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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: Opco is a CCPC, a TCC but is not a SBC. Mr. A holds all of the issued and outstanding preferred shares and voting shares of the capital stock of Opco, all of which were issued many years ago as part of an estate freeze in favour of Initial Trust. Initial Trust holds all of the issued and outstanding common non-voting shares of the capital-stock of Opco. Initial Trust is a personal trust. The trustees of Initial Trust are M. A, Mr. B and Mr. C. Mr. B is the brother of Mr. A. Mr. C is dealing at arm’s length with both Mr. A and Mr. B. The beneficiaries of Initial Trust are Mr. A, Mr. A’s adult children and Mr. A’s spouse. As part of the implementation of a new estate freeze, Initial Trust exchanges its common non-voting shares of the capital stock of Opco for preferred shares of the capital-stock of Opco. New Trust subscribes for new common non-voting shares of the capital stock of Opco. The trustees of New Trust are Mr. A, Mr. B and Mr. D. Mr. D is dealing at arm’s length with both Mr. A and Mr. B. The beneficiaries of New Trust are, Mr. A, Mr. A’s adult children, Mr. A’s unborn grandchildren, Mr. A’s spouse and any corporation controlled by any of those beneficiaries other than a corporation in which New Trust has a direct or indirect interest. New Trust is a personal trust. The conditions set out in subsection 74.4(4) are not met in the particular situation. Whether Mr. A’s spouse is a designated person in respect of Initial Trust pursuant to subsection 74.5(5).
Position: No. However, Mr. A’s spouse is a designated person in respect of Mr. A. As such, subsection 74.4(2) could apply to the transfer of property on the freeze or Mr. A’s interest in Opco if one of the main purposes of the transfer may reasonably be considered to be to reduce the income of M. A, and to benefit his spouse (the “Main Purpose Test”). Subsection 74.4(2) could also apply to the transfer of property on the freeze of Initial Trust’s interest in Opco if it is established the transfer was indirectly done by Mr. A by means of Initial Trust and if the Main Purpose Test is met. Subsection 74.4(2) could also potentially apply with respect to Initial Trust’s freeze as a Mr. A’s minor grandchild could be a designated person in respect of Initial Trust.
Reasons: According to the law and previous positions.
2017 APFF CONFERENCE
Question 9
Designated person and section 74.4
Opco is a CCPC, as that term is defined in subsection 125(7), a taxable Canadian corporation ("TCC"), as that term is defined in subsection 89(1), but is not a small business corporation ("SBC"), as that expression is defined in subsection 248(1).
Mr. A holds all of the voting preferred freeze shares of the capital stock of Opco, which shares were issued pursuant to an estate freeze made by Mr. A many years ago in favor of Initial Trust. Initial Trust holds all of the non-voting common shares of the capital stock of Opco. Initial Trust is a personal trust, as that expression is defined in subsection 248(1).
Mr. A, Mr. B and Mr. C are the only trustees of Initial Trust. Mr. B is Mr. A's brother and Mr. C is at arm's length from Mr. A and Mr. B. The Initial Trust beneficiaries are Mr. A, Mr. A's adult children and Mr. A's spouse.
A new estate freeze is put in place for Opco and, for this purpose, the Initial Trust switches all of the common shares it holds in Opco into preferred freeze shares with a cash surrender value equal to the FMV of the common shares exchanged, all pursuant to section 51.
New Trust then subscribes for new non-voting common shares of the capital stock of Opco for a price equal to their FMV. Mr. A, Mr. B and Mr. D are the only trustees of New Trust. Mr. D deals at arm's length with Mr. A and Mr. B. The New Trust beneficiaries are Mr. A, Mr. A's adult children, Mr. A's unborn grandchildren, Mr. A's spouse and any corporation controlled by any of those beneficiaries except any corporation in which New Trust holds an interest directly or indirectly. New Trust is a personal trust, as that expression is defined in subsection 248(1).
For the purpose of this example, the conditions of subsection 74.4(4) would not be satisfied.
Question to the CRA
Is Mr. A’s spouse a designated person with respect to Initial Trust by virtue of subsection 74.4(5)?
CRA Response
First, for the purposes of this question, we have assumed that Mr. A and Initial Trust reside in Canada at all relevant times. We have also assumed that Initial Trust and New Trust are discretionary trusts.
Subsection 74.4(2) is a very broad corporate attribution rule. Briefly, subsection 74.4(2) can apply to a transfer or loan of property by an individual to a corporation where one of the main purposes of the transfer or loan may reasonably be considered to be to reduce the income of the individual and to benefit, either directly or indirectly, by means of a trust or by any other means whatever, a person who is a designated person in respect of the individual.
The transfer or loan of property is also very broad in application as it can be done either directly or indirectly, by means of a trust or by any other means whatever.
According to the wording of this question, section 51 is applicable in respect of the exchange by Initial Trust of the common shares of the capital stock of Opco for preferred shares to freeze the capital stock of Opco. This exchange is deemed, by virtue of paragraph 51(1)(c), to be a transfer of the common shares of the capital stock of Opco by Initial Trust to Opco for the application of
Opco is a Canadian-controlled private corporation (“CCPC”), as defined in subsection 125(7), a taxable Canadian corporation ("TCC"), as defined in subsection 89(1), but is not a small business corporation ("SBC"), as defined in subsection 248(1).
Mr. A holds all of the freeze preferred shares and voting shares of the capital stock of Opco, which shares were issued pursuant to an estate freeze effected by Mr. A a number of years ago in favour of Initial Trust. Initial Trust holds all of the non-voting common shares of the capital stock of Opco. Initial Trust is a personal trust, as defined in subsection 248(1).
Mr. A, Mr. B and Mr. C are the only trustees of Initial Trust. Mr. B is Mr. A's brother and Mr. C deals at arm's length with Mr. A and Mr. B. The Initial Trust beneficiaries are Mr. A, Mr. A's adult children and Mr. A's spouse.
A new estate freeze respecting Opco is effected pursuant to section 51 and, to this end, the Initial Trust exchanges all of the common shares it holds in Opco for freeze preferred shares with a redemption value corresponding to the fair market value (“FMV”) of the exchanged common shares.
New Trust then subscribes for new non-voting common shares of the capital stock of Opco for a price equal to their FMV. Mr. A, Mr. B and Mr. D are the only trustees of New Trust. Mr. D deals at arm's length with Mr. A and Mr. B. The New Trust beneficiaries are Mr. A, Mr. A's adult children, Mr. A's unborn grandchildren, Mr. A's spouse and any corporation controlled by any of those beneficiaries except any corporation in which New Trust directly or indirectly holds an interest. Initial Trust is a personal trust, as defined in subsection 248(1).
For the purpose of this example, the conditions of subsection 74.4(4) would not be satisfied.
Question to the CRA
Is Mr. A’s spouse a designated person with respect to Initial Trust by virtue of subsection 74.4(5)?
CRA Response
First, for the purposes of this question, we have assumed that Mr. A and Initial Trust reside in Canada at all relevant times. We have also assumed that Initial Trust and New Trust are discretionary trusts.
Subsection 74.4(2) is a very broad corporate attribution rule. Briefly, subsection 74.4(2) can apply to a transfer or loan of property by an individual to a corporation where one of the main purposes of the transfer or loan may reasonably be considered to be to reduce the income of the individual and to benefit, either directly or indirectly, by means of a trust or by any other means whatever, a person who is a designated person in respect of the individual.
The concept of a transfer or loan of property is also very broad in application as it can be effected directly or indirectly, by means of a trust or by any other means whatever.
According to the wording of this question, section 51 is applicable in respect of the exchange by Initial Trust of the common shares of the capital stock of Opco for freeze preferred shares of the capital stock of Opco. This exchange is deemed, by virtue of paragraph 51(1)(c), to be a transfer of the common shares of the capital stock of Opco by Initial Trust to Opco for purposes of the application of section 74.4.
However, whether it is reasonable to consider that one of the main purposes of a transfer of property is to reduce the income of the individual and to benefit, either directly or indirectly, a designated person (the "Purpose Test”) is a question of fact which must be resolved in light of all the circumstances and particulars of each case.
The term "designated person" is defined in subsection 74.5(5) and this definition also applies for the purposes of section 74.4.
A designated person, in respect of an individual, means a person who is the spouse or common-law partner of the individual, or who is under 18 years of age and does not deal with the individual at arm’s length, or is the niece or nephew of the individual.
In view of the fact that subsection 104(2) provides that a trust is deemed to be an individual in respect of the trust property, subsection 74.4(2) could apply to a trust, assuming that all of the conditions for the application of subsection 74.4 are satisfied.
However, only a person under the age of 18 who does not deal at arm's length with a trust could logically be a designated person in respect of a trust.
In light of the foregoing, the Mr. A’s spouse cannot not be a designated person in respect of Initial Trust.
On the other hand, Mr. A's spouse is still a designated person in respect of Mr. A.
Thus, while it is not possible to make a definitive determination in the context of this question, we note that subsection 74.4(2) could apply to the transfer of property made by Mr. A, in connection with the estate freeze carried out by Mr. A. in favour of Initial Trust, if the Purpose Test were satisfied.
In addition, we are of the view that the question of the application of subsection 74.4(2) could arise with respect to the estate freeze by Initial Trust if it were determined that the transfer of property effected by this estate freeze was made indirectly by Mr. A through Initial Trust.
Consequently, if it were possible to establish that the Purpose Test was satisfied, subsection 74.4 (2) could also apply to Mr. A in respect of the estate freeze by Initial Trust.
In a different vein, it was stated in this question that the unborn children of Mr. A will be beneficiaries of New Trust.
In this regard, the CRA is of the view that an unborn child is not a person for the purposes of section 74.4 and subsection 74.5(5) and cannot constitute a designated person under paragraph 74.5(5)(b). In contrast, from birth, a grandchild may be a designated person in respect of an individual.
In addition, a grandchild of Mr. A will be connected to him by blood relationship under subsection 251(6). A grandchild, and Mr. A, will therefore be persons related to each other under subsection 251(2) and, therefore, will be deemed not to deal at arm's length with each other under paragraph 251(1)(a).
In light of the foregoing, a grandchild of Mr. A, and Initial Trust, can be deemed not to deal at arm's length with each other by virtue of paragraph 251(1)(b) assuming that Mr. A's right under the Initial Trust constituted a beneficial interest, if subsection 248(25) applied without taking into consideration subdivisions (b)(iii)(A)(II) to (IV) thereof.
If the latter assumption proved to be correct, a minor grandchild of Mr. A would be a designated person in respect of Initial Trust.
Thus, subsection 74.4(2) could apply to the transfer of property made by Initial Trust, in connection with the estate freeze made by it in favour of New Trust, if the Purpose Test was satisfied.
Jean Lafrenière
(613) 670-9013
October 6, 2017
2017-070907
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