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27 November 2012 External T.I. 2012-0445941E5 F- Action déterminée de petite entreprise-- summary under Qualifying Disposition Summary Under Tax Topics- Income Tax Act- Section 44.1- Subsection 44.1(1)- Qualifying Disposition shares issued to a family trust do not qualify as "eligible small business corporation shares" In finding that shares issued from treasury of a corporation to a family trust, which later were distributed to a capital beneficiary, did not qualify as “ eligible small business corporation shares” notwithstanding that, on their issuance, the corporation was an eligible small business corporation and the $50 million test was satisfied, CRA stated (TaxInterpretations translation): A qualifying disposition of an individual (other than a trust) means a disposition of shares of the capital stock of a corporation where each share disposed of meets certain conditions in the definition of "qualifying disposition" in subsection 44.1(1). ... In our view, the wording of the definitions of "qualifying disposition" and " eligible small business corporation share" in subsection 44.1(1) requires that the issuance of common shares be made to an individual who is eligible for purposes of a qualifying disposition. As a trust is excluded from the definition of "qualifying disposition", in our view, none of the shares described in your example could qualify as an “ eligible small business corporation share” as defined in subsection 44.1(1). ...

A, CRA indicated that if Kieboom applied, " Mr. A would be considered to have disposed of a… right to dividends in Opco to Mrs. ...

CRA responded: [S]ubsection 89(8) is technically applicable …. [R]esponsibility for tax policy … rests with the Department of Finance ….” ...

., CEE (or CDE) incurred in Year 2 could be renounced effective December 31 of Year 1 and $900 of CEE (or CDE) incurred in Year 3 could be renounced effective December 31 of Year 2, CRA went on to confirm its position in 9531266 that: [T]he exercise of a right to purchase a flow-through share triggers a new flow-through share agreement and … a new "agreement in writing" is not required …. As well … the period referred to in paragraphs (a) and (b) of the definition of "flow-through share" in subsection 66(15) begins on the date of exercise of the right to purchase a flow-through share and ends 24 months after the end of the month that includes that date, unless the original written agreement relating to flow-through shares and share purchase rights (the "original agreement") provides for a shorter period. ...

In rejecting this submission, CRA stated: Assuming that the adjusted cost base of the exchanged common shares was nominal … the value of each class of shares … received on the exchange … would generally represent both a share of income earned or realized by Opco and a share of income not earned or realized …. Accordingly … the new shares issued by Opco would generally share the safe income on hand attributable to the old common shares on the basis of the gain inherent in each of them at the time of the exchange. The safe income on hand of Opco attributable to the former common shares would therefore … generally be allocated based on the proportion that the unrealized gain inherent in the Preferred Shares at the time of the exchange bears to the total unrealized gain, at the time of the exchange, inherent in the shares received on such exchange. ...

In response to queries as to the treatment of the free housing provided during the period that the individual was pastor, and of that for the several months following when another individual had been retained as pastor before the individual moved out, as well as to the tax treatment of voluntary contributions from members and as to the availability of the clergy residence deduction, CRA stated: 2009-0350821E5 … deals with a situation similar to yours and … seems to answer your questions …. ...

Accordingly … the provision of benefit coverage to non-unionized employees, in and of itself, would not disqualify the trust as a HWT. … [T]he provision of benefit coverage to retired employees or non-employees would not disqualify a trust as a HWT where the underlying plan or policy (i.e., a GSAIP, PHSP, or GTLIP) allows for the provision of benefit coverage to such individuals. … [A] GTLIP may only provide benefit coverage to current and former (including retired) employees. … …Folio S2-F1-C1 … clarifies that a trust funded only with contributions made by employees or an employee union would not qualify as a HWT. However … there is no explicit requirement that an employer be legally obligated to make contributions in respect of each plan or policy administered by a HWT. [W]here is it established that retired employees may be provided benefit coverage through a GSAIP, PHSP, or GTLIP, and none of the participating employers have a legal obligation to pay any premiums or contributions in respect of the particular plan or policy, it would appear permissible for a HWT to administer such a plan or policy provided that the trust also administers other employer-funded plans or policies. … A HWT may administer a plan that offers drug and alcohol rehabilitation services, provided the plan qualifies as a PHSP. … [A] plan that otherwise meets all of the conditions in paragraph 3 of … IT-339R2 … is considered a PHSP as long as all of the expenses covered under the plan are medical or hospital expenses (“medical expenses”) or expenses incurred in connection with and within a reasonable time period following a medical expense, and all or substantially all (generally 90% or more) of the premiums paid under the plan relate to the coverage of medical expenses that are eligible for the medical expense tax credit (“METC”). ...

In confirming that Canco is still required to issue T4s to them, and after referring to s. 153(1)(a) and Reg. 200(1), CCRA stated: [I]t is not necessary for the person paying the salary or wages be the employer of the taxpayer to whom the salary is paid (see, inter alia, Coopers & Lybrand …) or for the taxpayer to be taxable in Canada or resident in Canada. … [T]he amounts paid to the Employees appear to constitute salaries or wages within the meaning of subsection 248(1). ...

. … … Mr. and Ms. X will not be able to avail themselves of the HBP rules …. ...

Furthermore … the Purpose Test contained in subsection 55(2) must, as a technical matter, be considered in respect of a disposition of any share of the capital stock of XYZ Corp. Scenario 2 [S]ubsection 55(2) would apply in respect of the deemed dividend received by Bco … to the extent that the dividend could reasonably be considered to be attributable to something other than safe income on hand, attributable to the shares of the capital stock of XYZ Corp. held by Bco and before the "safe income determination time" …. [P]aragraph 55(3)(a) would not apply to exempt the dividend … [as] the repurchase by XYZ Corp. … would come within subparagraphs 55(3)(a)(i), (ii), (iii) and (v). ...