18 January 1990 Income Tax Severed Letter AC592275 - Year End on Change of Control of 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.

5-9227
19(1)                                             S. Leung
                                                  613-957-2116

January 18, 1990

Dear Sirs:

Re: Subsection 249(4) of the Income Tax Act (the "Act") Acquisition of Control

We are writing in response to your letter of December 5, 1989 in which you requested our views as to whether there will be an acquisition of control by a person or group of persons for the purposes of subsection 249(4) of the Act in the following hypothetical situation which was outlined in your letter.

1.        Opco is a public corporation with the following
          shareholders and their percentage of ownership:

          Shareholder              Percentage of Ownership

          Mr. X                                         8%
          X Co. (wholly owned by Mr. X)                25%
          A Co. (wholly owned by X Co.)                20%
          Mr. Y                                         5%
          B Co. (wholly owned by Mr. Y)                25%
          Public                                       17%
          TOTAL                                       100%

          Mr. X and Mr. Y are brothers.  Public corporation has
          the meaning assigned by paragraph 89(1)(g) of the Act.

2.        Mr. Y and B Co. will sell all of their shares of Opco
          to a trust whose beneficiaries are Mr. X's children
          (the "Transaction").

Our Comments

It is our general view that, for the purpose of subsection 249(4) of the Act, control of Opco will not be considered to have been acquired by a person or group of persons as a result of the Transaction. It is our view, as outlined in paragraph 13 of Interpretation Bulletin 64R2 (" IT-64R2 "), that the word "control" as expressed in subsection 249(4) of the Act generally means the right of control that rests in ownership of such number shares of a corporation as to give a majority of the voting power in the corporation. It is also our view, as outlined in paragraph 24 of IT-64R2 , that a taxpayer controls a corporation if he controls one or more corporations which singly or between them have voting control of the first-mentioned corporation. This view is consistent with the reasoning adopted by the courts in the case of Vineland Quarries and Crushed Stone Ltd. v. M.N.R. (66 DTC 8092 (Ex. Ct.) affirmed by 67 DTC 5283 (S.C.C.)). Therefore, in the hypothetical situation outlined in your letter, Mr. X will be considered to control Opco because between himself, X Co. and A Co. he has voting control of Opco. Such control will not change after the Transaction.

Also, for purposes of subsection 249(4) of the Act, it is our view, as outlined in paragraph 17 of IT-64R2 , that a group of persons cannot be said to control a corporation when in fact it is controlled by a single person. Since Mr. X controls Opco before the Transaction and continues to control Opco after the Transaction, control of Opco will not be considered to have been acquired by any person or group of persons as a result of the Transaction.

The foregoing comments represent our general views with respect to the subject matter of your letter. The facts of a particular situation may lead to a different conclusion. The foregoing comments are not rulings and in accordance with paragraph 24 of Information Circular 70-6R dated December 18, 1978, are not binding on the Department.

Yours truly,

for Director Reorganizations and Non-Resident Division Specialty Rulings Directorate Legislation and Intergovernmental Affairs Branch