21 February 1996 External T.I. 9528635 - RRSP QUALIFIED INVESTMENT SHARES OF A CORPORATION

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.

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.

Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.

Principal Issues:

Qualified investment by an RRSP in a business corp.

Position:

Routine reply on 4900(6) & (12) including the October 1995 amendments.

Reasons: N/A

	 	5-952863
XXXXXXXXXX		Franklyn S. Gillman

Attention: XXXXXXXXXX

February 21, 1996

Dear Sirs:

Re: Registered Retirement Savings Plan ("RRSP")

This is in reply to your letter dated October 17, 1995 wherein you requested clarification as to the application of the Income Tax Act and related regulations with regards to a stated fact situation.

The situation described in your letter appears to be an actual fact situation related either to a past transaction or to an actual proposed transaction. If the situation described relates to an actual transaction which has already been implemented, the review of such transactions falls within the responsibility of the Tax Services Offices and it is the practice of this Department not to comment on such transactions when the identities of the taxpayers are not known. If, however, the situation described relates to an actual proposed transaction, it should be the subject of an advance income tax ruling. However, as stated in subparagraph 14(j) of IC 70-6R2 the Department will not provide an advance income tax ruling in cases where an advance ruling would require a determination which is primarily one of fact and the circumstances are such that all the pertinent facts cannot be established at the time of the request for the advance ruling. Consequently, we are not in a position to give a response to your inquiry.

The following general comments describe the criteria for qualified investment by an RRSP in a business corporation which may or may not be applicable to the circumstances of your particular situation.

Pursuant to paragraph 146(4)(b) of the Income Tax Act (the "Act"), if an RRSP trust carries on a business in the year, it is taxable on the income attributable to that business, except to the extent that the business income is attributable to a qualified investment or to the disposition of qualified investments.

A "qualified investment" for an RRSP is a term defined in subsection 146(1) of the Act. Generally an RRSP can invest in shares of a corporation if the shares are listed on a prescribed stock exchange in Canada or in a country other than Canada, or if the corporation is a "public corporation" as defined in the Act - see the current version of Interpretation Bulletin IT-391 for more information on public corporation status. (A copy is available from your local tax services office). It should be noted that for purposes of the Act, life insurance corporations are considered to be public corporations.

When the shares of a corporation do not qualify as investments for an RRSP as noted above, they may qualify if they are shares of a Canadian-controlled private corporation (CCPC) which is an "eligible corporation" and the annuitant of the RRSP is not a "designated shareholder" of that company. These latter two terms are defined and the relevant provisions are contained in sections 4900 through 5103 of the Income Tax Regulations (the "Regulations").

In brief, an "eligible corporation" is generally a taxable Canadian corporation which uses substantially all (90% or more) of its property in a "qualifying active business". Specifically excluded from this definition are securities dealers, financial institutions, corporations whose principal business is the lending of money or the purchasing of debt, and non-resident controlled corporations.

A "qualifying active business" is also a defined term which generally includes any business which is carried on in Canada except one where the principal purpose is to earn income from property in the form of interest, dividends, rent, royalties or gains from dispositions of property. A qualifying business may, however, include a business of leasing property other than real property, and a retail or wholesale business.

A corporation's business will be considered to have been carried on in Canada if at least 50% of its employees are engaged in the business in Canada or at least 50% of its salaries or wages are paid for services provided in Canada in respect of the business. If the corporation is part of a group of related corporations, the combined services of their employees and the combined salaries and wages paid must be considered in making this determination.

With respect to property acquired by the RRSP after November 29, 1994, a "designated shareholder" of a corporation is any RRSP annuitant who at the time

(a)is, or is related to, a "specified shareholder" (generally, a person who directly or indirectly holds 10% or more of the shares of any class of shares of the corporation and of any corporations related to the corporation), unless the cost amount of all the shares is, in total, less than $25,000. For this purpose, an annuitant of an RRSP is deemed to own the shares owned by the RRSP (see definition of "specified shareholder" in paragraph 248(1)(b) of the Act), and any share that the RRSP annuitant or a related person has a right to acquire is included for purposes of the 10% and $25,000 tests (see subsection 4901(2.3) of the Regulations);

(b)is or is related to a member of a partnership that controls the corporation in any manner;

(c)is or is related to a beneficiary under a trust that controls the corporation in any manner;

(d)is or is related to an employee of the corporation where the employees control the corporation, except where the corporation is controlled by one person or a related group of persons; or

(e)does not deal at arm's length with the corporation.

Note that the conditions respecting both the "eligible corporation" and the "designated shareholder" must be satisfied at the time the RRSP acquires the shares and thereafter. Should the annuitant become a "designated shareholder" of the corporation or the corporation fail to be an "eligible corporation" at a later date, the shares will become non-qualified investments for the RRSP.

Subsection 4900(12) of the Income Tax Regulations (applicable after December 2, 1992) was introduced to allow a share of the capital stock of a "small business corporation" to be a qualified investment for an RRSP, provided that the RRSP annuitant is not a "connected shareholder" of the corporation immediately after the acquisition of the share. The corporation must be a "small business corporation" at the time the share is acquired by the RRSP or at the end of the taxation year of the corporation ending before the time the share is acquired. For this purpose, a "small business corporation" is a Canadian corporation that is not directly or indirectly controlled by one or more non-residents. In addition, to qualify as a "small business corporation" all or substantially all (90% or more) of the fair market value of the corporation's assets must be attributable to assets that were:

a) used principally (50% of the time or more) in an active business carried on primarily in Canada by the particular corporation or by a corporation related to it,

b) shares or indebtedness of other small business corporations which were connected with the particular corporation, or

c) assets described in a and b above.

With respect to property acquired by an RRSP after November 29, 1994, a "connected shareholder" of a corporation is a "specified shareholder" as defined in subsection 248(1) of the Act (generally, a person who directly or indirectly holds 10% or more of the shares of any class of shares of the corporation and of any corporations related to the corporation). However, an annuitant who is a "specified shareholder" of the corporation will not be a "connected shareholder" if he or she deals at arm's length with the corporation and the cost amount of all the shares is, in total, less than $25,000. For this purpose, an annuitant of an RRSP is deemed to own the shares owned by the RRSP (see definition of "specified shareholder" in paragraph 248(1)(b) of the Act) and any share that the RRSP annuitant or a related person has a right to acquire is included for purposes of the 10% and $25,000 tests (see subsection 4901(2.2) of the Regulations).

Note that the conditions respecting the "small business corporation" must be satisfied only once, that being at the time the shares are acquired by the RRSP or at the end of the taxation year of the corporation ending before the time the share is acquired. Similarly, the conditions respecting the "connected shareholder" must be satisfied only once, that being at the time immediately after the shares are acquired by the RRSP. Should the corporation fail to remain a "small business corporation" or the annuitant become a "connected shareholder" at a later time the shares will not consequently become non-qualified investments for the RRSP. In accordance with subsection 4900(13) of the Regulations a share of a "small business corporation" will become non- qualified, however, if:

(i) an individual provides services to or for, acquires goods from, or is provided services by, the issuer of the share or a person related to the issuer;

(ii) an amount is received by the RRSP in respect of the share; and

(iii) the amount can reasonably be considered to be

(A) on account of or in lieu or in satisfaction of, payment for the services to or for the issuer or the person related to the issuer, or

(B) in respect of the acquisition of the goods from, or services provided by, the issuer or the person related to the issuer.

Due to the detail and complexity of the Income Tax Regulations regarding these issues, the foregoing comments are meant only to provide an overview of the relevant provisions and under no circumstances should they be considered either comprehensive or all inclusive.

With respect to your query concerning related persons sections 251 and 252 of the Act should be referred to in order to determine the relationship of the persons involved to one another so as to ascertain whether a designated shareholder or a connected shareholder exists.

The above comments are an expression of opinion only and do not bind the Department. We trust, however, that they will be of assistance to you.

Yours truly,

for Director
Financial Industries Division
Income Tax Rulings and
Interpretations Directorate
Policy and Legislation Branch