26 April 1996 Income Tax Severed Letter - BULLETIN BOARD

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.

Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.

Welcome to the Income Tax Rulings & Interpretations Directorate Bulletin Board. The bulletin board contains commentary and announcements on current issues and information on the Directorate. You can scroll through the board or go directly to a topic by sub-searching on a keyword (eg DOCP) in the following index:

April 26, 1996

DOCQ 96/02/19 Amortization of Expenses
DOCL 96/02/09 Technical News No. 7
DOCJ 95/12/22 Friesen Decision Press Release
DOCI 95/12/12 Cruising and Learning
DOCH 95/12/12 Effect of an Election
DOCG 95/10/6 Tax-Free Disability Payments

Directorate Information
DOCM Mandate
DOCN Mailing Address & General Phone Numbers
DOCP Work Section Phone Numbers

DOCQ Amortization of Expenses
Mutual Fund Distribution Partnership
Amortization of Selling Commissions

In a memorandum to the Toronto Tax Services Office, dated February 6, 1996, we recommended reassessing the two partners of a single purpose general partnership, on the basis that the business loss allocated to them by the partnership at March 31, 1994, be reduced. In calculating the revised loss, the selling commissions paid by the partnership to brokers who sell no front-load mutual fund units to the public, should be disallowed as a current expense to the partnership and should be amortized over a reasonable period of time. It is our view that, consistent with the Federal Court of Appeal decision in The Queen v. Canderel Limited [95 DTC 5101], the commission expenses incurred by the partnership were not running expenses, but rather should be matched with the identifiable deferred revenue stream and amortized accordingly. See document #952515 for complete details.

DOCL Technical News No. 7

XXXXXXXXXX

DOCJ Friesen Decision Press Release

The Department of Finance issued a News Release on December 20, 1995 stating that they will amend the Income Tax Act relating to the valuation of inventory held as an "adventure in the nature of trade". The amendments will not allow a write-down prior to the sale of the property. They will also provide that in other cases where inventory is written-down because market is less than cost any increase in market value will require a write-up.

This amendment is in response to the decision by the Supreme Court of Canada in the Jake Friesen case.

The amendments will apply to taxation years ending after December 20, 1995.

As a result of the News Release we have been asked whether a notice of objection or appeal can be filed after December 20, 1995 to claim an inventory write-down pursuant to the Friesen decision. The answer is NO.

The following are some potential questions and suggested answers for your use:

Q#2

After December 20, 1995, will Revenue Canada accept a taxpayer's requested adjustment to create a refund for an inventory write-down pursuant to the Friesen decision with respect to an assessed income tax return?

A#2

No. As indicated in paragraph 4.(e) of Information Circular No. 75-7R3, a reassessment will not be made where the application for a refund is based solely upon a successful appeal to the courts by another taxpayer.

Q#3

After December 20, 1995, will Revenue Canada accept a claim for an inventory write-down pursuant to the Friesen decision where a corporation is late in filing its 1995 return?

A#3

No. Inventory write-downs pursuant to the Freisen decision claimed in income tax returns that are late filed after December 20, 1995, will be denied based on the new rules.

Q#4

Assume Mr. X was not taxable in 1993 and did not file a 1993 income tax return. Can Mr. X claim an inventory write-down pursuant to the Friesen decision when filing his 1993 income tax return after December 20, 1995?

A#4

No. Same answer as for Q#2.

ANYONE WHO HAS NOT CLAIMED SUCH A WRITE-DOWN BEFORE DECEMBER 20, 1995 WILL BE SUBJECT TO THE NEW RULES ANNOUNCED IN THE NEWS RELEASE.

DOCI Cruising and Learning

XXXXXXXXXX

Dear XXXXXXXXXX:

I am writing in reply to your letter of September 13, 1995, concerning the deductibility of the costs of cruises by realtors and investors when there is an educational component of the cruise. This topic was the subject of an article in a recent real estate weekly.

I note that the authority for a tax deduction for this type of cruise has been attributed to an unnamed accounting firm and not to Revenue Canada.

In the Department's view, expenses relating to the cost of the cruise itself would be personal and, therefore, not deductible. For real estate investors, the overall cost of the cruise including any seminars would not be deductible. For self-employed realtors, that portion of the cost that could be directly attributed to the seminar itself could be deductible. As a rule, expenses of attending a training course outside a taxpayer's general geographic locale are considered unreasonable to the extent that they exceed what they would have been had a similar course been attended locally, if available. The majority of the cost of the cruise would not be deductible under any circumstance.

I wish to thank you for bringing your concerns to my attention.

Yours sincerely,

David Anderson, P.C., M.P.

DOCH Effect of an Election

At the Revenue Canada Round Table Canadian Tax Foundation Conference November, 1995 the following question and answer was given concerning the impact of a capital gains election.

THE CAPITAL GAINS ELECTION AND LAND IN EXCESS OF ONE-HALF HECTARE

Prior to February 1992, an individual acquired a house situated on land of more than one-half hectare, in which the individual has resided since that date. The land adjacent to the house is not used for any income-earning purposes. Since the acquisition date, the property has increased in value.

There are arguments for and against a claim that the land in excess of one-half hectare is necessary for the use and enjoyment of the housing unit. If it is necessary, it forms part of the individual's "principal residence" as defined in section 54 of the Income Tax Act (the "Act"). On balance, the individual believes that it does so qualify.

Nevertheless, the individual made an election under subsection 110.6(19) of the Act in respect of the house and the land as a protective mechanism, so that if the Department determines that the excess land does not form part of the principal residence, at least a portion of the gain on any later disposition will be sheltered from tax.

When the property is subsequently disposed of, would the filing of the election prejudice a claim by the individual that all of the land was part of the principal residence? In addition, if the Department agrees with the claim, meaning that the election was not necessary, would it reassess the individual's 1994 return to eliminate any adverse effects of the election?

Response

As regards the first question, one must look at all the facts to determine whether excess land in any particular situation is included in the definition of principal residence. The Department's position in this respect is explained in Interpretation Bulletin IT-120R4.

Filing a protective capital gains election will not in and of itself prejudice a claim that the entire property qualifies as a principal residence, if, on the facts of a particular case, excess land is part of a principal residence. In the Department's view, the presence or the absence of a capital gains election in respect of a property that includes excess land is significant only in that it may indicate the individual's own opinion as to the land's status, particularly if electing on the property involved a tax cost of some kind.

For instance, an individual might elect on the property, including the excess land, instead of on shares of public companies that had significant unrealized gains. In that case, one could reasonably assume that in the opinion of that individual, the land was not likely to qualify as part of the principal residence. The Department would see this use of the election as quite a significant indicator.

Also, if the election had other immediate adverse tax consequences (grinding of credits based on net income, for example), it would be an indication that the individual had considered the election necessary.

On the other hand, if an individual had no other capital assets that were eligible for the capital gains deduction, and suffered no immediate adverse tax consequences from making the election, its presence would not be significant evidence of the individual's opinion.

With respect to the second question, subsection 110.6(25) of the Act specifically provides for the revocation of a capital gains election before 1998. After that time, the Department would not normally accede to a request to reassess an individual's 1994 return to delete the adverse consequences of an election.

DOCG Tax-Free Disability Payments

Tax treatment of amounts paid to employees pursuant to recently enacted work-related illness and injury provision of the Canada Labour Code (CLC).

Principal Issues:

Generally, where an employer has contributed amounts to a group sickness or accident insurance plan (wage loss replacement plan), benefits received out of the plan are included in income pursuant to paragraph 6(1)(f) of the Act.

1) Whether or not payments made to an employee pursuant to an employer's obligation under newly enacted CLC provisions for work-related illness and injury (paragraph 239.1(2)) would be considered compensation received under an employees' or workers' compensation law of Canada and thus taxable pursuant to paragraph 56(1)(v), (as opposed to paragraph 6(1)(f) of the Act), and therefore deductible in computing taxable income pursuant to subparagraph 110(1)(f)(ii).

2) The tax consequences of four possible methods of payment by the employer to the employee in order to meet the obligation under the CLC were reviewed.

a) direct payment of compensation benefits by employer to employee
b) payment of compensation benefits through the use of an "administrative services only arrangement"(ASO)
c) payment of compensation benefits through an insured arrangement
d) payment of compensation benefits through a trust

Position TAKEN:

1) That portion of the payment received by an employee pursuant to the employer's obligation to provide such compensation, would be considered to be "compensation received under an employee's ... compensation law of Canada ... in respect of an injury ..." for purposes of the application of paragraph 56(1)(v) and subparagraph 110(1)(f)(ii) of the Act. The amount of the payment to an employee who is absent from work due to work-related illness or injury which would qualify as compensation pursuant to paragraph 56(1)(v) and subparagraph 110(1)(f)(ii) of the Act is the amount the employer would be obligated to pay as stipulated in paragraph 239.1(2) of the CLC. The CLC provides for payment of wage replacement payable at an equivalent rate to that provided for under the applicable workers' compensation legislation in the employees' province of permanent residence.

2)

a) The amount paid to the employee which is equivalent to the amount he would be entitled to under the applicable provincial worker's compensation would be compensation for the purposes of paragraph 56(1)(v) and subparagraph 110(1)(f)(ii). This amount should be reported on form T5007 by the employer. Any excess amount ("top-up") is taxable as salary or wages and is to be reported on the T4.

b&c) The amount paid to the employee by an insurance company under an ASO or insured arrangement which is equivalent to the applicable workers' compensation benefit should be reported as compensation on form T5007 by the insurance company. If the insurance company pays the employee a top-up amount, the insurance company should issue a T4A to the employee for this amount. If the employer pays a top-up amount to the employee directly, the amount should be reported as salary and wages on the T4.

d) If an employer has an existing group sickness or accident insurance plan administered through a health and welfare trust which is already providing the coverage legislated by the CLC, the compensation can be paid out of the existing plan and would not put the health and welfare trust offside. However, if the employer now establishes a trust to administer a group sickness or accident insurance plan out of which the compensation will be paid, or amends an existing plan within a health and welfare trust which does not currently provide the work-related compensation coverage, the basic criteria outlined in IT-85R2 would not be met.

A trust, that does not qualify as a health and welfare trust, which is established for the sole purpose of providing these compensation payments would not be considered an employee benefit plan pursuant to proposed Regulation 6800(b) of the Regulations. The trust arrangement would also not be considered an "employee trust" as defined in subsection 248(1) of the Act given that the payment would not meet the criteria contained in paragraph (a) of the definition.

DOCM

INCOME TAX RULINGS AND
INTERPRETATIONS DIRECTORATE

MANDATE

The primary role of the Income Tax Rulings and Interpretations Directorate is to interpret the provisions of the Income Tax Act and related statutes, to establish Revenue Canada's interpretative policy relating to this statute and to ensure that this policy is both applied throughout Revenue Canada and provided to external clients in a consistent manner. In this regard, the Directorate is mandated to provide:

Major Lines of Business

-advance income tax rulings directly to clients in the private sector (for a fee) in respect of proposed business transactions;

-written and verbal technical interpretations to tax practitioners and the public on income tax matters;

-develop and publish interpretation bulletins and related technical newsletters

-technical advice and support to field offices, headquarters areas, and other departments and governments; and

-specialized technical assistance, when requested, to the Department of Finance with respect to the formulation of new income tax legislation.

These activities will, through the provision of accurate and consistent interpretations, foster a high degree of public confidence and encourage self-assessment compliance.

DOCN

INCOME TAX RULINGS AND

INTERPRETATIONS DIRECTORATE

MAILING ADDRESS

AND COURIER SERVICE:

25 NICHOLAS STREET

15TH FLOOR, ALBION TOWER

OTTAWA, ONTARIO

K1A 0L8

TAX SERVICES OFFICES HOTLINE: (613)957-8964

GENERAL ENQUIRY: (613)957-8953

FAX NUMBER: (613) 957-2088

SECURE FAX NUMBER: (613) 957-8946

DOCP

INCOME TAX RULINGS & INTERPRETATIONS DIRECTORATE
REVISED December 12, 1995

DIRECTOR GENERAL'S OFFICE

Roy C. Shultis TECHNOLOGY SECTION
A/Director General 957-2132
Lyne Charlebois, Terry Mallory
Adm Sup.Officer 957-2131 P. Leader 957-2110

Micheline Régimbald, Diane Lefebvre
Adm Officer 952-8108 Admin. 954-0649
James Kingsley Céline Garneau 952-5398
Receptionist 957-8953 Debbie Couture 957-2142
Maxine Bell
(10th Mac) 952-5804
INVENTORY UNIT
Sylvie Daoust 957-8958

FINANCIAL INDUSTRIES DIVISION BUSINESS AND PUBLICATIONS
DIVISION

Brian Darling, Bryan Dath,
Director 957-9767 Director 957-2089
C. Lebel, D. Hooley,

A/Div Sup.Clerk 957-8586 Div. Sup. Clerk 957-2090

FINANCIAL INSTITUTIONS SECTION      SECTION DES PARTICULIERS
                                     ET DES ENTREPRISES DE
 		                           SERVICE

Lee Workman, Chief 957-3497 Maurice Bisson,
Jenie Leigh 952-1505 Chief 957-2099
Gary Donell 957-3496 Sylvie Labarre 957-2121
Michèle Trotier 957-3494 D. Bouffard 957-2130
Michael Cooke 957-3498 Ghislaine Landry 957-9229
Roxane Brazeau-
LeBlond 957-2058

CORPORATE FINANCING SECTION BUSINESS & PROPERTY INCOME
AND EXEMPT ORGANIZATIONS
SECTION

Wayne Douglas, Chief 957-8957 Roberta Albert,
A/Chief 957-2100
Fiona Francis 957-8971 Murray Brake 957-2133
Peter Dunn 957-2747 John Brooks 957-2103
Steve Tevlin 957-2746 Bill Guglich 957-2102

Claude Tremblay 957-2744 Carole Chouinard 957-2098
Mary Pat Baldwin 957-2745 Bill Kerr 957-2139
Milled Azzi 957-8972

DEFERRED INCOME PLANS SECTION PERSONAL & GENERAL SECTION

Acting Chief 957-8979 John Oulton, Chief 957-2049
Wayne Harding 957-9769 Danielle Zion 957-2140
David Duff 957-8979 Marv Eisner 957-2138
Patricia Spice 952-8984 Annemarie Humenuk 957-2134
Mickey Sarazin 957-3499 Jack Szeszycki 957-2135
Frank Gillman 952-9853 Sandra Short 957-2136

SECTION DU FINANCEMENT, TECHNICAL PUBLICATIONS SECTION
ET DES RÉGIMES
Tim Bryant, A/Chief 957-2052
Jean-Guy Aubé, Chief 957-8963 Fay Bisailion 952-1361
Ghislain Martineau 957-8962 Gwen Moore 952-1506
Maureen-Shea- Rick Primeau 957-2060
DesRosiers 957-8961 Jim McFarlane 957-2087
Adèle St-Amour 952-1764
Louise Roy 957-2092 FIELD LIAISON & TECHNICAL
PROJECTS SECTION
Paul Lynch, A/Chief 957-8973
Bruce Rankin 952-3606
Ron Lefebvre 957-0682
Shirley Sarrazin 957-2137
Jackie Page 957-0682

RESOURCES, REORGANIZATIONS AND PARTNERSHIPS AND TRUSTS DIVISION INTERNATIONAL DIVISION

R. Biscaro, Mike Hiltz,
Director 957-8970 Director 957-2113
Celine Charbonneau Nicole Murdock,

A/Div.Sup.Clerk 957-8969 Div.Sup.Clerk 957-2112

PARTNERSHIPS SECTION CORPORATE REORGANIZATIONS
SECTION

Dave Holtz, Chief 957-3493 Mark Symes, Chief 957-2091
Cal Brown 957-8980 Benoit Mandeville 957-2093
Frank Fontaine 957-4364 Jorge Teixeira 957-2095
Allan Nelson 957-9768 Dave Palamar 957-2127
Bruce Dodd 957-8954 Dan Yuen 957-8967

SECTION DES RESSOURCES INTERNATIONAL SECTION
DES SOCIÉTÉS ET PERSONNES
ET DES FIDUCIES Ken Major, Chief 957-2124
Olli Laurikainen 957-2116
Marc Vanasse, Chie 957-8978 Greg Middleton 957-2122
Alain Marchand 957-8981 Simon Leung 957-2115
Johanne Desparois 957-8982 Jane Stalker 957-2118
Michel Lambert 957-2097 David Senécal 957-9796

RESOURCE INDUSTRIES SECTION SECTION DES RÉORGANISATION
DES SOCIÉTÉS ET
OPÉERATIONS INTERNATIONALES

John Chan, A/Chief 957-8976 Alain Godin, Chief 957-2128
Al Cameron 957-8975 Marc Séguin 957-2129
Peter Lee 957-8977 Carole Pronovost 957-2126
Art Seidel 957-8974 Robert Gagnon 957-2108
Denise Dalphy 957-9231 Phil Diguer 957-2094

TRUSTS SECTION REORGANIZATIONS &
INTERNATIONAL SECTION

Theresa Murphy, A/Chief 957-8283 Ted Harris, Chief 957-2114
Catherine Bowen 957-8585 Jim Wilson 957-2123
Gord Kauppinen 957-4363 Tim Kuss 957-2117
Lena Holloway 957-2104 V. Plant 957-2120
George Keable 957-2046

TECHNICAL REVIEW &
REMISSIONS SECTION

Bill McCcColm, Chief 957-9226
Ed Campbell 957-2053
Martine Filiatrault 952-5803
Sandy Parnanzone 957-9232
Kevin Donnelly 957-2082
Jacques Grisé 957-2059
- 7 -

- 10 -

.../cont'd

- 15 -

.../cont'd

- 11 -