Principal Issues: (1) Canco holds two classes of shares in an FA (FA1). The proceeds from the issuance of the Class A shares were used to fund an active business while the proceeds from the issuance of the Class B shares were used to purchase shares in another FA (FA2) that are not excluded property. If FA1 borrows funds from another FA (FA3) and uses those funds to return capital to Canco in respect of its Class A shares, would FA3’s interest income on the loan be recharacterized as active business income? (2) Would the answer be different if there was only one class of shares issued by FA1?
Position: (1) Yes. (2) Yes.
Reasons: (1) It is our view that the loan to FA1, which replaced capital that was being used for eligible purposes, would have qualified for interest deductibility under paragraph 20(1)(c) if FA1 had borrowed the money for that purpose, as such, the interest income received by FA3 on the loan should be recharacterized into income from an active business pursuant to clause 95(2)(a)(ii)(B). (2) In the situation where FA1 has issued only one class of shares the pro-rata treatment should be used such that income from the loan to FA1 is recharacterized proportionate to borrowed funds used by FA1 to return capital that was used by it in its active business.