News of Note
CRA rules on pipeline implemented by the beneficiaries, not the estate
Email this ContentCRA has ruled on pipeline transactions that were to be implemented by the beneficiaries of the deceased rather than his estate. The shares of an investment portfolio company (Holdco) were held by the deceased and his two resident brothers, who were the legatees of his shares. The estate distributed the shares of the deceased to his two brothers shortly after his death.
The two brothers then formed a Newco, whose common shares were held equally by them, and transferred all their shares of Holdco to Newco on a s. 85(1) rollover basis in consideration for notes equal to their shares’ ACB and for preferred shares of Newco. Following a specified period of time (presumably a year), Holdco and Newco were to amalgamate, with the notes then being paid off by Amalco on a specified schedule.
The effect of these transactions is that the two brothers can extract all the ACB of their shares of Holdco (including for the shares previously held by them), not just the stepped up ACB that occurred on the death of their deceased brother. This is unstartling if their historical shares had the same ACB as their paid-up capital.
Neal Armstrong. Summary of 2020 Ruling 2020-0838951R3 F under s. 84(2).
Income Tax Severed Letters 12 August 2020
This morning's release of two severed letters from the Income Tax Rulings Directorate is now available for your viewing.
Joint Committee recommends that standby charges, consent fees and early consent bonuses paid to lenders be deemed to be Part XIII-exempt interest in light of Pangaea
The Joint Committee has recommended, in light of the broad textual approach taken in Pangaea as to what is a “restrictive covenant,” that the Act (perhaps s. 214(15)) be amended to treat payments of the following types of payments as payments of non-participating interest on the underlying debt, so that they would be more clearly exempt from Part XIII withholding:
- fees and charges (e.g., standby charges) payable by a borrower as consideration for the lender agreeing to lend money or make money available (arguably, under the definition of “restrictive covenant” such an agreement “affects … the … provision of property … by the taxpayer” (i.e., of funds by the lender) or “affects … the acquisition of property … by the taxpayer” (i.e., the lender’s acquisition of the debt obligation))
- consent payments to creditors, e.g., to permit a particular transaction or loosen a financial covenant (such “agreement could be viewed as affecting the (ongoing) provision of property by the taxpayer, being the loaned funds, especially if the consent relates to an amendment of a covenant that could otherwise have been breached and allowed … acceleration …”)
- in the context of a distress restructuring, an additional payment made to a debt holder who agrees to exchange for the securities of the restructured debtor by a specified date, e.g., the receipt of additional shares on a debt for shares restructuring (the additional shares “may properly be viewed as consideration for the debenture holder having agreed to consent to the restructuring plan by the specified date, rather than as consideration for the exchange itself, having regard to paragraph 68(c).”)
Neal Armstrong. Summary of “Impact of Pangaea Case,” 10 August 2020 Joint Committee Submission under s. 212(1)(i).
Addy – Federal Court of Australia, Full Court finds that the imposition of flat tax on UK working-holiday visa holders did not contravene the Treaty non-discrimination Article
The taxpayer, who was a British citizen aged 23, came to Australia on a “working visa” for a 20-month stint, during which period she was found by the Court to be a deemed Australian resident (based on her satisfying a 183-day presence test). A citizen and resident of Australia would have largely escaped income taxation on her modest income working on a horse farm and as a waiter due to the right to deduct a “tax-free threshold.” However, the “backpacker tax” provisions of Pt. III of Sched. 7 of the Australian Rates Act provided that a “working holiday worker” (defined to include the holder of a working visa), was subject to 15% tax on her income.
The taxpayer, by virtue of her citizenship, was a UK rather than Australian national under the definition in the Australia-U.K. Treaty. That Treaty's non-discrimination clause (At. 25) - also found in many of the Canadian treaties - read:
Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected.
In finding that this 15% tax did not contravene Art. 25, the majority of the Full Court found that “Art 25 is offended where the discrimination against the foreign national occurs solely by reason of having a different nationality,” whereas here, “it was not the taxpayer’s nationality that caused her to be taxed in accordance with Pt. III of Sch. 7 of the Rates Act, but rather her derivation of working holiday taxable income” (i.e,, as a British national, she could have applied for another type of visa, and not earned this income). Steward J further noted:
[T]he O.E.C.D. Commentary … warns against “unduly” extending the reach of Art. 24 of the Model Tax Convention (here Art. 25 of the Treaty) to “cover so-called “indirect” discrimination.”
Neal Armstrong. Summary of Commissioner of Taxation v Addy [2020] FCAFC 135 under Treaties – Income Tax Conventions – Art. 25.
We have translated 5 more CRA Interpretations
We have published a further 5 translations of CRA interpretations released in April, 2010. Their descriptors and links appear below.
These are additions to our set of 1,241 full-text translations of French-language Roundtable items and Technical Interpretations of the Income Tax Rulings Directorate, which covers all of the last 10 1/3 years of releases of Interpretations by the Directorate. These translations are subject to the usual (3 working weeks per month) paywall.
| Bundle Date | Translated severed letter | Summaries under | Summary descriptor |
|---|---|---|---|
| 2010-04-23 | 22 December 2009 Internal T.I. 2009-0328141I7 F - 93(2) - Perte due à fluctuation de devises | Income Tax Act - Section 93 - Subsection 93(2.01) - Paragraph 93(2.01)(b) | relief under s. 93(2.01)(b) unavailable where matching FX gain is realized in a subsequent year |
| Income Tax Act - Section 93 - Subsection 93(2) | loss under s. 93(2) includes a loss wholly attributable to a fully-hedged FX loss | ||
| 2010-04-16 | 12 April 2010 External T.I. 2009-0327161E5 F - Revenu de location | General Concepts - Ownership | CRA can be bound by a counter letter rather than the apparent contract |
| Income Tax Act - Section 3 | notwithstanding Guide T4036, rental property can be rented at an arm’s length rent to related persons to generate losses if there is a source of income | ||
| 1 April 2010 Internal T.I. 2009-0352611I7 F - Redressement après le délai de prescription | Income Tax Act - Section 152 - Subsection 152(4) - Paragraph 152(4)(a) - Subparagraph 152(4)(a)(i) | statement of incorrect income amount for spouse for s. 118(1)(a) credit purposes is a misrepresentation – but CRA must establish that prudent person would not have so erred | |
| 6 April 2010 Internal T.I. 2009-0343091I7 F - Montant pour enfant | Income Tax Act - Section 118 - Subsection 118(4) - Paragraph 118(4)(b) | two separate parents with joint custody and separate residences can agree who claims which of their 3 children | |
| 9 April 2010 External T.I. 2010-0361381E5 F - Eligible Dividend | Income Tax Act - Section 89 - Subsection 89(14) | dividends declared separately can be separate dividends notwithstanding their payment by one cheque |
CRA provides pipeline rulings where the underlying operating business was sold for cash after the death and before the pipeline transactions
A died holding the shares of an Opco and of a portfolio company (Holdco). Following A’s death, the operating business of Opco was sold to a third party for cash, at which point CRA accepted that Opco started carrying on a portfolio business. Opco then engaged in preliminary transactions to push out its capital dividend account and access refundable tax balances by redeeming shares, which generated capital losses that the estate could carry back under s. 164(6). Opco and Holdco then amalgamated to form Opco 2.
CRA ruled on the implementation by the estate of conventional pipeline transactions for Opco 2 (whereby it sells Opco 2 to a Newco formed by it in consideration for a note and, at a subsequent juncture, Opco 2 and Newco amalgamate to form Amalco, and Amalco starts progressively paying off the note).
Neal Armstrong. Summaries of 2020 Ruling 2019-0824211R3 F under s. 84(2) and s. 51(1).
CRA follows its practice of requiring one year to pass before a pipeline note commences to be paid off
CRA ruled on conventional pipeline transactions for a portfolio holding company (Holdco). Unlike most recent rulings it did not redact the period of time between the sale of Holdco to Newco for a note, and the amalgamation of Newco with Holdco (it was stated as “one year” rather than “12 months,” so that there was no naughty number to redact).
Neal Armstrong. Summary of 2020 Ruling 2019-0832601R3 F under s. 84(2).
CRA finds that an NPO should have been charging GST/HST on sales of donated clothing
An NPO operated a store at which it sold used clothing that had been donated to it. Since it was not a registered charity, such sales were not exempted. The NPO had registered the store as a “small supplier division” but there ceased to be an exemption on that ground as a result of the sales exceeding $50,000. Accordingly, the NPO was a registrant (i.e., it was required to be registered for GST/HST purposes) and it thus was responsible for failure to charge GST/HST on the store sales.
Neal Armstrong. Summaries of 3 January 2020 GST/HST Ruling 192645a under ETA Sched. V, Pt. VI, s. 4 and s. 129.1(1).
Special rules (and gaps in the rules) apply where CFAs have debts forgiven or deferred
In determining whether a debt owing by a foreign affiliate is a “commercial debt obligation” for purposes of the debt forgiveness rules, the test is whether any interest paid on the debt would be deductible against foreign accrual property income (FAPI). The forgiven amount cannot be applied to reduce the various tax attributes of the debtor, and will either be applied against any foreign accrual property losses or be carried forward to reduce any future year FAPLs.
2002-0165195 … provides that the "exempt earnings" or "taxable earnings" would not pick up forgiveness of a commercial debt obligation that did not relate to FAPI and that 5907(2)(f) would not be available, thus resulting in such income not being included in the exempt or taxable surplus of the FA debtor. … [T]his position is questionable given Regulation 5907(2)(f) and the definition of "earnings" in Regulation 5907 and may give rise to double taxation.
Assuming that an amount is not recognized as foreign accrual tax (FAT) until it is paid, COVID-related deferrals of tax payments in foreign jurisdictions will generally reduce the Canadian taxpayer’s FAT deduction in computing FAPI by four times the amount so deferred, thus potentially giving rise to Canadian taxes.
Neal Armstrong. Summaries of Marc André Gaudreau Duval and Michael N. Kandev, “Foreign Affiliate Issues in Troubled Times,” International Tax (Wolters Kluwer CCH), No. 112, June 2020, p. 1 under s. 95(2)(g.1), s. 248(27), Reg. 5907(2)(f) and s. 91(4).
Supreme Court grants leave in Alta Energy
Alta Energy rejected what essentially was a Crown position that Treaty-shopping (here, transferring an investment in a Canadian resource company to a Lux holding company followed by a sale, two years later, that was Treaty-exempt) was a GAAR abuse – with Webb JA saying, for instance that there “is no distinction in the Luxembourg Convention between residents with strong economic or commercial ties and those with weak or no commercial or economic ties,” and that “the object, spirit and purpose of the relevant provisions of the Luxembourg Convention is reflected in the words as chosen by Canada and Luxembourg.”
The Supreme Court will be hearing the Crown’s appeal.
Neal Armstrong. Summary of Canada v. Alta Energy Luxembourg S.A.R.L., 2020 FCA 43, leave granted 6 August 2020 under s. 245(4).