News of Note
CRA indicates that the returns to a spouse and older children from a Holdco in which they reinvested their Opco capital gains exemption could qualify as TOSI excluded amounts
Email this ContentA family trust (“Trust”) distributed the taxable portion of its gain on the sale of qualified small business corporation shares (of Opco) to its beneficiaries (Mr. and Mrs. X, and their children. Child X and Y, aged 15 and 22) who claimed the s. 110.6 deduction. The beneficiaries then used their sales proceeds to subscribe for the shares of a newly-incorporated holding company (Holdco): Trust – 50% of the Holdco shares; Mr. and Mrs. X – 20% each; and Child X and Y – 5% each). Holdco generated $150,000 from investing these funds in the stock market and paid a $100,000 dividend pro rata to its shareholders with Trust, in turn, distributing its $50,000 dividend to Mrs. X and Child X and Y.
In considering the split income rules, CRA indicated:
- The dividend paid by Holdco to Child X clearly would be added to the child’s split income given the age of under 17.
- If Holdco did not carry on a business, then the dividends received from Holdco would be “excluded amounts” for Mr. X, Mrs. X and Child Y because they were not derived from a business and, thus, not from a related business.
- If Holdco instead was carrying on a business (of earning income from the stock market) and, thus, a related business respecting Mr. X, Mrs. X and Child Y, the shares of Mr. and Mrs. X would be excluded shares given that they had the greater than 10% shareholdings in Holdco, Holdco’s income was not from property and substantially all of its income was from its own business. However, Child Y would not hold excluded shares given a shareholding of only 5%.
- Child Y could not benefit from the exclusion for arm’s length capital contributions provided in s. (f)(ii) of the "excluded amount" definition given that the capital subscribed for Holdco shares came from a taxable capital gain from the disposition of property which directly or indirectly came from a related business (i.e., the shares of Opco). This would only leave the “safe harbour capital return” exclusion for receiving the highest prescribed rate on the amount subscribed.
- A similar analysis applied to the distribution by Trust.
Neal Armstrong. Summaries of 5 October 2018 APFF Roundtable, Q.13 under s. 120.4(1) – excluded shares, excluded amount – (e)(i) and arm’s length capital.
CRA indicates that having non-contributing children as members of a family stock market partnership is subject to challenge under the old rather than TOSI rules
CRA confirmed that the tax on split income is inapplicable to a family partnership that invested in the stock market where the children had not contributed anything to the partnership or participated in the trading decisions or other management decisions, given the exclusions from “split income” for dividends on shares listed on designated stock exchanges and for taxable capital gains realized on such shares. However, CRA went on to indicate that given such lack of contribution of the children, it would review the application of inter alia ss. 103(1). 103(1.1), 74.1 and 96(1.8).
Neal Armstrong. Summary of 5 October 2018 APFF Roundtable, Q.12 under s. 120.4(1) – split income – s. (a)(i).
CRA suggests a tracing approach for determining for TOSI purposes whether a dividend paid by Holdco to a child is derived from a related business or from Holdco’s stock portfolio
All the voting shares of Opco are held by Mr. X and all its participating shares are held by a family trust (“Trust”). In the prior year, Holdco, which is wholly-owned by Child X (age 35, who is not involved in the Opco business) generated $150,000 of passive income, and also received qua beneficiary a $100,000 distribution of a dividend that Trust had received from Opco. Could Holdco now pay a $75,000 dividend (the “Dividend”) on the basis that it was derived from income on the stock market investments rather than from Opco, so as to avoid the split income tax?
CRA concluded that “Holdco must adequately monitor its funds derived from stock market investments in order to determine whether those funds were used to pay the Dividend.” Split income tax would apply if the Dividend came “out of the funds from the $100,000 dividend received from Opco or from any dividends previously received from Opco.”
On the other hand “if it can be determined that Holdco will pay the Dividend to Child X out of its after-tax income from its stock market investments, then that dividend would be an excluded amount for Child X and would not be included in calculating the child’s split income.” There were two possibilities in this regard. First, the stock portfolio of Holdco might represent an investment “business,” in which case it would not be a “related business” because Mr. X (the father) was not involved in this business. Alternatively, if it was not a business, then it would again follow that it could not be a related business. Thus, either way, the stock portfolio would represent a good source for the Dividend that would not engage the tax on split income.
Neal Armstrong. Summary of 5 October 2018 APFF Roundtable, Q.11 under s. 120.4(1) – excluded amount – s. (e)(i).
CRA indicates that beneficial interests in discretionary trusts holding shares of a corporation with a mooted related business for TOSI purposes must be valued
The definition of “related business” of a specified individual in (c)(i)(B) in the s. 120.4 split income rules references a business of a corporation where a source individual owns property “that derives, directly or indirectly, all or part of its fair market value” from shares of the corporation. CRA indicated that such property would extend to an interest in a discretionary trust, and stated that the valuation of such an interest was a question of fact.
Neal Armstrong. Summary of 5 October 2018 APFF Roundtable, Q.10 under s. 120.4(1) – related business – s. (c)(i)(B).
CRA indicates that shares of a portfolio investment company potentially may qualify as excluded shares for TOSI purposes
2018 STEP Roundtable Q.7 indicated that the shares of a holding company (or of a company generating no business income) cannot qualify as excluded shares for purposes of the split income rules. CRA noted that if the company instead has “a business whose principal purpose is to derive income from property, including interest, dividends, rents and royalties, such as investment management corporations” then “the condition in subparagraph (a)(i) of the definition of “excluded shares" in subsection 120.4(1) would be satisfied.”
For example, suppose that:
- Mr. and Mrs. X (both age 35) respectively hold 90% and 10% of the voting common shares of Holdco
- Holdco holds all the shares of Opco in whose business Mrs. X has no involvement
- Holdco in its preceding year did not receive any dividends from Opco and it holds passive investments (acquired some time ago out of dividends received from Opco) which, in the previous year, generated interest and dividends of $100,000,
- Holdco now pays a dividend (representing much of the previously received income) pro rata to Mr. and Mrs. X.
CRA considers that her shares are “excluded shares” if such $100,000 of income was “derived from the carrying on of a business the purpose of which is to earn interest income and dividends … notwithstanding the fact that the capital used in the acquisition by Holdco of the property used in carrying on its business was derived from dividends received from Opco.” As the dividend received by her would constitute an "excluded amount" per s. (g)(i) of the definition thereof, she would not be subject to the split income tax thereon.
Maybe it was a good idea after all for your family holding company to have accumulated a lot of portfolio investments.
Neal Armstrong. Summary of 5 October 2018 APFF Roundtable, Q.9 under s. 120.4(1) - excluded shares - (a)(i).
Commissioned employees can deduct only 25% of the restaurant tab when they take out a client in their base city
By virtue of the combined operation of s. 8(4) and s. 67.1(1), the deduction for where a commissioned employee takes a client out to a restaurant within the metropolitan area of the employer is limited to 25% of the bill, i.e., a complete denial for the employee’s portion under s. 8(4) and a 50% denial for the client’s portion under s. 67.1(1). The Quebec equivalent of s. 8(4) provides an exception from its application where the commissioned employee takes a meal with a client.
CRA effectively confirmed that this was how the federal provisions operated, and stated:
At the request of the APFF, the situation described in the statement of the question and the response of the CRA will be brought to the attention of that Department [of Finance].
Neal Armstrong. Summary of 5 October 2018 APFF Roundtable, Q.8 under s. 8(4).
CRA acknowledges that it cannot make a partnership income or loss determination where the partnership has no T5013 filing obligation
CRA’s position is that where the partners of a partnership are not required to file a T5013 (which would generally be the case if the partnership does not carry on a business in Canada, and is not a Canadian partnership or SIFT partnership), CRA cannot make a partnership income or loss determination under s. 152(1.4). Instead, if CRA considers the partnership income or loss reported by a partner to be incorrect, it will assess the partner directly subject to the normal limitations under the general rules in s. 152(4). See also 2078970 Ontario and 2017-0734751I7.
Neal Armstrong. Summary of 5 October 2018 APFF Roundtable, Q.6 under s. 152(1.4).
CRA finds that the use of personal holding companies can jeopardize the ability to assign a portion of the specified partnership business limit under s. 125(8)
The partners of a professional partnership are Messrs. B and D, who hold their partnership interests directly, and the personal Holdcos for Messrs. A and C. The shares of Serviceco (which provides its services exclusively to the partnership and deals at arm’s length with each partner) are held directly by the three individuals and Mr. D's Holdco.
CRA found that of the four partners, only B would be able to assign to Serviceco under s. 125(8) all or any portion of the business limit that had been allocated to him by the partnership. In the case of Mr. D, the problem was that although he was a partner of the partnership, he was not a shareholder of Serviceco. The Holdcos for A and C had essentially the same problem: they were partners of the partnership but not shareholders of Serviceco.
Neal Armstrong. Summary of 5 October 2018 APFF Roundtable, Q.5 under s. 125(8).
The bcIMC case will be heard by the Supreme Court of Canada
The Supreme Court has granted leave to bcIMC (which holds and manages investments for the B.C. pension plans and was assessed by CRA for uncollected GST) to appeal the decisions of the B.C. Court of Appeal finding that its immunity as a BC Crown agent was taken away by the reciprocal taxation agreement between B.C. and Canada.
Neal Armstrong. Summary of British Columbia Investment Management Corp. v. Canada (A. G.), 2018 BCCA 47 under Constitution Act, 1867, s. 125.
CRA provides a numerical example showing the reallocation of safe income occurring on the payment of a high-low preferred stock dividend
The 100 common shares of Opco, having an aggregate FMV of $1,000,000 and an aggregate PUC and aggregate ACB to their holders, of $100, are held as to 25% and 25% by two unrelated holding companies (Holdco A and Holdco B) each wholly-owned by Mr. A and Mr. B and as to a further 25% and 25% by two discretionary family trusts for the families of A and B (Trust A and Trust B). The Opco common shares have an aggregate safe income of $400,000 ($100,000 to each shareholder).
Opco now pays a $400 stock dividend (valued at $400,000) of high-low preferred shares so that each shareholder receives 100 preferred shares with a PUC of $100 and a redemption amount of $100,000.
Consequences included the following:
- By virtue of s. 55(2.3)(b), Opco's safe income that contributed to the capital gain on the 25 common shares of the capital stock of Opco held respectively by Holdco A and Holdco B would be reduced by $100,000.
- By virtue of s. 52(3)(a)(ii), the 100 high-low preferred shares of each of Holdco A and B (with a FMV of $100,000) will have an ACB of $100,000.
- Each of Holdco’s 25 common shares (with an FMV of $150,000) will have an ACB of $25 and those 25 shares no longer have any safe income.
- By virtue of s. 52(3), the safe income of $100,000 contributing to the capital gain on the 25 common shares of the capital stock of Opco held respectively by Holdco A and Holdco B before the payment of the stock dividend is now reflected in the ACB of the 100 high-low preferred shares received as a stock dividend by Holdco A and Holdco B.
- As for Trust A and Trust B, immediately after the stock dividend, each of them will hold 100 high-low preferred shares having a redemption amount of $100,000 and, by virtue of s. 52(3)(a)(i) and para. (c) of s. 248(1) –amount, an ACB of $100.
- Opco’s safe income contributing to the capital gain on the 25 common shares held by Trust A and Trust B, respectively, will be reduced by only $100, being the stock dividend received by Trust A and Trust B. However, that safe income amount will be split between the two classes of shares held by Trust A and Trust B based on the unrealized gain on each class – and, as noted, there now is significant unrealized gain on the preferred shares.
Neal Armstrong. Summary of 5 October 2018 APFF Roundtable, Q.4 under s. 55(2.3).