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Kenneth Saddington, Jennifer Hanna, "Mergers and Acquisitions in the Light of the US Tax Changes", 2018 Conference Report (Canadian Tax Foundation), 19:1-36-- summary under Subsection 249(3.1) Summary Under Tax Topics- Income Tax Act- Section 249- Subsection 249(3.1) Hybrid potential where IP with little recapture (p. 19:14) It may be possible to use a hybrid transaction to reconcile a US acquiror’s desire to acquire the IP as an asset acquisition with a vendor’s desire to sell shares …. ...

Example 3 The beneficiaries of a trust may include a second trust – which will be deemed by (c)(i) to be related to the first trust during the period that the second trust is a beneficiary thereof. ...

.' " c. The channel approach Under this approach, when a third-state resident has a substantial interest in the recipient, or exercises the management of or has control over the recipient, if a certain percentage of the income of that recipient is used to satisfy the claim by such third-state resident, the recipient will be disallowed the treaty benefits regarding such income. ... Treaty in dealing with steppingstone conduits (p. 770) … Under the base erosion test, if the total amount of expenses paid by the recipient (the company resident of State A) to third-state residents accounts for 50 percent or more of its gross income in the residence state (State A), the recipient will fail to satisfy the test, and it might appear that this test effectively deals with steppingstone conduits. ...

[fn 64: See… Brelco Drilling … [and] 2001-0093385] If a deficit of a lower-tier foreign affiliate does indeed reduce safe income on hand, the location of the deficit affiliate in a chain of foreign affiliates does not seem to be relevant—contrary to the general framework of the foreign affiliate surplus regime, in which so-called blocking deficits in a chain of foreign affiliates are generally more relevant (and potentially more problematic) than deficits in foreign affiliates that are at the bottom of the ownership chain. ... As a result, if one foreign affiliate in a chain has a hybrid surplus pool with an insufficient amount of hybrid underlying tax applicable [fn 66: …[D]efined in … 5907(1).] whereas another affiliate has an excess of hybrid underlying tax applicable, that pool is not available for the purposes of the determination of safe income, notwithstanding that the hybrid surplus would be fully sheltered with hybrid underlying tax applicable if the surplus pools of those two affiliates were combined. ...