News of Note
Proposed Bitcoin Fund will be a long-term holder of bitcoin
Email this ContentThe final long form prospectus for the Bitcoin Fund contemplates an Ontario trust whose units will be listed on the TSX and that will invest substantially all of its assets in bitcoin. It will acquire an initial bloc of bitcoin from another fund (with the same name as its manager) potentially on a s. 132.2 rollover basis, so that there was the potential for the acquired bitcoin to have an accrued gain.
It is contemplated that the bitcoin would not constitute non-portfolio property (no SIFT tax). Since the Fund intends to be a long-term holder of bitcoin, it is anticipated that it will treat its bitcoin as capital property. In addition to an annual redemption right at NAV (to be paid in U.S. dollars rather than in specie), there is a monthly redemption right (at a generally discounted redemption price) so that the Fund can qualify as a mutual fund trust. The disclosure notes that proposed s. 132(5.1) might effectively require the Fund to allocate capital gains realized by it on a redemption of unis to non-redeeming unitholders.
Neal Armstrong. Summary of 31 March 2020 Bitcoin Fund prospectus under Offerings – Commodity Funds – Cryptocurrency Funds.
Income Tax Severed Letters 8 April 2020
This morning's release of two severed letters from the Income Tax Rulings Directorate is now available for your viewing.
KIK – Federal Court finds that follow-up correspondence of the taxpayer’s accounting firm resulted in the transformation of a reversible CBSA decision into a reasonable one
Vavilov confirmed that decisions of the CRA (or, in this case, the CBSA) must satisfy requirements of justification, transparency and intelligibility. An adverse CBSA decision on the taxpayer’s request for a ruling that it was entitled to duty drawbacks on its imports did not meet this standard. However, the taxpayer’s accounting firm immediately contacted the officer involved by email for an explanation and made submissions, and as part of further email exchanges the officer clarified why the items were not considered to satisfy the conditions for the drawback. In finding that this email correspondence was effectively part of the decision under judicial review, Norris J stated:
The officer’s responses to the inquiries and further submissions from the applicant’s representatives are part and parcel of the justification for the decision that was given to the applicant. … The officer was not responding to an application for judicial review of the decision, something that had not yet been commenced at the time of the exchanges.
As the decision in this broader context was now rendered reasonable, Norris J declined to reverse it.
Neal Armstrong. Summary of KIK Custom Products Inc v. Canada (Border Services Agency), 2020 FC 462 under Customs Tariff Act, s. 89(1)(a).
CRA rules on pipeline transaction for marketable securities company that generates full dividend refunds and a s. 164(6) carryback
CRA provided standard rulings for a pipeline transaction respecting a CCPC, with a portfolio of public company shares and other marketable securities, whose common shares were stepped up to their fair market value on the death of the deceased. Preliminarily:
- ACo redeemed all of its preferred shares (having full paid-up capital and ACB) by issuing notes.
- ACo generated a refund of its eligible refundable dividend tax on hand, or its non-eligible refundable dividend tax on hand, balances, through the purchase for cancellation (in consideration for a promissory note) of a sufficient number of its common shares..
- The executors will carry back the resulting capital loss under s. 164(6), with s. 40(3.61) thereby precluding the application of the s. 40(3.6) stop loss rule.
The pipeline proper transactions were then to be implemented under which:
- The estate transfers the remaining ACo common shares to a Newco formed by it in consideration for a note and one Newco common share.
- A redacted number of months later, ACo is amalgamated with Newco, or wound up into it under s. 88(1).
- Thereafter the note issued in Step 1 begins to be repaid over a redacted period of time.
Between Steps 1 and 2, ACo (but not Newco) is permitted to partially repay the various notes issued by it.
Neal Armstrong. Summary of 2019 Ruling 2019-0822951R3 F under s. 84(2).
5 more translated CRA interpretations are available
We have published a further 5 translations of CRA interpretations released in November 2010. Their descriptors and links appear below.
These are additions to our set of 1141 full-text translations of French-language Roundtable items and Technical Interpretations of the Income Tax Rulings Directorate, which covers all of the last 9 1/3 years of releases of Interpretations by the Directorate. These translations are subject to the usual (3 working weeks per month) paywall. You are currently in the “open" week for April.
Rojoda – High Court of Australia finds that a partner or former partner of a partnership does not have a fixed interest in its assets prior to winding-up
The application of various ITA provisions turns on the legal character of a partner’s interest in partnership property. For example, is an interest in a partnership holding land inventory an “eligible property” under s. 85(1.1); or is a Crown corporation with a 99% interest in a partnership with a wholly-owned subsidiary considered to be a 90% owner of the shares of that subsidiary for s. 149(1)(d.2) purposes?
The High Court considered it to be “orthodox” and correct law that “the interest of partners in relation to partnership assets is not an interest in any particular asset but is an indefinite and fluctuating interest in relation to the assets, being the right to a proportion of the surplus after the realisation of the assets and payment of the debts and liabilities of the partnership.” It then determined that this same non-specific interest in the partnership property continued following the dissolution of a partnership and before the completion of its winding-up.
Neal Armstrong. Summary of Commissioner of State Revenue v Rojoda Pty Ltd [2020] HCA 7 under s. 85(1.1).
CRA finds that incurring indebtedness in order to make donations is grounds from revocation of private foundation status
S. 149.1(4)(d) authorizes the Minister to revoke the registration of a private foundation that has “incurred debts” subject to specified exclusions including “debts incurred in the course of administering charitable activities.” In finding that indebtedness incurred by a private foundation to make payments to qualified donees did not come within this exclusion, CRA stated:
[T[he making of gifts by a foundation in the course of charitable activities carried on by it, and the making of gifts to qualified donees are two activities that are mutually exclusive. As such … it is not possible for a foundation to make a gift to a qualified donee in the course of carrying on of its own charitable activities.
Neal Armstrong. Summary of 8 May 2009 Internal T.I. 2009-0309401I7 under s. 149.1(4)(d).
Valero – Federal Court of Appeal finds that requested judicial review of CRA’s requiring audit information collaterally attacked CRA’s assessing responsibility
Valero did not withhold under Reg. 105 on fees paid to non-resident carriers for international shipping services on the basis that such carriers’ income therefrom was exempt from Canadian tax. During an audit, Valero offered to make available all the requested international shipping information, provided CRA undertook not to assess any Reg. 105 withholding tax.
CRA thereafter issued a requirement under s. 231.2(1) for such information, and Valero requested an order setting aside the requirement. In finding that such a request could not succeed, Rivoalen JA stated:
… If an order setting aside the requirement for information is granted, the Minister will be prevented from properly exercising her powers under the Act. …
The Minister has not yet assessed. Once she has received the complete information and documents, she may well find that Valero has no liability. In my view, Valero cannot stop the Minister from carrying out her statutory duty under the Act to assess income tax payable by way of an application for judicial review.
Neal Armstrong. Summaries of Canada (Attorney General) v. Valero Energy Inc., 2020 FCA 68 under Federal Courts Act, s. 18.1(2) and ITA s. 231.2(1).
CRA is continuing to provide time-sensitive rulings and technical interpretations
On March 15, 2020, those CRA employees performing critical functions (Category 1 employees) were directed to continue such work, but from home, if possible, until April 5, 2020. This date has now been extended to May 1, 2020. Other employees (whose work has been identified as important but not as a critical service) are directed to work from home (and not to come into the office except, perhaps, to pick up their audit laptop or other equipment) where they are equipped to do so and where their child or parent care responsibilities do not preclude this.
The list of (Category 1) critical services has been expanded to include clearance certificates, “time-sensitive income tax ruling requests and technical interpretations” and “operat[ing] call centres in the areas of GST/HST rulings, registered plans, and registered charities.” See the National COVID-19 Business Continuity Plan.
Neal Armstrong. Summary of COVID-19: Information for Canada Revenue Agency employees: 30 March 2020: Work restrictions for critical and non-critical services under s. 152(1).
CRA announces that individuals are eligible for the temporary wage subsidy
CRA has revised its Webpage on the “Temporary Wage Subsidy for Employers.” The biggest change is to expand the list of eligible employers to include individuals other than trusts. In particular, CRA states:
You are an eligible employer if you are a(n):
- individual (excluding trusts),
- partnership (see note below),
- non-profit organization,
- registered charity, or
- Canadian-controlled private corporation (including a cooperative corporation) eligible for the small business deduction;
- have an existing business number and payroll program account with the CRA on March 18, 2020; and
- pay salary, wages, bonuses, or other remuneration to an eligible employee.:
… Partnerships are only eligible for the subsidy if their members consist exclusively of individuals (excluding trusts), registered charities, or Canadian-controlled private corporations eligible for the small business deduction.
There is no stated exclusion for employees who are related to the employer.
The temporary wage subsidy is not to be confused with the more expansive wage subsidy - that was announced last week and fleshed out further today in a Finance Backgrounder - under which all businesses (including those not structured as a CCPC, such as public corporations and partnerships), charities and non-profit organizations that sustain a 30% decrease in revenue (based on a month-by-month comparison to the corresponding 2019 month) due to COVID-19 can receive a subsidy retroactive to March 15, 2020 that covers up to 75% of wages (subject to a numerical limitation) for up to 3 months. Employers that do not qualify for this emergency wage subsidy may qualify for the above temporary wage subsidy.
Neal Armstrong. Summary of Frequently Asked Questions – Temporary Wage Subsidy for Employers, 30 March 2020 CRA Webpage under s. 227(4).