News of Note
The proposed AMT rules undercut the revised s. 84.1 rules
Email this ContentThe revised alternative minimum tax (AMT) rules, including the increasing the percentage of capital gains included in adjusted taxable income (ATI) from 80% to 100% and the AMT rate from 15% to 20.5%, may work at cross purposes with the proposed regime for intergenerational business transfers (IBTs) that are excluded from the application of s. 84.1.
Because of the IBT requirement that the parent transfer management of each relevant business to a child within either 36 or 60 months of the disposition time, or within such greater period of time as is reasonable in the circumstances, there may be reduced scope for the payment of increased salaries or bonuses during the AMT carryforward to recover AMT generated on the disposition.
If the IBT sale occurs for deferred purchase price (debt), the 10-year reserve proposed by s. 40(1.2) may allow the parent to avoid AMT entirely if the gain is small enough – but for larger sales, utilizing the 10-year reserve may trigger AMT in multiple years, reducing the parent’s ability to recover AMT.
If the parent makes charitable donations out of the sales process, the halving of the charitable credit under the revised AMT rules may very well compound the AMT difficulties both immediately and as a result of the competition between the need in the AMT carryforward period to recover the AMT from the sale and from the donation, particularly if the IBT planning relies on the 10-year reserve.
Neal Armstrong. Summary of Balaji (Bal) Katlai, Hugh Neilson and H. Michael Dolson, “AMT and Intergenerational Business Transfers: Planning Challenges,” Tax for the Owner-Manager, Vol. 23, No. 4, October 2023, p. 3 under s. 127.52(1).
Income Tax Severed Letters 4 October 2023
This morning's release of three severed letters from the Income Tax Rulings Directorate is now available for your viewing.
Adlexco – Court of Quebec finds that the presence of any large business in a JV taints all inputs acquired by the operator for ITR recapture purposes
When Ontario (and other provinces) agreed to join the HST system, one of the added features of the provincial component of the HST system was that input tax credits (ITCs) to which "large businesses" otherwise would be entitled for various categories of purchases (such as fuel, electricity, telecommunications services, food and entertainment) were "recaptured" (i.e., effectively denied), subject to a phase-out of this rule. In 28 March 2013 Interpretation 141341, CRA indicated that one of the effects of s. 27(6) of the New Harmonized Value-added Tax System Regulations, No. 2 was that, in the situation where the operator under a joint venture was not a large business and one of the three joint venture participants was a large business, the purchase of electricity by the operator would result in the recapture of the provincial component of HST based on the proportionate (33 1/3%) interest of the large business participant.
Lachapelle JCQ confirmed that the somewhat similar Quebec rule for the recapture of input tax refunds (ITRs) worked in a more draconian manner regarding such a joint venture: if any of the joint venturers on behalf of whom the operator of the JV acquired subject inputs was a large business, this had a “tainting” effect, i.e., 100% of such inputs were subject to the recapture rule.
Neal Armstrong. Summary of Gestions Adlexco Ltée v. Agence du revenu du Québec, 2023 QCCQ 5625 under s. 27(6) of the New Harmonized Value-added Tax System Regulations, No. 2.
Adboss – Federal Court of Appeal confirms, based on abuse of process, the striking of the Minister’s assumption that a company’s “controlling mind and management” was in Canada
The Minister’s reply, to the taxpayers’ appeals of assessments denying zero-rating of taxable supplies made by them to a Cyprus company (“Lowfroc”) on the basis that Lowfroc was a resident of Canada, pleaded an “assumption” that “at all material times, the controlling mind and management of Lowfroc was in Canada.”
After confirming that the quoted assumption was one of mixed fact and law, Goyette JA further confirmed the finding below that there had been prejudice to the taxpayers and an abuse of process (justifying the striking of this assumption pursuant to Rule 53(1)(c)) given inter alia that this pleading “went to the heart of the appeal” and that the Crown had refused the taxpayers’ request for particulars in this regard, so that the taxpayers accordingly “had few options if they wanted to know what factual assumptions they must demolish in order to succeed in their appeal.”
Neal Armstrong. Summary of The King v. Adboss, Inc., 2023 FCA 201 under Rule 53(1)(c).
We have translated 6 more CRA interpretations
We have translated a further 6 CRA interpretations released during November of 2002. Their descriptors and links appear below.
These are additions to our set of 2,597 full-text translations of French-language Technical Interpretation and Roundtable items (plus some ruling letters) of the Income Tax Rulings Directorate, which covers all of the last 20 ¾ years of releases of such items by the Directorate. These translations are subject to our paywall (applicable after the 5th of each month).
| Bundle Date | Translated severed letter | Summaries under | Summary descriptor |
|---|---|---|---|
| 2002-11-22 | 28 November 2002 Internal T.I. 2002-0153837 F - SOMMES IMPAYEES | Income Tax Act - Section 78 - Subsection 78(1) - Paragraph 78(1)(a) | IT-109R, para. 12(a) not applied where there was an asymmetry between the deduction/ net inclusion amounts reported by the debtor and creditor |
| 5 December 2002 Internal T.I. 2002-0155667 F - DEDUCTIBILITE DES INTERETS CAPITALISEES | Income Tax Act - Section 20 - Subsection 20(1) - Paragraph 20(1)(c) - Subparagraph 20(1)(c)(i) | capitalized simple interest on loan to acquire common shares was deductible if reasonable expectation of dividends | |
| Income Tax Act - Section 80 - Subsection 80(2) - Paragraph 80(2)(b) | debt forgiveness rules do not apply to forgiveness of compound interest | ||
| Income Tax Act - Section 80 - Subsection 80(1) - Forgiven Amount | debt forgiveness rules do not apply to forgiveness of compound interest | ||
| 5 December 2002 External T.I. 2002-0163135 F - Source Deductions - Nominal Partnership | Income Tax Act - Section 153 - Subsection 153(1) - Paragraph 153(1)(a) | an individual could cover the payroll of the employees of him and another in agreed proportions as agent and principal, and handle all the source deductions, and prepare one information return | |
| General Concepts - Agency | paymaster under payroll agency arrangements could fulfill the source deduction and T4 reporting requirements of the principal | ||
| 5 December 2002 Internal T.I. 2002-0171847 F - RESIDENCE D'UNE FIDUCIE | Income Tax Act - Section 15 - Subsection 15(2.1) | s. 15(2) applies to loan made by a corporation to a personal trust of which its shareholder is a beneficiary | |
| Income Tax Act - Section 54 - Principal Residence - Paragraph (c.1) - Subparagraph (c.1)(ii) | principal residence designation is available in respect of a specified beneficiary even though the residence is rented by the trust to that beneficiary | ||
| 4 December 2002 Internal T.I. 2002-0138067 F - REMPLACEMENT D'UNE CREANCE PAR UNE AUTRE | Income Tax Act - Section 18 - Subsection 18(9.1) - Paragraph 18(9.1)(a) | financing the repayment of a debt obligation with the proceeds of a borrowing from a different creditor does not constitute a debt substitution | |
| 2002-11-08 | 21 November 2002 External T.I. 2002-0156565 F - INTERETS HYPOTHEQUE SUR RESIDENCE | Income Tax Act - Section 20 - Subsection 20(3) | interest on new home mortgage deductible if used to pay off mortgage on old home that had been used for income-producing purposes |
CIBC – Federal Court of Appeal confirms that the predominant element supplied by a Loblaw banking sub to CIBC was a right to access Loblaw customers, rather than a financial service
A subsidiary ("PC Bank") of Loblaw had agreed with CIBC for CIBC to provide retail banking services under Loblaw’s President's Choice trademark. Webb JA noted that Hogan J in the Tax Court had “found that the predominant element of the single compound supply [by PC Bank to CIBC] was a “Bundle of Rights” [i.e., property] that allowed CIBC to solicit Loblaw’s existing and future customers for the purchase of President’s Choice Financial products.” Hogan J had gone on to find that, given that para. (r.5) of the financial service definition provided an exclusion from financial service for “property … that is delivered or made available to” CIBC “in conjunction with” CIBC selling financial products of PC Bank, the supply made by PC Bank to CIBC was taxable.
Webb JA had earlier noted that although it might seem unnecessary for (r.5) to exclude a supply of property from the supply of a financial “service,” “Parliament must have been concerned that, without the addition of this exclusion, certain supplies of property could be considered to be a financial service.”
He then concluded:
CIBC has failed to establish that the Tax Court Judge committed any palpable and overriding error in his finding that PC Bank supplied the “Bundle of Rights” to CIBC.
He also indicated that there was nothing wrong with Hogan J having made a mixed finding of fact and law (as to the nature of the supply made by PC Bank to CIBC) that was on a basis different than that argued by either party.
Neal Armstrong. Summaries of Canadian Imperial Bank of Commerce v. Canada, 2023 FCA 195 under General Concepts – Res Judicata, ETA s. 309(1) and s. 123(1) – financial service – (r.5).
CRA clarifies that the provision of goods is not incidental to services for TOSI purposes where the customer acquires property of significant value
A CRA webpage provides examples for computing the 90% services exclusion in s. (a)(i) of the "excluded share" definition in the tax on split income (TOSI) rules. These include:
- Where a corporate cleaning business consumes cleaning supplies in performing its cleaning services, such supplies will be included in its services revenue even if charges therefor are separately identified in its invoices (Example 4);
- Or where it also “separately” sells cleaning supplies to some of its customers, such sales will be respected as not belonging to its services revenue (Example 5);
- Where a corporation, that constructs and repairs decks, charges for its materials and labour for each job, its services revenue is determined by backing out its charges for materials from its total revenues (Example 6).
In commenting further on these examples, CRA stated:
Example 4 demonstrates incidental use or consumption of goods in the provision of services. In this example, the cleaning products are incidental to the services, since they were used or consumed in providing the services. Ultimately, in this situation, the customer is seeking to have their premises cleaned.
Example 5 describes a situation where the corporation, in addition to providing cleaning services, sells cleaning supplies and equipment, perhaps to other businesses providing cleaning services, or to its own customers but separate and apart from the cleaning services. In this example, the goods are not incidental to the service as they are acquired by the customer for their own use.
In example 6, a contractor is engaged to supply the materials for and carry out the construction of a deck. In this situation, the materials are significant enough of an element in the construction of the deck that the business provides both a service and non-service component. The corporation supplied all materials and labour when constructing and repairing decks. The service component was the labour provided. Given that customer is acquiring an improvement to their property in the form of the deck which is a tangible improvement affixed to the customer’s property, to the extent that the revenues reflect the provision of the materials, they are considered a non-service component provided together with, as opposed to incidental to, the services.
Neal Armstrong. Summary of 2021 Alberta CPA Roundtable under “Tax on Split Income – Services Restriction to Excluded Shares” under s. 120.4(1) – excluded share – s. (a)(i).
CRA indicates that s. 51 could not apply on the conversion of a share corp to non-share corp
A corporation (the DLCC), which had been operating a club for the purposes of pleasure and recreation of the members and of the community was, as a result of the repeal of its governing Act, continued under a Corporations Act as a non-share capital corporation, so that the DLCC shares were exchanged for membership interests. CRA indicated that:
- such conversion would not cause a share disposition if no shares were cancelled and the rights of the shareholders were not substantively altered; and
- if there otherwise was a disposition, s. 51 would not apply, given CRA’s position that a person who has a membership interest in a non-share capital corporation does not hold a “share,” so that, here, there could be no share-for-share exchange.
The first point, which proffers the possibility that the conversion could occur without the cancellation of shares, may be at odds with the second point that, after the conversion, the shares would be gone.
Neal Armstrong. Summaries of 1 May 2023 External T.I. 2021-0921101E5 under s. 149(1)(l), s. 149(12), s. 248(1) – disposition and s. 51.
Income Tax Severed Letters 27 September 2023
This morning's release of two severed letters from the Income Tax Rulings Directorate is now available for your viewing.
CRA notes that distributions of trust income for a year deemed to be paid to a non-resident beneficiary 90 days after the year must still be reported on the NR4 for that year
CRA indicated that, where an estate or trust had income payable at its year end of, say, December 31, 2020, to a non-resident beneficiary, but that amount remained unpaid 90 days after that year-end, such amount would be deemed by s. 214(3)(f) to be paid at that time (March 31, 2021), so that the Part XIII withholding tax thereon would be due by April 15, 2021, and both the income and withholding tax would be required to be reported on an NR4 slip issued for the 2020 taxation year.
CRA also noted that this situation could result in late-remittance penalties being levied in error – but that “these late-remitting penalties can be cancelled once the CRA is provided additional information regarding the timing of the payments made to the non-resident.”
Neal Armstrong. Summary of 2021 Alberta CPA Roundtable under “Estates/ Trusts and Nonresident Withholding Tax” under s. 214(3)(f).