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: (1) A corporation (Aco) owns 100% of the shares of the capital stock of another corporation (Pco). Aco receives a dividend from Pco on January 1st, 2001. On January 1st 2002, all the shares of the capital stock of Pco are acquired by another corporation. Variable A of the formula for computing the GRIP Addition in respect of Pco for 2006 pursuant to ss 89(7) for 2001 was $ 1,000,000 and was nil for the years 2002 to 2005. Query: In determining the amount to be included in the GRIP addition for 2006 in respect of Aco, whether the dividend paid by Pco would be described in paragraph (c) of variable A in subsection 89(7).
(2) Two corporations (Aco and Bco) own respectively 50% of the shares of the capital stock of another corporation (Pco). Aco and Bco receive a dividend from Pco on January 1st, 2001. On January 1st, 2002, all the shares of the capital stock of Pco held by Aco are acquired by Bco. Bco receives a dividend from Pco on January 1st for each year from 2002 to 2005. Variable A of the formula for computing the GRIP Addition for 2006 in respect of Pco pursuant to ss 89(7) for 2001 was $ 1,000,000 and was nil for the years 2002 to 2005. Query: In determining the amount to be included in the GRIP addition for 2006 in respect of Aco and Bco, whether the dividends paid by Pco would be described in paragraph (c) of variable A in subsection 89(7).
(3) Three corporations (Aco, Bco and Cco) own respectively 40%, 20% and 20% of the shares of the capital stock of another corporation (Pco). Pco paid a total dividend of $ 1,000,000 to Aco, Bco and Cco on January 1st, 2001. On January 1st 2002, 50% of the shares of the capital stock of Pco held by Cco are acquired by Aco and the other 50% is acquired by Nco. Pco paid a total annual dividend of $ 1,000,000 to Aco, Bco and Nco on January 1st for each years from 2002 to 2004. Variable A of the formula for computing the GRIP Addition in respect of Pco for 2006 pursuant to ss 89(7) for 2001 was nil for the years 2001 to 2003 and was $ 1,000,000 for the years 2004 and 2005. Query: In determining the amount to be included in the GRIP addition for 2006 in respect of Aco, Bco, Cco and Nco, whether the dividends paid by Pco would be described in paragraph (c) of variable A in subsection 89(7).
Position: (1) No. (2) Aco: no; Bco: Possibly yes, depending on the circumstances. (3) Cco: No; Aco, Bco and Nco: reasonable proportion of variable A of ss 89(7) in respect of Pco.
Reasons: Wording of subsection 89(7).
XXXXXXXXXX 2013-047690
G. Gladu, M. Fisc.
(613) 946-3323
March 21, 2013
Dear Sir,
Subject: Request for interpretation -- subsection 89(7)
This is in response to your e-mail of February 1, 2013 in which you requested clarification as to the application of subsection 89(7) of the Income Tax Act (the "Act") in the context of the situations described below.
Unless otherwise indicated, all statutory references herein are to the provisions of the Act.
It appears to us that the situation described in your letter could constitute an actual situation involving taxpayers. As stated in Information Circular 70-6R5, 2002, it is not the practice of the Directorate to issue a written opinion regarding proposed transactions otherwise than through advance rulings. However, we can offer the following general comments that may be helpful to you. It should be noted that the application of one or more provisions of the Act generally requires the analysis of all facts relating to a particular situation. Accordingly, and in light of the fact that your letter only very briefly describes a hypothetical particular situation, our comments below may not be fully applicable in a particular situation.
1) The Particular Situations
Situation 1
- Corporation A held 100% of the shares of the capital stock of Corporation P.
- The "fiscal period", as defined in subsection 249.1(1), of Corporation P terminated on December 31.
- Corporation A received a dividend of $1,000,000 from Corporation P on January 1, 2001. This dividend was deductible under subsection 112(1) in computing the taxable income of Corporation A. Corporation P was related to Corporation A at the moment of payment of the dividend.
- On January 1, 2002, all shares of the capital stock of Corporation P were sold to Corporation C.
- For the taxation year beginning on January 1, 2001 and ending on December 31, 2001, the "full rate taxable income" ("FRTI") within the meaning of subsection 123.4(1) of Corporation P was $1,587,302.
- Corporation P's FRTI was $0 in the 2002, 2003, 2004 and 2005 taxation years.
- For the 2002, 2003, 2004 and 2005 taxation years, Corporation P paid an annual dividend of $1,000,000 to Corporation C. These dividends were deductible under subsection 112(1) in computing the taxable income of Corporation C. Corporation P was connected to Corporation C at the time of payment of the dividends.
- Corporation A, Corporation C and Corporation P were "Canadian-controlled private corporations" ("CCPCs") within the meaning of subsection 125(7) for taxation years ending after 2000 and before 2006 (the "Period").
Situation 2
- Corporation A and Corporation B each held 50% of the shares of the capital stock of Corporation P.
- The "fiscal period", as defined in subsection 249.1(1), of Corporation P terminated on December 31.
- Corporation A and Corporation B each received a dividend of $500,000 from Corporation P on January 1, 2001. These dividends were deductible under subsection 112(1) in computing the taxable income of Corporation A and Corporation B. Corporation P was connected to Corporation A and Corporation B at the time of payment of the dividends.
- On January 1, 2002, Corporation A disposed of all the shares of the capital stock of Corporation P that it held to Corporation B.
- For the taxation year beginning January 1, 2001 and ending December 31, 2001, Corporation P's FRTI was $1,587,302.
- For the 2002, 2003, 2004 and 2005 taxation years, Corporation P paid an annual dividend of $1,000,000 to Corporation B. These dividends were deductible under subsection 112(1) in computing the taxable income of Corporation B. Corporation P was connected to Corporation B at the time of payment of the dividends.
- Corporation P sustained non-capital losses of $250,000 for each of the 2002, 2003, 2004 and 2005 taxation years.
- Corporation A, Corporation B and Corporation P were CCPCs during the Period.
Situation 3
- Corporation A, Corporation B and Corporation C held 40%, 20% and 40%, respectively, of the shares of the capital stock of Corporation P.
- The "fiscal period", as defined in subsection 249.1(1), of Corporation P terminated on December 31.
- Corporation P paid a total dividend of $1,000,000 to its shareholders on January 1, 2001.
- On January 1, 2002, Corporation C disposed of one-half of the shares of the capital stock of Corporation P it held to Corporation A and the other half to Corporation N.
- Corporation A, Corporation B and Corporation N then held 60%, 20% and 20%, respectively, of the shares of the capital stock of Corporation P.
- Corporation P's FRTI was $0 for the 2001, 2002 and 2003 taxation years and $1,587,302 for each of the 2004 and 2005 taxation years.
- For the 2002, 2003 and 2004 taxation years, Corporation P paid a total annual dividend of $1,000,000 to its shareholders.
- The dividends paid by Corporation P were deductible under subsection 112(1) in computing the taxable income of Corporation A, Corporation B, Corporation C and Corporation N. Corporation P was related to Corporation A, Corporation B, Corporation C and Corporation N at the time of payment of the dividends.
- Corporation A, Corporation B, Corporation C, Corporation N and Corporation P were CCPCs during the Period.
For purposes of our comments, we have assumed that Corporation P did not receive any deductible dividends pursuant to subsection 112(1) during the Period.
2) Your Questions
Situation 1
You requested our opinion as to whether it would be reasonable to consider, given the circumstances, that the $1,000,000 dividend received by Corporation A on January 1, 2001, is fully included in paragraph (c) of element A of subsection 89(7) for Corporation A.
Situation 2
You requested our opinion as to whether it would be reasonable to consider, given the circumstances, that the $500,000 dividend received by Corporation A on January 1, 2001, is fully included in paragraph (c) of element A of subsection 89(7) for Corporation A.
You also wish to know whether it would be reasonable to consider, under the circumstances, for the dividend of $500,000 received by Corporation B on January 1, 2001, to be excluded from subparagraph (c) of element A of subsection 89(7) for Corporation B.
Situation 3
You requested our opinion as to whether it would be reasonable under the circumstances for the dividend of $400,000 received by Corporation C on January 1, 2001 not to be included in paragraph (c) of element A of paragraph 89(7) for Corporation C.
You also wish to know if the amount of item A in subsection 89(7) in respect of Corporation P should be allocated between Corporation A, Corporation B and Corporation N.
3) Our Comments
In general, subsection 89(7) provides that a CCPC may add in its calculation of the addition to its general rate income pool an amount respecting the FRTI in respect of the taxation years that ended during the Period. Subparagraphs (a) and (b) of element A of this paragraph are relevant in this regard.
For its part, paragraph (c) refers to the addition of a dividend received by the CCPC during the same period. However, this addition is subject to a condition that it must be reasonable to consider that such dividend is attributable to an amount described in paragraph (a), (b) or (c) in respect of the dividend payer corporation.
More specifically, paragraph (c) reads as follows:
c) all amounts each of which was deductible under subsection 112(1) in computing the corporation’s taxable income for a taxation year of the corporation (in this paragraph referred to as the “particular corporation”) that ended after 2000 and before 2006, and is in respect of a dividend received from a corporation (in this paragraph referred to as the “payer corporation”) that was, at the time it paid the dividend, connected (within the meaning assigned by subsection 186(4)) with the particular corporation, to the extent that it is reasonable to consider, having regard to all the circumstances (including but not limited to other shareholders having received dividends from the payer corporation), that the dividend was attributable to an amount that is, or if this subsection applied to the payer corporation would be, described in this paragraph or in paragraph (a) or (b) in respect of the payer corporation
Situation 1
We are of the view that the $1,000,000 dividend received by Corporation A on January 1, 2001 would not be included in paragraph (c) of element A of Section 89(7) for Corporation A. In fact, we are of the view that it would not be reasonable to consider, in the circumstances, that this dividend would be attributable to element A of subsection 89(7) in respect of Corporation P for its taxation year ended on December 31, 2001.
In addition, we are of the view that it may be reasonable to consider, in the circumstances, that a portion of the dividends received by Corporation C during the Period is attributable to element A of subsection 89(7) in relation to Corporation P.
In particular, on the basis of the facts provided, we are of the view that it would not be reasonable to consider that the $1,000,000 dividend received by Corporation A on January 1, 2001 was attributable to FRTI of Corporation P in the amount of $1,587,302 which was realized following the payment of this dividend, i.e. during its taxation year from January 1 to December 31, 2001. In such a context, this dividend was likely attributable to taxable income of Corporation P generated before the Period.
The FRTI of Corporation P for its 2001 taxation year of $1,587,302, which was not distributed at the time of the acquisition by Corporation B of the shares of the capital stock of Corporation P held by Corporation A on January 1, 2002, was instead distributed to Corporation B through the payment of dividends from Corporation P to Corporation B during the Period.
Situation 2
We are of the view that the $500,000 dividend received by Corporation A on January 1, 2001 is not described by paragraph (c) of element A of subsection 89(7) for Corporation A. In particular, we are of the view that that it would not be reasonable to consider, given the circumstances, that this dividend is attributable to element A of subsection 89(7) in respect of Corporation P for its taxation year ending on December 31, 2001.
On the other hand, we are of the view that it could be reasonable to consider, in the circumstances, that a part of the dividends received by Corporation B in the Period was attributable to element A of subsection 89(7) respecting Corporation P.
Situation 3
We are of the view that the $400,000 dividend received by Corporation C on January 1, 2001 is not included in paragraph (c) of Subsection 89(7) for Corporation C. In particular, we are of the view that it would not be reasonable to consider, given the circumstances, that this dividend is attributable to element A of subsection 89(7) in respect of Corporation P for its taxation year ending on December 2001.
In our opinion, the amount of element A of subsection 89(7) respecting Corporation P must be apportioned reasonably, in accordance with the facts and circumstances, between Corporation A, Corporation B and Corporation N in order to determine the amount which should be included in paragraph (c) of element A of subsection 89(7) for each of Corporation A, Corporation B and Corporation C.
We hope that our comments will be of assistance.
Best regards,
Stéphane Prud'Homme, Notary, M. Fisc.
Reorganizations Division
Income Tax Rulings Directorate
Legislative Policy
and Regulatory Affairs Branch
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