CRA considers that a suspended loss on the sale of CFA to Subco was not de-suspended on s. 88(3) wind-up of CFA

Canco sold all the shares of FA to Canco’s wholly-owned subsidiary (Subco) and realized a capital loss that was suspended under s. 40(3.4). In a subsequent year, Subco wound -up FA under s. 88(3). This would have de-suspended the loss but for s. 40(3.5)(c)(i), which applies if the particular corporation which, in fact, had disappeared (FA) would be considered to have been “merged or combined” with another corporation (Subco) to “form” a corporation.

CRA was not flustered by the latter issues, and considered that the loss continued to be suspended:

• “Merged or combined” encompasses a winding-up or liquidation given inter alia the exclusion, in various provisions listed by it, of a winding up or liquidation from a “merger;” and
• “Formed” includes an entity in place after a reorganization (for example, a s. 86(1) reorganization), even though no new entity may be formed in the traditional sense - so that Subco was considered to have been “formed” on its s. 88(3) winding-up of FA under a “QLAD.”

Neal Armstrong. Summary of 16 May 2018 IFA Roundtable, Q.5 under s. 40(3.5)(c)(i).