News of Note
Shareholders of Continental Gold, a Bermuda company with Canadian residence, will transfer their shares under a Bermuda Scheme to a new Ontario holding company
Email this ContentThe common shareholders of Continental Gold, which is a TSX-listed Bermuda corporation with central management and control in Canada, will transfer all their shares to Continental Holdco (a newly incorporated Ontario corporation) under a Bermuda Scheme of Arrangement for the same number of Continental Holdco common shares. Taxable resident shareholders can elect under s. 85 to achieve rollover treatment. The s. 85.1 rollover is not available as Continental Gold is not a taxable Canadian corporation.
The transaction is less innocuous in the U.S. Although it fits under the description of a "B" (share-for-share) reorg or a Code s. 351 contribution, U.S. shareholders who acquired their shares before 2014 (when Continental Gold ceased to be a PFIC) generally will not be eligible for tax-free exchange treatment unless they made a timely election to hold their Continental Gold shares on a mark-to-market basis or made a "purging election" to recognize gain (and pay U.S. tax) on a deemed sale of their shares at the end of 2013.
Neal Armstrong and Abe Leitner. Summary of Continental Gold Circular under Other – Continuances/Migrations – New Canadian Holdco.
CRA considers that a partnership’s affairs can be considered to have been wound-up even if title still shows land as being held for the partnership
The s. 85(3) rollover respecting a disposition of property by a partnership to its corporate partners requires inter alia that "the affairs of the partnership were wound-up within 60 days after the disposition." CRA considers that provided beneficial ownership has been transferred within the 60-day period, it is acceptable if, due to requirements of the applicable land titles authority:
the partnership still holds legal title to the property after the 60-day period only because the parties are awaiting the valuation necessary to effect the transfer of title, and legal title to the property in question will be transferred as soon as is practical after the valuation is completed.
Neal Armstrong. Summary of 14 January 2015 T.I. 2014-0559731E5 under s. 85(3).
Income Tax Severed Letters 20 May 2015
This morning's release of seven severed letters from the Income Tax Rulings Directorate is now available for your viewing.
DeeThree Exploration effects a butterfly spin-off of Boulder Energy
DeeThree, an Alberta TSX-listed oil and gas company, has completed a butterfly spin-off of Boulder Energy, which holds what was a major development property of DeeThree. In contrast to the recent FirstService/Collier butterfly spin-off, no tax ruling was sought, no indemnities were given respecting post-Arrangement actions that might cause the butterfly to be taxable and no tax risks were disclosed.
Similarly to FirstService/Collier, the U.S. tax disclosure contemplates that the reorganization will be treated as a qualifying Code s. 355 distribution on the basis of the form of the transactions being disregarded.
Neal Armstrong. Summary of DeeThree Circular under Spin-Offs & Distributions – Butterfly spin-offs.
Advantages of electing under s. 89(11) to not be a CCPC are more achievable if, in the case of a CCPC also holding investments, it transfers its business to a new Opco, which so elects
A Canadian-controlled private corporation (Famco) whose taxable capital exceeds $15 million (so that it cannot enjoy the small business deduction) may wish to elect to cease to be a CCPC in order that it no longer is required to keep track of its general rate income pool (which in low-rate provinces does not reflect the full amount of its actual after-tax full-rate income). However, if it does this directly, it may generate a low rate income pool (generally based on its tax retained earnings in excess of its GRIP at the end of the prior taxation year and its capital dividend account), which must be distributed first before it can distribute eligible dividends to its shareholders.
A better result may be achieved by rolling down its business assets to a new subsidiary (Opco), with Opco (rather than Famco) electing not to be a CCPC. The tax cost of Opco’s assets should be equal to the sum of its debts and the paid-up capital of its shares, so that it should have no starting LRIP balance, nor should it subsequently generate LRIP if it only earns business income.
Accordingly, all the dividends paid by Opco to Famco can be eligible dividends and, as a CCPC, Famco can fully distribute these eligible dividends to its (individual) shareholders. In some provinces, the dividend refund to Famco will exceed their dividend tax.
Neal Armstrong. Summary of John Granelli, "Getting a Handle on GRIP", Tax Topics (Wolters Kluwer), No. 2252, May 7, 2015, p. 1 under s. 89(1) – GRIP.
Mac’s Convenience Stores - Quebec Court of Appeal finds that as the parties did not think about the thin cap consequences of a dividend, they could not subsequently rectify to solve a thin cap problem
Mac’s Convenience Stores Inc. didn’t realize at the time that paying a substantial dividend to its Canadian parent would cause the thin cap rules to apply to interest on a loan from a related non-resident corporation. Schrager JA took essentially the same approach as in Groupe Jean Coutu in finding that rectification was not available to convert the dividend into a stated capital distribution.
Although rectification was appropriate to correct an "error to achieve the tax consequences originally and specifically intended and agreed upon," here the parties had not cast their minds to the thin cap rules, so that correcting a thin cap problem was not necessary to give effect to their intentions at the time.
Neal Armstrong. Summary of Mac’s Convenience Stores Inc. v. A.G. of Canada, 2015 QCCA 837 under General Concepts – Rectification.
Le Groupe Jean Coutu – Quebec Court of Appeal finds that rectification is not available to reverse an adverse tax consequence (FAPI) that the parties did not think about
The taxpayer implemented a plan, to neutralize the effect of FX fluctuations on its investment in a U.S. sub, that overlooked FAPI considerations – so that interest on a loan made by the sub back to Canada was included in the taxpayer’s income. Schrager JA reversed a decision below that the transactions could be rectified to retroactively adopt a Plan B, which had been considered before the bad plan was implemented instead, and which would have avoided the FAPI problem.
Per Graymar, "rectification is available in order to avoid a tax disadvantage which the parties had originally transacted to avoid, it is not available to avoid an unintended tax disadvantage which the parties had not anticipated." Since the parties had not thought about FAPI, rectification to reverse FAPI was not available, i.e., a "general intent…that their transaction be ‘tax neutral’ is not sufficiently determinate."
Neal Armstrong. Summary of A.G. Canada v. Le Groupe Jean Coutu (PJC) Inc., 2015 QCCA 838 under General Concepts - Rectification.
CRA rules that a 2-step distribution (PUC increase and distribution) by a ULC sub of U.S. parent avoids the anti-hybrid rule even though the distribution is funded by a hybrid dividend
A Canadian holding company (‘Holdco") is wholly-owned by the unlimited liability company subsidiary ("ULC") of the U.S. parent, with the exception of exchangeable preferred shares held by Canadian taxable investors. ULC (which is fiscally transparent for U.S. purposes) will increase the stated capital of its shares held by U.S. parent, and then use a dividend received from Holdco to fund a distribution to U.S. parent of the resulting paid-up capital.
The fact that this PUC distribution will be funded out of a hybrid dividend (i.e., a dividend which for Code purposes will be treated as being paid directly to U.S. parent) is irrelevant for purposes of the anti-hybrid rule in Art. IV, para. 7(b) of the Canada-U.S. Treaty. CRA gave its standard ruling that the s. 84(1) deemed dividend arising on the stated capital increase by ULC will be subject to a Treaty-reduced (5%) rate of Part XIII tax.
Neal Armstrong. Summary of 2014 Ruling 2014-0534751R3 under Treaties, Art. 4.
Compensation can be converted to DSUs up to the time of constructive receipt or of legally enforceable entitlement to receive it
A deferred share unit plan can be drafted so as to permit a participant to wait to the very last moment before choosing to defer compensation and receive it instead in the form of DSUs, i.e., up the time that the executive (i) has a legally enforceable right to receive the compensation or (ii) it is "constructively received," i.e., the executive "has unfettered control over, access to, or use of, the compensation."
Neal Armstrong. Summary of 10 April 2015 T.I. 2014-0535951E5 under Reg. 6801(d).
Large businesses are subject to penalties for late reporting of recaptured input tax credits even if claims for the related ITCs also are deferred
Large businesses in, for example, Ontario are subject to the "recapture" (i.e., reversal through an add-back adjustment) of their provincial input tax credits for acquisitions of specified supplies or services, such as electricity. Businesses generally are entitled to defer claiming ITCs for quite a number of months by reporting them in a subsequent reporting period, so that it makes intuitive sense that they also should be able to defer reporting their recaptured ITCs to the same extent.
Not so! The large business generally is required to report the RITC by the month following the month in which the ITC was first claimable, so that a penalty of 10% of the unreported RITC amount will be payable if the ITC and the related RITC are reported only in the monthly return which is filed, say, a year later.
A large business also generally will be subject to penalties if it does not report the correct province to which an RITC relates, even if the correct net amount (ITC minus RITC) is reported.
Neal Armstrong Summaries of National Commodity Tax, Customs and Trade Section – 2014 GST/HST Questions for Revenue Canada, Q. 22 and 2014 GST/HST Questions for Revenue Canada, Q. 21 under Electronic Filing and Provision of Information (GST/HST) Regulations, s. 7.