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S3-F3-C1 - Replacement Property

Acquired to replace the former property Acquired for the same or a similar use Acquired to gain or produce income from the same or a similar business Other considerations relevant to the replacement property rules Class 14.1 Limited period franchises, concessions or licences Subsection 85(1) election Amalgamations and wind-ups Partnerships Non-residents and deceased taxpayers Application Reference History Discussion and interpretation General overview of the replacement property rules 1.1 Where a capital property, other than a share of the capital stock of a corporation, is disposed of, whether voluntarily or involuntarily, and a replacement property is acquired within specified time limits, subsection 44(1) may provide for the deferral of all or part of the capital gain on the disposition. 1.2 Similarly, all or part of the recapture of CCA on the disposition of a property described in ¶1.3 that is depreciable property of a prescribed class may be deferred by virtue of subsection 13(4) where a replacement property is acquired within the specified time limits. 1.3 Unless otherwise specified, a reference in this Chapter to a former property applies to any property disposed of in either of the situations described below: when subject of an involuntary disposition: a property where the proceeds of disposition (POD) received by the taxpayer consist of compensation for property unlawfully taken (for example, stolen), compensation for property destroyed including any amount of insurance proceeds payable in respect of that loss or destruction, compensation for property taken under statutory authority (for example, expropriated) or the sale price of property sold to a person by whom notice of an intention to take it under statutory authority was given. ... Other considerations relevant to the replacement property rules Class 14.1 1.45 Effective January 1, 2017, the eligible capital property rules were repealed and were replaced by Class 14.1 of depreciable property under the CCA regulations. ...

2015 Ruling 2015-0569891R3 - Ss. 164(6) carry-back and post-mortem pipeline -- summary under Subsection 84(2)

A conventional pipeline transaction will be implemented respecting the the remaining Class B shares, as well as the Class C shares, of A Co now held by the Estate: The Estate will transfer the shares to its newly-incorporated subsidiary ("Newco") in consideration for a note equal to the ACB of the transferred shares minus $X, and for additional Class A shares, electing under s. 85(1). ... U.S. tax considerations. A Co is a PFIC. The manner of Child 2's removal as an A Co shareholder ensures that he can receive the distribution from A Co "as a capital gain" for Code purposes and avoid the complications of being a PFIC shareholder. ...

25 November 2021 CTF Roundtable Q. 1, 2021-0911841C6 - Indemnities and subsection 87(4) -- summary under Subsection 87(1)

S. 87(4) requires that such shares be the only consideration received by the Target shareholders “on the amalgamation.” ...

British Columbia v. GFL Environmental Inc., 2024 BCCA 379 -- summary under Related Service

The director under the Provincial Sales Tax Act (B.C.) assessed on the basis that the full consideration was taxable (under s. 13(1)) as consideration for the lease of tangible personal property or (under s. 18(1)) as consideration for a “related service,” defined in s. 1(1) as a “service provided to tangible personal property”. The chambers judge had concluded that although the contracts with the customers did not allocate the consideration (and GFL in fact had failed to charge any PST), it was appropriate to “unbundle” the consideration, and found in light of evidence as to inter alia the relative costs and time spent of providing its services, that 80% of the consideration should be allocated to GFL’s non-taxable waster-removal services, and 20% to the lease of the portable toilets and the services provided “to” the toilets of removing the waste. After agreeing that the portion of the fees applicable to the waste disposal services of GFL were not part of the consideration paid for the use of the toilets, Skolrood JA also agreed that the evidence – including that 95% of the GFL labour went to disposal operations and required the use of specialized trucks – indicated that the waste disposal services was not a service to the toilets. ...

British Columbia v. GFL Environmental Inc., 2024 BCCA 379 -- summary under Subsection 13(1)

., 2024 BCCA 379-- summary under Subsection 13(1) Summary Under Tax Topics- Other Legislation/Constitution- British Columbia- Provincial Sales Tax Act- Section 13- Subsection 13(1) lease of portable toilet and related cleaning service, was appropriately unbundled from the single consideration from the non-taxable waste disposal service The taxpayer (GFL), for a monthly charge, provided portable toilets, cleaned them and disposed of the waste. The director under the Provincial Sales Tax Act (B.C.) assessed on the basis that the full consideration was taxable (under s. 13(1)) as consideration for the lease of tangible personal property or (under s. 18(1)) as consideration for a “related service,” defined in s. 1(1) as a “service provided to tangible personal property”. The chambers judge had concluded that although the contracts with the customers did not allocate the consideration (and GFL in fact had failed to charge any PST), it was appropriate to “unbundle” the consideration, and found in light of evidence as to inter alia the relative costs and time spent of providing its services, that 80% of the consideration should be allocated to GFL’s non-taxable waste-removal services, and 20% to the lease of the portable toilets and the services provided “to” the toilets of removing the waste. ...

Jefferson v. Canada, 2022 FCA 81 -- summary under Subsection 160(1)

He argued that since he had established that around ¼ of the payments received by him as cheques from a corporation, with which he did not deal at arm’s length, properly reimbursed him for business expenses, he had demolished the Minister’s “exact” assumption made in assessing him under s. 160 that the taxpayer had “provided no consideration for the cheques.” In rejecting this position, Monaghan JA stated (at para. 21) that the taxpayer “places far too much emphasis on the word ‘exact’ and gives insufficient weight to the word ‘demolish’ in … Hickman. ” and further stated (at para. 24) that “establishing some consideration for the cheques is not sufficient to demolish the Minister’s assumption,” noting in this regard (at para. 25) that the “purpose of pleading the assumption is to provide the appellant with notice of the case the appellant has to meet” and here, the taxpayer knew that, in the context of a s. 160 assessment, he needed to establish that he had provided fair market consideration for the cheques, “not merely some consideration.” Rather than being bound, by the purported demolishing of the Minister’s assumption, to find that there was full consideration given by the taxpayer for the cheques received by him from Global “it was open to the Tax Court to determine the value of the consideration the appellant gave for the cheques based on all the evidence tendered” (para. 28). ...

The Advocate General (representing Revenue and Customs) v K E Entertainments Ltd (Scotland), [2020] UKSC 28 -- summary under Subsection 232(2)

The taxpayer unsuccessfully argued that where there had been a change from one method of calculating the consideration for its supplies (the game by game basis) to another method (the session by session basis), thereby producing a lower taxable amount, the adoption of the new method involved a “decrease in consideration.” Lord Legatt stated (at para. 48): What is required … is a change in the consideration actually received by the supplier. … All that has happened is that the taxpayer has had second thoughts about how the consideration received at the time of the supply should be analysed for tax purposes. ... Since there was only one correct method, on this basis as well the taxpayer’s claim that its switch in method entailed a decrease in the consideration payable by it foundered. ...

Jefferson v. Canada, 2022 FCA 81 -- summary under Onus

On appeal, the taxpayer, in relying (at para. 19) on a statement in Hickman that the “initial onus of ‘demolishing’ the Minister’s exact assumptions is met where the appellant makes out at least a prima facie case,” argued that since he had established that some expenses were properly reimbursed, he had demolished the Minister’s “exact” assumption that the taxpayer had “provided no consideration for the cheques.” ... The appellant knew the case he had to meet—the only issue under section 160 was whether the appellant provided consideration for the payments Global made to him by cheque, which, in the context of section 160, means fair market value consideration, not merely some consideration. Rather than being bound (due to a purported demolishing of the Minister’s assumption) to find that there was full consideration given by the taxpayer for the cheques received by him from Global “it was open to the Tax Court to determine the value of the consideration the appellant gave for the cheques based on all the evidence tendered” (para. 28). ...

Dale v. The Queen, 94 DTC 1100, [1994] 1 CTC 2303 (TCC), aff'd supra. -- summary under Subsection 85(1)

In rejecting the submission of the Crown that the shares had to be validly issued in the year of the transfer of the building, Bowman J. found (at p. 1110) that the expression "consideration that includes shares" was not confined to executed consideration, and that: What is essential is that there be either an actual issuance of shares or a binding obligation to do so at the time of transfer and that the shares be issued within a period of time that, in all the circumstances, is reasonable.... Consideration is of two kinds- executed and executory- and it would be an unwarranted restriction on that term to limit it to only one of the two types [citing Chitty on Contracts on the meaning of "consideration"]. ... Words and Phrases consideration ...

Valovic v. The Queen, 2020 TCC 101 -- summary under Subparagraph 160(1)(e)(i)

The Queen, 2020 TCC 101-- summary under Subparagraph 160(1)(e)(i) Summary Under Tax Topics- Income Tax Act- Section 160- Subsection 160(1)- Paragraph 160(1)(e)- Subparagraph 160(1)(e)(i) shareholders’ services were not consideration for dividends received by them for s. 160 purposes The taxpayers were an electrician and his spouse who were equal shareholders of their corporation and who provided services respectively as electrician and administrator to it. ... In rejecting their submissions that the dividends paid to them were partial consideration for such services so as to oust the application of s. 160 to the dividends, Monaghan J stated (at paras 15, 17, 19): The evidence that the dividends … were partial consideration for their services … was not very strong. … However, even if I accept that the Valovics reduced the amount of employment income and increased the amount of dividends, and that all payments were made because of the services they provided, the appeals must fail. … [T]his Court and the Federal Court of Appeal have consistently rejected the argument that consideration may be given for dividends, including in the context of section 160. These decisions accepted and endorsed the view expressed in Neuman that dividends relate to shareholding and rejected the argument that there was consideration for the dividends. … …Having decided to transform what the Valovics now wish to characterize as consideration for services rendered into a dividend for any reason, including tax advantages, the Valovics must accept the consequences of that decision. … ...

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