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: In the context of a sale of assets, the purchase and sale agreement provides that a portion of the purchase price is payable after closing and is subject to a reverse earnout clause. The purchase and sale agreement also provides for a post-closing adjustment pertaining to the net assets. The main issue relates to the tax treatment of the portion of the purchase price that is payable after closing and subject to the reverse earnout clause: 1) whether paragraph 12(1)(g) applies; 2) whether the portion of the purchase price that is payable after closing and subject to the reverse earnout clause is eligible for a reserve under paragraph 40(1)(a); 3) the tax treatment of the purchase price adjustment based on the net assets; 4) whether Opco may pay a capital dividend equal to the non-taxable portion of the capital gain as calculated using the maximum possible proceeds; 5) tax treatment of the downward adjustment to the purchase price.
Position: 1) No. 2) No. 3) Increase of the proceeds of disposition 4) Yes. 5) Reduction of proceeds of disposition resulting in a capital loss in the year where the downward adjustment to the purchase price occurs.
Reasons: The law and previous positions.
XXXXXXXXXX 2019-081832
M. Martin-Monette
April 2, 2025
Subject: Request for technical interpretation – paragraph 12(1)(g) and reverse earning capacity clause
Dear XXXXXXXXXX,
This is in response to your letter dated July 31, 2019 requesting a technical interpretation regarding the potential application of paragraph 12(1)(g) of the Income Tax Act (the “Act”) to a hypothetical situation (the “Particular Situation”). We apologize for the delay in responding to your request.
Unless otherwise indicated, all references to legislation below are references to the provisions of the Act.
Particular Situation
1) A corporation (“Opco”) was a private corporation within the meaning of subsection 89(1).
2) Opco carried on two separate businesses.
3) Opco’s fiscal period-end was June 30. Opco never incurred a capital loss.
4) Opco received an offer to purchase from an arm’s length third party (“Purchaser”) who wished to acquire all of the property used in carrying on one of its businesses (the “Target Business”).
5) After several weeks of negotiations, Opco sold all of Target Business’s assets to the Purchaser on July 1, 20X1 (the “Closing Date”) for a total amount of $4,000,000. All of the assets sold were capital property with an adjusted cost base (“ACB”) and an undepreciated capital cost to Opco of $150,000. The sale agreement between the parties provided, among other things, for the possibility of adjusting the sale price based on the net assets of Target Business on the Closing Date. In addition, a portion of the sale price was payable after the Closing Date based on the achievement of a customer retention rate target.
6) More specifically, the sale price was payable as follows:
a) an amount of $3,500,000 payable on the Closing Date;
b) an amount undetermined on the Closing Date and corresponding to the adjustment to the sale price (“Adjustment”) based on the net assets of Target Business, payable upon approval of Target Business’s closing financial statements, no later than 90 days after the Closing Date;
c) an amount of $300,000 payable 12 months after the Closing Date, i.e. on July 1, 20X2, if the Purchaser was able to achieve a customer retention rate for Target Business agreed between the parties;
d) an amount of $200,000 payable 18 months after the Closing Date, i.e., on January 1, 20X3, if the Purchaser was able to achieve a customer retention rate for Target Business agreed between the parties.
7) On October 1, 20X1, upon approval by the parties of the financial statements as of the Closing Date, the purchase price was revised upward by $150,000 as a result of the Adjustment. The Purchaser paid that amount to Opco.
8) On November 1, 20X1, Opco declared to its shareholders a dividend put of its capital dividend account (“CDA”) in the amount of $2,000,000, payable on December 1, 20X1.
9) In its income tax return for the taxation year ending June 30, 20X2, Opco recorded proceeds of disposition of $4,150,000, reported a taxable capital gain of $2,000,000 and did not make any provision for the portion of the purchase price payable after the end of the taxation year.
10) On July 1, 20X2, the scheduled date for payment of the $300,000, Opco and the Purchaser were unable to confirm the retention rate due to an error by an independent third party responsible for calculating the retention rate. The parties entered into negotiations to determine an alternative method for determining the retention rate. The first instalment of the balance of the sale price was not paid.
11) On January 1, 20X3, the scheduled date for payment of the sum of $200,000, the parties had still not reached an agreement on the method for determining the retention rate.
12) On April 1, 20X3, the parties agreed on an alternative method for determining the customer retention rate, whereby only $50,000 was payable instead of $200,000 and $300,000. The purchaser made a payment of $50,000 in final payment of the balance of the sale price.
Questions
1) Was Opco required to include the entire proceeds of disposition in its income tax return for the taxation year ending June 30, 20X2?
2) Could Opco have deferred the inclusion of the conditional balance of the sale price of $500,000?
3) When the Adjustment became known, how should it have been treated in Opco’s tax return?
4) Could Opco declare a dividend of $2,000,000 out of its CDA on November 1, 20X1?
5) When the balance of the sale price of $500,000 was reduced to $50,000, how should that reduction have been treated in Opco’s tax return?
Your Comments
You are of the view that paragraph 12(1)(g) does not apply to the portion of the payment that is conditional on the achievement of a customer retention objective. According to your interpretation, since that portion is an amount that has been set, it is included in the proceeds of disposition as explained in paragraph 9 of Interpretation Bulletin IT-462 (footnote 1).
Since the entire price agreed upon by the parties constitutes proceeds of disposition in the year of the sale, you are of the view that Opco could have claimed the capital gains reserve provided under subparagraph 40(1)(a)(iii).
In your opinion, the adjustment of $150,000 is not an adjustment based on production or use and should be added to the proceeds of disposition.
By including the entire amount of $4,150,000 in the proceeds of disposition, it follows that an amount of $2,000,000 could be included in Opco’s CDA on July 1, 20X1. You are of the view that Opco could make an election under subsection 83(2) so that the dividend declared on November 1, 20X1 would come out of its CDA.
Finally, you are also of the view that when the $50,000 was paid to Opco following the determination of the customer retention rate, Opco incurred a capital loss of $450,000 that would not have affected the calculation of the CDA for previous fiscal periods, unless Opco chose to carry back that loss.
Our Comments
This technical interpretation provides general comments about the provisions of the Act and related legislation. It does not confirm the income tax treatment of a particular situation involving a specific taxpayer but is intended to assist you in making that determination. The income tax treatment of particular transactions proposed by a specific taxpayer will only be confirmed by this Directorate in the context of an advance income tax ruling request submitted in the manner set out in Information Circular IC70-6R12, Advance Income Tax Rulings and Technical Interpretations
Paragraph 12(1)(g) provides that a taxpayer must include in computing its income from a business or property any amount received in the taxation year that was dependent on the use of or production from property whether or not that amount was an instalment of the sale price of the property.
Paragraph 9 of the Bulletin (footnote 1) provides that paragraph 12(1)(g) does not apply where the sale price of property is originally set at a maximum which is equivalent to the fair market value (“FMV”) of the property at the time of the sale and which can be subsequently decreased if certain conditions related to production or use are not met in the future.
In the Particular Situation, paragraph 12(1)(g) would not apply if the maximum amount provided for in the contract is equal to the FMV of Target Business’s assets on the Closing Date, even if that maximum amount may subsequently be reduced if the customer retention targets are not met. Thus, the amount of $4,000,000 was part of the proceeds of disposition – calculated before the Adjustment – of the assets within the meaning of section 54.
To be eligible for a capital gains reserve under subparagraph 40(1)(a)(iii), the sale price must be determinable. To be determinable, the taxpayer must have an absolute right to receive the sale price. In accordance with our longstanding position, where a transaction includes a reverse earnout clause, the sale price is not determinable at the time of disposition, as it is subject to reduction. Thus, it would not be possible to claim the capital gains reserve under subparagraph 40(1)(a)(iii) in the context of the Particular Situation.
As for the $150,000 Adjustment, we agree with you that it would not be an amount based on production or use and should therefore be added to the proceeds of disposition. Consequently, the total proceeds of disposition of Target Business’s property would be $4,150,000.
Based on the above, Opco realized a capital gain of $4,000,000 (footnote 2) on the sale of Target Business’s property. An amount of $2,000,000 could be added to Opco’s CDA, pursuant to subparagraph (a)(i) of the definition of that term in subsection 89(1).
Thus, assuming that Opco had made the election provided for in subsection 83(2) within the prescribed time and in the manner prescribed in the Income Tax Regulations, the dividend of $2,000,000 declared on November 1, 20X1 would be deemed to be a capital dividend if Opco’s CDA balance immediately before that time was equal to or greater than that amount.
Finally, as explained in paragraph 9 of the Bulletin, if the conditions relating to production or use are not met then an appropriate adjustment will be made in the year in which the amount of the reduction in the sale price is known with certainty and it is determined that there will be no further fluctuations.
Since on April 1, 20X3, the parties agreed on the calculation of Target Business's customer retention rate, resulting in only $50,000 being payable, Opco incurred a capital loss of $450,000 for its taxation year ended June 30, 20X3. An amount of $225,000 reduced Opco’s CDA on April 1, 20X3, pursuant to subparagraph (a)(ii) of the definition of that term in subsection 89(1).
Furthermore, whether or not Opco chose to carry back the capital loss would not have affected the computation of Opco’s CDA on November 1, 20X1.
We hope that our comments are helpful.
Best regards,
Jean Lafrenière LL.B., LL.M. Tax
for the Director
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 Interpretation Bulletin IT-462 (cancelled), “Payments based on production or use,” October 27, 1980 (the “Bulletin”).
2 Namely, the excess of the proceeds of disposition ($4,150,000) over the ACB, to Opco, of Target Business's assets sold ($150,000).
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