News of Note
Amos-Yeo – England and Wales High Court finds parties' intention to distribute enough shares to trust beneficiaries to access a reduced capital gains rate was sufficient to rectify a miscalculation of the shares’ number
Email this ContentIn order that some trust beneficiaries could access a reduced U.K capital gains rate on a share sale, they were required to hold over 5% of the nominal share capital of the company before they sold their shares. Accordingly, the trusts distributed over 5% of the shares to them more than one year before a sale closed. However, due to the trust advisor overlooking the higher nominal capital of some of the other shares, the shares which were so distributed to them represented only 4.97% of the company’s share capital.
The intention of the parties to transfer enough shares to access the reduced rate of tax was found to be a sufficiently specific intention to permit rectification of the number of shares transferred, even though the parties had left the determination of the precise number to their advisor.
Neal Armstrong. Summary of Prowting 1968 Trustee One Limited v. Amos-Yeo, [2015] EWHC 2480 (Ch), under General Concepts – Rectification.
Bueti – Tax Court of Canada seems to imply that s. 70(5)(b) cannot apply to property acquired by a residuary beneficiary
Owen J made a factual finding that a particular property (a house in the estate of the taxpayer’s father) was purchased for cash consideration by her and her husband, as joint tenants, rather than being devised to her under her father’s will. Accordingly, it was clear that her and her husband’s cost of the property was their cash purchase price rather than being deemed by s. 70(5)(b) to be its higher fair market value at the time of their purchase.
Before so concluding, he made the interesting observation that, under the laws of Ontario, residuary beneficiaries do not acquire an interest in any specific property in the residue of the estate and it is instead the executors who acquire the property in the residue – with a possible implication that s. 70(5)(b) cannot apply to property acquired by a residuary beneficiary (as contrasted to property acquired by specific devise or bequest). Neither counsel mentioned s. 248(8)(a), which deems property acquired “as a consequence of the terms of the will” to be acquired “as a consequence of the death” (being the triggering phrase in s. 70(5)(b).)
Neal Armstrong. Summary of Bueti v. The Queen, 2015 TCC 265, under s. 70(5).
CRA is now permitting PHSPs to handle incidental non-qualifying medical expenses
Since January 1, 2015, CRA has only been requiring that substantially all (rather than all) of the premiums paid under a private health services plan relate to medical expenses that are eligible for the medical expense tax credit. CRA “did not want plans to be considered offside on the basis of nominal or incidental non-METC coverage” such as for non-prescription vitamins.
Neal Armstrong. Summaries of New position on private health services plans - Questions and answers and 24 November 2015 CTF Annual Roundtable, Q.5 under s. 6(1)(a)(i).
CRA indicates that normal course dividends and loss-shifting transactions generally do not engage the new s. 55(2) rules
Points made by CRA respecting the new s. 55(2) rules include:
- "Normal course" dividends (albeit with a narrow description of the only clear safe harbour) should not be subject to the new rules.
- CRA is willing to issue opinions (and presumably rulings, once the new rules are enacted) on the non-application of s. 55(2.1), although as a purely technical matter they will be somewhat meaningless, as the required representations will beg the (purpose) question.
- Conventional loss shifting transactions (which CRA has already been requiring not to create additional basis) will not be subject to the new rules.
- Where a non-participating discretionary shares has no accrued gain, then a dividend paid thereon which violates the purpose test cannot benefit from safe income. However, where this occurs, CRA is prepared to accept that the safe income on the participating shares of the same corporation will not be affected.
- CRA considers it to be offensive to redeem a share for a note in a s. 55(3)(a) reorganization, with the note being used to generates basis in excess of redeemed shares’ ACB.
- Also offensive is "ACB streaming prior to a reorganization under 55(3)(a) or (b), where the redemption would be of low-ACB shares, while the high ACB shares would be preserved."
- CRA appears to consider creditor-proofing transactions to per se entail a purpose that engages the new rules.
Neal Armstrong. Summary of 24 November 2015 CTF Annual Roundtable, Q.6 under 2015 CTF Roundtable.
CRA translates USD debt at the historical rate for thin cap purposes
CRA considers, based on s. 261(2), that the amount of U.S.-dollar denominated debt is to be measured for thin cap purposes in Canadian dollars based on the FX rate at the time the loan was made.
Neal Armstrong. Summary of 24 November 2015 CTF Annual Roundtable, Q. 10 under 2015 CTF Rountable.
Income Tax Severed Letters 25 November 2015
This morning's release of three severed letters from the Income Tax Rulings Directorate is now available for your viewing.
CRA currently is inclining to classify Delaware and Florida LLPs and LLLPs as corporations
CRA is "heavily leaning" towards characterizing Florida limited liability partnerships (LLPs) and Florida limited liability limited partnerships (LLLPs) as corporations, and is a few weeks away from reaching a definitive conclusion on this point. Its preliminary view is that the equivalents under Delaware law also are corporations.
Neal Armstrong. Summary of 24 November 2015 CTF Annual Roundtable, Q. 7(b) under 2015 CTF Roundtable.
CRA maintains its policy on LLCs as corporations
CRA essentially indicated that Anson has not changed its view that an LLC is a corporation for purposes of the Act. (CRA was obliged to point out that it has not examined all the LLC statues or even changes to ones that it previously has examined, but did not communicate that this was a big deal).
Neal Armstrong. Summary of 24 November 2015 CTF Annual Roundtable, Q. 7(a) under 2015 CTF Roundtable.
CRA finds that a Canadian parent realizes income if an upstream loan owing by it is extinguished on winding up a CFA
A loan from a foreign affiliate to its Canadian parent generally must be repaid within two years lest the amount of the loan be included in the parent’s income under s. 90(6). CRA was asked whether this payment requirement would be considered to be satisfied if the foreign affiliate is wound up (perhaps on the basis that there is an implicit set-off between the amount owing by the parent and the winding-up distribution payable by the foreign affiliate - see e.g., 2013 Ruling 2013-0498551R3).
CRA indicated that it was not prepared to attempt to provide an administrative solution to this problem (so that such income inclusion would occur under current law) and had drawn this issue to the attention of Finance.
Neal Armstrong. Summary of 24 November 2015 CTF Annual Roundtable, Q. 8 under 2015 CTF Roundtable.
CRA is revoking rulings on conversions of three year bonus unit plans (RSUs) to DSUs
CRA at one point had been providing rulings accommodating the conversion of three-year bonus unit plans (under para. (k) of the salary deferral arrangement rules) into deferred share unit plans (intended to be governed by Reg. 6801(d)) (See e.g. 2005-0144541R3). CRA has now concluded that the Act does not accommodate this flexibility and has revoked or will revoke such rulings. Units that were already in the bonus plan prior to the revocation can still be converted.
Plans established under 409A of the Code permit a more flexible range of events giving rise to a distribution entitlement than is permitted under the DSU rules in Reg. 6801(d). A Canadian employee who is a member of such a plan will be required to comply with the more restrictive Canadian rules.
Edited transcripts of the answers given today at the annual CTF Roundtable are being uploaded over the next several days.
Neal Armstrong. Summary of 24 November 2015 CTF Annual Roundtable, Q. 2 under 2015 CTF Roundtable.