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: The situation is one where, in 2008, Holdco receives on its preferred shares from Opco a taxable dividend of $529,785 to which subsection 55(2) applies and another dividend of $143 915 to which subsection 55(2) does not apply. Holdco has no safe income on hand in respect of its preferred shares of Opco. Opco also receives a dividend refund of $131,400 on total dividends of $2,873,695 paid during the same taxation year on both preferred and common shares. How to calculate the amount of Part IV tax payable by Holdco and the portion of the dividend subject to paragraph 55(2)?
Position: There is no need to use a circular calculation in order to determine Part IV tax to be paid by Holdco and the portion of a dividend subject to subsection 55(2). paragraph 55(2)a) would apply to an amount of $457 112.
Reasons: Because of the approach adopted by the Tax Court of Canada in 943963 Ontario Inc. v. The Queen, 99 DTC 802.
2008-029463
XXXXXXXXXX Lucie Allaire, Advocate, CGA, D. Fisc.
April 16, 2009
Dear Madam,
Subject: Interaction of Subsections 55(2) and 186(1) of the Income Tax Act
This is in response to your request for a technical interpretation dated September 12, 2008, in which you asked for our opinion on the application of subsection 55(2) and paragraph 186(1)(b) of the Income Tax Act (the "Act") in the context of a particular situation. We apologize for the delay in responding to your request.
Unless otherwise stated, all statutory references to a statutory section or included provision in this letter are to a section of the Act, or to one if its included provisions.
It appears to us that the situation described in your letter and summarized below could constitute an actual situation involving taxpayers. As explained in Information Circular 70-6R5, it is not the practice of this Directorate to provide comments on proposed transactions involving specific taxpayers otherwise than in the form of an advance income tax ruling. If your situation involved specific taxpayers and one or more completed transactions, you should submit all relevant facts and documents to the appropriate Tax Services Office for its opinion. However, we are able to offer the following general comments that may be of assistance to you. It should be noted that the application of one or more provisions of the Act generally requires the analysis of all the facts relating to a particular situation. Accordingly, and given that your letter only summarily describes a hypothetical situation, the comments we make below may not apply in full in a particular situation.
1) Particular Situation
You have presented us with the situation described below (the "Particular Situation") as part of your request for technical interpretation.
1. An individual held all of the shares of the capital stock of Holdco and Holdco held all of the preferred shares of the capital stock of Opco. The common shares of Opco were held by other shareholders.
2. Holdco and Opco were "Canadian-controlled private corporations" within the meaning of subsection 125(7). They were also "connected corporations" within the meaning of subsection 186(4) for the purposes of the transactions described below.
3. In its 2008 taxation year, Opco paid a dividend of $2,199,995 to the holders of the common shares and a dividend of $143,915 to Holdco, the sole holder of the preferred shares.
4. During the same taxation year, Opco redeemed a portion of the preferred shares held by Holdco, resulting in a deemed dividend under subsection 84(3) in the amount of $529,785. The paid-up capital and adjusted cost base of such redeemed preferred shares were nominal.
5. The total amount of dividends paid and deemed to be paid by Opco to all of its shareholders was therefore $2,873,695 for its 2008 taxation year.
6. Opco received a dividend refund (the "DR") in the amount of $131,400 as a result of the payment of dividends.
7. Only the redemption of the preferred shares held by Holdco gave rise to the application of subsection 55(2).
8. For the purposes of subsection 55(2), the safe income on hand attributable to the preferred shares of the capital stock of Opco was nil.
9. Holdco made no separate taxable dividend designation under paragraph 55(5)(f).
10. The taxation years of Opco and Holdco ended on the same date.
2) Your Question
You requested that the Canada Revenue Agency confirm, regarding the Particular Situation, that the amount of Part IV tax payable by Holdco respecting the redemption of the preferred shares is nil, and that the portion of the dividend subject to Part IV tax, which is excluded from the application of subsection 55(2), is nil. Otherwise, you wish to know how to determine these amounts.
3) Your Comments on the Particular Situation
First, you quoted part of the preamble to subsection 55(2) which states that
"... notwithstanding any other section of this Act, the amount of the dividend (other than the portion of it, if any, subject to tax under Part IV that is not refunded as a consequence of the payment of a dividend to a corporation…”
[emphasis added].
You then indicated that the portion of a dividend subject to Part IV tax (and not refunded because of the payment of a dividend to a corporation) would be excluded from the application of subsection 55(2). In order to identify that part of a dividend subject to Part IV tax, you referred to subsection 186(1) and more specifically to paragraph 186(1)(b) in the case of connected corporations. The first part of this paragraph states:
"all amounts, each of which is an amount in respect of an assessable dividend received by the particular corporation in the year… .”
"[emphasis added].
You added that to be subject to Part IV tax, the corporation must have received an "assessable dividend". You quoted the definition of "assessable dividend" in subsection 186(3) as follows:
"an amount received by a corporation ... to the extent of the amount in respect of the dividend that is deductible under section 112…”.
[emphasis added].
Finally, you indicated that to qualify as an "assessable dividend", the dividend must be deductible under section 112. To this effect, you presented two options that, in your view, allow the calculation of the "assessable dividend".
First alternative
Step 1: You estimated the portion of the DR received by Opco that is attributable to the deemed dividend as follows: $131,400 x $529,785/ $2,873,695 = $24, 224
Step 2: You then estimated the fraction of the assessable dividend subject to Part IV tax for Holdco, by multiplying by three the portion of the DR received by Opco that is attributable to the deemed dividend: $24,224 x 3 = $72,672. You concluded that the proceeds of disposition under subsection 55(2) would be $529,785 - $72,672 = $457,113.
Step 3: You are of the opinion that Holdco should then pay Part IV tax on the portion of the dividend calculated in Step 2, as follows: $72,672 / $2,873,695 x $131,400 = $3,323.
Step 4: At this point, you resumed the Step 2 calculation to recalculate the "assessable dividend" under subsection 186(3). However, you used the amount of Part IV tax calculated in Step 3 to obtain the following result: $3,323 x 3 = $9,969. You noted that the proceeds of disposition under subsection 55(2) would then be $529,785 - $9,969 = $519,816.
Step 5: You repeated the calculation in Step 3 to obtain the following result: $131,400 x $9,969 /$2,873,695 = $456.
Step 6: You used a similar calculation to Step 2 again to obtain an assessable dividend of $1,368 ($456 x 3). You stated that the proceeds of disposition under subsection 55(2) would then be $529,785 - $1,368 = $528,417.
Step 7: You used a calculation similar to Step 3 to obtain a Part IV tax of $63 ($131,400 x $1,368 / $2,873,695).
Step 8: You repeated Steps 2 and 3 until the circularity of the calculation results in an "assessable dividend" of nil and the proceeds of disposition under subsection 55(2) equal the $529,785 received.
Second alternative
Second, you submitted, in the alternative, that since the deemed dividend of $529,785 is deemed not to be a dividend received by Holdco by virtue of paragraph 55(2)(a), Holdco would then have received no dividend deductible under section 112 for the purposes of the Act and would therefore have no amount considered an "assessable dividend" under subsection 186(3).
In your view, regardless of the alternative used to calculate the "assessable dividend", Holdco would have no "assessable dividend" by virtue of subsection 186(3), as there would be no dividend deductible under section 112. Consequently, the amount of Part IV tax payable by Holdco would be nil and the entire deemed dividend pursuant to subsection 84(3) in the amount of $529,785 resulting from the redemption of a portion of the preferred shares would be proceeds of disposition by virtue of subsection 55(2).
3) Our Comments on this Request
Where a corporation resident in Canada has received a taxable dividend under subsection 84(3), in respect of which it is entitled to a deduction under subsection 112(1), and the dividend effects a significant reduction in the portion of the capital gain that, but for the dividend, would otherwise have been realized on the disposition of a share, subsection 55(2) may apply and provides, inter alia, that:
…notwithstanding any other section of this Act, the amount of the dividend (other than the portion of it, if any, subject to tax under Part IV that is not refunded as a consequence of the payment of a dividend to a corporation where the payment is part of the series):
(a) shall be deemed not to be a dividend received by the corporation;
[...]
[Emphasis added]
In this case, we have assumed that Holdco has not, as part of the series of transactions or events described in the Particular Situation, declared or paid a dividend to a corporation in respect of which it could have been entitled to a DR, within the meaning of subsection 129(1).
We understand that the first dividend paid to Holdco in the amount of $143,915 does not trigger the application of subsection 55(2) because the purpose test in that subsection is not satisfied.
In 943963 Ontario Inc. ("943963 Ontario") v. The Queen, 99 DTC 802, the Tax Court of Canada determined that 943963 Ontario was deemed by subsection 84(3) to have received a dividend of $1,199,268 as a result of the purchase for cancellation of its shares of the capital stock of HSP Graphics Ltd. (“HSP”) This dividend in the amount of $1,199,268 was subject to both subsection 55(2) and Part IV tax since the two corporations were connected to each other. The DR obtained by HSP, as a result of the payment of such dividend, was limited to its balance of "refundable dividend tax on hand", as defined in subsection 129(3), in the amount of $141,730. HSP's safe income on hand attributable to the redeemed shares of its capital stock was $252,265.
In that case, the Court noted that the presumption in paragraph 55(2)(a) did not apply to the preamble of subsection 55(2), and that the portion of the dividend represented by safe income on hand (or "safe income") was not exempt from Part IV tax, for purposes of determining the amount of the dividend deemed not to be a dividend by virtue of paragraph 55(2)(a). In paragraphs 24 and 25 of the reasons for judgment, the Court stated the following:
[24] The words "the amount of the dividend" in subsection 55(2) that appear immediately before the last set of parenthesis preceding paragraph (a) refer to the phrase "where a corporation resident in Canada has received a taxable dividend ...", that is, the opening words of subsection 55(2). The words "the amount of the dividend" also applies to amounts of all dividends designated by a corporation pursuant to paragraph 55(5)(f). Thus, "the amount of the dividend" is the full amount of the dividend the appellant received from HSP and the portion of the dividend subject to Part IV tax is the portion of the taxable dividend of $1,199,268 that is subject to Part IV tax.
[25] There is nothing in the Act liberating the portion of the taxable dividend equal to safe income from Part IV tax. The whole of the taxable dividend of $1,199,268 that is deemed by subsection 84(3) of the Act to be paid by HSP to the appellant and received by the appellant as a private corporation is subject to Part IV tax by virtue of section 186. [9] The phrase "notwithstanding any other section of the Act" preceding the words "the amount of the dividend" in subsection 55(2) do not affect the character of the receipt as a taxable dividend, whether or not subject to Part IV tax. All amounts in the introductory paragraph of subsection 55(2) (and the dividends referred to in paragraph 55(5)(f)) are amounts of taxable dividends; it is only in paragraphs (a), (b) and (c) that the deeming provisions arise and that the "notwithstanding" phrase applies to these deeming provisions only.
[Emphasis added]
It can be inferred that, in this case, both the parties and the Court set the Part IV tax payable by 943963 Ontario at $141,730, despite the fact that a portion of the deemed dividend received pursuant to subsection 84(3) by 943963 Ontario was deemed not to be a dividend received, by virtue of paragraph 55(2)(a).
Indeed, nothing in this judgment suggests that the amount of Part IV tax payable by 943963 Ontario may have been different as a result of the assessment under paragraph 55(2)(a). On the contrary, the following excerpt from the reasons for judgment, at paragraph, suggests that the Part IV tax payable by 943963 Ontario was $141,730.
[31]... In the case at bar, HSP's dividend refund was limited to the amount of its refundable dividend tax on hand account, that is, $141,730. Whether HSP paid a dividend of $566,920 (four times $141,730) or $1,000,000, the refund payable to HSP would be the same, $141,730. And a dividend received by the appellant in excess of $566,920 would not result in a Part IV tax greater than $141,730;
...
[Emphasis added]
It follows, therefore, that the amount of the assessable dividend received for the purposes of subparagraph 186(1)(b)(i) remains the same despite the fact that a portion of the dividend may be deemed not to be a dividend under paragraph 55(2)(a).
In light of that decision, we are of the view that no circular calculation is required to be made to determine the Part IV tax payable by Holdco and the portion of the dividend received that is subject to paragraph 55(2)(a) in the Particular Situation.
We are therefore of the view that the amount of Part IV tax payable by Holdco in this case should be calculated as follows:
DR obtained by Opco X
|
$131,400
|
* (i) Dividends received by Holdco
|
$673,700
|
/(ii) Total taxable dividends paid by Opco
|
$2,873,695
|
|
= $30,805
|
Finally, for the purposes of applying paragraph 55(2)(a) to Holdco, the following calculations, based on the methodology advocated in 943963 Ontario Inc. v. The Queen, should be made:
Taxable dividend received from Opco and eligible for a deduction under subsection 112(1)
|
$529,785
|
Deduct: Safe income on hand
|
(0)
|
Taxable dividend received from Opco in excess of safe income on hand
|
$529,785
|
Deduct: Portion of the taxable dividend received from Opco subject to Part IV tax, calculated as follows:
|
|
Dividend subject to Part IV tax, namely
3 X $30,805 X $529,785 / $673,700
|
($72,673)
|
Deduct: Safe income on hand
|
(0)
|
Dividend deemed not to be a dividend by virtue of paragraph 55(2)(a)
|
$457 112
|
=========
We hope that our comments are of assistance.
Best regards,
Maurice Bisson, CGA
Manager
Corporate Reorganizations and Resource Industries Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch.
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