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Respecting the accessing of a further carve-out (which applies inter alia where the property that is disposed of to unrelated persons as part of the series constitutes less than 10% of the FMV of all of the butterflied property-- ignoring for these purposes, money and indebtedness), the property so disposed of cannot exceed 10% of the total value of the butterflied property at any time after the butterfly and prior to the end of the series – so that even if the FMV of certain property constituted, for example, 7% of the total FMV on the disposition date, it might exceed 10% of the total FMV at some point between the butterfly date and the disposition date, so as to put the butterfly offside. ...

Exclusion arising from financing costs paid to non-residents (pp. 8-9) A further concern is that any significant financing costs paid to non-residents (who are “tax-indifferent investors”) will also result in the loss of Canco’s excluded entity status – so that substantially all of Canco’s financing costs must be paid to other types of entities if it is to remain an excluded entity. ...

Paul Carenza, Chris D’Iorio, "Update on Equity-Based Compensation in Canada: Market Trends and Technical Developments", draft 2021 Conference Report paper (Canadian Tax Foundation)-- summary under Subsection 110(1.42) Summary Under Tax Topics- Income Tax Act- 101-110- Section 110- Subsection 110(1.42) Limited scope of ordering mechanism (p. 10) The only ordering that occurs under s. 110(1.31) is ensuring that all other grants contemporaneous with or predating the particular agreement are included in the variable D computation – which, once ascertained, is subject to the ss. 110(1.41) and (1.42) ordering rules. ...

Fair market value is predominantly factual ….” FMV is not a fact that can be proven to be true or false (p. 2) It is suggested that fair market value (FMV) is not a “fact” in the sense provided by Phipson on Evidence, namely, “a statement that can be verified”, i.e., “can be proven to be true or false through objective evidence”, whereas evidence as to FMV (described as “the most reasonable of reasonable alternatives”) is essentially opinion evidence. ...

Joint Committee, "Impact of Pangaea case", 10 January 2024 Joint Committee Submission-- summary under Paragraph 212(1)(i) Summary Under Tax Topics- Income Tax Act- Section 212- Subsection 212(1)- Paragraph 212(1)(i) Policy concern re withholding on debenture consent fees (pp. 1-2) In a 2020 submission, the Joint Committee expressed concerns that a broad reading of Pangaea could result in the imposition of Part XIII tax on commitment fees, and consent fees and restructuring fees, paid to arm's length non-resident lenders/ debt holders – which would run contrary to the policy choice made to reduce the cost of capital to Canadian businesses by eliminating the withholding tax payable to arm's-length lenders. ...

For example, where two non-arm’s length corporations resident in Canada (CRICs) are the sole members of a partnership (P1) wholly-owning a foreign corporation (Forco1) that in turn wholly-owns each of two foreign corporations (Forco2 and Forco3) that are the sole members of a second partnership (P2), there would be a concern that s. 15(2) could apply to a loan made by one of the CRICs to P2, since P2 was connected with a shareholder (Forco1) of a particular corporation (Forco2) by virtue of their affiliation – and the exception in draft s. 15(2.01)(b) is insufficient since as Forco2 is not, for purposes of s. 15, a foreign affiliate of the CRICs because of the intervening partnership (P1), and therefore P2 is not a partnership each member of which is a foreign affiliate of the particular corporation. ...

Langlois, which found that a 50% shareholder who had “an operational role, not a decision-making role” was not part of the de facto control of the corporation, whereas the other shareholder, who “[a]s the sole director … had the power that ensured him a dominant influence in the direction of the [corporation]” had de facto control. ...

However, under s.212.3(1)(b), the s. 212.3 rules apply to an investment made by the CRIC in a subject corporation if as part of the series of transactions that includes the making of the investment, Forco acquired control of the CRIC and at the time of the “investment”, the Forco shares represented 25% or more of the votes or value of the CRIC – with s. 251(5)(b) rights being taken into account for these purposes. ...

However… Holder … (2004 FCA 188) seems to stand for the opposite conclusion: the starting point, prima facie, is no double taxation…. ...

[fn no 61: Perez and Palestine "The Crime-Fraud Exception to the Attorney-Client Privilege," 2 Tax Practice & Procedure 33 (2000).] ...