Translation disclaimer
This translation was prepared by Tax Interpretations Inc. The CRA did not issue this document in the language in which it now appears, and is not responsible for any errors in its translation that might impact a reader’s understanding of it or the position(s) taken therein. See also the general Disclaimer below.
PRINCIPAL ISSUES: An estate freeze would happen when the safe income on hand is $700,000. Freeze preferred shares would be issued and their redemption value would be $1,000,000. The ACB of the freeze preferred shares would be $100. Each year, a dividend would be paid on the freeze preferred shares. What would be the safe income on hand that contributes to the capital gain of the freeze preferred shares immediately before the annual dividend?
POSITION: The safe income on hand of the corporation at the time of the estate freeze would be transferred to the freeze preferred shares. With respect to additional safe income on hand, it would depend, inter alia, on the value of the freeze preferred shares immediately before the dividend as computed pursuant to paragraph 55(2.1)(c) and on the safe income accumulated by the corporation since the estate freeze, if any. If the hypothetical capital gain is $999,900 ($1,000,000 - $100), which may mean that the safe income accumulated by the corporation since the estate freeze would not contribute to the hypothetical capital gain on the freeze preferred shares. Therefore, the safe income on hand of $700,000 less any previous reduction would contribute to the hypothetical capital gain. In such a case, the annual dividend would reduce the amount of $700,000 less any previous reduction. If the annual dividend is greater than $700,000 less any previous reduction, subsection 55(2) may apply if the other conditions are met.
If the hypothetical capital gain was equal to an amount of $999,900 + the annual dividend, it would be necessary to determine the safe income on hand accumulated since the estate freeze. If such an amount of safe income on hand was equal to or greater than the annual dividend on the freeze preferred shares, the amount of the annual dividend would not be greater than the safe income on hand that contributes to the hypothetical capital gain. Subsection 55(2) would not apply. In such a case, the safe income accumulated by the corporation since the estate freeze would be reduced by the annual dividend on the freeze preferred shares.
REASONS: Wording of the Act.
7 OCTOBER 2016 APFF FEDERAL ROUNDTABLE - 2016 CONFERENCE
QUESTION 16
INTERRELATION BETWEEN SAFE INCOME ON FREEZE SHARES AND SUBSECTION 55(2)
Opco is a corporation resident in Canada. Opco's shares have a FMV of $2,500,000 and an aggregate safe income of $1,700,000. This aggregate safe income includes safe income of $700,000 attributable to the freeze preferred shares held by Holdco A.
Holdco A holds 100 common shares with a PUC and ACB of $100. The common shares have voting rights and are participating.
Holdco A also holds 100 freeze preferred shares with a PUC and ACB of $100. The FMV (redemption value) of these freeze preferred shares is $1,000,000 and the safe income of the shares exchanged at the time of the freeze was $700,000. The preferred shares are not entitled to a discretionary dividend. The attributes of the freeze preferred shares are:
- Non-participating
- No voting rights
- Pre-determined dividends (8% of the redemption value)
- Pre-determined value ($1,000,000, i.e., the consideration received on issue + unpaid dividends)
Questions to the CRA
(a) If Opco generates safe income in the year of $150,000 and declares a dividend of $80,000 on the freeze preferred shares: - What portion of the dividend will covered by the aggregate safe income?
- What will be the safe income of the freeze preferred shares following the dividend’s payment?
- What will be the aggregate safe income of Opco after the payment of the dividend?
(b) If Opco generates nil safe income in the year and declares a dividend of $80,000 on the freeze preferred shares:
- What portion of the dividend will be covered by the aggregate safe income?
- What will be the safe income of the freeze preferred shares after payment of the dividend?
- What will be the aggregate safe income of Opco after the payment of the dividend?
CRA response
The answer to your question will depend on the FMV that could be attributed to the freeze preferred shares in the capital stock of Opco held by Holdco A. This FMV will be determined immediately before the dividend payment but taking into account that such shares would be entitled to an additional amount equal to the dividend declared in respect of these shares. This permits the calculation of what would be the hypothetical capital gain that would have been realized on a disposition of the shares at FMV immediately before the dividend but taking into account the assumptions referred to in paragraph 55(2.1)(c) of the Act. This is a valuation question on which the CRA cannot pronounce in a hypothetical situation.
According to the facts stated above, the safe income on hand of the shares exchanged in the estate freeze was $700,000 and the estate freeze was carried out on a rollover basis. Thus, according to the longstanding position of the CRA, the SIOH of $700,000 attributable to the exchanged shares was transferred to the freeze preferred shares.
In addition to the $700,000 of safe income on hand contributing to the hypothetical capital gain on the freeze preferred shares (in accordance with the assumptions under paragraph 55(2.1)(c)), it must be established if there is SIOH earned or realized by the corporation subsequent to the freeze and up to the safe income determination time that would contribute to the hypothetical capital gain on the freeze preferred shares. To this end, it is not sufficient to establish the amount of safe income generated in the year of the dividend since, for example, this amount could be reduced due to a loss in years prior to the freeze or could be increased by safe income earned or realized in years prior to the freeze. Likewise, the amount of safe income earned in the year and earned or realized in prior years subsequent to the freeze might not contribute to the hypothetical capital gain on the freeze preferred shares (based on the assumptions in paragraph 55(2.1)(c)).
The question of whether an amount of SIOH contributes to the hypothetical capital gain on freeze preferred shares, calculated using assumptions of paragraph 55(2.1)(c), is a question of fact. If the dividend of $80,000 was not greater than the SIOH of the corporation which contributed to the hypothetical capital gain on freeze preferred shares (the amount of $700,000 transferred at the time of the freeze could have been reduced due to previous dividends as well as SIOH that accumulated since the freeze if it contributed to the hypothetical capital gain on preferred shares), paragraph 55(2.1)(c) and subsection 55(2) would not apply. The dividend of $80,000 would firstly reduce the SIOH of the corporation from the time of the freeze if it contributed to the hypothetical capital gain on the freeze preferred shares and up to the lesser of safe income that contributed to the hypothetical capital gain on the freeze preferred shares and the dividend amount. Any difference between the amount of the dividend and this reduction in the post-freeze SIOH of the corporation would reduce the SIOH of $700,000 that is specifically attached to the freeze preferred shares freeze (less any prior reduction).
Depending on circumstances, it may be that the only SIOH contributing to the hypothetical capital gain on the freeze preferred shares was the amount of $700,000 less any previous reduction of such safe income. If the dividend amount of $80,000 was not greater than such SIOH, paragraph 55(2.1)(c) and subsection 55(2) would not apply. In such case, the SIOH of $700,000 (less any previous reduction) would be reduced by the amount of the dividend.
Sylvie Labarre
(613) 670-9014
October 7, 2016
2016-065300
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