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17 May 2022 IFA Roundtable Q. 10, 2022-0926331C6- Corporate Residence Approach-- summary under Subsection 2(1) Summary Under Tax Topics- Income Tax Act- Section 2- Subsection 2(1) board meeting situs not determinative of CMC Regarding a query as to whether CRA will continue to have “too much focus on the location of board meetings” in determining corporate residency, CRA noted that De Beers indicated that a corporation’s central management and control “must … be determined after a scrutiny of the whole ‘course of business and trading’ of the corporation,” and then stated: Usually, central management and control is considered to abide where the members of the board of directors meet to make important and strategic decisions regarding the affairs of the corporation, unless central management of control is actually exercised elsewhere. ...

After noting that NR-Beneficiary was subject to taxation under the Barbados Income Tax Act, 1968 on its “income from sources outside Barbados … only to the extent a benefit is obtained in Barbados from that income in the form, among others, of a remittance of money or an importation of property,” i.e., on a “remittance basis,” CRA indicated that NR-Beneficiary qualified as a resident of Barbados, i.e., as “a person must be subject to the most comprehensive form of taxation as exists in the relevant contracting state”: That is because, even if, under the law in force in Barbados, the taxation of the Trust Income may be deferred until a benefit is obtained in the form of a remittance of money or an importation of property in Barbados, it is our understanding that the NR-Beneficiary remains, nonetheless, “liable to tax” in Barbados in respect of its worldwide income. ...

(e) that the required certification be “completed … no more than 12 months before the time that the agreement is made,” CRA stated: This wording suggests that the Certification is to be completed before the time the flow-through share agreement is made (but not more than 12 months before that time), although it doesn’t expressly mandate that the Certification be completed before the flow-through share agreement is made (rather than after). ...

. … Generally speaking, the CRA will not reassess if the initial assessment was correct in law. ...

15 June 2022 STEP Roundtable Q. 2, 2022-0926761C6- 104(4)(a)(ii.1) Election-- summary under Subparagraph 104(4)(a)(ii.1) Summary Under Tax Topics- Income Tax Act- 101-110- Section 104- Subsection 104(4)- Paragraph 104(4)(a)- Subparagraph 104(4)(a)(ii.1) CRA will accept that an election is filed with a return even if the return is filed late Regarding whether a late election under s. 104(4)(a)(ii.1) can be made, CRA indicated that the courts have held that, where an election that is required to be filed with return of income for the year is not filed with the return of income, the election is late, and that it will accept an election filed under s. 104(4)(a)(ii.1) only if it is made in the trust’s return of income filed for its first taxation year, regardless of whether the return is filed by the required filings deadlines specified in s. 150(1)(c) or filed late – and that where the election is not filed with the trust’s return of income for its first taxation year, but rather is filed later, that election would be late, and could not be accepted (being not an election prescribed under Reg. 600). ...

The election is made in respect of a particular year of the contributor – which we will call the “initial year” because it is. ...

At the appropriate time, the estate would distribute the Amalco shares and the Notes (or the funds derived from their repayment) equally among the heirs – presumably on a s. 107(2) rollout basis in the case of the Amalco shares. ...

More specifically, paragraph (c) of the definition of AAII … deals with adjustments to the definition of "income" or "loss" as defined in subsection 129(4) and does not provide for any adjustment related to the Deemed ABI which is defined under paragraph 129(6)(b). ...

In responding, “yes,” CRA stated: [T]he fact that premiums and contributions paid by an employer are not made directly to a trust will also not, in and of itself, impair that trusts’ ability to qualify as an ELHT, as there is no requirement in section 144.1 … which explicitly requires that an employer make contributions directly to an ELHT (or to any extent whatsoever). ...

7 October 2022 APFF Roundtable Q. 8, 2022-0942151C6 F- Surplus stripping-- summary under Subsection 256(5.11) Summary Under Tax Topics- Income Tax Act- Section 256- Subsection 256(5.11) range of factors considered A corporation (Brother-Portfolioco) owned by an individual (Brother) sells a 50% shareholding in Opco to a corporation (Sister-Holdco) owned by Brother’s sister (Sister) – but with a capital gains reserve being claimed because most of the sales proceeds are deferred. ...