Principal Issues: Questions with respect to Rulings no. F 2002-0154223 and F 2005-0142111R3, which dealt with post mortem planning and their application to a given hypothetical situation. The purpose of this type of planning is to bring back at the shareholder level property of a corporation the fair market value of which would correspond to the adjusted cost base to the shareholder of the shares of the capital-stock of the corporation. In each of the Rulings mentioned above, it is indicated that the corporation would remain a separate and distinct entity for a period of at least one year, and that such corporation would continue to carry on its business during such period in the same manner than before. Various questions with respect to the potential application of subsection 84(2) ITA to the hypothetical situation provided.
Position: In this type of post mortem planning, the potential application of subsection 84(2) would result in a deemed dividend paid by a corporation and deemed received by the individual shareholder. In the two Rulings mentioned, the fact that the corporation would remain a separate and distinct entity for a period of at least one year and that such corporation would continue to carry on its business during such period in the same manner than before did contribute to conclude that conditions of application of subsection 84(2) were not all met. In fact, subsection 84(2) requires that funds or property of a corporation have been distributed or otherwise appropriated in any manner whatever to or for the benefit of the shareholders on the winding-up, discontinuance or reorganization of its business. In Rulings no. F 2002-0154223 and F 2005-0142111R3, the individual ceased to be shareholder of the corporation for at least one year prior to the distribution of funds or property on the winding-up, discontinuance or reorganization of the corporation's business. Otherwise, the hypothetical scenario briefly described in the question seems to differ from the ones described in Rulings no. F 2002-0154223 and F 2005-0142111R3. Among other things, ACO seems to have discontinued its business prior to the death of the taxpayer and its assets consist only of cash. In consequence and considering that the given situation is hypothetical and only briefly described, the CRA cannot make any comments on the application of subsection 84(2) to the given situation. The fact that the corporation would remain a separate and distinct entity for a period of at least one year and that such corporation would continue to carry on its business during such period in the same manner than before were part of the proposed transactions submitted by the taxpayers involved in the Rulings and as such, cannot be considered as "requirements" from the CRA. Finally, CRA's position is to rule on the potential application of subsection 84(2) on a case by case basis, after a review of all the facts and circumstances surrounding a specific situation.
Reasons: Wording of the Act and previous positions.