Translation disclaimer
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: Whether the condition stated in IT-169 to file a letter attached to the return can be substituted where a rollover form is filed. Whether, in circumstances where no rollover form is required, the condition to file a letter attached to the return is mandatory.
Position: The condition to file a letter attached to the return, as stated in IT-169, can be substituted. Administratively, the CRA does accept a rollover form such as T2057, T2058 or T2059, filed with a "yes" answer to the question concerning the existence of a price adjustment clause, as sufficient notice. However, a price adjustment clause does not automatically amend a section 85 election. In order to give effect to a price adjustment clause, the parties will have to file an amended election under subsection 85(7.1) and pay the penalty under subsection 85(8). CRA's position on that point is the same with respect to an election under subsection 97(2). Consequently, the parties will have to file an amended election under subsection 96(5.1) and pay the penalty under subsection 96(6). Finally, in circumstances where no form is required (e.g., section 86 or 51 of the Act), the CRA has stated that simply not notifying the CRA does not prevent Interpretation Bulletin IT-169 from being applied if all of the other conditions are met.
Reasons: Previous positions.
XXXXXXXXXX
2004-008163
S. Prud'Homme
(613) 957-8975
July 6, 2004
Dear Madam,
Subject: Request for technical interpretation of price adjustment clauses
This is in response to your fax of June 14, 2004, in which you asked for our views on price adjustment clauses in the context of a transfer pursuant to subsection 85(1) of the Income Tax Act (the "Act") or other provisions of the Act permitting a tax-free transfer.
Unless otherwise indicated, all statutory references herein are to provisions of the Act.
1) Your questions about this situation
You wish to know whether, where parties not dealing with each other at arm's length enter into an agreement containing a price adjustment clause in respect of a tax-free transfer of property pursuant to subsection 85(1), 85(2) or 97(2), each of the parties to that agreement is required to inform the Canada Revenue Agency ("CRA"), by way of a letter attached to its income tax return for the year in which the property was transferred, of the matters set out in Interpretation Bulletin IT-169, Price Adjustment Clauses.
You also wish to know whether, where parties not dealing with each other at arm's length enter into an agreement containing a price adjustment clause in respect of a tax-free transfer of property pursuant to provisions that do not require the filing of a prescribed form (e.g., section 51 or 86), it is mandatory for each of the parties to that agreement to inform the CRA in the manner indicated above.
2) Your comments on this situation
You are of the view that where a prescribed form is required to be filed under the Act and that form includes a question as to whether or not there is a price adjustment clause in the agreement, the filing of the form alone would replace the above-stated requirement to inform the CRA by letter attached to the return of income of the matters set out in IT-169.
In addition, you point out that the CRA has indicated in the past that where no form is required, the CRA considers that the mere failure of the parties to notify the CRA of the transaction does not necessarily prevent the application of the provisions of IT-169.
3) Our comments on this situation
Where property is transferred in a transaction between parties not dealing with each other at arm's length, the parties often include a price adjustment clause in the transfer agreement. Interpretation Bulletin IT-169, Price Adjustment Clauses, sets out the CRA's position in this regard. Thus, a price adjustment clause ensures that, if the CRA concludes that the fair market value of the property is less than or greater than the price otherwise determined under the agreement, the price will be adjusted upwards or downwards where all of the following conditions are met:
- The agreement reflects a bona fide intention of the parties to transfer the property at fair market value and arrives at that value for the purposes of the agreement by a fair and reasonable method.
- Each of the parties to the agreement notifies the Department by a letter attached to his return for the year in which the property was transferred
(a) that he is prepared to have the price in the agreement reviewed by the Department pursuant to the price adjustment clause,
(b) that he will take the necessary steps to settle any resulting excess or shortfall in the price, and
(c) that a copy of the agreement will be filed with the Department if and when demanded.
- The excess or shortfall in price is actually refunded or paid, or a legal liability therefor is adjusted.
The CRA has indicated that the above-stated requirement to file a letter with the return can be replaced. Thus, from an administrative perspective, the CRA considers a rollover form such as a T2057 (relating to a subsection 85(1) transfer), T2058 (relating to a subsection 85(2) transfer) or T2059 (relating to a subsection 97(2) transfer), with a "yes" answer to the question regarding the existence of a price adjustment clause, to be sufficient notice.
It should be noted, however, that the CRA's position is that a price adjustment clause does not automatically modify a section 85 election. For such a clause to have effect, the parties to the transaction must file an amended election pursuant to subsection 85(7.1) and pay the penalty set out in subsection 85(8). The CRA's position is the same with respect to a subsection 97(2) election. Thus, to give effect to a price adjustment clause, the parties to the transaction must file an amended election pursuant to subsection 96(5.1) and pay the penalty set out in subsection 96(6).
In closing, where no form is required (for example, with respect to a transfer of property pursuant to section 86 or 51), the CRA considers that the mere failure of the parties to notify the CRA of the transaction does not preclude the application of the provisions of Interpretation Bulletin IT-169, provided that all other conditions set out in that Bulletin are satisfied.
We hope that our comments are of assistance.
Best regards,
Stéphane Prud'Homme, Notary, M. Fisc.
For the Director
Corporate Reorganizations and Industrial Resources Division
Income Tax Rulings Directorate
Policy and Planning Branch
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