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:
Investment in a business corporation as a qualified investment for an RRSP
Position:
Routine reply on 4900(6) and (12) with update for October 31/95 passage of amendments. Comments on commencement of business activities and referral to IT-364 "Commencement of Business Operations".
Reasons: N/A
5-960639
XXXXXXXXXX Franklyn S. Gillman
Attention: XXXXXXXXXX
June 7, 1996
Dear Sirs:
Re: Qualified Investments for a Registered Retirement Savings Plans (RRSPs)
This is in reply to your letter of January 15, 1996 in which you requested an advance income tax ruling on behalf of your clients, XXXXXXXXXX Although we indicated during a telephone conversation (Spice/XXXXXXXXXX) that we may be able to provide you with advance income tax rulings, as was explained to you during a subsequent telephone conversation (Gillman/XXXXXXXXXX), we are unable to do so in that the commencement of business operations is a question of fact.
As was explained to you on March 28, 1996 when you withdrew your application for the above mentioned advance income tax ruling, we are able to provide you with following general comments which may or may not be applicable to the circumstances of your particular situation.
Your deposit of $500.00 will be returned under separate cover.
Commencement of Business Operations
The determination of when a business commences is a question of fact that can only be determined after reviewing all the relevant facts and information. The Department's general comments regarding commencement of business operations are found in Interpretation Bulletin IT-364. Paragraph 2 of IT-364 provides general comments on when a contemplated business becomes an actual business. It states that "... Where an activity consists merely of a review of various business possibilities in the expectation or hope that information will be obtained to justify going into business of some kind, such an activity does not represent the commencement of a business. ..." It also states that "... it is the Department's view that a business commences whenever some significant activity is undertaken that is a regular part of the income-earning process in that type of business or is an essential preliminary to normal operations. ..."
Paragraph 4 of that Bulletin discusses when a cable television service commences business. It states that:
"... An essential preliminary requirement for the carrying on of a business of that kind is the obtaining of a license from the regulatory authority. Consequently, such a business should be viewed as having commenced not later than the day when steps where taken in a positive way to obtain a license. While normal operations could not commence until the license was obtained, the nature of the business required that studies and representations be undertaken to persuade the regulatory authority to issue the license and the business itself commenced when these activities were started."
Qualified Investment for an RRSP in a Business Corporation
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. 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 or 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 fails 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 or 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.
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
All rights reserved. Permission is granted to electronically copy and to print in hard copy for internal use only. No part of this information may be reproduced, modified, transmitted or redistributed in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, or stored in a retrieval system for any purpose other than noted above (including sales), without prior written permission of Canada Revenue Agency, Ottawa, Ontario K1A 0L5
© Her Majesty the Queen in Right of Canada, 1996
Tous droits réservés. Il est permis de copier sous forme électronique ou d'imprimer pour un usage interne seulement. Toutefois, il est interdit de reproduire, de modifier, de transmettre ou de redistributer de l'information, sous quelque forme ou par quelque moyen que ce soit, de facon électronique, méchanique, photocopies ou autre, ou par stockage dans des systèmes d'extraction ou pour tout usage autre que ceux susmentionnés (incluant pour fin commerciale), sans l'autorisation écrite préalable de l'Agence du revenu du Canada, Ottawa, Ontario K1A 0L5.
© Sa Majesté la Reine du Chef du Canada, 1996
Email this Content