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: How does the safe income of a corporation contribute to gains on the stock dividend shares and the shares upon which the stock dividend is paid?
Position: For corporations that are "dividend recipients", the rules in subsections 55(2.2) to (2.4) and paragraph 52(3)(a) are relevant. For individuals, a corporation's safe income contributes to the stock dividend shares and the shares upon which the stock dividend is paid based on the relative gains inherent in the shares, as determined immediately after the stock dividend is paid.
Reasons: Wording of the Act and previous positions.
FEDERAL TAX ROUNDTABLE 5 OCTOBER 2018
2018 APFF CONFERENCE
Question 4
Allocation of safe income on the payment of a high-low dividend
Scenario
- An operating company "OPCO" was owned by four shareholders in equal shares (25% each):
o two discretionary family trusts, namely, Trust A and Trust B;
o two holding corporations, namely, Holdco A and Holdco B.
- All shareholders subscribed at the same time, and in the same amount of $25, for 25 treasury common shares of the corporation at the time of its incorporation.
- Mr. A. held 100% of the shares of Holdco A.
- Holdco A and Mr. A were beneficiaries of Trust A. Other members of Mr. A's family were also beneficiaries. The trustees of Trust A were Mr. A's parents and a third party.
- Mr. B. held 100% of the shares of Holdco B.
- Holdco B and Mr. B were beneficiaries of Trust B. Other members of Mr. B's family were also beneficiaries. The trustees of Trust B were Mr. B's parents and a third party.
- OPCO was a corporation connected with Holdco A and Holdco B within the meaning of paragraph 186(4)(b).
- OPCO, all shareholders and all trustees were Canadian residents.
- Mr. A and Mr. B were dealing with each other at arm’s length.
- The fair market value ("FMV") of all participating shares [i.e., common shares] was $1,000,000 (or $250,000 each).
- The aggregate safe income of the participating shares was $400,000 (or $100,000 each). [Translator’s note: the French original refers in various places to “revenu gagné” (earned income) but also to “revenu protégé” (safe income). Both have been rendered in English as “safe income.”]
OPCO paid a dividend of $400,000 in high-low preferred shares to the holders of the participating shares. Each shareholder received 100 high-low preferred shares with an aggregate paid-up capital of $100 and an aggregate redemption value of $100,000.
As we understand it, Holdco A and Holdco B will each receive 100 high-low preferred shares which, by virtue of subsections 55(2) et seq., will reduce the aggregate safe income on the common shares from $400,000 to $200,000.
For Holdco A and Holdco B, the paid-up capital of the high-low preferred shares received would remain at $100 and the adjusted cost base ("ACB") and the redemption value of the shares would be $100,000. Subsection 55(2) would not have any effect on the redemption, since the ACB would be equal to the redemption value.
At the same time, Trust A and Trust B will each receive 100 high-low preferred shares with a total paid-up capital of $100 and a total redemption value of $100,000.
Questions to the CRA
(a) How is the safe income allocated in light of the subsection 55(2) amendments, especially subsections 55(2.2) to (2.4), Technical Interpretation 2016-0668341E5 and the current position?
b) Where Trust A is taxable on the $100 high-low preferred share dividend and makes an immediate capital distribution of those high-low preferred shares to Holdco A immediately after their receipt, what safe income will be attributable to the preferred shares received by Holdco A?
CRA Response to question 4(a)
We have assumed that one or more of the purpose tests in subsection 55(2.1) is satisfied with respect to the stock dividend declared and paid by Opco to its corporate shareholders, namely Holdco A and Holdco B.
Subsections 55(2.2) to (2.4) apply in respect of a stock dividend received by a dividend recipient. A "dividend recipient" is defined in subsection 55(2.1) (inter alia for the purposes of subsections 55(2.2) and (2.4)) as a corporation resident in Canada and, accordingly, those rules do not apply to Trust A and Trust B.
For the purposes of inter alia subsections 55(2), (2.1), (2.3) and (2.4), subsection 55(2.2) deems the amount of the stock dividend received by Holdco A and Holdco B and the amount deductible by them under subsection 112(1) to be equivalent to $100,000. This amount is the greater of (i) the amount of the increase, resulting from the payment of the stock dividend, of the paid-up capital of the corporation paying the dividend and (ii) the FMV of the 100 shares issued as a stock dividend at the time of payment.
Subsection 55(2.4) sets out three conditions that must be satisfied in order for subsection 55(2.3) to apply to a stock dividend. In this scenario, those three conditions would be met with respect to Holdco A and Holdco B.
Subsection 55(2.3) provides that where it applies to a stock dividend:
“(a) the amount of the stock dividend is deemed for the purpose of subsection (2) to be a separate taxable dividend to the extent of the portion of the amount that does not exceed the amount of the income earned or realized by any corporation — after 1971 and before the safe-income determination time for the transaction, event or series — that could reasonably be considered to contribute to the capital gain that could be realized on a disposition at fair market value, immediately before the dividend, of the share on which the dividend is received; and
(b) the amount of the separate taxable dividend referred to in paragraph (a) is deemed to reduce the amount of the income earned or realized by any corporation — after 1971 and before the safe-income determination time for the transaction, event or series — that could reasonably be considered to contribute to the capital gain that could be realized on a disposition at fair market value, immediately before the dividend, of the share on which the dividend is received.”
For the 25 common shares of the capital stock of OPCO held by Holdco A and Holdco B, respectively, the capital gain that could be realized on a disposition at the FMV of those shares, immediately before the stock dividend, is $249,975 (FMV of $250,000 minus ACB of $25). The amount of the dividend as indicated above would be $100,000 and this amount does not exceed the amount of income earned or realized that could reasonably be considered to contribute to the capital gain that could be realized on the 25 common shares immediately before the stock dividend (i.e., the $100,000 of safe income, as noted above).
Consequently, by virtue of paragraph 55(2.3)(a), the amount of the $100,000 stock dividend received by Holdco A and Holdco B will be deemed to be a separate dividend for the purposes of subsection 55(2). By virtue of paragraph 55(2.3)(b), the amount of $100,000 will be deemed to reduce OPCO's safe income that contributed to the capital gain on the 25 common shares of the capital stock of OPCO held respectively by Holdco A and Holdco B.
By virtue of subparagraph 52(3)(a)(ii), immediately after the stock dividend is paid, Holdco A and Holdco B will hold 100 high-low preferred shares with a FMV of $100,000 and an ACB of $100,000, and 25 common shares with an FMV of $150,000 and an ACB of $25, resulting in an unrealized gain of $149,975 for those 25 common shares of the capital stock of OPCO. Immediately following the payment of the stock dividend, the 25 common shares of the capital stock of OPCO held by Holdco A and Holdco B respectively would no longer have any safe income. By virtue of subsection 52(3), the safe income of $100,000 contributing to the capital gain on the 25 common shares of the capital stock of OPCO held respectively by Holdco A and Holdco B before the payment of the stock dividend is now reflected in the ACB of the 100 high-low preferred shares received as a stock dividend by Holdco A and Holdco B.
Subsection 55(2) should not apply to any future redemption of these 100 high-low preferred shares held by Holdco A or Holdco B. On the one hand, subparagraph 55(2.1)(b)(ii) does not apply to a dividend received on a redemption of shares and to which subsection 84(3) applies. On the other hand, subparagraph 55(2.1)(b)(i) should not apply since in a situation where the redeemed preferred shares would have a redemption amount equal to their adjusted cost base, the dividend referred to in subsection 84(3) would not have the effect of substantially reducing the portion of the capital gain that, absent the dividend, would have been realized on a disposition of a share of the capital stock at its FMV immediately before the dividend.
Regarding Trust A and Trust B, immediately after the stock dividend, each of them will hold 100 high-low preferred shares having a redemption amount of $100,000 and, by virtue of subparagraph 52(3)(a)(i) and paragraph (c) of the definition of "amount" in subsection 248(1), an ACB of $100. As a result, there would be an unrealized capital gain of $99,900 on those 100 high-low preferred shares. In addition, Trust A and Trust B will each hold 25 common shares with a FMV of $150,000 and an ACB of $25 resulting in an unrealized gain of $149,975.
OPCO's safe income contributing to the capital gain on the 25 common shares held by Trust A and Trust B, respectively, will be reduced by only $100, being the stock dividend received by Trust A and Trust B. The safe income contributing to the combined shareholdings held by Trust A or Trust B will therefore be $99,900. That amount of safe income will, however, be split between the two classes of shares held by Trust A and Trust B based on the unrealized gain on each class.
Under the scenario presented in Question 4(a), safe income that could reasonably be considered to contribute to the capital gain on the 25 common shares of the capital stock of OPCO held by Trust A and Trust B is $59,940 (149,975 / 249,875 X 99,900) and the safe income that could reasonably be expected to contribute to the capital gain on the 100 high-low preferred shares of the capital stock of OPCO held by Trust A and Trust B is $39,960 (99,900/249 875 X 99,900).
CRA Response to question 4(b)
By virtue of the definition of "amount" provided in subsection 248(1), Trust A would include in the calculation of its income an amount of $100 as a stock dividend paid by OPCO. As for the high-low preferred shares distributed by Trust A to Holdco A as a capital distribution, and assuming that Trust A was able to make such a distribution with no tax consequences by virtue of subsection 107(2), the safe income contributing to the capital gain of those shares would be the same as that determined in Question 4(a), namely $39,960.
It should be noted that the special rules regarding the amount of stock dividends that were added to the Income Tax Act by Parliament, including to subsections 55(2.2) to (2.4), were intended to address tax policy concerns associated with the use of this type of dividend in order to circumvent subsection 55(2) or to limit its application.
In that context, the type of transaction described in Question 4(b) could, depending on the facts and circumstances of a particular situation, constitute an avoidance transaction, which would lead the CRA to consider the potential application of the general anti-avoidance rule in subsection 245(2). In a particular actual situation, an analysis of the tax benefit, the avoidance transaction and the abuse of the Income Tax Act should be conducted as a part of a review of the potential application of subsection 245(2).
Marc Séguin
(514) 620-8562
5 October 2018
2018-076889
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