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5 October 2012 Roundtable, 2012-0451291C6 F - Subsection 85(1) and UMIR Marketplace Rules
Principal Issues: An individual would like to transfer shares of the capital stock of a corporation to another corporation that is not 100 % owned by the individual ("Holdco"). However, the Universal Market Integrity Rules (UMIR) require these trades to be executed on a marketplace. Whether subsection 85(1) would apply in such a situation.
Position: No.
Reasons: The conditions required by subsection 85(1) are not met. In the situation described, two distinct transactions occur. Firstly, an order from the individual for the sale of shares of a corporation on a marketplace is negotiated at a price established by the trading system of the marketplace and executed. Secondly, an order from Holdco for the purchase of shares of the same corporation is negotiated at a price established by the trading system of the marketplace and executed. In such a case, among other things, the individual does not dispose of an eligible property "to" a taxable Canadian corporation.
FINANCIAL STRATEGIES AND INSTRUMENTS ROUNDTABLE 5 OCTOBER 2012
2012 APFF CONFERENCE
Question 7 - Section 85 and compliance with market integrity rules
The Income Tax Act permits, pursuant to section 85, the tax-free transfer of assets of a shareholder to the shareholder’s corporation if certain conditions are satisfied.
Subsection 85(1) - Transfer of property to corporation by shareholders- reads as follows:
“85(1) Where a taxpayer has, in a taxation year, disposed of any of the taxpayer’s property that was eligible property to a taxable Canadian corporation […]”
Furthermore, securities regulations include Universal Market Integrity Rules (UMIR), which may in some cases require certain transactions to pass through the marketplace, and in other cases prohibit this and require them to occur off the marketplace.
The Market Integrity Notice 2002-010 published on June 26, 2002 under the heading "Changes in Beneficial and Economic Ownership" contains certain guidance in this regard.
Transactions to be moved off-market
Certain transactions must go off-market, such as the transfer of shares between an individual and a wholly-owned corporation, allowing the use of section 85.
“Trades that do not constitute either a change in beneficial ownership or a change in economic ownership should not take place on a marketplace as such trades constitute a deceptive and manipulative method of trading pursuant to Rule 2.2 of UMIR. For example, a transfer of stock between an individual and a wholly-owned corporation, although constituting a change in beneficial ownership, does not constitute a change in economic ownership and therefore must be done off-marketplace.”
Market Integrity Notice 2002-010 published on June 26, 2002 under the heading "Changes in Beneficial and Economic Ownership".
Transactions to go through the market
Other directives prohibit certain transactions from going off market.
… [I]t is the position of RS that trades that involve a change in beneficial and economic ownership must be traded upon a marketplace on which the Participant is a member, participating organization, user or subscriber.
To this end, Rule 6.4 of UMIR requires trades to be executed on a marketplace where a Participant is acting as principal or agent unless the trade falls within one of the exemptions to the rule. …”
Market Integrity Notice 2002-010 published on June 26, 2002 under the heading "Changes in Beneficial and Economic Ownership".
“A trade for tax purposes may only be executed off-marketplace without prior consultation with RS provided the trade:
• does not constitute a legal or beneficial change in ownership of the security;
• is not an action to evade tax or securities laws and does not contravene UMIR, or the rules and policies of the exchange upon which the trade would otherwise occur; and
• is executed at a price that is within the context of the market for that particular security at the time of the trade.”
According to UMIR, the following transactions are examples of what does not constitute a change of beneficial or economic ownership:
“[...]
- A client executing a trade with a corporation would constitute a change in beneficial and economic ownership and would have to be executed on a marketplace unless the corporation is 100% owned by the individual in which case it would not constitute a change in economic ownership and would be required to be executed off-marketplace.”
Market Integrity Notice 2002-010 published on June 26, 2002 under the heading "Changes in Beneficial and Economic Ownership",
In the presence of co-shareholders such as the spouse or a trust for the benefit of the shareholder’s children for example, the transfer is made from a person to that person’s corporation of which the person is not the sole shareholder. This transaction should therefore normally go through the market, that is to say, one should see almost simultaneously, a sell order on the market from the shareholder, and a purchase order in the market by the corporation.
Question to the CRA
Where a shareholder wishes to transfer securities to the shareholder’s corporation and the market integrity rules force the shareholder to go through the market, does the CRA agree that it could still be a transfer “to” a corporation?
CRA Response
Subsection 85(l) contains rules that allow a taxpayer to transfer, on a rollover basis, eligible property to a taxable Canadian corporation for consideration that includes shares of the capital stock of the corporation. In addition, the taxpayer and the corporation must make an election on the prescribed form and within the allowed time. The provisions of subsection 85(1) only apply if all the conditions listed therein are satisfied. Where applicable, subsection 85(1) authorizes a taxpayer to dispose of eligible property to a corporation for an agreed amount that may differ from the fair market value of the property or its consideration, thereby allowing a tax-deferred transfer.
Based on our understanding of the situation described above, when the transaction is conducted on the market, there are two separate transactions. As a first step, a sell order on the market from the shareholder, in respect of the shares of the capital stock of a corporation, is negotiated at a price corresponding to the share price set by the market trading system and is executed. In a second step, an order from the shareholder's holding corporation to buy at the market, relating to shares of the capital stock of the same corporation, is negotiated at a price corresponding to the share price set by the market trading system and is executed. In our view, in such a context, the conditions set out in subsection 85(1) could not be satisfied. Among other things, it would not be a transfer "to" a corporation.
Urszula Chalupa
(613) 957-2124
5 October 2012
2012-045129
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