News of Note
We have translated 7 more CRA interpretations
Email this ContentWe have translated an interpretation released last week and a further 6 CRA interpretations released in October of 2001. Their descriptors and links appear below.
These are additions to our set of 2,886 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 22 ¾ years of releases of such items by the Directorate. These translations are subject to our paywall (applicable after the 5th of each month).
CRA confirms its policy in IT-244R3 regarding gifts of a life insurance policy to a charity, but does not articulate any extension of this policy to split dollar arrangements
IT-244R3 indicated that a gift by an individual of a life insurance policy to a registered charity is considered to be a gift for purposes of s. 118.1 provided that the policy has been absolutely assigned to the donee, who becomes the registered beneficiary. CRA stated that “split-dollar” or other shared ownership arrangements are beyond the scope of its position in IT-244R3. 2003-0004315 indicated that there may be arrangements that could result in a charitable gift for purposes of s.118.1 within the spirit of the split-receipting rules but such a determination can only be made on a case-by-case basis.
Neal Armstrong. Summary of 7 May 2024 CALU Roundtable Q. 4, 2024-1007061C6 under s. 118.1(1) – total charitable gifts.
CRA confirms that it only applies its position, that there can be only be only one child life insured under a policy at the time of a mooted s. 148(8) rollover transfer, at the transfer time
2004-0065441C6 indicated that the s. 148(8) rollover would not apply to a transfer of a life insurance policy under which more than one person is insured even where all the lives insured meet the definition of child; and 2005-0116681C6 indicated that the rollover is available where there is a joint-last-to-die policy on the life of a parent and child, and the policy is transferred to the child by virtue of the child being the named contingent owner of the policy within the meaning of s. 199(1) of the Insurance Act (Ontario) on the parent’s death, where the child is the only life insured under the policy at the time of the transfer. Further to these positions, CRA commented on the situation where a parent acquires and is the sole policyholder of a joint-last-to-die life insurance policy on the life of a child and the child’s spouse, and the child then dies so that the spouse is the sole life insured.
CRA confirmed that the parent could then gift the policy on a s. 148(8) rollover basis given that there now was only one life insured under the policy who was the “child” (under the extended definition of that term) of the policyholder, or of the transferee.
If, subsequent to the child death, the parent instead named the child’s surviving spouse as the contingent owner of the policy upon death, within the meaning of s. 199(1) of the Insurance Act (Ontario) then, again, the spouse would be the only life insured under the policy at the time of the transfer to the spouse, so that such transfer could occur on a s. 148(8) rollover basis.
Neal Armstrong. Summary of 7 May 2024 CALU Roundtable Q. 3, 2024-1007101C6 under s. 148(8).
CRA finds that a Burkina Faso S.A.R.L. is a corporation rather than partnership
Before finding that a Burkina Faso limited liability company (S.A.R.L.) should be classified as a corporation for ITA purposes, CRA stated that, like a Canadian corporation, the SARL “has legal personality separate from that of its members; it owns its own property; it has its own obligations; and the liability of its members is limited since they are liable for the SARL’s corporate debts only up to the amount of their contributions.” It also has partnership features, e.g., a provision in the governing Act providing that a SARL “is created by (one or more) persons that agree, through an agreement, to contribute, to an activity, cash, or in-kind or services assets for the purpose of sharing profits or enjoying revenues that may derive therefrom” – but, overall, its attributes were closer to those of a Canadian corporation than of a partnership.
Neal Armstrong. Summary of 21 December 2022 Internal T.I. 2019-0826411I7 under s. 248(1) – corporation.
B.C. v. Peakhill Capital - B.C. Court of Appeal finds that structuring a receiver’s sale of B.C. real property as a share sale to avoid LTT was not an avoidance transaction
B.C. appealed from an order pronounced in a receivership under the Bankruptcy and Insolvency Act (Canada) approving a reverse vesting order (“RVO”), under which the shares of the insolvent debtor were sold to a purchaser after removal of unwanted assets and liabilities. This share sale avoided the imposition of property transfer tax (“PTT”) under the Property Transfer Tax Act (B.C.) thereby enhancing the value of the estate to be distributed to the secured creditors – and the judge below had found that this was the purpose for structuring the transaction as a share sale.
The Province argued inter alia that the judge’s order effectively deprived it of the ability pursuant to s. 2.001(3) of the PTTA (the “Recapture Provisions”) to deny the tax benefit from the transaction on the basis that it was an “avoidance transaction.” This term referred inter alia to a transaction that “is not one that may reasonably be considered to have been undertaken or arranged primarily for a bona fide purpose other than for the purpose of obtaining the tax benefit.” In rejecting this submission, Harris JA stated:
[S]tructuring a transaction to avoid the transfer of title and thereby PTT is a legitimate commercial practice outside the insolvency context. … I can see no reason why that which is legitimate and proper outside the insolvency context should be viewed differently within it.
In any event, I can find no air of reality to the suggestion that the Recapture Provisions could apply to this transaction. The Province fastens on to the suggestion that the sole purpose of the transaction is to avoid PTT, but that is not entirely accurate. As the judge found, the purpose of the transaction was to maximize recovery for the creditors and it did so by avoiding PTT. The goal of maximizing recovery for creditors is a bona fide purpose intended to further the objectives of the BIA. Avoiding PTT was simply the means by which that benefit was conferred. To use the language of the provisions, the RVO is a transaction that may reasonably be considered to have been undertaken or arranged primarily for a bona fide purpose other than for the purpose of obtaining the tax benefit.
Harris JA did not discuss the point that the tax benefit was that of the purchaser, not the receiver-vendor. Leaving that aside, the above analysis seems to be similar to that in Spruce Credit Union, which essentially found that a transaction with a primary non-tax purpose is not an avoidance transaction even though it was adopted in preference to an alternative transaction that was less tax effective. In other words, if a reasonable commercial alternative to selling an asset for $97 is selling the shares for $100, the latter transaction can be viewed as undertaken primarily to generate the $97, so that the $3 increment (related to the purchaser’s tax benefit) is incidental.
Neal Armstrong. Summaries of British Columbia v. Peakhill Capital Inc., 2024 BCCA 246 under s. 245(3) and BIA, s. 243.
Excise Tax Severed Letters January 2024
This afternoon's release of 25 Excise severed letters from the Excise and GST/HST Rulings Directorate (identified by them as their January 2024 release) is now available for your viewing.
(On June 27th, the Directorate also released a bundle of six GST/HST severed letters dated January 2024, for 33 letters in total.)
CRA announces that a non-resident service provider’s charges to reimburse it for invoices of a subcontractor for services rendered in Canada will now be subject to Reg. 105 withholding
A US company (USco) invoiced its arm’s length Canadian customer for services rendered by it outside Canada and for services rendered in Canada by its Canadian subsidiary (CanSub), as reflected in CanSub’s invoice. The USco invoice included separately identified charges for the travel and meal costs of it and CanSub.
After confirming that the reimbursements by the Canadian customer of the travel costs and meals of USCo and Cansub were not subject to Reg. 105 withholding, CRA further found that the fees paid by the Canadian customer in respect of the services performed in Canada of the subcontractor (CanSub) were subject to Reg. 105 withholding – and noted that this position would be the same even if CanSub were a non-resident of Canada.
This letter represented a change to CRA’s position in 2008-0297161E5. Reimbursement of subcontractor fees after September 30, 2024 would be subject to Reg. 105 withholding.
CRA claimed that this somewhat new position (see also 2019-0823641I7) was based on Weyerhaeuser (2007 TCC 65) notwithstanding having quoted the finding in that case that “the words ‘fees, commissions or other amounts for services’ are limited to amounts that have the character of income earned in Canada in the hands of the non-resident recipient.”
Neal Armstrong. Summary of 29 April 2024 External T.I. 2022-0943241E5 under Reg. 105(1).
GST/HST Severed Letters February 2024
This morning's release of five severed letters from the Excise and GST/HST Rulings Directorate (identified by them as their February 2024 release) is now available for your viewing.
Income Tax Severed Letters 3 July 2024
This morning's release of four severed letters from the Income Tax Rulings Directorate is now available for your viewing.
CRA finds that CFA1’s lending activity that depends on services provided by CFA2 is not directly related to that servicing activity under s. 95(2)(a)(i)(A)
The business of two US CFAs of Canco (FA4 and FA5 Subco) and of a US LP essentially wholly-owned by FA4 consisted mainly of acquiring, owning and collecting portfolios of debt receivables. FA4 had more than 100 employees who managed and operated the activities of FA4, FA5 Subco and LP, and other US group entities, and with the exception of one employee of FA4, these constituted the only employees in that group. LP used the equivalent of more than five full-time FA4 employees.
The Directorate indicated that FA4 appeared to have two separate businesses - a debt portfolio business, and a business of providing services to other foreign affiliates in the group – given inter alia that its services were mostly rendered to other foreign affiliates and thus not principally services rendered to FA4’s own debt portfolio business.
Focusing on the income of FA5 Subco from its debt portfolio for its 2014 taxation year, did s. 95(2)(a)(i) deem that income to be active business income rather than FAPI?
CRA surprisingly stated that the servicing activities of FA4 did not satisfy the directly-related test in s. 95(2)(a)(i)(A)(I) – notwithstanding that FA5 Subco relied on those services to carry on its business - since "[g]enerally, the activities of a customer [i.e., FA5 Subco as the customer of FA4’s servicing business] are detached from the activities of a service provider and one would not necessarily view them as directly related with the active business activities of the service provider … and [furthermore] the assets of FA5 Subco are not at risk or employed in support of the service business of FA4.”
However, the activities of FA5 Subco were directly related to FA4’s debt portfolio business since their respective debt portfolio activities were integrated activities that required the services of employees that had similar expertise, and they carried on the same type of debt portfolio business.
Furthermore, the prescribed active business earnings requirement in s. 95(2)(a)(i)(B) also appeared to be met, “since the income of FA5 Subco would be included in computing the amount prescribed to be the earnings or loss of FA4, from an active business carried on in a country other than Canada, if the income were earned by FA4.”
Similarly, the directly related test in s. 95(2)(a)(i)(A)(IV) appeared to be satisfied by FA5 Subco in relation to the debt portfolio business of LP for essentially the same reasons – and the prescribed active business earnings requirement in s. 95(2)(a)(i)(B) also appeared to be met, also for similar reasons.
If s. 95(2)(a)(i) applied as described above, so that the services fees paid by FA5 Subco to FA4 were deductible from deemed active business income of FA5 Subco rather than foreign accrual property income, s. 95(2)(b)(i)(B) would not apply to deem such services fees to be FAPI to FA4.
Neal Armstrong. Summaries of 18 April 2023 Internal T.I. 2020-0864031I7 under s. 95(2)(a)(i) and s. 4(1)(a).