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Various considerations for structuring a market maker trust (i.e., a trust established by the private corporate employer, with itself as beneficiary, to effect purchases and sales of shares of employees other than specified employees so as to give them capital gains rather than deemed dividend treatment) are discussed. ...

(a)(i)(A) can be bad income for purposes of the substantially all test 17 February 2021 External T.I. 2018-0768051E5 F- Contrat de crédit-bail Income Tax Act- Section 49- Subsection 49(3) a portion of the lease payments under a lease with a bargain purchase option recharacterized as consideration for the option Income Tax Act- Section 13- Subsection 13(5.2) acquisition of leased vehicle pursuant to bargain purchase option followed by sale of vehicle could engage s. 13(5.2) Income Tax Act- Section 16.1- Subsection 16.1(1) truck tractor is prescribed property General Concepts- Substance lease payments, but not the lease itself, could be recharacterized Income Tax Act- Section 20- Subsection 20(1)- Paragraph 20(1)(c)- Subparagraph 20(1)(c)(ii) leasing contract cannot be recharacterized as a secured loan funding an acquisition of depreciable property Income Tax Act- Section 68 lease payments for vehicle lease with bargain purchase option are allocated between ACB of option and deductible lease payments 5 March 2021 External T.I. 2017-0713041E5 F- Allocation pour usage d’un véhicule à moteur Income Tax Act- Section 6- Subsection 6(1)- Paragraph 6(1)(b)- Subparagraph 6(1)(b)(x) it can be acceptable to cap the kilometres for which a car allowance is paid Income Tax Act- Section 6- Subsection 6(1)- Paragraph 6(1)(b)- Subparagraph 6(1)(b)(vii.1) unreasonably low allowance may be taxable 2008-02-01 23 January 2008 External T.I. 2007-0237251E5 F- Résidence principale- Destruction d'un triplex Income Tax Act- Section 54- Principal Residence- Paragraph (e) garage remaining after destruction of triplex by fire was part of the contiguous land Income Tax Act- Section 40- Subsection 40(2)- Paragraph 40(2)(b) gain on triplex destroyed by fire then sold should be allocated between the personal use portion and rental portion based on relative building areas, but with years of use being pre-fire 23 January 2008 Internal T.I. 2007-0255351I7 F- Frais médicaux- déplacement Income Tax Act- Section 118.2- Subsection 118.2(2)- Paragraph 118.2(2)(g)- Subparagraph 118.2(2)(g)(iii) certificate should state why the physician considers that there are no adequate and appropriate medical services in the venue where the patient resides 2008-01-18 7 January 2008 External T.I. 2007-0225481E5 F- GRIP Addition for 2006 Income Tax Act- Section 89- Subsection 89(7) GRIP addition from subsidiary resulting from 2001 and 2005 dividends 11 January 2008 External T.I. 2007-0227061E5 F- Revenu imposable sociétés associées non-résidentes Income Tax Act- Section 127- Subsection 127(10.2) taxable income of non-resident associated corporations, which are not taxable in Canada under s. 2(3), is ignored 7 January 2008 External T.I. 2007-0227071E5 F- GRIP Addition for 2006 Income Tax Act- Section 89- Subsection 89(7) GRIP addition from subsidiary equaling its GRIP given dividends paid by it in excess of that amount 10 January 2008 External T.I. 2007-0227191E5 F- REVENUS D'UNE SOCIÉTÉ DE PERS.- PART PRIVILÉGIÉE Income Tax Act- 101-110- Section 103- Subsection 103(1) common and preferred units can be used as a mechanism for profits to be allocated to each partner’s interest (a single property) Income Tax Act- Section 53- Subsection 53(1)- Paragraph 53(1)(e)- Subparagraph 53(1)(e)(i) division of partnership interest into preferred and common units does not affect determination of partnership interest’s ACB 18 January 2008 External T.I. 2007-0235131E5 F- Faux frais de déplacement Income Tax Act- Section 6- Subsection 6(1)- Paragraph 6(1)(b)- Subparagraph 6(1)(b)(vii) Treasury Board allowance rates generally are reasonable, even when applied to entertainment 10 January 2008 Internal T.I. 2007-0254551I7 F- Provision relative à certaines marchandises Income Tax Act- Section 20- Subsection 20(1)- Paragraph 20(1)(m)- Subparagraph 20(1)(m)(i) ss. 12(1)(a)(i) inclusion and 20(1)(m)(i) available for gift certificates sold to franchisees where goods are only tendered to franchisee, with adjustment for unredeemed certificates Income Tax Act- Section 20- Subsection 20(1)- Paragraph 20(1)(m.2) s. 20(1)(m.2) available for returned gift certificates sold to franchisees 10 January 2008 External T.I. 2005-0139681E5 F- Dépenses reportées à une année ultérieure Income Tax Act- Section 9- Timing expense generally is deductible when incurred if it generates both current and future benefits 2007-11-30 14 November 2007 Internal T.I. 2007-0254601I7 F- Paiement incitatif- Bon de souscription Income Tax Act- Section 12- Subsection 12(1)- Paragraph 12(1)(x)- Subparagraph 12(1)(x)(iii) value of share purchase warrant granted to asset vendor as an inducement to agree to a longer term services agreement with purchaser was includible under s. 12(1)(x) Income Tax Act- Section 52- Subsection 52(1) value of share purchase warrant included in recipient’s income under s. 12(1)(x) increased ACB of warrant ...

However, the Explanatory Notes implicitly suggest that only the electing CRIC (or CRICs jointly filing the election), and any foreign affiliates thereof, are to be taken into consideration. ...

are taken into consideration (and given appropriate weight) in the GAAR analysis, notwithstanding that a misuse of specific provisions of the Act cannot be identified” including an interpretative rule which, in contrast to Alta Energy, would shift the balance more to fairness to the tax system as a whole and de-emphasize certainty and predictability, and also address application issues, e.g., providing (again contrary to Alta Energy) that GAAR applies to foreseen as well as unforeseen tax planning reversing the Canada Trustco burden on the Crown, e.g., presuming “that abusive tax avoidance has occurred unless the taxpayer can establish to an appropriate standard that the provision or provisions being used to provide the tax benefit were used in the manner that Parliament intended them to be used” – although perhaps this burden shift would only occur where the transactions lacked economic substance Finance repeatedly laments that Canada Trustco had not adopted the Finance statement accompanying GAAR’s introduction that it “would apply together with the … other provisions [of the Act] to require economic substance in addition to literal compliance with the words of the Act.” ...

Topic Descriptor 3 November 2023 APFF Financial Strategies and Instruments Roundtable Q. 1, 2023-0976911C6 F- CELIAPP- Changement d'usage / FHSA- Change in use Income Tax Act- Section 146.6- Subsection 146.6(1)- Qualifying Withdrawal- Paragraph (d) a recent change of a home from rental to principal-residence use cannot ground an FHSA withdrawal 3 November 2023 APFF Financial Strategies and Instruments Roundtable Q. 2, 2023-0978631C6 F- CELIAPP- Autoconstruction d'une habitation- FHSA- Self-construction Income Tax Act- Section 146.6- Subsection 146.6(1)- Qualifying Withdrawal- Paragraph (c) written agreement for construction before October 1 could be satisfied with agreements with trades by self-constructing individual Income Tax Act- Section 146.6- Subsection 146.6(1)- Qualifying Withdrawal- Paragraph (a) acquisition of home is when it becomes habitable 3 November 2023 APFF Financial Strategies and Instruments Roundtable Q. 3, 2023-0976921C6 F- CELIAPP- Acquisition d'une quote-part d'une habitation admissible / FHSA- Acquisition of a share of a qualifying home General Concepts- Ownership reference to acquiring a qualifying home includes acquiring a co-ownership interest Income Tax Act- Section 146.6- Subsection 146.6(1)- Qualifying Withdrawal a qualifying withdrawal from an FHSA can fund the purchase of a co-ownership interest in a qualifying home 3 November 2023 APFF Financial Strategies and Instruments Roundtable Q. 4, 2023-0990531C6 F- Life insurance policy transfer Income Tax Act- 101-110- Section 106- Subsection 106(3) s. 106(3) could apply to a distribution of a dividend in kind Income Tax Act- 101-110- Section 107- Subsection 107(2) s. 107(2) inapplicable to distribution in satisfaction of a trust debt owing to the beneficiary Income Tax Act- Section 148- Subsection 148(7) a trust distribution of a life insurance policy to a beneficiary was made for FMV consideration equal to the part of the beneficiary’s capital or income interest that is satisfied 2 November 2023 APFF Financial Strategies and Instruments Roundtable Q. 5, 2023-0978561C6 F- Partnership – distribution of a life insurance police Income Tax Act- Section 248- Subsection 248(35) holding of policy by partnership prior to its distribution to partner does not count towards the latter’s holding period Income Tax Act- Section 148- Subsection 148(7) s. 98(2) generally prevails over s. 148(7) Income Tax Act- Section 98- Subsection 98(2) disposition of distributed life insurance policy at FMV pursuant to s. 98(2), rather than s. 148(7) applying 3 November 2023 APFF Financial Strategies and Instruments Roundtable Q. 6, 2023-0994241C6 F- Consequences of Transfer of DSUs to a corporation Income Tax Act- Section 54- Capital Property deferred share units were not capital property Income Tax Act- Section 85- Subsection 85(1.1) DSU rights are not eligible property and not capital property Income Tax Act- Section 248- Subsection 248(1)- Salary Deferral Arrangement transfer of DSU to corporation would cause it to cease to qualify, perhaps retroactively 3 November 2023 APFF Financial Strategies and Instruments Roundtable Q. 7, 2023-0994231C6 F- Additional reporting- trusts subject to exception Income Tax Regulations- Regulation 204.2- Subsection 204.2(1) trusts not coming within the preamble to ITA s. 150(1.2) must still provide the additional Reg. 204.2(1) information if not excepted under ss. 150(1.2)(a) to (o) 3 November 2023 APFF Financial Strategies and Instruments Roundtable Q. 8, 2023-0976901C6 F- RPP survivor benefit flowing through a GRE Income Tax Act- Section 60- Paragraph 60(j) flow-through of pension benefit by estate to surviving spouse through cash and note issuance/ no FHSA deduction for s. 104(27) amount Income Tax Act- 101-110- Section 104- Subsection 104(24) income can be distributed to estate beneficiary by issuing a demand note to her Income Tax Act- 101-110- Section 104- Subsection 104(27) full flow-through of a pension benefit received by the estate to the surviving spouse for s. 60(j) purposes by the estate issuing her a note 3 November 2023 APFF Financial Strategies and Instruments Roundtable Q. 9, 2023-0976941C6- Withholding on registered plans Treaties- Income Tax Conventions- Article 18 RRSP/ RRIF payments are “pensions” under Art. ...

In its final version, CRA added: At this time, the CRA is in the process of consulting internal stakeholders to evaluate and potentially develop a position on this issue, while giving consideration to the impacts on other foreign reporting forms. ...