Section 219.1

A non-resident partnership (Partnership 1) and its non-resident co-investors wished to acquire a Canadian public-company target (Target), whose only significant assets were non-resident subsidiaries (Subcos 1 and 2), and then eliminate this sandwich structure through the distribution of the Subcos to them.

Accordingly, they capitalized a Canadian Buyco (Parent), which acquired the shares of Target under a Plan of Arrangement for cash (or, in the case of the only shareholder of Target who was a specified shareholder, for a combination of cash and shares of Parent). Parent then amalgamated with Target and the Subco shares were bumped under s. 88(1)(d) – but with the bump amount being reduced by any Subco surpluses described in Reg. 5905(5.4).

Distributing the bumped Subco shares out of Amalco to the non-residents would have attracted a FIRPTA-style tax in the local tax jurisdictions for the Subcos. This local tax was proposed to be avoided by continuing Amalco to a jurisdiction of convenience for the non-residents (perhaps, Delaware). In particular, Amalco will file an application under the relevant Canadian Business Corporations Act to continue out of that jurisdiction and into the non-resident jurisdiction as if it had been incorporated under the latter’s laws (the “Continuation”). Under such laws

1. the property, rights and interest of Amalco (pre-Continuation) continue to be the property, rights and interests of Amalco (post-Continuation);
2. Amalco (post-Continuation) continues to be liable for the obligations of Amalco (pre-Continuation);
3. an existing cause of action, claim or liability to prosecution is unaffected by the Continuation;
4. a legal proceeding being prosecuted or pending by or against Amalco (pre-Continuation) may be prosecuted or its prosecution may be continued, as the case may be, by or against Amalco (post-Continuation); and
5. a conviction against, or a ruling, or judgment in favour of or against, Amalco (pre-Continuation) may be enforced by or against Amalco (post-Continuation).

The bump minimized the s. 128.1(4) tax on emigration. CRA ruled that the Parent paid-up capital, which had been ground under s. 212.3(7)(c), was reinstated under s. 219.1(4) for purposes of computing the s. 219.1 emigration tax (assuming that the FMV of the Subco shares was not lower than this reinstatement amount).