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Principal Issues: [TaxInterpretations translation] Would the result of Technical Interpretation 2000-0024257 be different if, in addition to the facts set out therein, the taxpayer acquired $20,000 of additional chicken quota units from an arm's length person in 1997?
Position: Since section 14 does not contain a rule dealing with the order of disposition of eligible capital property, the CRA is of the view that the pro-rata method produces a reasonable result that is consistent with the purpose of section 14 of the Income Tax Act and the intent of Parliament.
Reasons: The Income Tax Act. The jurisprudence.
XXXXXXXXXX 2006-021200
October 27, 2006
Dear Sir,
Subject: Request for Technical Interpretation - Non-Arm's Length Transaction Involving Eligible Capital Expenditures _____
This is in response to your letter dated September 19, 2006, regarding the effect of subsection 14(3) of the Income Tax Act (the "Act") where a taxpayer disposes of eligible capital property previously acquired from a person with whom the taxpayer does not deal at arm's length.
In your letter, you referred to Technical Interpretation 2000-0024257 issued by the Canada Revenue Agency ("CRA") on July 4, 2000, and asked whether the result of the interpretation would have been the same if the taxpayer had acquired additional chicken quota units from a person with whom the taxpayer was dealing at arm's length.
FACTS
There is no need to repeat the facts which are the subject of your request for a technical interpretation, as these are the facts on which our technical interpretation 2000-0024257 was based.
You wish to know the result of our interpretation of subsection 14(3) if, in addition to the facts set out in Interpretation 2000-0024257, the corporation had acquired 20,000 chicken quota units from an arm's length person in 1997 at a price of $21 per unit. That acquisition would have taken place in 1997, after the corporation had acquired the 45,300 chicken quota units from its shareholders.
CONCLUSION
In Technical Interpretation 2000-0024257, the CRA concluded that no amount was deductible by the corporation under paragraph 20(1)(b) for the years 1997, 1998 and 1999 respectively, as the corporation's cumulative eligible capital ("CEC") for those years was either negative or nil.
In addition, we concluded that an amount of $103,275 should be included in the corporation's income for its 1998 taxation year, representing the negative CEC balance for the year.
In this case, the CRA is of the view that the pro-rata method is reasonable in light of the purpose of section 14 of the Act and the intent of Parliament.
ANALYSIS
Where a taxpayer acquires eligible capital property from a person with whom the taxpayer does not deal at arm's length and that person claims the capital gains exemption under section 110.6, the purpose of subsection 14(3) is to prevent an amount from being deducted under paragraph 20(1)(b) in respect of the portion of the transferor's capital gain that is tax-free.
In this case, the taxpayer is a Canadian-controlled private corporation ("CCPC") which, immediately before the time of the disposition of the 15,300 chicken quota units, holds 65,300 units. For the purposes of our interpretation of subsection 14(3), it is therefore necessary to determine the source of the 15,300 chicken quota units.
As you are no doubt aware, the Act contains no provision for the order of disposition of fungible property that is eligible capital property. In other words, the Act provides no guidance as to whether the first-in, first-out or last-in, first-out method should be followed when a taxpayer disposes of fungible eligible capital property.
Today, the interpretation of a law or a particular provision must be made according to the modern principle of statutory interpretation:
". . . the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". 1
The Department of Finance Explanatory Notes to subsection 14(3) read as follows:
Subsection 14(3) provides rules regarding non-arm's length transfers of eligible capital property. In those circumstances, where the vendor has claimed a capital gains exemption under section 110.6 in respect of the disposition, the eligible capital expenditure of the purchaser is reduced in order to prevent the purchaser from depreciating amounts that were exempt from capital gains tax in the hands of the non-arm's length vendor.2
Thus, the purpose of subsection 14(3) is to prevent a purchaser of eligible capital property from claiming a deduction under paragraph 20(1)(b) where the transferor of the property - not dealing at arm's length with the purchaser - has claimed the capital gains exemption.
In this case, in order to determine the source of the 15,300 units that are sold by the taxpayer to a person with whom the taxpayer is dealing at arm's length, the CRA is of the view that the pro rata method, whereby the 15,300 units sold are derived from both the 45,300 units acquired from the person with whom the taxpayer is not dealing at arm's length and the 20,000 units acquired from the person with whom the taxpayer is dealing at arm's length, is a reasonable method in light of the purpose of section 14. In other words, 10,614 units will be derived from the 45,300 units initially acquired while 4,686 units will be derived from units acquired thereafter.
We hope that the above comments are of assistance.
Best regards,
François D. Bordeleau, LL.B.
Individual, Corporate and Partnership Section
Income Tax Rulings Directorate
ENDNOTES
1 Québec (Communauté urbaine) v Corp. Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3
2 Explanatory Notes to the Income Tax Act, Department of Finance Canada, March 2001
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