CRA considers that a corporation with no listed shares can satisfy the Reg. 4800(2)(a)(i) test that more than 90% of its listed shares be held by insiders
Pubco was a corporation that was now closely held but nonetheless was deemed to be a public corporation under s. 87(2)(ii) given that it resulted from the amalgamation of a public corporation and another predecessor. However, at no time since that amalgamation had any class of its shares been listed on a designated stock exchange in Canada (or qualified for distribution to the public). This created a problem for its ability to elect under (c)(i) of the definition of “public corporation” in s. 89(1) to cease to be a public corporation - which was that it did not literally satisfy the requirement in Reg. 4800(2)(a)(i) that “insiders of the corporation shall hold more than 90 per cent of the issued and outstanding shares of each class … that was, at any time after the corporation last became a public corporation, listed on a designated stock exchange in Canada [or of designated surrogate qualified-for-distribution shares under Reg. 4800(2)(a)(ii)].” The problem of course was that there were no such listed (or qualified) shares of Pubco to which the 90% test could be applied. Can 90% of 0 be greater than 0?
CRA however took a “liberal” approach and ruled that the election could be made, so that on the subsequent further amalgamation of Pubco, the resulting Amalco was not tainted as a public corporation under s. 87(2)(ii) (which, in turn, meant that PUC could be distributed to non-resident shareholders of Amalco without withholding tax.)
Neal Armstrong. Summary of 2018 Ruling 2018-0752531R3 under Reg. 4800(2)(a).