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: Whether the conversion of ERDTOH into NERDTOH in a given situation is problematic.
Position: No position taken.
APFF FEDERAL TAX ROUNDTABLE 10 OCTOBER 2024
2024 APFF CONFERENCE
7. Eligible Refundable Dividend Tax On Hand and Non-Eligible Refundable Dividend Tax On Hand
In order to further harmonize the refund of taxes paid by a private corporation on its passive income with the payment of dividends from passive income, two separate refundable dividend tax on hand (“RDTOH”) accounts have been introduced for years commencing after 2018. Those two tax accounts are defined in subsection 129(4) of the Act (footnote 1) as “eligible refundable dividend tax on hand” (“ERDTOH”) and “non-eligible refundable dividend tax on hand ” (“NERDTOH”). A payer corporation may obtain a dividend refund (“DR”) under subsection 129(1) from its ERDTOH or its NERDTOH, depending on the nature of the dividend paid.
A CCPC also accumulates a general rate income pool (“GRIP”), defined in subsection 89(1), when it generates active income that has been taxed at the general corporate rate. This account allows a CCPC to pay eligible dividends to a shareholder up to the balance of its GRIP.
The establishment of two separate RDTOH accounts can create a certain problem when a payer corporation pays an eligible and a non-eligible dividend to two different shareholders during the same fiscal year and obtains a DR from both its ERDTOH account and its NERDTOH account.
The following situation (the “Particular Situation”) illustrates this issue:
- Aco has two shareholders: Bco holds all of the common shares and Cco holds all of the preferred shares of the capital stock of Aco;
- Bco and Cco are both connected to Aco;
- at the end of Aco's taxation year ending December 31, 20X0, Aco's tax accounts are as follows:
- GRIP: $100,000;
- ERDTOH: $38,333;
- NERDTOH: $100,000;
- During Aco's fiscal period ending 31, 20X0, the following transactions took place:
- Aco paid an eligible dividend of $100,000 to Bco, which was entitled to a DR of $38,333 from its ERDTOH account;22
- Aco redeemed the preferred shares held by Cco, generating a deemed paid dividend of $500,000, for which Aco received a DR of $100,000 from its NERDTOH account.
Since Bco and Cco are connected corporations of Aco, they are subject to Part IV tax on dividends received based on the total DR received by Aco, pursuant to paragraph 186(1)(b).
- Bco: $100,000 / $600,000 x $138,333 = $23,055;
- Cco: $500,000 / $600,000 x $138,333 = $115,278.
For Bco, since the dividend received permitted Aco to receive a DR from its ERDTOH account, the amount of $23,055 was added to its ERDTOH account. As for Cco, since the dividend received did generate a right to Aco to a refund from its ERDTOH account, the amount of $115,278 was added to its NERDTOH account.
It can be seen that an amount of $15,278 has been converted from ERDTOH to NERDTOH for the group of corporations, because the initial allocation between RDTOH accounts ($38,333 RDTOH and $100,000 NERDTOH) has now been modified ($23,055 RDTOH and $115,278 NERDTOH), for the same group of corporations. The tax obligation of the ultimate shareholder (the “Shareholder”) thus is increased, as a non-eligible dividend will have to be paid in order to access the $15,278 DR.
Questions to CRA
Can the CRA confirm whether legislative amendments are planned to remedy this situation and allow a group of corporations to maintain the allocation of ERDTOH and NERDTOH balances when dividends are paid in the same fiscal year?
If no changes are planned, does the CRA agree that this could lead to an inappropriate result as demonstrated in the Particular Situation?
CRA Response
For the purposes of this question, we have assumed that Aco, Bco and Cco are private corporations, as that term is defined in subsection 89(1). We have also assumed that the Shareholder is an individual resident in Canada who holds all of the shares of the capital stock of Bco and Cco.
First, we agree with the calculation of the addition to Bco's and Cco’s ERDTOH and NERDTOH accounts as shown above. That result is consistent with the application of the provisions of the Income Tax Act in this regard.
We understand that it can be argued that this shift of an amount from the ERDTOH account to the NERDTOH account results from the fact that paragraph 186(1)(b) makes no connection between the type of RDTOH account entitling Aco to the DR and the type of dividend received by Bco and Cco. In a hypothetical situation where such a link could be made, Bco would pay Part IV tax of $38,333 on the $100,000 eligible dividend received from Aco and, once that $100,000 eligible dividend was paid to Shareholder, Bco would be entitled to a DR of $38,333 from its ERDTOH. For its part, Cco would pay Part IV tax in the amount of $100,000 and, once an ineligible dividend of $260,870 had been paid to Shareholder, Cco would be entitled to a DR of $100,000 from its NERDTOH. The sum of dividends received by Shareholder would be $360,870 and the DR, for the corporate group, would total $138,333. We note, however, that in such a case, the Part IV tax would be borne by Bco and Cco differently than in the Particular Situation.
Furthermore, in the Particular Situation, to be entitled to the DR totalling $138,333, Bco would have to pay an eligible dividend in the amount of $60,144 and Cco would have to pay an ineligible dividend in the amount of $300,726. Bco would still have a GRIP balance of $39,856. In the Particular Situation, we understand that additional tax could result at this stage to Shareholder compared to a hypothetical situation where the payment of an eligible dividend in the amount of $100,000 and an ineligible dividend in the amount of $260,870 would entitle Shareholder to the DR of the ERDTOH and the NERDTOH totalling $138,333.
We therefore agree with your comment that the conversion of an amount of ERDTOH into an amount of NERDTOH results in an increase in the tax payable by the Shareholder in the Particular Situation, but only at that stage, i.e., at the stage where the amount of dividends paid is limited to the amount necessary to give entitlement to the DR of the ERDTOH and the NERDTOH of Bco and Cco totalling $138,333.
This result was also obtained before the new RDTOH regime came into effect on January 1, 2019. In fact, since 2006, in the Particular Situation, Bco would have had to pay an eligible dividend in the amount of $60,144 to be entitled to the DR of its ERDTOH of $23,055 and Cco would have had to pay an ineligible dividend in the amount of $300,726 to be entitled to the DR of its ERDTOH of $115,278.
However, the conversion of an ERDTOH amount into a NERDTOH amount, as shown in the Particular Situation, does not ultimately result in additional tax to the Shareholder once all of the dividends received from Aco are paid to the Shareholder by Bco and Cco. Bco will have paid an eligible dividend of $100,000 and will have been entitled to the DR of its ERDTOH of $23,055, while Cco will have paid an ineligible dividend of $500,000 and will have been entitled to the DR of its NERDTOH of $115,278. The same result would be obtained if Shareholder directly held all of the shares of the capital stock of Aco. Aco would pay Shareholder an eligible dividend of $100,000 and an ineligible dividend of $500,000. Aco would be entitled to the DR of its ERDTOH of $38,333 and the DR of its NERDTOH of $100,000.
In light of the above, any changes to the Income Tax Act in this regard would be based on tax policy considerations. The CRA's mandate is to administer and enforce the Income Tax Act. Responsibility for the development of tax policy and amendments to the Income Tax Act rests with the Department of Finance Canada. We have therefore brought your question to the attention of the Department of Finance.
Nathalie Aubin
2024-102736
October 10, 2024
FOOTNOTES
Note to reader: Because of our system requirements, the footnotes contained in the original document are shown below instead:
1 R.S.C., 1985, c. 1 (5th Supp.) (the "Act").
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