17 June 2025 STEP Roundtable, Q.2

Can shares (which do not amount to control) of the purchaser corporation be held by a trust where the parent is a contingent beneficiary in the event of death of a child or all members of the child group?

CRA noted that the context of this question was the rules in ss. 84.1(2.31)(d) and (e) and 84.1(2.32)(d) and (e) which provided that the parents, from the time of the disposition of the subject shares, could not own, directly or indirectly, 50% or more of the shares of any class of the purchaser corporation or the subject corporation other than certain non-voting preferred shares and that, within 36 months of the disposition, must have ceased owning, directly or indirectly, any shares of the purchaser corporation or the subject corporation other than those certain non-voting preferred shares.

Turning then to the look-through rule in s. 84.1(2.3)(c)(ii) as to the meaning of “own, directly or indirectly,” CRA indicated that it would not consider a person to have an interest in a trust if that person's interest depended solely on the occurrence of an uncertain event, such as a child predeceasing a parent. Accordingly, CRA would not consider, during the lifetime of a child or the lives of relevant members of the child group, the parent to own any shares of the purchaser corporation held by the trust.

Could shares which did not amount to control of the particular corporation be held by a trust where the parent and the parent's spouse or common-law partner (the “parents”) were the sole trustees or a majority of the trustees? CRA noted that the context of this question was the rules in ss. 84.1(2.31)(d) and (e) and 84.1(2.32)(d) and (e) which provided that the parents, from the time of the disposition of the subject shares, could not own, directly or indirectly, 50% or more of the shares of any class of the purchaser corporation or the subject corporation other than certain non-voting preferred shares and that, within 36 months of the disposition, must have ceased owning, directly or indirectly, any shares of the purchaser corporation or the subject corporation other than those certain non-voting preferred shares.

CRA indicated that it would not consider the parent or the parent's spouse or common-law partner in the capacity as trustee to own shares of the purchaser corporation for purposes of the share ownership limitations in s. 84.1(2.31)(d) and (e), and in ss. 84.1(2.32)(d) to (f). In that situation, CRA would apply the look-through rule in s. 84.1(2.3)(c)(ii) and, if applicable, the deeming rule in respect to discretionary interests in s. 84.1(2.3)(d) to determine who owned directly or indirectly any property held by the trust.

CRA indicated that trustees are not considered to be owners of the shares held by the trust in the context of the rules in ss. 84.1(2.31)(d) and (e) and 84.1(2.32)(d) and (e) placing restrictions on the ownership of shares by parents in the purchaser corporation of their children or the subject corporation sold by them.