News of Note
CRA rules on a s. 55(3)(a) split-up between Newcos for two siblings which were related due to multiple-voting shares held by the father’s and mother’s Holdco
Email this ContentS. 55(5)(e)(i) provides that siblings are unrelated for s. 55(3)(a) purposes, and s. 55(4) stipulates that a transaction which is inserted so as to make persons related for s. 55 purposes is to be ignored for such purposes.
CRA has ruled on a s. 55(3)(a) split-up of a real estate rental corporation (Canco) whose common shares were held by Son Holdco and Daughter Holdco and whose prefs were held by a Holdco for the father and mother of Son and Daughter (Holdco 1). Before the split up of the real estate between Newco 1 (whose common shares and prefs were acquired on the spin-off by Son Holdco and Holdco 1, respectively) and Newco 2 (whose common shares and prefs were acquired on the spin-off by Daughter Holdco and Holdco 1, respectively), Holdco 1 subscribed (presumably a nominal amount) for “super” voting shares of Canco and of Newco 1 and 2, so that at all relevant times, Canco, Newco 1 and Newco 2 were controlled by the two parents.
CRA also ruled that the undepreciated capital cost of depreciable property could be split based on the relative capital cost rather than relative fair market value of the depreciable properties that were spun-off. (Butterfly rulings typically have prorated UCC based on relative FMV – see e.g., 2014-0530961R3 and 2013-0498651R3).
Neal Armstrong. Summary of 2017 Ruling 2016-0675881R3 under s. 55(3)(a), s. 55(4), s. 85(1)(e) and s. 186(1)(b).
CRA has raised the avoidance of an FMV disposition on a dividend-in-kind of a life insurance policy with Finance
A corporation (“Holdco”) holds a policy on the life of its sole shareholder with a nominal cash surrender value (“CSV”) and an adjusted cost basis (“ACB”) and fair market value (“FMV”) of $50K and $450K, respectively. If Holdco transfers the policy to its shareholder as a dividend in kind, its proceeds of disposition (and his cost) will be only the ACB of $50K, since the FMV of the consideration received by it is nil. Accordingly, the transfer occurs on a rollover basis - whereas its proceeds of disposition would have been $450K if Holdco instead had paid a $450K dividend to its shareholder, and he had purchased the policy for $450K. (In both scenarios, he would include a $450K dividend (plus gross-up) in his income.)
This Interpretation is essentially identical to 2016-0671731E5 F, except that in the latter, there was a modest excess of the CSV of the policy over the ACB, so that such excess was realized as a gain on the dividend-in-kind –rather than a much higher gain that would have been realized on a sale of the policy at FMV. In both Interpretations, CRA considered that the lower gain in the dividend-in-kind scenario might be anomalous, and has raised this with Finance.
Neal Armstrong. Summary of 18 May 2017 CLHIA Roundtable, Q.2, 2017-0690331C6 under s. 148(7)(a).
CRA states that the adjusted cost basis of a life insurance policy is “a reasonable proxy” for its cost
An individual transferred a life insurance policy, having a nil adjusted cost basis and cash surrender value to his company for nil proceeds, and then the company within the following three years gifts the policy to a registered charity at a time the policy has a higher adjusted cost basis and even higher fair market value. S. 248(35)(b)(i) deems the FMV of property that has been gifted by a taxpayer within three years of its acquisition to be equal to the lesser of its FMV and its cost (or of its adjusted cost base in the case of capital property, or of its adjusted cost basis in the case of a life insurance policy respecting which the taxpayer is the policyholder) for gift-receipting purposes. However, in this context, s. 248(36) deems the cost or adjusted cost base of the property to be the lower of its cost or adjusted cost base to (i) the taxpayer and (ii) any non-arm’s length person from whom it was acquired during the three-year period preceding the gift.
There is a gap in the wording of s. 248(36) - it refers only to the cost or adjusted cost base of property – and not to the adjusted cost basis of a life insurance policy. CRA is not flummoxed by this and states that the adjusted cost basis:
of an interest in a life insurance policy, as defined in subsection 148(9), is generally a reasonable proxy for the "cost" of an interest in a life insurance policy for purposes of subsection 248(36).
Accordingly, the company’s gift to the charity is deemed by s. 248(35)(b)(i) to have a nil value given that s. 248(36) deems the “cost” to the company of its gifted property to be the nil adjusted cost basis it had to the individual.
Neal Armstrong. Summary of 18 May 2017 CLHIA Roundtable, Q.4, 2017-0692361C6 under s. 248(36).
CRA finds that post-retirement benefits paid directly by the employer under a SERP did not generate refunds of the Part XI.3 tax paid in connection with the RCA trust established to pay related LC fees
Payments of the promised benefits under a supplemental executive retirement plan were secured through an LC provided by a bank, with the employer funding the annual LC fees by making contributions to a trust, which then paid the fees. In order to fund the Part XI.3 tax, those contributions were grossed-up, and with such tax being kept track of in the “refundable tax” in respect of this “RCA trust.”
In accordance with the terms of the SERP, the employer paid post-retirement benefits directly to the retired employees. In finding that these did not qualify as distributions under the retirement compensation arrangement (“RCA”) as per para. (c) of the s. 207.5(1) “refundable tax” definition – so that no refund of the refundable tax was generated - CRA stated:
[A]n amount is not paid as a distribution under the RCA unless the amount is paid from property held in connection with the RCA. [Here] the amounts of the direct payments made by the Employer to retired employees of post-retirement benefits in accordance with the Plan are not amounts paid as distributions under the RCA and would not be taken into account under paragraph (c) of the definition.
Neal Armstrong. Summary of 18 May 2017 CLHIA Roundtable, Q.3, 2017-0692331C6 under s. 207.5(1) - “refundable tax” – para. (c).
CRA indicates that there is a double deduction of the ACB of a corporate held life insurance policy in computing the CDA addition to two corporate beneficiaries of the proceeds
As amended, para. (d) of the capital dividend account definition now provides that the addition to the CDA for life insurance proceeds is reduced by the adjusted cost basis of the policy to any policyholder (rather than only any ACB of the policy to the corporate recipient of the insurance proceeds). In the situation where there are two corporate beneficiaries (B and C) of a policy owned by a third corporation (A), CRA considers that the addition to the CDA of B and C on their receipt of the proceeds will be reduced by the full ACB of the policy to the policyholder (A). CRA stated:
The wording of subparagraph (d)(iii) does not provide for a proration of the ACB in cases of multiple corporate beneficiaries.
Neal Armstrong. Summary of 18 May 2017 CLHIA Roundtable, Q.1, 2017-0690311C6 under s. 89(1) – capital dividend account – s. (d)(iii).
Income Tax Severed Letters 30 August 2017
This morning's release of six severed letters from the Income Tax Rulings Directorate is now available for your viewing.
AIP acquisition of Canam accommodated non-cash dividends to or rollovers by the key shareholders
Canam was a TSX-listed Quebec corporation whose shares were acquired by a subsidiary (the “Purchaser”) of a U.S. private-equity firm (American Industrial Partner Capital Fund VI, L.P.) The acquisition occurred for cash consideration, subject to two exceptions.
First, a group of shareholders, collectively holding 27% of the Canam shares (so that, collectively, they had significant influence over Canam) and consisting of (i) the CEO (Mr. Dutil) or family members or holding companies, holding around 12% of the shares, and (ii) two Quebec-based Funds, holding 15% of the shares, were permitted to first transfer their shares into new Quebec Holdcos (having no other assets, and no liabilities). The Holdcos were then permitted to pay non-cash dividends to their shareholders. The Holdco shareholders then sold their Holdco shares as part of the Quebec Plan of Arrangement for cash consideration (corresponding to the transaction value of the underlying Canam shares) except as described below. The dividends that a Holdco was permitted to pay prior to the effective time of the Arrangement were described as:
an increase in stated capital, a stock dividend, a cash dividend financed with a daylight loan or a dividend paid through the issuance of a promissory note with a determined principal amount and any such promissory note issued in relation to the payment of any such dividend shall no longer be outstanding as of the Effective Time.
Second, members of the same 27% group could timely elect to transfer their Canam or Holdco shares to the Purchaser for Purchaser shares with a value agreed to correspond to the cash consideration. It was anticipated that these “Rollover Shareholders” would hold as much as 40% of the equity of the Purchaser (which was also capitalized with debt).
Neal Armstrong. Summary of Canam Circular under Mergers & Acquisitions – Cross-border acquisitions – Inbound – Canadian Buyco.
Six further full-text translations of CRA technical interpretations are available
Full-text translations of the French technical interpretation released last week, and of five technical interpretations released between November 12, 2014 and October 10, 2014, are listed and briefly described in the table below.
These (and the other translations covering the last 35 months of CRA releases) are subject to the usual (3 working weeks per month) paywall. Next week is the “open” week for September.
The split income proposals assume a model that is at variance with the reality of long-term family businesses
The proposed expanded tax on split income will extend to split income of individuals over 17 to the extent that the amounts received are the “split portion” of the split income.
“The proposals imply that outputs are equal to inputs.” For example:
[A]ssume that in a successful family business, each individual receives appropriate salaries for the time and effort contributed to the business. After payment of these salaries, the business still has retained earnings and marketable goodwill. Under the proposals, all dividends and capital gains — to everybody — will be split income and taxed at the top rate.
Furthermore, “To be effective, measurement of input then must go back to inception, which is not practical.” In this context, consider this situation:
A family starts a business, which requires a great deal of time and effort from all family members for many years. Eventually the business becomes very successful and it is turned over to professional management. It runs for many years with little involvement of those same family members.
The Explanatory Notes state that “Generally, the split portion definition is intended to include amounts received by a specified individual which are not commensurate with the amounts that the individual would receive if they were dealing with the payor of the amounts at arm’s length." However, this proposition does not take into account that:
The nature of the small business financed by family is that the appropriate arm's-length return is almost impossible to calculate — in many cases, no arm's-length person would finance the operation on any terms.
Neal Armstrong. Summary of Kevyn Nightingale, “Private Company Income Splitting: Part 2 – Observations, Tax Topics (Wolters Kluwer), No. 2371, 17 August 2017, p. 1 under s. 120.4(1) – split portion - para. (b).
Transferring property to a Canadian trust in anticipation of emigration can result in a 55% combined tax rate on distributions of the related income
Generally, s. 104(4)(a.3) will trigger a deemed disposition of the property held by a personal trust if a taxpayer transferred property to the trust and it is reasonable to conclude that the property was transferred in anticipation that the taxpayer would subsequently cease to reside in Canada. Furthermore, the conversion of the trust's deemed disposition income into "designated income" for purposes of the 40% Part XII.2 tax will prevent departure tax gains, taxed under Part I of the Act, from being converted into trust income that is paid to non-resident beneficiaries at the end of the year and taxed only under Part XIII. In addition to the Part XII.2 tax paid by the trust, the designated income paid to the (now) non-resident beneficiary will be subject to Part XIII tax of 25% (or 15% if Treaty-reduced), resulting in a combined effective tax rate of 55% (or 49%).
Neal Armstrong. Summaries of Brian Kearl and Carl Deeprose, Leaving Canada's New High Tax Rate Regime: Considerations, Tips and Traps, 2016 CTF Annual Conference draft paper under s. 250(1)(a), s. 2(1), Treaties, Art. 4, s. 128.1(1)(d), Treaties – Art. 18 and s. 210(1) – designated income – s. (c)(ii).