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: Ms. A and her spouse, Mr. B, each hold 50% of the common shares of the capital stock of OPCO, which is a CCPC. Ms. A also holds preferred shares of the capital stock of OPCO. The fair market value, paid-up capital and adjusted cost base (hereinafter "ACB"), to Ms. A of her OPCO preferred shares are, respectively, $2,000,000, $200 and $1,000,000. Ms. A transfers to Mr. B half of her OPCO preferred shares for no consideration. This transfer is made on a tax-deferred basis pursuant to subsection 73(1). Five years later, OPCO redeems the preferred shares of its capital stock held by Mr. B. At this particular time, Mr. B is deemed to have received a dividend pursuant to subsection 84(3) in the amount of $999,900. This deemed dividend is deemed to be Ms. A's dividend pursuant to subsection 74.1(1). At the same time, Mr. B also incurs a loss in the amount of $499,900. Whether the attribution rules would apply to the loss incurred by Mr. B.
Position: The loss incurred by Mr. B would be deemed to be nil pursuant to paragraph 40(3.6)(a). Consequently, there would be no allowable capital loss that could be attributed to Ms. A under subsection 74.2(1). The loss, determined without reference to paragraph 40(2)(g) and subsection 40(3.6), would be added to the ACB to Mr. B of his common shares of the capital stock of OPCO pursuant to paragraph 40(3.6)(b).
Reasons: According to the law.
XXXXXXXXXX 2011-042746
J. Lafrenière
(613) 941-2956
January 9, 2012
Subject: Request for Technical Interpretation - Capital loss deemed nil and attribution rules
Dear Sir,
This is in response to your e-mail of November 8, 2011, in which you asked for clarification regarding the application of subsections 40(3.6) and 74.2(1) of the Income Tax Act (the "Act") in the context of a particular situation.
Unless otherwise stated, all references to a statutory section or included provision in this letter are to a section of the Act or one of its provisions.
It appears to us that the situation described in your email could constitute an actual situation involving taxpayers. As explained in paragraph 22 of Information Circular 70-6R5, it is not the practice of this Directorate to provide comments on proposed transactions involving specific taxpayers otherwise than through advance income tax rulings. However, we are able to offer the following general comments that may be helpful to you. It should be noted that the application of one or more provisions of the Act generally requires the analysis of all facts relating to a particular situation. Accordingly, and in light of the fact that your email only briefly describes a hypothetical particular situation, the comments we make below may not be fully applicable in a particular situation.
Particular Situation
You presented the situation described below (the "Particular Situation") as part of your request for technical interpretation:
(a) A corporation ("OPCO") is a Canadian-controlled private corporation, as that term is defined in subsection 125(7).
(b) Ms. A and her spouse, Mr. B, each held 50% of the common shares of the capital stock of OPCO.
(c) Ms. A also held preferred shares of the capital stock of OPCO with paid-up capital ("PUC") of $200, a cash surrender value and a fair market value ("FMV") of $2,000,000. The adjusted cost base ("ACB") for Ms. A of her preferred shares of the capital stock of OPCO was $1,000,000.
(d) Ms. A transferred, without consideration, to Mr. B, preferred shares of the capital stock of OPCO having a FMV of $1,000,000 and a PUC of $100. As a result of subsection 73(1), the transfer by Ms. A to Mr. B of the preferred shares of the capital stock of OPCO was for proceeds of disposition deemed to be equal to the ACB of those shares for Ms. A (namely $500,000).
(e) Five years later, OPCO redeemed the preferred shares of its capital stock held by Mr. B for consideration equal to their FMV (i.e. $1,000,000).
Your question regarding the Particular Situation
You are asking us whether Mr. B's capital loss on the redemption described above is attributed to Ms. A in accordance with paragraph 74.2(1)(b) or whether it will be added to the calculation of the ACB, for Mr. B, of his common shares of the capital stock of OPCO, as set out in paragraph 40(3.6)(b), without attribution to Mrs. A.
Your comments on the Particular Situation
In your opinion, because of the redemption of shares described above, Mr. B is deemed to have received a $999,900 dividend by virtue of subsection 84(3), an amount equal to the amount of the amount paid by OPCO upon redemption less the PUC of the shares (i.e. $1,000,000 - $ 100).
You assert that that dividend is attributed to Ms. A by virtue of subsection 74.1(1). As defined in the definition of "proceeds of disposition" in section 54, the proceeds of disposition, for Mr. B, of the preferred shares of the capital stock of OPCO (i.e. $1,000,000) is reduced by the amount of the deemed dividend received above ($999,900). As a result, you submit that Mr. B has a capital loss of $499,900 (i.e. $100 - $500,000). That capital loss is, in your opinion, deemed to be nil under paragraph 40(3.6)(a).
Furthermore, you claim that a capital loss, as described in paragraph 39(1)(b), is calculated pursuant to the rules in Subdivision c-- "Taxable Capital Gains" of Part I, Division B of the Act, including paragraph 40(1)(b). The capital loss realized by Mr. B is deemed to be nil by virtue of paragraph 40(3.6)(a) and added to the ACB for Mr. B, of his common shares of the capital stock of OPCO, as prescribed in paragraph 40(3.6)(b).
You stated that the attribution rule in subsection 74.2(1) is found in Subdivision f --"Rules Relating to the Computation of Income” in Division B of Part I of the Act.
Consequently, you are of the opinion that the capital loss suffered by Mr. B cannot be attributed to Mrs. A.
Our Comments Respecting the Particular Situation
As a first step, we have assumed that immediately after the redemption of the preferred shares of the capital stock of OPCO held by Mr. B in the Particular Situation, Mr. B was affiliated with OPCO and still held common shares of the capital stock of that corporation.
Generally, subsection 40(3.6) applies where a taxpayer disposes of a share of a class of the capital stock of the corporation to a corporation affiliated with it immediately after the disposition. Under paragraph 40(3.6)(a), the taxpayer's loss from the disposition is deemed to be nil and, as provided by paragraph 40(3.6)(b), that loss, determined without reference to paragraph 40(2)(g) and subsection 40(3.6), are added to calculation of the ACB for the taxpayer for shares of the capital stock of the corporation owned by the taxpayer immediately after the disposition. In such a context, the loss of the taxpayer deemed nil is not lost. For example, a taxpayer who makes a disposition to a non-affiliate of shares of the capital stock of a corporation whose ACB was increased by the amount of a loss in a preceding taxation year by the effect of paragraph 40(3.6)(b), the taxpayer’s gain will be reduced or loss increased by an amount equal to that of the loss previously suffered.
Furthermore, subsection 74.2(1) sets out, among other things, that where an individual (the “Transferor") has lent or transferred property, either directly or indirectly, by means of a trust or by any other means whatever, to a person (the “Recipient”) who is the individual’s spouse or common-law partner, the taxable capital gain realized or the deductible capital loss suffered by the Recipient on the disposition of the property lent or transferred or property substituted therefor (footnote 1) is deemed to be a taxable capital gain or deductible capital loss of the Transferor. Subsection 74.2(1) is intended to prevent the splitting of taxable capital gains and allowable capital losses between spouses.
In general, subsection 74.2(1) does not apply where all the conditions in subsection 74.5(1) are satisfied. We note that, with respect to the Particular Situation, the conditions set out in paragraphs 74.5(1)(a) and (c) are not met, Ms. A having transferred without consideration to Mr. B preferred shares of the capital stock of OPCO without electing to exclude such capital property from the application of subsection 73(1).
In light of the foregoing, the loss of $499,900 ("Denied Loss") suffered by Mr. B upon the redemption by OPCO of the preferred shares of its capital stock, which would otherwise be subject to an allocation to Ms. A by virtue of subsection 74.2(1), would be deemed to be nil by virtue of paragraph 40(3.6)(a). Consequently, no amount of the Denied Loss could be attributed to Ms. A under subsection 74.2(1) at the time of the realization of the loss by Mr. B.
By virtue of paragraph 40(3.6)(b), the amount of the Denied Loss, determined without reference to paragraph 40(2)(g) and subsection 40(3.6), could, however, be added to the calculation of ACB, for Mr. B, of each of the common shares of the capital stock of OPCO that is owned by OPCO immediately following the disposition of its preferred shares of the capital stock of OPCO. In this regard, we have assumed that subsection 112(3) would not apply to the particular situation.
Based on the foregoing and in the event that, subsequent to the disposition described above, Mr. B realizes a taxable capital gain or a deductible capital loss on the disposition of a common share of the capital stock of OPCO, we are of the view that this gain or loss would not be realized or suffered by Mr. B on the disposition of a property loaned or transferred by Ms. A or a property substituted therefor and, consequently, could not be attributed to Ms. A by virtue of subsection 74.2(1).
In closing, please note that your question seeks our opinion on the interaction between the provisions of subsections 40(3.6) and 74.2(1) and that our comments are limited to that aspect of the question.
Please note that this opinion is not an advance ruling and does not bind the Canada Revenue Agency with respect to a particular factual situation.
We hope that these comments will be of assistance.
Best regards,
Maurice Bisson, CGA
Manager
Reorganizations Section IV
Reorganizations Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch
FOOTNOTES
Note to reader: Because of our system requirements, the footnotes contained in the original document are shown below instead:
1 In this regard, paragraph 248(5)(a) provides that, for the purposes of the Act, other than paragraph 98(1)(a), where a person has disposed of or exchanged a particular property and acquired other property in substitution therefor and subsequently, by one or more further transactions, has effected one or more further substitutions, the property acquired by any such transaction shall be deemed to have been substituted for the particular property
All rights reserved. Permission is granted to electronically copy and to print in hard copy for internal use only. No part of this information may be reproduced, modified, transmitted or redistributed in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, or stored in a retrieval system for any purpose other than noted above (including sales), without prior written permission of Canada Revenue Agency, Ottawa, Ontario K1A 0L5
© Her Majesty the Queen in Right of Canada, 2012
Tous droits réservés. Il est permis de copier sous forme électronique ou d'imprimer pour un usage interne seulement. Toutefois, il est interdit de reproduire, de modifier, de transmettre ou de redistributer de l'information, sous quelque forme ou par quelque moyen que ce soit, de facon électronique, méchanique, photocopies ou autre, ou par stockage dans des systèmes d'extraction ou pour tout usage autre que ceux susmentionnés (incluant pour fin commerciale), sans l'autorisation écrite préalable de l'Agence du revenu du Canada, Ottawa, Ontario K1A 0L5.
© Sa Majesté la Reine du Chef du Canada, 2012