News of Note
CRA rules on a single-wing butterfly of a DC held by two families’ Holdcos, with DC then amalgamated with one of the Holdcos
Email this ContentCRA ruled on a relatively straightforward single-wing butterfly spin-off of a proportionate part of its assets (on a net FMV basis) of a portfolio investment company (DC) held (mostly indirectly) by two sisters (A and B) and B’s children. A mostly held shares of DC through Holdco A, and B and her children indirectly held DC through a second holding corporation (TC). Before the butterfly reorganization, the CDA of DC, and then the ERDTOH and NERDTOH of DC, were proportionately split between Holdco A and TC through staged increases in the stated capital of the shares in DC held by the two holding companies, with the requisite s. 83(2) and 89(14) elections being made.
DC then distributed a proportionate share of its net assets to a new subsidiary of TC (Newco) in consideration for preferred shares of Newco, which were redeemed for a note, which was assumed by TC on a Newco winding-up. DC then repurchased the DC shares held by TC for notes, and the two sets of notes were set-off.
After some clean-up, DC and Holdco A then vertically amalgamated.
Neal Armstrong. Summary of 2022 Ruling 2021-0911791R3 F under s. 55(1) – distribution.
We have translated 10 more CRA severed letters
We have translated 3 CRA interpretations released last week, a ruling issued several weeks ago, and a further 6 CRA interpretations released in December of 2000. Their descriptors and links appear below.
These are additions to our set of 3,139 full-text translations of French-language Technical Interpretation and Roundtable items (plus some ruling letters) of the Income Tax Rulings Directorate, which covers all of the last 24 ¼ years of releases of such items by the Directorate. These translations are subject to our paywall (applicable after the 5th of each month).
CRA indicates that individuals whose income is exempted under the Indian Act nonetheless are subject to the general T1135 and T1134 reporting obligations
CRA found that an “Indian” whose income earned during a taxation year is exempt pursuant to the Indian Act would be a “reporting entity” within the meaning of ss. 233.3 and 233.4 and, thus, be subject to the obligation to file T1135 and T1134 forms, and to penalties for failures to do so.
Generally, a “reporting entity” for such purposes excludes a taxpayer “whose total taxable income for the year is exempt from the tax under Part I”. CRA considers that this phrase refers to persons whose income is (absolutely) exempt pursuant to s. 149(1) and does not encompass a person (such as a status Indian) whose income from a particular source (here, income earned on a reserve) is excluded from the individual’s income.
Neal Armstrong. Summary of 30 December 2024 Internal T.I. 2024-1031721I7 F under s. 233.3(1) – specified Canadian entity – (a)(iii).
CRA confirms that an underground mineral formation used for carbon capture can qualify for refundable tax credit purposes
A refundable tax credit under s. 127.44(2) may be available for a carbon capture, utilization and storage project when 10% or more of the captured carbon is used for an “eligible use,” whose definition refers inter alia to the storage of captured carbon in a “dedicated geological storage.”
In confirming that a “geological formation” referred to in the definition of “dedicated geological storage” does not refer only to an underground reservoir, and can include an underground mineral formation used for carbon storage, for example, an underground serpentinite deposit, CRA first stated:
[A] “geological formation” will be an identifiable rock body with stable lithic characteristics that distinguish it from adjacent rock bodies and that occupies a particular position in the rock layers (the stratigraphic column). A formation may be mapped on the Earth’s surface or traceable underground. In general terms, a formation can be distinguished on the basis of the identification of a rock unit that has specific internal characteristics that make it different from neighbouring units.
CRA concluded:
[A] geological formation is not limited to underground reservoirs but could instead include rock bodies with the characteristics described above.
Neal Armstrong. Summary of 31 October 2024 External T.I. 2024-1038061E5 F under s. 127.44(1) - dedicated geological storage.
CRA finds that where sequential returns are simultaneously filed, each return can be penalized for income omitted from the preceding (but simultaneously filed) return
S. 163(1) generally imposes a penalty if there is failure to report income over $500 in a return and there was a comparable failure in any of the returns for the three preceding taxation years.
2005-0133411I7 F concerned an individual who filed his T1 income tax returns (each omitting over $500 of income) for the 2001, 2002, and 2003 taxation years at the same time in the 2004 calendar year. CRA found that (assuming there had been no failure to report income in any of the 1998, 1999 and 2000 returns) s. 163(1) did not apply to any of the 2001 to 2003 returns because they had been filed simultaneously, so that there was no “preceding” return with unreported income. If instead, it was assumed that he had been reassessed for failure to report over $500 of income for his 1998 taxation year, then only the amount of income omitted for his 2001 taxation year could be subject to the s. 163(1) penalty.
CRA has now reversed this position based on Whissell where (dealing with similar facts) “the Court concluded that the fact that the returns for the taxation years in question were filed simultaneously is not relevant for the purposes of subsection 163(1)” (i.e., there should be the same result as if the three subsequent returns had been filed sequentially). In the first scenario, the s. 163(1) penalty would be applicable to the 2002 and 2003 taxation years because in the “preceding” (albeit, filed simultaneously) 2001 taxation year there was omitted income. In the second scenario, his 2001 taxation year was now also subject to the penalty because of the omitted income for the third preceding year (1998); and his 2002 and 2003 taxation years were penalized for the same reasons as in the first scenario.
Neal Armstrong. Summary of 30 December 2024 Internal T.I. 2024-1032121I7 F under s. 163(1).
The Joint Committee comments on the CRA administration of Reg. 105
The principal recommendations of the Joint Committee regarding the CRA administration of Reg. 105 were:
Withholding on subcontractor reimbursements
That CRA depart from 2024-1038271C6 and confirm that Reg. 105, when interpreted in light of Weyerhaeuser (finding that Reg. 105 only applies to payments having the character of income, as contrasted, for instance, to the reimbursement of clearly delineated subcontractor fees) does not require withholding on the payment to a non-resident of amounts that are a reimbursement for sub-contractor fees paid by the non-resident where (i) the contract governing the provision of services permits sub-contracting, and (ii) the contract clearly identifies the reimbursement of fees as a separate form of payment that is distinct from the payment of fees to the service provider.
Collection of Canadian receivables by non-resident
That - having regard to the situation where a Canadian services provider sells the receivables generated from its services business to a non-resident purchaser such as a securitization vehicle (while perhaps remaining as the receivables’ servicer) - CRA acknowledge that Reg. 105, properly interpreted, does not require withholding on the payments by the trade debtors to the non-resident purchaser of the receivables, provided that the services provider is a Canadian resident.
Revision of Treaty-based waiver Guidelines to reflect actual treaty exemptions
That the CRA Guidelines for Treaty-Based Waivers Involving Regulation 105 Withholding be revised so as to not exclude non-residents from accessing this waiver program in circumstances where they can demonstrate the availability of a treaty exemption (and this also should be so if the proposed new waiver powers are enacted):
Exceeding 180 or 240-day thresholds
The guidelines should allow more flexibility in granting waivers to non-residents with a demonstrable entitlement to a treaty exemption even if they exceed the 180 day (if their presence in Canada is “non-recurring”) or 240 day (if “recurring”) thresholds in the Guidelines.
Non-relevant presence of subcontractor in Canada
Given that there are circumstances where a subcontractor's presence in Canada cannot reasonably be relevant to the determination of the existence of a permanent establishment (PE) of the non-resident contractor in Canada, the Guidelines should allow a non-resident to demonstrate that time spent in Canada by a subcontractor should not be counted as time spent by the non-resident itself in Canada.
Repetitive presence
The Guidelines should allow a non-resident to demonstrate that it has no Canadian PE despite repetitive presence in Canada.
Accommodation of no PE in Canada where 100% Canadian subcontracting
Given that the Guidelines require that activities of sub-contractors, whether Canadian resident or not, fall within the Guidelines, so that, for instance, non-residents with no PE in Canada because they sub-contracted all of the services rendered in Canada to Canadian residents, could be effectively precluded from demonstrating such treaty exemption, the Guidelines should permit such a non-resident to access the waiver program, regardless of the activities in Canada of the Canadian resident subcontractor (assuming, as is likely, that the non-resident can demonstrate that it does not have a Canadian PE).
Neal Armstrong. Summary of Joint Committee, "Section 105 of the Regulations to the Income Tax Act", 10 March 2025 under s. 105(1).
Income Tax Severed Letters 12 March 2025
This morning's release of four severed letters from the Income Tax Rulings Directorate is now available for your viewing.
Uppal Estate – Tax Court of Canada strikes pleadings of assumptions of facts in the alternative, and states that it cannot impose a penalty that was not assessed
Graham J ordered that the Crown’s pleading, that the deceased taxpayer’s purchase of shares of a company occurred “singly or jointly with” a corporation owned by him, should be struck (with leave to file amended pleadings), as acquisition of beneficial ownership by the taxpayer’s company or by him personally were mutually inconsistent, and substantially affected the case that his estate would have to make.
The Minister also assessed the taxpayer for gross negligence penalties but then, in the Amended Reply argued, in the alternative, that the taxpayer should be liable for penalties under ss. 162(7) and (10) for failing to file T1134 (or T1135) information returns. Before ordering that such alternative argument should be struck, Graham found that the Court did not have “the power to order the Minister to assess a previously unassessed penalty” as “[p]enalties are imposed by the Minister, not by the Court”.
Neal Armstrong. Summaries of Uppal Estate v. The King, 2025 TCC 34 under General Concepts – Onus and s. 171(1).
We have translated 6 more CRA interpretations
We have translated a further 6 CRA interpretations released in December of 2000. Their descriptors and links appear below.
These are additions to our set of 3,129 full-text translations of French-language Technical Interpretation and Roundtable items (plus some ruling letters) of the Income Tax Rulings Directorate, which covers all of the last 24 ¼ years of releases of such items by the Directorate. These translations are subject to our paywall (applicable after the 5th of each month).
| Bundle Date | Translated severed letter | Summaries under | Summary descriptor |
|---|---|---|---|
| 2000-12-22 | 21 September 2000 Internal T.I. 2000-0046180 F - Remboursement de dépenses | Income Tax Act - Section 12 - Subsection 12(1) - Paragraph 12(1)(x) - Subparagraph 12(1)(x)(iv) | settlement agreement compensation for mortgage (including principal) payments that B had paid on a mortgage that A assumed as of an earlier partition date, was s. 12(1)(x)(iv) income to B |
| 25 October 2000 Internal T.I. 2000-0044547 F - REGIME DE PRESTATIONS AUX EMPLOYES | Income Tax Act - Section 248 - Subsection 248(1) - Employee Benefit Plan | job security fund was an EBP | |
| 2000-12-08 | 4 December 2000 External T.I. 2000-0001715 F - Qualified small business corporation share | Income Tax Act - Section 48.1 - Subsection 48.1(1) | s. 48.1 election could be made respecting the accrued capital gain on shares that ceased to be QSBCS on a narrowing of the CCPC definition re a connected corp. |
| Income Tax Act - Section 125 - Subsection 125(7) - Canadian-Controlled Private Corporation - Paragraph (c) | para. (c) relevant where Holdco’s asset was shares of Opco but Opco shares also were held by Pubco | ||
| 30 November 2000 External T.I. 2000-0026615 F - GAAR | Income Tax Act - Section 83 - Subsection 83(2) | streaming of CDA to particular shareholders is not abusive if s. 83(2.1) is complied with | |
| Income Tax Act - Section 83 - Subsection 83(2.1) | CDA streaming generally does not violate s. 83(2.1) or GAAR where the objective is to pay capital dividends to taxpayers who were already shareholders | ||
| Income Tax Act - Section 245 - Subsection 245(4) | CDA streaming between existing shareholders is generally acceptable | ||
| 5 December 2000 External T.I. 2000-0047515 F - Impôts financiers intérêts terrain vacant | Income Tax Act - Section 10 - Subsection 10(1) | interest and property taxes may be added to the cost of real estate inventory on general principles | |
| 5 December 2000 External T.I. 2000-0055815 F - Grief réglé après décès | Income Tax Act - Section 5 - Subsection 5(1) | retroactive salary adjustment that was not determined by tribunal until after employee’s death not taxable to him or estate (although heirs were taxable on interest component) | |
| Income Tax Act - Section 70 - Subsection 70(2) | retroactive salary adjustment that was not determined by tribunal until after employee’s death was not a right or thing at death |
Morgan – Tax Court of Canada accepts that an application was mailed one month before its stamping as received by the CRA mailroom
Whether the taxpayer had timely filed his application for the Ontario component of the new housing rebate pursuant to ETA s. 256.21(1) for his newly-renovated home turned on when the substantial renovation had been “substantially completed” (which started the running pursuant to s. 46(6) of the New Harmonized Value Added Tax System Regulations of the two year period for filing the application) and on when the application was filed (which, pursuant to s. 334(1) was deemed to be the mailing date).
Yuan J accepted the Crown’s position that the substantial completion date was the date when the local town conducted its final inspection of the property.
Regarding the application’s mailing date, Yuan J was underwhelmed by CRA’s application of an administrative presumption that mail was sent five business days before its receipt by the CRA mailroom, and indicated that he was not satisfied that the application was actually received by the CRA mailroom on the date of stamping on January 31, 2022. He preferred the evidence of the taxpayer’s accountant, who testified that she had mailed various client related items on December 31, 2021 and who provided a Canada post receipt dated December 31, 2021 for two items which showed that a piece of letter mail had been sent to the Sudbury TSO. Before allowing the taxpayers appeal, Yuan J stated:
I have difficulty imagining what better evidence the CRA could reasonably expect an applicant to produce as proof of filing where the application was submitted by regular mail … .
Neal Armstrong. Summary of Morgan v. The King, 2025 TCC 36 under s. 46(6)(a) of the New Harmonized Value Added Tax System Regulations, No. 2.