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Principal Issues: Whether Gesco can benefit from the safe income exception with respect to the first dividend and from the Part IV tax exception with respect to the second dividend.
Position: Yes.
Reasons: See below.
FEDERAL TAX ROUNDTABLE, OCTOBER 7, 2021
APFF CONFERENCE 2021
Question 5
Safe income and Part IV tax
Subsection 55(2) contains various exceptions. Among the exceptions is for the portion of a dividend that is subject to tax under Part IV that is not refunded as a consequence of the payment of a dividend by a corporation where the payment is part of the series referred to in subsection 55(2.1).
Another of the exceptions, provided in paragraph 55(2.1)(c), is for a dividend out of income earned or realized by a corporation that could reasonably be considered to contribute to the capital gain that could be realized on a disposition at FMV, immediately before the dividend, of the share on which the dividend is received.
The introduction of the concepts of eligible refundable dividend tax on hand ("ERDTOH") and non-eligible refundable dividend tax on hand ("NERDTOH") in subsection 129(4) may mean that the payment of a taxable dividend does not automatically trigger a dividend refund where there is an NERRDTOH balance. This is because the payment of an eligible dividend does not trigger a refund in respect of non-eligible dividends.
The CRA has expressed in the past (footnote 1), prior to the introduction of the two refundable dividend tax on hand accounts, the impossibility of combining the Part IV tax and safe income exceptions:
“Therefore, the portion of the dividend received by the recipient corporation that would be subject to tax under Part IV of the Act would also include any safe income attributable to the shares of the payer corporation held by the recipient corporation.”
The introduction of the two refundable dividend tax on hand accounts appears to allow for the cumulative application of the I.T.A. Part IV tax and the safe income concepts.
Consider the following example: Holdco owns all of the outstanding shares of the capital stock of Opco. The safe income attributable to the Opco shares is $1,000,000. In addition, Opco has a general rate income pool balance of $1,000,000 and a NERDTOH balance of $70,000. The FMV of the Opco shares is $5,000,000. Prior to the sale of the Opco shares by Holdco, a first dividend of $1,000,000 is paid by Opco. This dividend is designated as an eligible dividend. Subsequently, Opco pays a non-eligible dividend of $182,608 and receives an non-eligible dividend refund of $70,000. Holdco is subject to Part IV tax on this dividend.
Question to the CRA
In the above example, will it be possible for Holdco to benefit from both the safe income exception for the receipt of the $1,000,000 dividend and the Part IV tax exception for the $182,608 dividend? In contrast to Technical Interpretation 9711005, the payment of the $1,000,000 eligible dividend did not generate a dividend refund to Opco and. Therefore, could not be subject to Part IV tax in the hands of Holdco.
CRA Response
By virtue of 129(1)(a), Opco will not have a dividend refund arising from the payment of the $1,000,000 dividend that is designated by Opco as an eligible dividend. Consequently, pursuant to paragraph 186(1)(b), no Part IV tax will be payable by Holdco on that $1,000,000 dividend.
Furthermore, since that dividend does not exceed the income earned or realized by Opco that could reasonably be considered to contribute to the capital gain that would have been realized on a disposition at FMV, immediately before the dividend, of the share on which the dividend was received, that dividend would not be subject to subsection 55(2).
With respect to the ineligible dividend of $182,608 paid by Opco, Opco will, by virtue of paragraph 129(1)(a), be entitled to a dividend refund of its RDTOH balance of $70,000. Consequently, Holdco will be liable for $70,000 of Part IV tax. Consequently, all of such dividend received by Holdco would be subject to Part IV tax and may not be subject to subsection 55(2) by virtue of the exclusion provided for in the preamble to subsection 55(2) to the extent that such Part IV tax is not refunded by reason of the payment of a dividend by Holdco where such payment forms part of the series referred to in subsection 55(2.1).
Marc Séguin
(514) 620-8562
October 7, 2021
2021-090095
FOOTNOTES
Due to our system requirements, footnotes contained in the original document are reproduced below:
1 CANADA REVENUE AGENCY, technical interpretation 9711005, June 16, 1997.
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