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: (1) Whether an obligation is settled upon approval of a proposal or upon full payment under the proposal. (2) Whether income tax payable in relation to an amount to be included in a taxpayer's income resulting from the application of subsection 80(13) ITA is a provable claim covered by the proposal.
Position: (1) The obligation is settled at the time the proposal is approved; (2) Income tax liability in relation to a forgiven amount is included in income by virtue of subsection 80(13) is not a provable claim covered by a BIA proposal.
Reasons: The law.
FEDERAL TAX ROUNDTABLE, OCTOBER 7, 2022
APFF CONFERENCE 2022
9. Application of Section 80 I.T.A. and composition proposal
A Canadian-controlled private corporation ("Opco") resident in Quebec is in financial difficulty and owes $1 million to a creditor. Under a proposal under the Bankruptcy and Insolvency Act, (footnote 1) the corporation and its creditor agree to write off $600,000 of the debt and to revise the terms of repayment of the new balance of $400,000, including providing for payments over four years.
Assume that the proposal is signed in the province of Quebec on September 30, 2022, that the Superior Court of Quebec approves it on January 20, 2023, that the first payments are made in February 2023 and, finally, that the last payment is made in December 2026.
According to the CRA (see, in particular, Interpretation Bulletin IT-293R (footnote 2)), the settlement of a debt occurs when the debtor's obligations are extinguished. However, according to our discussions with trustees, the creditor retains full recourse to the full original amount of the debt (i.e. $1 million) until the new balance is paid in full. If the creditor's potential recourse was to the full original amount of the $1 million debt (until the new balance was paid in full), the application of the CRA's position would result in section 80 only being triggered in 2026 in the above example, which is when the debtor would be discharged from its obligations to the creditor. However, in Richer v. The Queen (footnote 3), the Tax Court of Canada held that a debt is settled or extinguished when the creditor and debtor agree to fix or modify their existing rights and obligations. In the above example, this would mean that the settlement of the debt and the application of section 80 would occur in January 2023.
Furthermore, assuming that the triggering of section 80 in the above example resulted in the inclusion in income of the balance of the forgiven amount that had not been applied against the tax attributes, what happens to the balance of the taxes payable? Specifically, if the $600,000 gain in the above example resulted in a tax liability of $100,000 (resulting from an inclusion in income after reduction for all tax attributes), is it the full amount of tax that would be payable or only a portion of it?
Indeed, in the Quebec Court of Appeal decision Sous-ministre du revenu du Québec v. Leblond, Buzetti et associés ltée (footnote 4) , the Court ordered the Deputy Minister of Revenue of Quebec to split an assessment, namely, the tax liability for the pre-proposal period of the arrangement was to be included in the provable claims of the proposal. Assuming that the debtor corporation's year-end was December 31, this would imply that the 1/12 portion of the pre-proposal tax liability, or approximately $8,300, would be a provable claim and the debtor would not be required to pay this amount.
Questions to the CRA
(a) When will there be a gain on the forgiveness for the purposes of section 80, assuming that the agreement between the debtor and the creditor is subject to the rules of the Civil Code of Quebec?
(b) Is the CRA of the view that an assessment for the purposes of section 80 should be split into a portion attributable to the pre-proposal period and a portion attributable to the post-proposal period?
CRA Response to Question 9(a)
The question of when an amount is considered a forgiven amount to a debtor is a mixed question of law and fact that can only be resolved after analyzing all the facts relevant to a particular situation. Due to the fact that the statement of the present question only briefly describes a particular situation, it is impossible for us to give a definitive opinion on this question. Nevertheless, we can make the following general comments.
Paragraph 12(1)(z.3) provides that the result of the computation under subsection 80(13) is to be added in computing the debtor's income for a taxation year (from the source in respect of which the debt was issued) in the event of the settlement, at any time in the year, of a commercial obligation issued by the debtor. Under paragraph 80(2)(a), an obligation issued by a debtor is settled at any time where the obligation is settled or extinguished at that time (otherwise than by way of a bequest or inheritance or as consideration for the issue of a share described in paragraph (b) of the definition excluded security in subsection 80(1). In determining whether an obligation is settled or extinguished, the CRA must analyze whether the debt is reduced or resolved in a final manner that is legally binding on the debtor and creditor, from the perspective of the debtor and not the creditor (footnote 5).
An accepted proposal is a contract between the debtor and its creditors with the effect of extinguishing claims and replacing them with a right to receive dividends in the proposal proceedings, and releasing the debtor from the outstanding balance of provable claims in accordance with the terms of the proposal upon approval of a court (footnote 6). Such a proposal implies that the creditor discharges its debtor from its obligation in whole or in part.
According to paragraph 6 of Interpretation Bulletin IT-293R, a debt or obligation is settled or extinguished when the obligation to pay ceases to exist, and payment, cancellation, set-off, substitution of debtors and release are among the means of settlement. Subsection 248(27) may also lead to the application of section 80 in the context of a partial forgiveness of a debt. As stated in paragraphs 16 and 26 of that Bulletin, our position may apply both in the context of B.I.A. proposals and in other situations.
Furthermore, the passages in Richer indicating that "in the context of section 80, the word 'settle' connotes a final and legally binding resolution that terminates or reduces the debtor’s obligations” (footnote 7) and “that a debt or obligation was settled when the “. . . creditor and debtor deliberately agree to fix or vary their existing rights and obligations . . .” (footnote 8), are consistent with Interpretation Bulletin IT-293R.
In light of the foregoing, the CRA is of the view that Opco's debt to its creditor should be considered to have been settled on January 20, 2023 (i.e., the date on which the court approved the proposal and the proposal is binding on the parties involved) in the amount of $400,000 for the purposes of section 80. Consequently, the balance of $600,000 should be considered to be the forgiven amount of the debtor corporation's commercial obligation on that date.
CRA Response to Question 9(b)
The CRA is of the view that Opco's debt attributable to the amount of income tax payable arising from the application of I.T.A. subsection 80(13) is not a "provable claim" for the purposes of a proposal, as the tax liability of the debtor corporation arising from the application of subsection 80(13) is generally not determinable until after the proposal is approved by a court.
The time at which the creditors' claims are determined is the time of filing of the notice of intention or proposal under subsection 62(1.1) of the B.I.A. However, the tax payable by a debtor under I.T.A. subsection 80(13) is not the same as a liability to which it is subject on the date it filed a proposal or an obligation it incurred before that date, and therefore cannot be a provable claim for the purposes of the proposal under subsections 66(1) and 121(1) of the B.I.A.
The situation described in the questions is different from the one described in Leblond. In that case, an individual had earned income from self-employment during his 1993 taxation year, and had filed a proposal on September 3, 1993, which was homologated by the court on October 13 of the same year. In summary, the Quebec Court of Appeal concluded that the individual's tax debts for his 1993 taxation year should be considered a provable claim based on a proportional allocation of the debts for 1993 according to the number of days in the year before the date of the proposal and the period beginning on that date, on the grounds that the individual's tax debts had arisen as his income had been earned. However, the tax debt related to the application of subsection 80(13) in the situation described above can only arise when the proposal is homologated by a court, and therefore only after it is filed.
Robert Duong
October 7, 2022
2022-094228
FOOTNOTES
Note to reader: Because of our system requirements, the footnotes contained in the original document are shown below instead:
1 R.S.C. 1985, c. B-3 ("B.I.A.").
2 CANADA REVENUE AGENCY, Interpretation Bulletin IT-239R (Archived), "Debtor's Gain on Settlement of Debt," July 16, 1979.
3 2009 TCC 394 (« Richer »).
4 2000 CanLII 8800 (C.A.) (« Leblond »).
5 Carma Developers Ltd. v. The Queen, 96 D.T.C. 1789 (T.C.C.), paragraph 24.
6 See in this regard subsection 62(2) B.I.A. as well as Employer's Liability Assurance Corp. Ltd. v. Ideal Petroleum (1959) Ltd, [1978] 1 S.C.R. 230 and Société de protection des forêts contre le feu v. Desruisseaux, 2003 CanLII 47933 (C.A.).
7 Richer, supra, footnote 3.
8 Id.
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, 2022
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, 2022