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PRINCIPAL ISSUES: Whether losses realized by a subsidiary have to be considered in computing the consolidated safe income of a parent corporation.
POSITION: Question of fact but in this case, probably not.
REASONS: Based on facts presented.
FEDERAL TAX ROUNDTABLE OCTOBER 7, 2019
2019 APFF CONFERENCE
Question 10
Safe income and presence of subsidiary
The consolidation principle is a recognized principle in the calculation of safe income. The purpose of this situation is to determine the CRA's position where there is a deficit in a subsidiary.
Consider the following example: Holdco has two subsidiaries, Opco 1 and Opco 2. The shares of Holdco have a market value of $1,499,900 and an adjusted cost base of $500,000. When Holdco was created, the shareholders invested $500,000 in Holdco. Holdco used the $500,000 to invest $100 in Opco 1 and $499,900 in Opco 2. Opco 1 and Opco 2 were incorporated by Holdco and Holdco is the sole shareholder. The shares held by Holdco in Opco 1 have a market value of $1 million. Opco 1 has earned $900,000 of safe income since its inception.
The shares of Opco 2 have a market value of $499,900. Opco 2 realized operating losses of $2,000,000 resulting from expenditures of a current nature to create an intangible that now has a market value of $2,000,000. Opco 2 financed a portion of its current expenses with debt of $1,500,100 from an entity unrelated to Holdco.
A summary of the organizational chart is as follows:

Questions to the CRA
Should the safe income attributable to the shares of Holdco be reduced by the amount of negative safe income where the negative safe income does not reduce the accrued capital gain in the shares of Holdco? Can the safe income attributable to Holdco shares be considered to be $900,000, being the safe income attributable to the shares of Opco 1 held by Holdco?
CRA Response
At question 26 of the 2001 APFF Federal Tax Roundtable (2001-0093385), the CRA was asked to elaborate on its position regarding the effect of losses of a foreign affiliate in computing the consolidated safe income of a group of corporations in light of the decision in Brelco Drilling Ltd., 99 DTC 5253 (FCA) (footnote 1).
Specifically, it was asked whether the CRA accepted the comments of the Federal Court of Appeal indicating the possibility of not considering such losses if the parent corporation has not guaranteed the financing of those losses.
The CRA stated that in Brelco, the Federal Court of Appeal concluded that it is not appropriate to never consider the losses of a foreign affiliate in computing the safe income on hand and that determining the amount of safe income on hand is a question of fact that can be determined only after having considered all the facts and circumstances of each situation. The CRA confirmed its agreement with those findings and indicated that the comments in the decision could also apply in a strictly domestic context.
In addition, the CRA indicated that the losses of an affiliate can reduce a parent corporation's safe income on hand even if the parent corporation has not directly or indirectly guaranteed the affiliate's losses. Indeed, the example presented in the 2001 Roundtable question illustrated a situation where a parent corporation had acquired from a third party a significant investment in an affiliate at a cost of $1 million. Subsequent to the acquisition, the affiliate realized losses of $1 million and the market value of the affiliate's shares thereby became nil. In that situation, the losses of the affiliate affected the inherent gain attributable to the shares of the parent since the losses incurred by the affiliate decreased the value of the parent's investment in the affiliate. Consequently, in such a situation, the CRA was of the view that the losses of the affiliate affected the safe income on hand attributable to the shares of the capital stock of the parent corporation. The CRA thus clarified that generally, in computing the safe income on hand attributable to shares of the capital stock of a parent corporation, the losses of a subsidiary must be taken into account when such a loss results in a reduction in the fair market value of the parent corporation’s shares.
That said, considering the specific facts of this question, the fact that Opco 2's trading losses ultimately did not have the net effect of reducing the fair market value of the Holdco shares, and assuming that no entity in the Holdco Group had guaranteed or financed the debt of Opco 2, the CRA is of the view that Opco 2's trading losses should not reduce the consolidated safe income attributable to the shares of the capital stock of Holdco. Indeed, it is our understanding that Opco 2's operating losses were funded by debt from an entity unrelated to Holdco and by the investment of Holdco in Opco 2. Furthermore, those losses are now reflected in the value of the intangible asset created and held by Opco 2. Consequently, the losses of Opco 2 ultimately had no effect on the fair market value of the Holdco Shares. It would therefore be reasonable to consider that the safe income attributable to the shares of the capital stock of Holdco should be $900,000, which is the safe income attributable to the shares of the capital stock of Opco 1 held by Holdco.
Marc Séguin
(514) 620-8562
October 11, 2019
2019-081269
FOOTNOTES
Note to reader: Because of our system requirements, the footnotes contained in the original document are shown below instead:
1 CANADA REVENUE AGENCY, Technical Interpretation 2001-0093385, October 5, 2001.
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