We are writing in response to your email and various telephone conversations requesting our views on whether a terminal loss of $XXXXXXXXXX resulting from the disposition by XXXXXXXXXX ("Parentco") of certain depreciable property received by it from a wholly-owned subsidiary XXXXXXXXXX ("Subco") on the winding-up of Subco should be disallowed in computing Parentco's income under the Act. (footnote 1)

FACTS

The facts as we understand them are as follows:

1. Parentco is a taxable Canadian corporation and a holding corporation that holds investments.
2. Subco was a taxable Canadian corporation that was a wholly-owned subsidiary of Parentco.
3. Subco carried on the business of XXXXXXXXXX.
4. Subco was wound up on XXXXXXXXXX (the "Wind-up").
5. Immediately prior to the Wind-up, Subco owned depreciable property comprised of XXXXXXXXXX prescribed classes (the "Property"). The combined undepreciated capital cost ("UCC") balance of the Property amounted to $XXXXXXXXXX.
6. Subsection 88(1) applied to the Wind-up.
7. Parentco did not acquire the Property for the purpose of earning income and never received income from the Property.
8. Parentco disposed of the Property to an arm's-length purchaser for proceeds of disposition less than the Property's UCC. As a result of the disposition of the Property, Parentco no longer owned any property of the relevant prescribed classes.
9. In its income tax return for its XXXXXXXXXX taxation year, Parentco deducted an amount of $XXXXXXXXXX under subsection 20(16) (the "Terminal Loss").

ISSUE

Whether the Terminal Loss was deductible under subsection 20(16) in computing Parentco's income for purposes of the Act.

POSITION

The Terminal Loss should be allowed as a deduction in computing Parentco's income in its XXXXXXXXXX taxation year by virtue of subsection 20(16).

ANALYSIS

Generally, pursuant to subsection 20(16), if at the end of a particular taxation year, (a) the total of all the increases to the UCC of a prescribed class exceeds the total of all the decreases, and (b) the taxpayer no longer owns any property of that class, the excess shall be deducted in computing the taxpayer's income for the taxation year.

The term UCC is defined in subsection 13(21) and is determined by formula. In very general terms, the formula is the cost to the taxpayer of all of the property in that class minus the amount of any capital cost allowance ("CCA") taken on the property in that class in previous years and minus the proceeds of disposition from the disposition of any property in the class before that time (up to the cost of the property).

In Malatest v. The Queen, 94 DTC 1779 (TCC)(aff'd 96 DTC 6377 (FCA)), the following comments were made regarding subsection 20(16):

9 In order for a terminal loss to be deductible under subsection 20(16) of the Act the property to which it relates must be depreciable property. That is to say, it must be property held by a taxpayer for the purpose of producing income therefrom.

10 To succeed on these appeals the appellants must, therefore, establish on a balance of probability that at some relevant time they held the apartment for the purpose of producing income.

As such, in order to determine whether Parentco is entitled to deduct the Terminal loss under subsection 20(16), the following questions need to be addressed:

1. Does Parentco inherit the UCC of Subco immediately after the Wind-up?

2. If so, is the Property depreciable property of a prescribed class in the hands of Parentco immediately after the Wind-up (taking for granted that factually, the Property does not meet the requirements set out in paragraph 1102(1)(c) of the Income Tax Regulations ("Regulations")) based on:

a. Paragraph 88(1)(f) when read in conjunction with subsection 20(16);

b. Paragraph 1102(14)(d) of the Regulations; and

c. Mara Properties Ltd. v. R., [1996] 2 S.C.R. 161 (SCC) ("Mara Properties").

3. If so, when does Parentco cease to own depreciable property of a prescribed class?

a. After the Wind-up; or

b. On the disposition of the Property by Parentco to the arm's-length purchaser.

4. A collateral question is can Parentco claim CCA over the holding period?

5. Would the same reasoning apply to recapture?

1. Continuity of UCC immediately after the Wind-up

The tax consequences of a winding-up of a wholly-owned subsidiary into a parent is governed by subsection 88(1). Generally, subject to certain exceptions, paragraph 88(1)(a) provides that each property of the subsidiary distributed to the parent on the winding-up is deemed to have been disposed of by the subsidiary for proceeds equal to the cost amount to the subsidiary of the property immediately before the winding-up.

Subsection 248(1) defines the term "cost amount" as: "where the property was depreciable property of the taxpayer of a prescribed class, that proportion […] of the undepreciated capital cost […]". In other words, depreciable property of a prescribed class disposed of by a subsidiary on the winding-up is deemed to have been disposed of for proceeds equal to its UCC; consequently, there can be neither a recapture nor a terminal loss as far as the subsidiary is concerned.

According to paragraph 88(1)(c), the cost of the depreciable property of a prescribed class to the parent is generally equal to the UCC of that class to the subsidiary. As such, subsection 88(1) provides a flow-through of a property's cost amount (in the case of depreciable property, a flow-through of its UCC) from the subsidiary to the parent corporation.

For purpose of sections 13 and 20 where the capital cost to the subsidiary exceeds the amount determined by subparagraph 88(1)(a)(iii), paragraph 88(1)(f) deems the capital cost to the parent to be equal to the capital cost to the subsidiary and the excess to have been deducted by the parent as CCA prior to the wind-up. As far as cumulative UCC is concerned, the objective of paragraph 88(1)(f) appears to be to extend to the parent corporation the application of section 20 (including subsection 20(16)) as it would have applied to its wound-up subsidiary.

As such, a position can be taken that Parentco is deemed, pursuant to subsection 88(1), to have a capital cost equal to Subco's capital cost (element A in the definition of UCC in subsection 13(21)) and to have claimed under paragraph 20(1)(a) the CCA claimed by Subco (element E in the definition of UCC in subsection 13(21)).

2. Depreciable property of a prescribed class in the hands of Parentco immediately after the Wind-up

For property acquired by the parent on the wind-up of its wholly-owned subsidiary to be depreciable property of a prescribed or particular class to the parent, the property would have to meet the general conditions of the Act.

Although Parentco inherited Subco's cost amount and total depreciation allowed to Subco for property of the class before the Wind-up for purposes of sections 13 and 20, the question remains whether Parentco has depreciable property of a prescribed class. This determination is relevant to the application of subsection 20(16) because amounts in A and E in the definition of UCC have to be in respect of depreciable property of a class and paragraph 88(1)(f) does not deem the Property to be depreciable property of a class of Parentco. Also, a terminal loss is incurred when Parentco ceases to own depreciable property of a particular class, which not only implies that it needs to have owned depreciable property of a particular class before the disposition but also requires a determination when it ceased to be depreciable property of a particular class.

Support for the position that Parentco does have depreciable property of a prescribed class can be found in:

a. A textual, contextual and purposive ("TCP") interpretation of paragraph 88(1)(f) when read in conjunction with subsection 20(16);

b. The presumption in paragraph 1102(14)(d) of the Regulations; and

c. Mara Properties.

a) TCP interpretation of paragraph 88(1)(f) when read in conjunction with subsection 20(16)

The only missing element for a perfect fit of the paragraph 88(1)(f) continuity presumptions into the definition of UCC and into subsection 20(16) is the fact that the presumption does not specifically provide that the property is deemed to be depreciable property of a prescribed class (wording in the definition of UCC) or of a particular class (wording of subsection 20(16)) to the parent.

Where the capital cost to the subsidiary exceeds the amount determined by subparagraph 88(1)(a)(iii), paragraph 88(1)(f) deems the excess to have been deducted by the parent as CCA prior to the wind-up.

This rule seems to be a natural extension of the object, spirit and purpose of subsection 20(16) as described in Landrus v. R., 2008 DTC 3583 (TCC) (aff'd 2009 DTC 5085 (FCA)) by Justice Paris:

112 The purpose of the terminal loss provision is to adjust the aggregate of the annual deductions of CCA taken by a taxpayer on a class of depreciable property when subsequent events demonstrate that the property in that class have been underdepreciated. The adjustment occurs when a taxpayer no longer owns any property of that class at the end of a given taxation year and is predicated on the fact that the taxpayer is no longer able to use the property to earn income because that property is no longer available to him or her. It is intended to match the total CCA deduction under the Act in respect of property used to earn income by a taxpayer to the actual cost of that property to the taxpayer.

The above noted object, spirit and purpose of subsection 20(16) was confirmed by the Federal Court of Appeal (2009 DTC 5085, see paragraph 40 of that decision).

Accordingly, a position could be taken that because paragraph 88(1)(f) deems the capital cost of the property to the parent to be the capital cost of such property to the subsidiary and also deems the parent to have claimed CCA in respect of the depreciable property of a prescribed class of the subsidiary, the property continues to be depreciable property of the parent and further it may be depreciable property of a prescribed class in order to achieve the objective of sections 13 and 20.

Support for this position can be gleaned from the comments of the Justices forming the majority in Hickman Motors Limited v. Her Majesty the Queen 97 DTC 5363, ("Hickman Motors") and Justice Iacobucci's comments (Justice Iacobucci was dissenting, along with Justice Sopinka and Cory concurring):

129 I should like to commence my reasons with a discussion of what is not in issue before this Court. During oral argument, Crown counsel conceded that, by virtue of s. 88(1), when Hickman Motors assumed ownership of its subsidiary's heavy equipment assets, it acquired depreciable property of a prescribed class. Departing from the line of argument pursued in the courts below, the Crown has not based its opposition to the appellant's claim on anything contained in the Regulations. Rather, the dispute revolves entirely around the opening words of s. 20(1) of the Act, more specifically, around whether the capital cost allowance in question is applicable to a business source of income. [Emphasis added]

130 […] In the event of a transfer of property between related corporations, s. 88(1) permits a "flow-through" of both the property's cost amount and its undepreciated capital cost. Thus, in this case, when Hickman Motors acquired the depreciable property from Equipment, s. 88(1) deemed Hickman Motors to have "inherited" Equipment's cost amount and undepreciated capital cost. However, while s. 88(1) does fix the undepreciated capital cost of the property at a certain level, nothing in the section gives the parent corporation the right to depreciate the property further. To repeat and adopt the comments of Hugessen J.A., s. 88(1) in and of itself creates no rights to a tax deduction. Any right to claim capital cost allowance must be based in s. 20(1) because, before this Court, the parties agreed to put aside other provisions of the Act and Regulations which might otherwise come into play, and confined their respective submissions to the effect of s. 20(1). [Emphasis added]

b) Presumption in Paragraph 1102(14)(d) of the Regulations

Paragraph 1102(14)(d) of the Regulations provides that where a person owns property of a prescribed class or a separate prescribed class and transfers that property to a non-arm's length taxpayer, the property shall be deemed to be "property of that same prescribed class or separate prescribed class, as the case may be, of the taxpayer". If that presumption is applicable, Parentco would meet all the conditions to own depreciable property of a prescribed class, hence it would have UCC and would meet the wording of subsection 20(16).

Paragraph 1102(1)(c) provides that the prescribed classes shall be deemed not to include property "that was not acquired by the taxpayer for the purpose of gaining or producing income". Provisions 1102(1)(c) and 1102(14) of the Regulations are both deeming provisions and it is unclear whether one of the provisions supersedes the other; however, a position could be taken that since subsection 1102(14) is the more specific provision, it supersedes paragraph 1102(1)(c). In other words, the presumption in paragraph 1102(14)(d) presumably overrides the rule in paragraph 1102(1)(c) of the Regulations (we will examine this more closely after exploring the scope of paragraph 1102(14)(d) of the Regulations).

Paragraph 1102(14)(d) of the Regulations applies "for the purposes of this Part [Part XI] and Schedule II". Part XI of the Regulations includes the various rules involved in the computation of the amount of CCA that can be claimed under paragraph 20(1)(a). The continuity presumption created by paragraph 1102(14)(d) of the Regulations is relevant in applying Part XI of the Regulations to the extent that Part XI provides that the CCA of most classes of property runs off the UCC "to the taxpayer" of the property of such classes (such language is present in paragraph 1100(1)(a) of the Regulations and all the paragraphs in subsection 1100(1) of the Regulations except a handful of paragraphs like (b), (e),( f), (g) and (va)). Conversely, element E of the definition of UCC is all about Part XI of the Regulations to the extent that it indicates how much depreciation is allowed to the taxpayer under paragraph 20(1)(a). Because the definition of UCC and Part XI of the Regulations are intertwined, it appears contrived to conclude that the presumptions in paragraph 1102(14)(d) of the Regulations are restricted to Part XI of the Regulations and cannot inform our reading of the definition of UCC in subsection 13(21). The same comments could be extended to subsection 20(16).

In Hickman Motors, the Supreme Court of Canada considered the appropriate characterization of property acquired by a parent corporation as a result of the wind-up of a subsidiary pursuant to subsection 88(1). In that case, the taxpayer operated an automobile and truck dealership. A sister corporation of the taxpayer ("Equipment") operated an equipment business. Equipment owned depreciable property that included equipment for construction, forestry equipment, rock-drilling equipment and crane operations. The UCC of the equipment was $5,196,422. The taxpayer acquired, for fair market value, all of the issued and outstanding shares of the capital stock of Equipment and subsequently Equipment was wound up into the taxpayer pursuant to subsection 88(1). The taxpayer then sold the depreciable property acquired from Equipment to Hickman Equipment (1985) Limited ("Equipment 1985") for its fair market value. The taxpayer claimed CCA in the amount of approximately $2 million based on the UCC of the depreciable property acquired from Equipment.

In Hickman Motors, a majority of 4 out of 7 Justices ruled in favor of the appellant, Hickman Motors. Writing for 3 out of the 4 majority Justices, Justice McLachlin wrote:

5 In this case, Hickman Motors Ltd. is deemed to have acquired the assets for the purpose of gaining or producing income under Regulation 1102(14), which states that where property is acquired as the result of the winding up of a Canadian corporation under s. 88(1) of the Act, and the property, immediately before it was so acquired, was property of a prescribed class, the property shall be deemed to be the property of that same prescribed class. Since the property was depreciable property in the hands of Hickman Equipment just prior to the winding up, it is deemed to be acquired by Hickman Motors Ltd. as depreciable property-- i.e., for the purpose of gaining or producing income. [Emphasis added]

6 So long as Hickman Motors Ltd. did not commence to use the property for some purpose other than the production of income (s. 13(7)(a)), the property remains eligible for a capital cost allowance deduction. There is no evidence that this occurred. [Emphasis added]

The fourth majority Justice, Justice L'Heureux-Dubé, does not comment on the application of subsection 1102(14) of the Regulations.

In our view, the discussion by Justice L'Heureux-Dubé in paragraphs 62 to 66 of her judgment in relation to the income earning purpose related to the acquisition cannot be reconciled with Justice McLachlin's view about subsection 1102(14) of the Regulations, deeming an income earning purpose, but does not contradict the views of Justice McLachlin in respect of the relevance of paragraph 1102(14)(d) of the Regulations in establishing the opening UCC balance of the parent and the preservation of the classification as depreciable property of a prescribed class on the wind-up.

c) Mara Properties

The fourth majority Justice in Hickman Motors, Justice L'Heureux-Dubé seemed to suggest that Mara Properties stands for the proposition that subsection 88(1) deems the parent to have received property of the same character from its subsidiary upon the subsidiary's wind-up:

34 In so far as its interrelation with the present case is concerned, in my opinion Mara stands for the following proposition: upon winding-up, a subsidiary automatically distributes its assets to its parent pursuant to s. 88(1), and those assets should be grouped with the parent's assets of the same character. Here, Equipment's assets were distributed to the appellant and should be grouped with the parent's assets of the same character.  […]

39 […] The nature of the property and the nature of its income are not forever fixed as a result of a s. 88(1) roll-over. The nature of the property and the nature of its income may change.

Both Justice McLachlin and Justice L'Heureux-Dubé concluded that depreciable property of a prescribed class of a subsidiary remains depreciable property of a prescribed class in the hands of the corporate parent on a subsection 88(1) wind-up, although for different reasons.

d) Property retains its character as depreciable property of a prescribed class

Based on a TCP interpretation of paragraph 88(1)(f), on the application of the presumption in subsection 1102(14) of the Regulations and on the comment by Justice L'Heureux-Dubé regarding Mara Properties, it seems reasonable to conclude that the Property received from Subco on the Wind-up initially retains its character as depreciable property of a prescribed class in Parentco.

This position is also consistent with CRA's previous position set out in technical interpretation 9700547. In technical interpretation 9700547, the position was that an amalgamated corporation that disposed of mining equipment should be entitled to a deduction in computing its income by virtue of subsection 20(16), even though the amalgamated corporation did not have any mining operations during the period after the amalgamation and before the disposition.

In addition, if Subco would have disposed of the Property prior to the Wind-up, Subco would have realized a terminal loss. Since Subco would not have had any income, the terminal loss would constitute a non-capital loss and Parentco could access the non-capital loss of the Subco after the Wind-up pursuant to subsection 88(1.1). In brief, subsection 88(1.1) provides that, where a parent corporation winds up a Canadian subsidiary, for the purposes of computing the taxable income of the parent under Part I and the tax payable under Part IV by the parent for any taxation year commencing after the commencement of the winding-up, the parent may deduct such portion of any non-capital losses of the subsidiary, to the extent that the taxpayer complies with the remaining requirements of the provision as set out in paragraphs (a) to (f).

There are numerous loss consolidation rulings where the utilization of a parent corporation of non-capital losses of a subsidiary corporation upon the winding-up of the subsidiary corporation were determined to be acceptable (see files XXXXXXXXXX, 2010-036725, XXXXXXXXXX and 2008-028977). Although one must deal with what the taxpayer actually did, not what he might have done, it appears that the position that Parentco should be entitled to deduct the Terminal Loss is consistent with that application of subsection 88(1.1).

3. When does Parentco cease to own depreciable property of a prescribed class?

In Hickman Motors, 3 out of the 4 majority Justices mentioned that in their view, property that is deemed to be depreciable property of a prescribed class under subsection 1102(14) of the Regulations retains that character.

The fourth majority Justice indicated that "The nature of the property and the nature of its income are not forever fixed as a result of a s. 88(1) roll-over. The nature of the property and the nature of its income may change." Although this comment is obiter dicta, it removes precedential value to the statement of the other majority Justices.

As pointed out above, the fourth majority Justice seems to have concluded that the property received by a corporate parent on the wind-up of its subsidiary retains its character according to the principle established in Mara Properties.

We suggest that the property received by Parentco from Subco on the Wind-up retains its character as depreciable property of a prescribed class until it is disposed of (or deemed to be disposed of under paragraph 13(7)(a)) and that a TCP interpretation of subsection 20(16) in conjunction with paragraph 13(7)(a) is consistent with such a position and not incompatible with the views of the majority in Hickman Motors.

The CRA has determined in past documents (see for example IT-478R, 9700547 and 2002-0143645) that paragraph 13(7)(a) does not apply if property remains idle since this does not constitute a "use for some other purpose". In the present file, the Property was idle (Parentco held the Property for a period of approximately XXXXXXXXXX years and no income was earned from the Property). As a result of paragraph 13(7)(a) not applying, there is no deemed disposition of the Property immediately after the Wind-up and no terminal loss can be realized at that time.

Parentco ceased to own depreciable property of a class in XXXXXXXXXX when it sold the Property to an arm's-length purchaser and subsection 20(16) would apply in Parentco's XXXXXXXXXX taxation year.

4. Could parent claim CCA?

In Hickman Motors, three of the four majority Justices indicate that:

2 In order to deduct the capital cost allowance at issue, (1) Hickman Motors Ltd. must have had a business source of income to which the assets related (s. 20(1) of the Income Tax Act, S.C. 1970-71-72, c. 63); and (2) the assets must have been acquired for the purpose of producing income (Regulation 1102(1)(c))

When discussing the first leg of the test, three of the majority Justices did not rely on the presumption under subsection 1102(14) of the Regulations; instead, they concluded that the taxpayer had a source of income that was related to the assets (leasing property).

According to Justice L'Heureux-Dubé, in order to satisfy the requirements of paragraph 20(1)(a), the property must be held by the parent for the purpose of producing income for the parent's business. This question in turn consists of the following four components: (1) there has to be income from a business, (2) the deduction has to be applied to the appropriate business source, (3) the amount must be wholly or partly applicable to that source, and (4) the item has to produce income or is acquired for the purpose of producing income.

In this file, it appears that Parentco will not meet the requirements set out above as Parentco did not acquire the Property for the purpose of earning income and held the Property without earning income from the Property and, accordingly, Parentco is not entitled to claim CCA on the Property.

5. Recapture

The relevant provision regarding recapture is subsection 13(1). Recapture is also a cumulative amount and provides that if the elements E to K in the definition of UCC exceed the total of the amounts determined under elements A to D.1 in that definition, the excess shall be included in computing the taxpayer's income of the year. Aside from the comments, on the timing of the application of subsection 20(16), the comments above can be extended to subsection 13(1).

SUMMARY

To summarize, Parentco should be entitled to deduct the Terminal Loss based on the following:

1. Parentco inherited Subco's UCC.

The Property received by Parentco on the Wind-up retained its character, as depreciable property of a prescribed class based on:

a. A TCP interpretation of paragraph 88(1)(f);

b. Subsection 1102(14) of the Regulations (the views of three of the four Justices that formed the majority in Hickman Motors support this interpretation); and

c. Mara Properties (the views of the fourth majority Justice in Hickman Motors appear to support that position).

In addition, if on the disposition of the Property by Parentco elements E to K in the definition of UCC exceed the total of the amounts determined under elements A to D.1 in that definition, then subsection 13(1) provides that the excess shall be included in income and recapture would be recognized.

We trust that these comments will be of assistance.

For your information, unless exempted, a copy of this memorandum will be severed using the Access to Information Act criteria and placed in the CRA's electronic library. A severed copy will also be distributed to the commercial tax publishers, following a 90-day waiting period (unless advised otherwise to extend this waiting period), for inclusion in their databases. The severing process will remove all material that is not subject to disclosure, including information that could disclose the identity of the taxpayer. Should the taxpayer request a copy of this memorandum, they may request a severed copy using the Privacy Act criteria, which does not remove taxpayer identity. Requests for this latter version should be e-mailed to: ITRACCESSG@cra-arc.gc.ca. In such cases, a copy will be sent to you for delivery to the taxpayer.

Yours truly,

Yves Moreno
for Division Director
Reorganizations Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch

FOOTNOTES

Note to reader: Because of our system requirements, the footnotes contained in the original document are shown below instead:

1 Unless otherwise expressly stated, every reference herein to a part, section or subsection, paragraph or subparagraph and clause or subclause is a reference to the relevant provision of the Income Tax Act, R.S.C. 1985 (5th Supp.) c.1, as amended from time to time and consolidated to the date of this letter (the "Act"). In this letter, all monetary amounts are expressed in Canadian dollars unless otherwise indicated.