21 November 1989 Ministerial Correspondence 58914 F - Tax Exemption on Interest Payments to Non-residents - IT-361R

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

November 21, 1989

19(1)

Re:  Interpretation Bulletin IT-361R and Subparagraph 212(1)(b)(vii)

We are writing in response to your letter of September 12, 1989 concerning the Department's position as stated in paragraph 5 of Interpretation Bulletin IT-361R which is as follows:

"Where the issuer of bonds, debentures or guaranteed investment certificates habitually redeems or converts them to new evidences of indebtedness within 5 years of the date of issue at the request of the lender, the Department takes the position that such practice or policy constitutes part of the agreement related to the original debt obligations and that they do not qualify for exemption from tax under Part XIII."

Subparagraph 212(1)(b)(vii) of the Income Tax Act, in general, requires that the issuer not be obliged under any circumstances to pay more than 25% of the outstanding principal within five years of the date of issue of the obligation except in certain circumstances.

It is the Department's view that where the issuer carries on the practice noted above the original obligation is in fact not issued for a period of five years as required under subparagraph 212(1)(b)(vii). The terms are such that the obligation is more in the nature of a series of one year loans and that the so-called five year term is not reflective of the actual agreements whether written or otherwise.

Your second question is concerned with whether "modification of the original conditions within five years, such as a change of interest rates, constitute a new evidence of indebtedness". The answer to this question depends on the facts related to the specific original obligation and the nature of the changes made. For general guidelines you may wish to refer to Interpretation Bulletin, IT-448.

Yours truly,

for Director Financial Industries DivisionRulings Directorate