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This translation was prepared by Tax Interpretations Inc. The CRA did not issue this document in the language in which it now appears, and is not responsible for any errors in its translation that might impact a reader’s understanding of it or the position(s) taken therein. See also the general Disclaimer below.
Principal Issues: [TaxInterpretations translation] An individual was a member of a partnership that carried on a business. The individual elected pursuant to subsection 249.1(4) of the Act to have the partnership have a non-calendar fiscal period. The partnership disposed of the business and ceased to carry on business before the end of the 2003 calendar year. In which calendar year will the income for the fiscal period that begins in 2003 be included?
Position: The partnership's income for the fiscal period beginning in 2003 that includes business income from the disposition of the business will be added to the individual's income in 2003.
Reasons: Since the partnership business was not carried on throughout the period beginning at the beginning of the fiscal period and ending at the end of the calendar year, subsection 249.1(4) no longer applies. Paragraph 249.1(1)(b) applies so that the fiscal period does not end beyond the end of the calendar year.
XXXXXXXXXX Sylvie Labarre, CA
2004-006385
April 19, 2004
Dear Madam,
Subject: Taxation Year for Business Income
This is further to your fax dated February 23, 2004, in which you requested our opinion regarding the taxation year for business income of a partnership.
Facts
An individual was a member of a partnership. whose sole activity was carrying on a business. The individual, as a member of the partnership, had filed an election pursuant to subsection 249.1(4) of the Income Tax Act (the "Act") to have the fiscal period of the partnership end on a date not corresponding to the calendar year.
The partnership's first fiscal period began on August 21, 2002 and ended on May 10, 2003. The partnership sold its business on October 1, 2003, at which time it ceased to carry on business. At the end of 2003, the partnership had not yet been dissolved or wound up.
Question
You wish to know in which calendar year the individual should include the partnership's business income for its fiscal period beginning May 11, 2003, which included the sale of the business on October 1, 2003.
Our Comments
As stated in paragraph 22 of Information Circular 70-6R5 dated May 17, 2002, it is the practice of the Canada Revenue Agency (the "CRA") not to issue a written opinion regarding proposed transactions otherwise than by advance rulings. Furthermore, when it comes to determining whether a completed transaction has received appropriate tax treatment, that determination is made first by our Tax Services Offices as a result of their review of all facts and documents, which is usually performed as part of an audit engagement. However, we can offer the following general comments that we hope may be helpful to you. These comments may not, however, apply to your particular situation in certain circumstances.
We are of the view that the fiscal period of the partnership that began on May 11, 2003, ended in 2003, so that the individual must include in the individual’s income for the 2003 taxation year the business income of the partnership for its fiscal period ending May 10, 2003 as well as the income from the business of the partnership for its fiscal period that began on May 11, 2003 and includes the income from the disposition of the business on October 1, 2003.
Subsection 249.1(4) requires that the partnership business be carried on throughout the period that began at the beginning of the fiscal period and ended at the end of the calendar year in which the fiscal period began in order for paragraph 249.1(1)(b) not to apply. Since the partnership's business ceased before the end of the calendar year, paragraph 249.1(1)(b) applied in this situation notwithstanding the election made pursuant to subsection 249.1(4). Paragraph 249.1(1)(b) provides that the fiscal period of the partnership cannot end beyond the end of the calendar year.
Subsection 34.1(1) does not apply in 2003 in this situation because the fiscal period of the partnership did not end after the end of the 2003 year.
In taxing the partnership's business income for its fiscal period beginning May 11, 2003 in 2003, you stated that the partner will be taxed on partnership business income covering a period longer than 12 months. This result is not due to the partnership ceasing to carry on its business but is due to the fact that in 2002, the partner did not elect to add back income from that business pursuant to subsection 34.1(2). Had the partnership business not ceased during 2003, the partner would have been taxed on the actual income for the fiscal period ending May 10, 2003 and on the additional income calculated under subsection 34.1(1) also covering a period in excess of 12 months.
These comments are not advance income tax rulings and are not binding on the CRA with respect to any particular situation.
Best regards,
Ghislaine Landry, CGA
for the Director
Business and Partnerships Division
Income Tax Rulings Directorate
Policy and Planning Branch
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