Principal Issues: 1. Whether section 84.1 will apply to deem the Estate to have received a dividend from Newco, on the disposition of its Opco shares. 2. Whether section 84.1 will apply to cause a reduction in the PUC of the Newco shares received by the Estate, on the disposition of its Opco shares. 3. Whether subsection 84(2) applies to the Proposed Transactions. 4. Whether GAAR applies to the Proposed Transactions.
Position: 1. No. Favourable ruling given. 2. No. Favourable ruling given. 3. No. Favourable ruling given.
Reasons: In accordance with the provisions of the Act and our previous positions.
XXXXXXXXXX 2018-078020
XXXXXXXXXX, 2018
Dear Sirs:
Re: Advance Income Tax Ruling
XXXXXXXXXX
This is in reply to your letter dated XXXXXXXXXX, in which you requested an advance income tax ruling on behalf of the Taxpayers.
This letter is based solely on the facts, proposed transactions, additional information and purposes of the proposed transactions described below. Any documentation submitted in respect of your request does not form part of the facts, proposed transactions or additional information unless specifically reproduced therein and any references to documentation are provided solely for the convenience of the reader.
We understand that to the best of your knowledge and that of each of the Taxpayers involved, none of the issues described herein are:
(a) in a previously filed tax return of the Taxpayers or person related to the Taxpayers;
(b) being considered by the CRA in connection with a previously filed tax return of the Taxpayers or a person related to the Taxpayers;
(c) under objection by the Taxpayers or a person related to the Taxpayers;
(d) before the courts or, if a judgment has been issued, the time limit for appeal to a higher court has expired; and
(e) the subject of an advance income tax ruling previously issued by the Income Tax Rulings Directorate of the CRA in connection with the Taxpayers or a person related to the Taxpayers.
Unless otherwise noted, all references to monetary amounts are in Canadian dollars.
DEFINITIONS
“ACB” means “adjusted cost base” as that term is defined in section 54;
“Act” means the Income Tax Act, RSC 1985, c. 1 (5th Supp.), as amended to the date of this letter and, unless otherwise indicated, all statutory references in this letter are to the Act;
“Act 1” means the XXXXXXXXXX;
“agreed amount” means the amount agreed on by the transferor and transferee in respect of a transfer of an eligible property in a joint election filed pursuant to subsection 85(1);
“Amalco” means a corporation to be formed by way of an amalgamation of Opco and Newco as described in Paragraph 26;
“arm’s length” has the meaning assigned by subsection 251(1);
“Beneficiary” means XXXXXXXXXX, the XXXXXXXXXX of the late XXXXXXXXXX;
“capital dividend” has the meaning assigned by subsection 83(2);
“capital gain” has the meaning assigned by section 54;
“capital property” has the meaning assigned by section 54;
“CCPC” means “Canadian-controlled private corporation” as that term is defined in subsection 125(7);
“CDA” means “capital dividend account” as that term is defined in subsection 89(1);
“CRA” means the Canada Revenue Agency;
“Deceased” means the late XXXXXXXXXX;
“depreciable property” has the meaning assigned by subsection 13(21);
“disposition” has the meaning assigned by subsection 248(1);
“eligible dividend” has the meaning assigned by subsection 89(1);
“eligible property” has the meaning assigned by subsection 85(1.1);
“Estate” means the estate of the late XXXXXXXXXX which is governed by the Deceased’s Will;
“Family Trust” means the XXXXXXXXXX, an inter vivos trust, which was established on XXXXXXXXXX;
“FMV” means “fair market value,” which refers to the amount, expressed in money terms, that is the highest price available in an open and unrestricted market between informed and prudent parties dealing at arm's length and under no compulsion to act and contracting for a taxable purchase and sale, expressed in terms of cash;
“GRE” means “graduated rate estate” and has the meaning assigned by subsection 248(1);
“GRIP” means “general rate income pool” as that term is defined by subsection 89(1);
“Newco” means a corporation to be incorporated under Act 1;
“Newco Class A Preference shares” means the Class A Preference shares in the capital of Newco which have the attributes described in Paragraph 23;
“Newco Common shares” means the Common shares in the capital of Newco which have the attributes described in Paragraph 23;
“Newco Note” means a non-interest bearing grid note, payable on demand, to be issued by Newco to the Estate as described in Paragraph 24;
“Opco” means XXXXXXXXXX, a corporation incorporated under Act 1;
“Opco Class A Special shares” means the Class A Special shares in the capital of Opco which have the attributes described in Paragraph 2;
“Opco Class B Special shares” means the Class B Special shares in the capital of Opco which have the attributes described in Paragraph 16;
“Opco Common shares” means the Common shares in the capital of Opco which have the attributes described in Paragraph 2;
“Opco Debt” means a non-interest bearing demand obligation owing from Opco to the Deceased, with the amount owing of approximately $XXXXXXXXXX as at the date of the Deceased’s death;
“Opco Note” means a non-interest bearing grid note, payable on demand by Opco to the Estate as described in Paragraph 20;
“Paragraph” means a numbered or lettered paragraph of this letter;
“private corporation” has the meaning assigned by subsection 89(1);
“proceeds of disposition” has the meaning assigned by section 54;
“Proposed Transactions” means the transactions described in Paragraphs 14 to 29 of this letter;
“PUC” means “paid-up capital” as that term is defined in subsection 89(1);
“RDTOH” means “refundable dividend tax on hand” as that term is defined in subsection 129(3);
“Remaining Opco shares” means the XXXXXXXXXX Opco Class B Special shares, as described in Paragraph 18, and that are transferred from the Estate to Newco as described in Paragraph 24;
“recapture” has the meaning assigned by subsection 13(1);
“resident of Canada” means resident of Canada for purposes of the Act;
“Specified Properties” means capital and depreciable properties which include:
XXXXXXXXXX
“Subco” means a corporation to be incorporated under Act 1;
“taxable Canadian corporation” has the meaning assigned in subsection 89(1);
“taxable preferred share” has the meaning assigned by subsection 248(1);
“taxation year” has the meaning assigned by subsection 249(1);
“UCC” means “undepreciated capital cost” as that term is defined in subsection 13(21);
“V-Day basis” has the meaning determined under paragraph 84.1(2)(a.1) for the purposes of element “B” in paragraph 84.1(1)(a); and
“Will” means the last will and testament with respect to public assets and the last will and testament with respect to private assets, both executed by the Deceased on XXXXXXXXXX.
FACTS
1. Opco is a CCPC and a taxable Canadian corporation with a taxation year end of XXXXXXXXXX. Opco carries on a business which XXXXXXXXXX. The business has been operated by the Deceased and his family for XXXXXXXXXX years.
2. Opco is authorized to issue an unlimited amount of the following share capital:
a. Opco Common shares
i. entitle the holder to XXXXXXXXXX per share;
ii. entitle the holder to non-cumulative dividends as and when declared by the director of Opco to the exclusion of any other class of shares. No dividend can be declared or paid on the Opco Common shares nor purchase for cancellation any of the Opco Common shares, if such dividend or purchase would result in Opco having insufficient net assets to redeem any issued and outstanding Opco Class A or Class B Special shares, or to pay the redemption amount on the Opco Class A or Class B Special shares in part or in full in the event of a wind-up, liquidation or dissolution of Opco; and
iii. participating in the remaining assets of Opco in the event of a wind-up, liquidation or dissolution of Opco.
b. Opco Class A Special Shares
i. entitle the holder to XXXXXXXXXX per share;
ii. redeemable and retractable at a price equal to the FMV of any consideration paid to acquire such share on issuance, subject to a price adjustment clause;
iii. entitle the holder to non-cumulative dividends at a rate of XXXXXXXXXX% of the redemption price, as and when declared by the board of directors of Opco to the exclusion of any other class of shares; and
iv. entitle the holder to the declared and unpaid dividends and the redemption price, in priority to any participation by the holders of the Opco Common shares in the event of a winding-up, liquidation or dissolution of Opco.
Currently, there are XXXXXXXXXX Opco Common shares and XXXXXXXXXX Opco Class A Special shares issued and outstanding.
3. The Deceased passed away on XXXXXXXXXX. Immediately prior to the time of the Deceased’s death the Deceased was a resident of Canada.
4. Immediately prior to the time of the Deceased’s death the Deceased owned the XXXXXXXXXX Opco Class A Special shares having an aggregate FMV of $XXXXXXXXXX and an aggregate ACB and PUC of $XXXXXXXXXX. The Opco Class A Special shares were held by the Deceased as capital property and are taxable preferred shares. The Family Trust owns the XXXXXXXXXX Opco Common shares. The XXXXXXXXXX Opco Class A Special shares gave the Deceased de jure control of Opco.
5. As a consequence of the Deceased’s death, the Deceased was deemed to have disposed of the XXXXXXXXXX Opco Class A Special shares immediately before his death, and to have received proceeds of disposition equal to their FMV of $XXXXXXXXXX at that time. The Estate was deemed to have acquired the XXXXXXXXXX Opco Class A Special shares for their FMV of $XXXXXXXXXX.
6. The capital gain to be reported in the Deceased’s terminal income tax return in respect of the deemed disposition of the XXXXXXXXXX Opco Class A Special shares is $XXXXXXXXXX.
7. The Beneficiary, who is a resident of Canada, is the XXXXXXXXXX executor and XXXXXXXXXX beneficiary of the Estate. The Estate is a resident of Canada, and its first taxation year-end will be XXXXXXXXXX. The Estate will be designated as a GRE when the executor files the T3 Trust Income Tax and Information Return for the Estate’s first taxation year, due on XXXXXXXXXX.
8. The Estate holds the Opco Class A Special shares as capital property.
9. Subsequent to the passing of the Deceased, the Beneficiary is the sole director of Opco.
10. Opco’s significant assets consist of cash, representing less than XXXXXXXXXX% of the FMV of the assets, XXXXXXXXXX including the Specified Properties, and other assets.
11. Opco’s liabilities include the Opco Debt.
12. There have been no repayments of the Opco Debt to the Estate.
13. Opco had the following tax attributes as at the points in time referenced below:
RDTOH of $XXXXXXXXXX
GRIP of $XXXXXXXXXX
CDA of $XXXXXXXXXX
PROPOSED TRANSACTIONS
The Proposed Transactions will occur in the order presented unless otherwise indicated, with the exception of filing the applicable election forms, which will be filed within the applicable due dates following the completion of the Proposed Transactions.
Subsection 164(6) Transactions
14. Opco will incorporate Subco under Act 1 and will subscribe for common shares of Subco for a nominal amount. Subco will be a CCPC and a taxable Canadian corporation.
15. Opco will transfer the Specified Properties to Subco in exchange for consideration consisting solely of XXXXXXXXXX common shares of Subco having a FMV equal to the aggregate FMV of the Specified Properties.
Opco and Subco will jointly elect, in prescribed form and within the time referred to in subsection 85(6), to have the provisions of subsection 85(1) apply to the transfer of the Specified Properties held by Opco to Subco. The elected amount will be set so that Opco will realize a capital gain of approximately $XXXXXXXXXX in the aggregate and recapture of approximately $XXXXXXXXXX.
For greater certainty, the agreed amount will not be more than the amount described in paragraph 85(1)(c), will not be less than the lesser of the two amounts specified in paragraph 85(1)(c.1) and will not be less than the amount described in paragraph 85(1)(b).
The amount added to the stated capital in respect of the XXXXXXXXXX common shares of Subco will not exceed the maximum amount permitted to be added to the PUC of the shares, having regard to subsection 85(2.1).
As a result of the transfer, Opco’s tax attributes immediately thereafter are expected to be as follows:
CDA: $XXXXXXXXXX
RDTOH: $XXXXXXXXXX
GRIP: $XXXXXXXXXX
16. Opco will amend its articles of incorporation to authorize the issuance of an unlimited number of Opco Class B Special shares with the following attributes:
i. entitle the holder to XXXXXXXXXX per share;
ii. redeemable and retractable at a price equal to the FMV of any consideration paid to acquire such share on issuance, subject to a price adjustment clause;
iii. entitle the holder to non-cumulative dividends at a rate of XXXXXXXXXX% of the redemption price, as and when declared by the board of directors of Opco to the exclusion of any other class of shares; and
iv. entitle the holder to the declared and unpaid dividends and to the redemption price in equal rank with the Opco Class A Special shares and in priority to any participation by the holders of the Opco Common shares in the event of a winding-up, liquidation or dissolution of Opco.
17. Opco will also amend the terms of the Opco Class A Special shares to add a conversion feature enabling each Opco Class A Special share to convert to an Opco Class B Special share.
18. The Estate will convert XXXXXXXXXX of its Opco Class A Special shares into XXXXXXXXXX Opco Class B Special shares. The Opco Class B Special shares will have an aggregate redemption value, FMV and ACB of $XXXXXXXXXX, and an aggregate PUC of $XXXXXXXXXX.
19. The director of Opco will pass a resolution to increase the stated capital of the remaining XXXXXXXXXX Opco Class A Special shares by $XXXXXXXXXX. Opco will elect in respect of the full amount of the deemed dividend arising under subsection 84(1) of $XXXXXXXXXX, as a capital dividend pursuant to the prescribed manner and prescribed form provided in subsection 83(2).
For greater certainty, the amount of the increase in stated capital of the Opco Class A Special shares will not exceed the CDA of Opco at the time immediately before such increase. As a result, the aggregate PUC of the XXXXXXXXXX Opco Class A Special shares will increase from $XXXXXXXXXX to $XXXXXXXXXX, and the aggregate ACB of such shares will increase from $XXXXXXXXXX to $XXXXXXXXXX.
20. Opco will redeem all of the XXXXXXXXXX Opco Class A Special shares for their redemption amount and FMV of $XXXXXXXXXX. As sole consideration for the redemption, Opco will issue the Opco Note to the Estate having a principal amount and FMV equal to the redemption amount and FMV of shares being redeemed, being $XXXXXXXXXX.
The Opco Note will be subject to a price adjustment clause should the FMV of the XXXXXXXXXX Opco Class A Special shares be subject to an adjustment. Opco will designate the deemed dividend of $XXXXXXXXXX arising under subsection 84(3) to be an eligible dividend pursuant to subsection 89(14). The Estate will report an eligible taxable dividend equal to $XXXXXXXXXX, and a capital loss equal to $XXXXXXXXXX, less any adjustments under subsection 112(3.2), on its T3 Trust Income Tax Information Return for its first taxation year.
21. The executor of the Estate will elect in prescribed manner, and within the prescribed time under subsection 164(6), to carry back the Estate’s $XXXXXXXXXX capital loss to reduce the capital gain arising from the deemed disposition of the Opco Class A Special shares realized in the Deceased’s terminal year, as described in Paragraph 6.
22. Opco will obtain sufficient financing to repay the Opco Debt and the Opco Note in full, on or before XXXXXXXXXX. The Estate will use these funds to pay the income taxes arising in the Deceased’s terminal tax return, the Estate’s expenses and distributions to the Beneficiary.
Pipeline Transactions
23. The Estate will incorporate Newco under Act 1. Newco will be a CCPC and a taxable Canadian corporation. Newco will be authorized to issue an unlimited amount of the following share capital:
a. Newco Class A Preference shares
i. entitle the holder to XXXXXXXXXX per share;
ii. redeemable and retractable at a price equal to the FMV of any consideration paid to acquire such share on issuance, subject to a price adjustment clause;
iii. entitle the holder to non-cumulative dividends at a rate of XXXXXXXXXX% of the redemption price as and when declared by the board of directors of Newco, to the exclusion of any other class of shares. Any amount distributed as a return of capital to the Newco Class A Preference shares will reduce, in equal amount, the redemption value of the Newco Class A Preference shares; and
iv. entitle the holder to the redemption price in priority to any participation by the holders of the Newco Common shares on the winding-up, liquidation or dissolution of Newco.
b. Newco Common shares
i. entitle the holder to XXXXXXXXXX per share;
ii. entitle the holder to non-cumulative dividends as and when declared by the board of directors of Newco to the exclusion of any other class of shares. No dividend can be declared or paid on the Newco Common shares nor purchase for cancellation any of the Newco Common shares, if such dividend or purchase would result in Newco having insufficient net assets to redeem any issued and outstanding Newco Class A Preference shares, or to pay the redemption amount on the Newco Class A Preference shares in part or in full in the event of a wind-up, dissolution or liquidation of Newco; and
iii. participating in the remaining assets of Newco in the event of a wind-up, liquidation or dissolution of Newco.
On incorporation, the Estate will subscribe for XXXXXXXXXX Newco Common shares for $XXXXXXXXXX. The Estate will control Newco.
24. The Estate will transfer its XXXXXXXXXX Opco Class B Special shares to Newco in exchange for consideration consisting of:
a. The Newco Note with a principal amount and FMV equal to $XXXXXXXXXX, subject to a price adjustment clause to adjust the principal value of the Newco Note, should the redemption value of the XXXXXXXXXX Opco Class B Special shares be changed pursuant to the Opco Class B Special share price adjustment clause, and
b. XXXXXXXXXX Newco Class A Preference shares with a redemption value equal to $XXXXXXXXXX. For greater certainty, $XXXXXXXXXX will be added to the stated capital and PUC of the XXXXXXXXXX Newco Class A Preference shares issued.
25. Opco will continue to carry on its business for at least XXXXXXXXXX following the transfer of the XXXXXXXXXX Opco Class B Special shares to Newco as described in Paragraph 24. During the XXXXXXXXXX period, there will be no repayment of the Newco Note in part or in whole, nor will there be a redemption or retraction of any Newco Class A Preference shares or any Opco Class B Special shares.
26. Opco will amalgamate with Newco to form Amalco after a period of at least XXXXXXXXXX has elapsed from the time of the transfer described in Paragraph 24. In accordance with subsection 87(1), all of the property and all of the liabilities of Opco and Newco immediately before the amalgamation, will become property and liabilities of Amalco.
On the amalgamation, the Estate will receive XXXXXXXXXX Amalco Class A Preference shares having identical terms to those of the XXXXXXXXXX Newco Class A Preference shares it held immediately before that time as consideration for its XXXXXXXXXX Newco Class A Preference shares and XXXXXXXXXX Newco Common shares. The aggregate PUC and ACB of the newly issued Amalco Class A Preference shares will equal the aggregate PUC and ACB of the Newco Class A Preference shares and Newco Common shares that the Estate owned immediately prior to the amalgamation. Similarly, on the amalgamation the Family Trust will receive XXXXXXXXXX Amalco Common shares having identical terms to those of the XXXXXXXXXX Opco Common shares it held immediately before that time. The PUC and ACB of the newly issued XXXXXXXXXX Amalco Common shares will equal the PUC and ACB of the issued and outstanding Opco Common shares the Family Trust owned immediately prior to the amalgamation.
27. Subsequent to the amalgamation, Amalco will begin to gradually make payments on the Newco Note to the Estate and/or gradually redeem the Amalco Class A Preference shares over the long term. For greater certainty, the amount paid on the Newco Note to the Estate during the first year immediately following the amalgamation, will not exceed 10% of the principal amount of the Newco Note when it was first issued.
28. Amalco will continue to carry on the business of Opco.
29. Prior to, during, or subsequent to the Proposed Transactions, the Estate will make interim distributions totaling $XXXXXXXXXX to the Beneficiary from its capital. The capital distributions will be funded through the repayment of the Opco Debt and/or the Opco Note.
ADDITIONAL INFORMATION
30. The Deceased did not claim a deduction under section 110.6 in respect of the Opco Class A Special shares or any other shares for which they were substituted, within the meaning of subsection 248(5). Moreover, there was no person not dealing at arm’s length with the Deceased, or with the Estate, that previously claimed a deduction under section 110.6 in respect of any Opco Common shares, or any other shares of Opco for which such shares were substituted, within the meaning of subsection 248(5).
31. For greater certainty, there is no V-day basis included in the ACB of any class of Opco shares.
32. The Taxpayers have represented that in its first taxation year, the Estate will not realize a capital gain which would reduce the capital loss described in Paragraph 21.
33. The Proposed Transaction steps in Paragraphs 14 to 22 are to be implemented before the anniversary of the first taxation year of the Estate. The Proposed Transaction steps in Paragraphs 23 to 28 are to be implemented following the completion of the Proposed Transaction steps in Paragraphs 14 to 22.
PURPOSE OF THE PROPOSED TRANSACTIONS
The purpose of the Proposed Transactions is to reduce the capital gain reported on the Deceased’s terminal tax return, and to return to the Estate an amount up to the FMV, immediately before the Deceased’s death, of the Remaining Opco shares while minimizing the inherent double tax exposure that can result from the application of subsections 70(5), 84(2) and 84(3).
Specifically, the purpose of the Proposed Transactions described in Paragraphs 14 to 22 is to trigger capital gains on the transfer of the Specified Properties held by Opco in order to integrate the tax on the economic value of the underlying properties owned by Opco and the Opco Class A Special shares owned by the Deceased at the time of his death through mechanisms of CDA and RDTOH, and to trigger a capital loss on the Opco Class A Special shares which will reduce the tax payable by the Estate on the death of the Deceased, pursuant to subsection 164(6).
The purpose of the Proposed Transactions described in Paragraphs 23 to 28 is to create a “pipeline” in order to allow for the distribution of funds from Opco to the Estate, without triggering additional taxes on the value of the Estate’s interest in Opco for which the taxes were already paid or payable as a result of death of the Deceased.
RULINGS GIVEN
Provided the foregoing statements constitute a complete and accurate disclosure of all the relevant facts, additional information, Proposed Transactions and purpose of the Proposed Transactions, and provided that the Proposed Transactions are completed in the manner described above, we confirm the following:
A. Section 84.1 will not apply to deem the Estate to have received a dividend from Newco, on the disposition of the Remaining Opco shares, described in Paragraph 24, provided that the FMV of the Newco Note immediately after the disposition, is equal to or less than the ACB of the Remaining Opco shares to the Estate, immediately before the disposition.
B. Section 84.1 will not apply to cause a reduction in the PUC of the XXXXXXXXXX Newco Class A Preference shares described in Paragraph 24, provided that the difference between the ACB of the Remaining Opco shares, immediately before the disposition, and the Newco Note, is equal to the increase in the PUC of the XXXXXXXXXX Newco Class A Preference shares.
C. Subsection 84(2) will not apply as a result of the Proposed Transactions, in an by themselves, to deem Opco to have paid, and the Estate to have received, a dividend on the Remaining Opco shares owned by the Estate on the disposition of the Remaining Opco shares to Newco.
D. The provisions of subsection 245(2) will not apply as a result of the Proposed Transactions, in and by themselves, to re-determine the tax consequences stated in the rulings given above.
The above rulings are given subject to the limitations and qualifications set out in Information Circular 70-6R8 dated November 1, 2018 and are binding on the CRA provided that the Proposed Transactions are completed within the time frame described in this letter, unless otherwise stated.
The above rulings are based on the law as it presently reads and do not take into account any proposed amendments to the Act and the Regulations which, if enacted, could have an effect on the rulings provided therein.
OTHER COMMENTS
Unless otherwise confirmed in the above rulings, nothing in this letter should be construed as implying that the CRA has confirmed, reviewed or has made any determination in respect of:
(a) the PUC of any share or the ACB, UCC or FMV of any share or property referred to herein;
(b) the balance of the CDA, GRIP, or RDTOH of any corporation;
(c) that the executors of the Estate are able to complete the Proposed Transactions under the terms of the Deceased’s will;
(d) that any person or individuals described therein deal, or do not deal, with any other person or individuals at arm’s length; and
any other tax consequence relating to the facts, additional information, Proposed Transactions or any transaction or event taking place either prior to the Proposed Transactions or subsequent to the Proposed Transactions, whether described in this letter or not, including, but not limited to the tax consequences associated with the settlement and distribution of the Opco Note and the Opco Debt, as well as any other assets of the Estate, other than those specifically described in the rulings given above.
Nothing in this letter should be construed as confirmation, express or implied, that, for the purposes of any of the rulings given above, any adjustment to the FMV of the properties transferred or the redemption amount of the shares issued as consideration, whether pursuant to a price adjustment clause or otherwise, will be effective retroactively to the time of the transfer and issuance of shares. Furthermore, none of the rulings given in this letter are intended to apply to or in the event of the operation of a price adjustment clause, since such adjustment will be due to circumstances that do not constitute proposed transactions that are seriously contemplated. The general position of the CRA with respect to price adjustment clauses is stated in Income Tax Folio S4-F3-C1, Price Adjustment Clauses.
An invoice for our fees in connection with this ruling request will be forwarded to you under separate cover.
Yours truly,
XXXXXXXXXX
Manager
For Division Director
Reorganizations Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch
