29 July 2020 Internal T.I. 2020-0852071I7 - Clarification of views noted in 2019-0793481I7

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 a future liquidation of BCo into DCo would result in ACo's previously suspended capital loss becoming available.

Position: Possibly.

Reasons: The loss would become available pursuant to subparagraph 40(3.4)(b)(i) provided that subparagraph 95(2)(e)(v) does not apply.

								July 29, 2020

XXXXXXXXXX							HEADQUARTERS
International Large Business Case Manager	Income Tax Rulings
XXXXXXXXXX							  Directorate
K. Patel
(416) 973-2418

								2020-085207

Re: XXXXXXXXXX (“ACo”)

We are writing to clarify the Income Tax Rulings Directorate’s views on the application of subparagraph 40(3.4)(b)(i) of the Income Tax Act (the “Act”) to a liquidation of BCo into DCo as described in 2019-0793481I7. Please refer to documents 2019-0793481I7 and 2017-0735771I7 for the complete facts, defined terms and relevant entities discussed therein.

In document 2017-0735771I7 it was noted that ACo incurred a suspended loss (“the Suspended Loss”) on the disposition of shares of CCo (a controlled foreign affiliate or “CFA” of ACo) to BCo (a CFA of ACo). The Suspended Loss was deemed to be nil pursuant to subsection 40(3.4) since BCo was affiliated with ACo. At the time CCo was transferred to BCo, CCo held the shares of FCo, another CFA of ACo. The decline in value of the FCo shares was the underlying reason ACo realized a loss on the transfer of the CCo shares to BCo. XXXXXXXXXX after the transfer, CCo was liquidated into BCo. It was noted in 2017-0735771I7 that the tax-deferred liquidation of CCo into BCo would not result in the Suspended Loss becoming available, as such liquidation would fall within the ambit of “merger” in subparagraph 40(3.5)(c)(i). Accordingly, in 2017-0735771I7 it was concluded that BCo would be deemed to own the shares of CCo as long as BCo and ACo are affiliated.

In XXXXXXXXXX ACo transferred the BCo shares to DCo (a CFA of ACo). Shortly after this transfer, BCo sold XXXXXXXXXX FCo shares to arm’s length parties.

In 2019-0793481I7 the issue under review was whether a liquidation of BCo into DCo would result in the Suspended Loss becoming available to ACo under paragraph 40(3.4)(b). It was concluded in 2019-0793481I7 that pursuant to subparagraph 40(3.4)(b)(i), the Suspended Loss would be deemed to be a capital loss of ACo immediately after the completion of the liquidation of BCo.

We would like to clarify that the conclusion noted in 2019-0793481I7 would only be applicable to the extent that subparagraph 95(2)(e)(v) of the Act does not otherwise apply to a liquidation of BCo. If the liquidation of BCo is a liquidation to which paragraph 95(2)(e) applies, and that liquidation is a “designated liquidation and dissolution” as defined in subsection 95(1), the Suspended Loss would not become available due to the application of sub-clause 95(2)(e)(v)(A)(III). More specifically, under that sub-clause DCo will be deemed to be the same corporation as, and a continuation of, BCo for the purposes of applying paragraph 40(3.5)(c) in respect of any share that was deemed under that paragraph to be owned, at any time before the liquidation and dissolution, by BCo. Accordingly, DCo would take the place of BCo and would be deemed to own the shares of CCo as long as DCo is affiliated with ACo.

Yours truly,

Director
International Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch