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S. 212.3(20) provides that the rules in ss. 212.3(18)(b)(v) to (vii) – which otherwise except certain types of reorganizations involving foreign affiliate distributions from the deemed dividend/PUC reduction rule in s. 212.3(2) – do not apply to the extent of any debt assumed by the CRIC in respect of the distribution. ...

In order for the exception to be available, the CRIC must demonstrate the satisfaction of five conditions – three of them in s. 212.3(16)(c), and a further two in s. 212.3(16)(a) and (b). ... In order for the condition in paragraph 212.3(16)(a) to be satisfied, it is not sufficient that the CRIC's and the subject corporation's businesses be connected or even closely connected – the businesses must be more closely connected to one another than the subject corporation's business is to the business of any other non-resident corporate group member (other than the subject corporation, a subject subsidiary corporation or a CFA). ... " The Explanatory Notes provide the following example: Example 1 – foreign-controlled Canadian manufacturer If commercial aircraft are manufactured by the CRIC and its non-resident parent company, the closer business connection condition in paragraph 212.3(16)(a) would not likely be met if the CRIC were to purchase a non-resident corporation that is a competing commercial aircraft manufacturer. ...

. … The extent to which the operating results of the subject corporation affect the performance evaluation and compensation of an officer would depend on the relative size and complexity of the subject corporation's operations and the level of responsibility the officer has over those operations. ... The Explanatory Notes also provide the following example: Example 2 – foreign-based private equity fund If a foreign-based private equity ("PE") fund acquired a Canadian operating company (the "CRIC"), the PE fund is managed by its foreign-based general partner ("GP"), the CRIC is controlled by the GP, the CRIC is a portfolio company of the PE fund (i.e., the CRIC is the parent of a group of companies all of which carry on a particular type of business and is the entity that would be sold or taken public), and the CRIC either owns foreign affiliates that require funding or expands internationally through the acquisition of foreign affiliates, the exception may be available with respect to investments in foreign affiliates made by the CRIC. ... This may indicate that this test could be satisfied where performance is evaluated on a qualitative basis – and that it may be satisfied where the subject corporation looms larger in a qualitative assessment of the relevant officers of the CRIC (or of a corporation resident in Canada with which it did not deal at arm's length) than in a qualitative assessment of officers of the relevant non-resident corporations. ...

Stringency of active business requirement S. 95(2)(a)(ii)(D) (among other things) generally deems interest income received by one wholly-owned foreign affiliate of a Canadian corporation from another wholly-owned foreign affiliate to be active business income even if the second affiliate – rather than using the loan proceeds directly in active business – uses the loan proceeds to subscribe for shares of a wholly-owned subsidiary which carries on an active business in the same country. However, this operation of s. 95(2)(a)(ii)(D) does not appear to have the effect of deeming the second affiliate (whose business is that of a holder of share investments) to not have an "investment business," as defined in s. 95(1) – which, in turn, would mean that its business does not qualify as an investment business. ...

(c)(iii), the TPP branch is not stated to be available only where the supply relates “wholly” to TPP situated outside Canada – which, of course, suggests that the exclusion may be available where the supply relates to TPP both inside and outside Canada. Second, there is none of the bipolar confusion evident in s. 142, which in s. 142(1)(c)(ii) includes (subject to s. 143), in a supply made in Canada, a supply of intangible personal property (“IPP”) that “relates … to tangible personal property ordinarily situated in Canada” in s. 142(2)(c)(ii) includes, in a supply made outside Canada, a supply of intangible personal property (“IPP”) that “relates … to tangible personal property ordinarily situated outside Canada” There clearly is a contradiction between the two provisions where there is a supply of IPP that relates both to tangible personal property (TPP) ordinarily situated in Canada and TPP ordinarily situated outside Canada. ...

The essence of the provisions with regard to stated capital is that there must be a stated capital account for each class and series of shares … and that the appropriate stated capital account must include the full amount of any consideration which the corporation receives for any shares it issues …. ... The value of that protection however is limited by the fact that the corporation is not obliged to obtain any substantial amount of capital from the sale of its shares, and by the fact that the CBCA allows the corporation to reduce the stated capital account. … The principal provision[s] in the CBCA for reduction of stated capital … carry out the CBCA policy of leaving a corporation's affairs in its own hands; the requirement of confirmation by the court … has no counterpart in the CBCA. ... Although this contemplates that a distribution can be paid otherwise than as a dividend, it also contemplates that the distribution is paid out of surplus rather than stated capital – and the type of surplus (capital or earned) is not specified. ...

Where, for example, a parent first contributes cash to the CRIC in exchange for shares of the CRIC with PUC equal to the amount of the cash and the CRIC subsequently uses that cash to make an investment in a subject corporation, it is intended that only the deemed dividend rule apply – the PUC creation would not be considered to relate to the investment, as it is one step removed. ... Similar reasoning applies in situations where a CRIC borrows money and uses the proceeds to purchase shares or debt of a foreign affiliate – the incurring of the debt itself is not intended to give rise to a deemed dividend: only the cash payment is intended to give rise to a deemed dividend. ... By providing that the deemed dividend occurs at the dividend time – generally defined by subsection 212.3(1.1) as the time when the parent acquires control of the CRIC (as long as control is acquired within one year after the investment time) – rather than at the investment time, the amendment generally ensures that the parent may benefit from the most favourable withholding rate reduction under the applicable treaty. ...

Accordingly, an investment includes both a subscription by the CRIC for treasury shares of the subject corporation, and a purchase or other acquisition of shares from another person, including the CRIC's non-resident parent corporation or an affiliated corporation (subject to exceptions in s. 212.3(18) – as well as arm's length persons (or a partnership). ...

The definition of " business " in s. 248(1) includes an adventure or concern in the nature of trade. ...

Statutory Interpretation, " Ordinary meaning "), so that, for example, an option embedded in the terms of a convertible debenture issued by the employer also would be sufficient to engage the application of s. 7 (Mansfield). ...