Regulation 5901

Subsection 5901(1)

Administrative Policy

27 September 1991 T.I. (Tax Window, No. 11, p. 13, ¶1513)

Unless some part of the international shipping business of the foreign affiliate is actually carried on in the country in which the foreign affiliate is resident, its business will not be considered to be carried on through a permanent establishment in that country; and the mere maintenance of registered office will not by itself constitute a permanent establishment in respect of its international shipping business.

2 July 1991 T.I. (Tax Window, No. 5, p. 15, ¶1326)

Where a non-resident subsidiary of a Canadian corporation which owns or charters vessels to engage in international traffic and maintains a permanent establishment in Canada rather than abroad, it will earn exempt income which is not attributed to any country and therefore will be included in its pre-acquisition surplus.

Subsection 5901(1.1)

Administrative Policy

30 October 2014 External T.I. 2013-0488881E5 - Upstream Loan

notional Reg. 5901(1.1) election

The Reg. 5901(1.1) election is treated as being applicable for a s. 90(9)(a) notional dividend received by Canco. See detailed summary of Scenario 4 under s. 90(9).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(28) no double inclusion following FA creditor wind-up 60
Tax Topics - Income Tax Act - Section 40 - Subsection 40(3) notional s. 40(3) gain does not generate surplus 70
Tax Topics - Income Tax Act - Section 90 - Subsection 90(6) no double inclusion following FA creditor wind-up or for 2nd loan in series 121
Tax Topics - Income Tax Act - Section 90 - Subsection 90(9) notional election and double taxation issues 1332
Tax Topics - Income Tax Regulations - Regulation 5901 - Subsection 5901(2) - Paragraph 5901(2)(a) 90-day rule unavailable 28
Tax Topics - Income Tax Regulations - Regulation 5901 - Subsection 5901(2) - Paragraph 5901(2)(b) notional Reg. 5901(2)(b) election 31
Tax Topics - Income Tax Regulations - Regulation 5907 - Subsection 5907(1) - Underlying Foreign Tax notional UFT disproportionate election 37

Subsection 5901(2)

Paragraph 5901(2)(a)

Administrative Policy

30 October 2014 External T.I. 2013-0488881E5 - Upstream Loan

90-day rule unavailable

The "90-day" rule does not apply to a s. 90(9)(a) notional dividend received by Canco. See detailed summary of Scenario 1 under s. 90(9).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(28) no double inclusion following FA creditor wind-up 60
Tax Topics - Income Tax Act - Section 40 - Subsection 40(3) notional s. 40(3) gain does not generate surplus 70
Tax Topics - Income Tax Act - Section 90 - Subsection 90(6) no double inclusion following FA creditor wind-up or for 2nd loan in series 121
Tax Topics - Income Tax Act - Section 90 - Subsection 90(9) notional election and double taxation issues 1332
Tax Topics - Income Tax Regulations - Regulation 5901 - Subsection 5901(1.1) notional Reg. 5901(1.1) election 30
Tax Topics - Income Tax Regulations - Regulation 5901 - Subsection 5901(2) - Paragraph 5901(2)(b) notional Reg. 5901(2)(b) election 31
Tax Topics - Income Tax Regulations - Regulation 5907 - Subsection 5907(1) - Underlying Foreign Tax notional UFT disproportionate election 37

1 April 2011 External T.I. 2008-0297541E5 - Ss. 5901(2) and the Timing of Dividends

payment after 90th day of ES dividend by FA sub to FA parent with TS who on-pays ES dividend to Canco

FA2, which had no exempt or taxable surplus at the beginning of 2008 but will have exempt surplus of $100 at the end of 2008, is wholly owned by FA1, which had taxable surplus of $100 at the beginning of June 1, 2008. FA2 pays a $100 dividend (the "FA2 dividend") to FA2 (also with a calendar year end) on June 1, 2008, and FA1 then immediately pays a $100 dividend (the "FA1 dividend") to its Canadian parent ("Canco").

The FA2 dividend is deemed by Reg. 5902(2) to be paid out of exempt surplus of FA2. Accordingly, the FA1 dividend also would be considered to be paid out of exempt surplus of FA1. (All surplus amounts referred to above are in respect of Canco.)

15 January 1992 T.I. 9115295

upper-tier FA dividend sourced to surplus based on Reg. 5901(1) ordering rule even though TS dividend was received 1st from lower-tier FAs

FA1's only source of income in 1991 is the FA2 and FA3 dividends, described below, received from its wholly-owned subsidiaries, FA2 and FA3, and on June 30 FA1 has no exempt or taxable surplus (or deficit). On July 1, 1991, at a time that it has no exempt or taxable surplus (or deficit), FA2 pays the FA2 dividend of $100 to FA1. On August 1, 1991, FA1 pays a $100 dividend (the "FA1 dividend") to its wholly-owning Canadian parent ("Canco"). On September 1, 1991, at a time that it has no exempt or taxable surplus (or deficit), FA3 pays the FA3 dividend of $100 to FA1. The relevant earnings etc. for 1991 are that FA2 has taxable earnings of $100 and FA3 has exempt earnings of $100.

Reg. 5901(2) deems the FA2 dividend to have been paid out of taxable surplus of FA2 and the FA3 dividend to have been paid out of exempt surplus of FA3 of $100. As a result, FA1 has $100 of both taxable and exempt surplus out of which dividends can be paid immediately after the end of its 1991 taxation year (the time at which the FA1 dividend is deemed to be paid for purposes of Reg. 5901(2)). Accordingly, by order of the surplus distribution rules set out in Reg. 5901(1), the FA1 dividend is paid entirely out of exempt surplus. (All surplus amounts referred to above are in respect of Canco.)

Articles

Susan McKilligan, "The 90-Day Rule and Mergers or Liquidations of Foreign Affiliates", International Tax (Wolters Kluwer CCH), October 2017, No. 96, p. 10

Survivor merger or liquidation of CFA after generating exempt earnings in current year (p. 10)

A foreign affiliate (Parent) owns all of the outstanding shares of another foreign affiliate (Sub). Sub pays a dividend to Parent more than 90 days after Sub's taxation year begins. Sub generates exempt surplus in excess of the dividend amount in the same year the dividend is paid. In the absence of Regulation 5901(2), the dividend paid by Sub would be paid out of pre-acquisition surplus. Later in the same year Sub is liquidated or merged into Parent. Parent survives the merger under the relevant corporate law.

Deemed year end for Reg. 5901(2) purposes before merger/liquidation (p. 10)

Under either Regulation 5907(8) or (9) Sub is deemed to have a year end at a time prior to the merger or liquidation… Since the deeming rule in Regulation 5901(2) affects an affiliate's exempt, hybrid, and/or taxable surplus, the deemed year end arguably applies for the purposes of the year-end deeming rule in Regulation 5901(2).

Shareholder may hold the CFA at the moment after its deemed taxation year (p. 10)

In the event that the deemed year end applies for the purposes of Regulation 5901(2), the question is whether the 90-day rule will apply to deem the distribution to be paid from Sub's exempt surplus. The CRA has held [1991-55] that the 90-day rule does not apply to a dividend paid by a foreign affiliate in a taxation year if the shareholder does not hold the shares of the foreign affiliate immediately after the end of that taxation year. However, because the tax year end is deemed under Regulation 5907 to take place prior to the foreign merger or liquidation, Sub arguably continues to exist for at least a moment after the deemed year end….

Exempt dividend amount included in Parent's ES (on receipt) but not subtracted from Sub's ES until after deemed year end (p. 11)

If the deemed year end…applies…and the 90-day rule applies to the dividend paid by Sub…:

  • Under…Regulation 5907(1)(c)(A)(v) the exempt surplus dividend paid by Sub to Parent is included in Parent's surplus at the date Parent receives the dividend.
  • Under Regulation 5901(2), Sub is deemed to pay the dividend to Parent immediately following the end of the year. As a result, Sub's exempt surplus balance immediately before the tax year end (and before the merger or liquidation time) includes the exempt surplus distributed from Sub to Parent earlier in the year.

On this basis, double-counting of sub’s distributed exempt surplus (p. 11)

The surplus paid out through Sub's dividend to Parent is double-counted in the exempt surplus balance after the merger or liquidation. First, under Regulation 5905 the opening surplus balances combines the surplus and deficit balances of Sub and Parent immediately before the merger time or deems a dividend equal to the net surplus of the Sub immediately before the liquidation to have been paid to Parent. Next, the 90-day rule in Regulation 5901(2) deems Sub to pay the dividend to Parent immediately following the end of the year. As a result of this timing, Sub's surplus balance before the merger or liquidation time includes the surplus previously paid out and already included in Parent's surplus as a result of the dividend.

Paragraph 5901(2)(b)

Administrative Policy

11 October 2019 APFF Roundtable Q. 8, 2019-0821311C6 F - APFF 2019 Q.8: Surplus Documentation

failure to prepare surplus accounts will preclude a late-filed Reg. 5901(2)(b) election

The 2019 IFA Conference (2019-0798761C6) dealt with the situation where Canco does not prepare detailed calculations of its various surplus and underlying tax balances in respect of a wholly-owned subsidiary (FA) from which it received a dividend, and claims a full s. 113(1) deduction for that dividend (without knowing how much is a deduction under s. 113(1)(a) rather than, say, s. 113(1)(d).)

CRA indicated that if a complete surplus computation is not provided to it, its current general practice is to deny the s. 113(1) deduction. CRA also indicated that where Canco wishes to late-file an election under Regs. 5901(2.1) and (2.2) in order for the dividend to be completely sheltered by the s. 113 (e.g., if it later discovered that it had hybrid or taxable surplus), such a request for a late election generally would not be granted - because relying on surplus balances unsubstantiated by a detailed computation would generally not meet the condition in Reg. 5901(2.1)(b) of having demonstrated making reasonable efforts before the filing-due date.

CRA essentially repeated these positions at the October 11, 2019 APFF Roundtable, Q.8.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 230 - Subsection 230(1) taxpayer must prepare adequate records to support surplus computations 194

2016 Ruling 2016-0630761R3 - Transfer of Shares

stated capital distribution from FA treated as pre-acq dividend
Quite similar transactions for the same group and with expanded rulings were ruled upon in 2017-0693751R3

A foreign affiliate (New FA) of a Canadian corporation (ACo) transferred all the shares of FA1 to a Canadian-resident subsidiary (BCo) of ACo in consideration for a note of BCo whose amount equalled the sum of the relevant cost base of the FA1 shares and the net surplus (being exempt surplus) of FA1 (such sum, the “Transfer Amount”). BCo then used share subscription proceeds received by it from ACo to repay the note, with New FA then distributing that cash to ACo and with ACo electing under Reg. 5901(2)(b) for the distributions to come out of New FA’s pre-acquisition surplus. CRA ruled inter alia as to the application of s. 93(1.11) to effectively convert part or all of the capital gain of New FA otherwise realized on its disposition of its FA1 shares into an exempt surplus dividend.

CRA further ruled that the distribution by New FA would be deemed by s. 90(2) to be a dividend, and that such distribution would be treated as a dividend under the ss. 113(1)(d), 53(2)(b)(i) and 97(2) rules except to the extent of any excess described in s. 40(3).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 93 - Subsection 93(1.11) transfer of an FA with exempt earnings by FA Holdco to Can Subco required to occur at less than the shares’ FMV 548
Tax Topics - Income Tax Act - Section 15 - Subsection 15(1) no conferral of benefit where CRA required sideways transfer to occur at less than FMV 221

21 April 2015 Internal T.I. 2014-0560811I7 - FACL carryback – Surplus & PAS election

no relief for late-filed Reg. 5901(2)(b) election

In 2010, CFA paid the "2010 Dividend" to its 100% parent ("Canco"). On audit, CRA identified that CFA had realized a capital gain (giving rise to foreign accrual property income). Canco did not make an election under s. 79(2) of Bill C-48 or under Reg. 5901(2)(b). Is Canco barred from making a "PAS election" under Reg. 5901(2)(b) respecting the 2010 dividend (and, if yes, is administrative relief available)?

After a detailed review of the relevant transitional provisions and of the late-filing rules in Regs. 5901(2.1) and (2.2), CRA concluded that no PAS election had been made on a timely basis, and then stated:

…[C]onsidering…that subsection 220(3.2) of the Act and section 600 of the Regulations provide no discretion to the Minister to extend the time for making an election under paragraph 5901(2)(b)… there is no other statutory or administrative discretion available to the CRA to allow the taxpayer to late-file any required election in the present case in order for the 2010-Dividend to be treated as being paid out of PAS.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 220 - Subsection 220(3.2) no relief for late-filed Reg. 5901(2)(b) election 54
Tax Topics - Income Tax Regulations - Regulation 5903.1 - Subsection 5903.1(1) FACL carryback from transitional year 154
Tax Topics - Income Tax Regulations - Regulation 5907 - Subsection 5907(1) - Net Earnings surplus pools are not to be retroactively adjusted for a FACL carryback 171
Tax Topics - Income Tax Regulations - Regulation 600 no relief for late-filed Reg. 5901(2)(b) election 54

30 October 2014 External T.I. 2013-0488881E5 - Upstream Loan

notional Reg. 5901(2)(b) election

The Reg. 5901(2)(b) election is treated as being applicable for a s. 90(9)(a) notional dividend received by Canco. See detailed summary of Scenario 3 under s. 90(9).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(28) no double inclusion following FA creditor wind-up 60
Tax Topics - Income Tax Act - Section 40 - Subsection 40(3) notional s. 40(3) gain does not generate surplus 70
Tax Topics - Income Tax Act - Section 90 - Subsection 90(6) no double inclusion following FA creditor wind-up or for 2nd loan in series 121
Tax Topics - Income Tax Act - Section 90 - Subsection 90(9) notional election and double taxation issues 1332
Tax Topics - Income Tax Regulations - Regulation 5901 - Subsection 5901(1.1) notional Reg. 5901(1.1) election 30
Tax Topics - Income Tax Regulations - Regulation 5901 - Subsection 5901(2) - Paragraph 5901(2)(a) 90-day rule unavailable 28
Tax Topics - Income Tax Regulations - Regulation 5907 - Subsection 5907(1) - Underlying Foreign Tax notional UFT disproportionate election 37

Articles

Tim Fraser, Jim Samuel, "The Preacquisition Surplus Election: More Than Meets the Eye?", Canadian Tax Journal (2021) 69:2, 595 - 627

Election can be used to bypass untaxed taxable or hybrid surplus (p. 608)

  • The election may be beneficial where a CRIC has received a dividend from a foreign affiliate that would otherwise come out of hybrid or taxable surplus that has borne insufficient income tax.

Beneficial to pay multiple whole dividends (p. 609)

  • Since the election must be made respecting a whole dividend it may be desirable for a distribution from a foreign affiliate to be paid as multiple sequential dividends of varying amounts, to increase the flexibility of the CRIC in the presence of uncertainties as to the ACB of the foreign affiliate shares (or its surplus balances).

Examples of adverse consequences of making the Reg. 5901(2)(b) election

  • There can be adverse (or favourable) consequences of making the Reg. 5901(2)(b) election rather than using surplus.

Example 1 (pp. 612-613)

  • Canco (which has not made a functional currency election) holds all the shares (having an ACB of $150 million) of a single class of FA, which pays a US$ 100 million dividend (equivalent to Cdn.$140 million) at a time that its only surplus/deficit accounts (which it maintains in US dollars) is an exempt surplus balance of US $100 million. If it subsequently realized operating losses of US$ 100 million (thereby wiping out any unutilized exempt surplus balance), it would have been better off not to have elected (so that the dividend came out of exempt surplus), as maintaining the ACB of $150 million would permit FA to distribute up to that amount to Canco as preacquisition surplus dividends notwithstanding FA’s exempt deficit.

Example 2 (p. 615)

  • Rather than there being subsequent operating losses, the only relevant subsequent change is that the Canadian dollar appreciates relative to the US dollar. If it does not make the election, Canco will have a greater relative benefit from having maintained most of its Canadian dollar basis in the FA shares rather than maintain a US dollar exempt surplus balance.

Example 3 (pp. 616-617)

  • FA, a US subsidiary, which has exempt earnings, pays two dividends of US$ 100 million in the same year: the first being subject to 5% US withholding tax because it is paid out of earnings and profits for US purposes; and the second being not subject to withholding because it was not out of E&P. Respecting the first dividend, the ACB reduction will only be $95 million if the Reg. 5901(2)(b) election is made, whereas if the election is not made, the exempt surplus balance is reduced by the gross amount of the dividend irrespective of whether there is withholding tax. Accordingly, it may be preferable to make the election only respecting a dividend that is subject to withholding tax.

Example 4 (pp. 618-619)

  • Canco, which has elected under s. 261 to compute its Canadian tax results in US dollars, holds cumulative preferred shares of FA with a face value and ACB of US $100 million. The dividends come out of exempt surplus unless Canco makes the Reg. 5901(2)(b) election. If it makes the election, it might seem that this would increase the amount of exempt surplus it could access so as to shelter under s. 93(1) the resulting gain when the preferred shares are subsequently redeemed. However, the rules in Reg. 5902 might limit its access in that redemption scenario to exempt surplus only in the amount of the accrued but unpaid dividends on the shares at the time of redemption, thereby resulting in the realization of a capital gain that would have been avoided if the election instead had not been made.

Desirability or undesirability of elevating surplus from lower-tier affiliates rather than making

  • It may be beneficial for the payer of an interaffiliate dividend, who has sufficient tax-free surplus, to pay a dividend to a higher-tier foreign affiliate from such tax-free surplus, so as to elevate tax-free surplus up the foreign affiliate chain, thereby making such surplus more readily available to shelter the payment of any subsequent dividends to the CRIC – and also safeguarding that tax-free surplus from erosion by any subsequently-incurred losses of the payer affiliate.

Example 5 (pp. 620-623)

  • Canco wholly-owns FA 1 (which has no exempt, hybrid, or taxable deficits), which wholly-owns FA 2 and FA 3, whose shares constitute excluded property. FA 3 pays a dividend of $10 million to FA 1 while it has exempt surplus of $10 million (and no hybrid and/or taxable deficits), with FA 1’s ACB in the FA 3 shares being $110 million. Subsequently, FA 1 contributes the shares of FA 3 (having a FMV of $100 million) to FA 2 in exchange for additional shares of FA 2.
  • Assuming no Reg. 5901(2)(b) election respecting the dividend paid by FA 3 to FA 1, FA 3’s exempt surplus of $10 million is elevated to FA 1, and FA 1’s ACB in the FA 3 shares remains at $110 million. On the subsequent contribution of the FA 3 shares to FA 2, FA 1 realizes a $10 million loss that is included in computing its hybrid deficit. Consequently, FA 1’s ability to pay a dividend from its $10 million of exempt surplus (previously elevated from FA 3) may be blocked by the $10 million hybrid deficit created on the transfer of the shares of FA 3 to FA 2.
  • If, however, Canco instead makes the election respecting the $10 million dividend, the exempt surplus of FA 3 would not be elevated. Instead, FA 1’s ACB in the FA 3 shares would be reduced to $100 million. No loss, or hybrid deficit, would arise to FA 1 on its subsequent disposition of the FA 3 shares to impede its ability to pay tax-free surplus dividends to Canco.

Tina Korovilas, Drew Morier, "Non-Corporate Vehicles in the Foreign Affiliate Context", 2018 Conference Report (Canadian Tax Foundation), 20:1 – 114

QROC election intended to address unavailability of Reg. 5901(2)(b)(ii) election to partnerships

[A]lthough subsections 93.1(1) and (2) are meant to allow a CRIC to access this [FA dividend] regime through partnerships, no pre-acquisition surplus election is available to a partnership that is a shareholder of the distributing FA, even if each of its members is a CRIC or an FA of a CRIC….

[W]hile available to all taxpayers, the QROC election is really for the benefit of partnerships and of other taxpayers that are ineligible for the pre-acquisition surplus election….

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 96 122
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(1) 111
Tax Topics - General Concepts - Ownership 245
Tax Topics - Income Tax Regulations - Regulation 5907 - Subsection 5907(11.2) - Paragraph 5907(11.2)(b) 181
Tax Topics - Income Tax Act - Section 90 - Subsection 90(1) 99
Tax Topics - Income Tax Act - Section 93.1 - Subsection 93.1(2) - Paragraph 93.1(2)(a) 120
Tax Topics - Income Tax Act - Section 93.1 - Subsection 93.1(2) - Paragraph 93.1(2)(d) - Subparagraph 93.1(2)(d)(i) 80
Tax Topics - Income Tax Act - Section 93 - Subsection 93(1.3) 168
Tax Topics - Income Tax Act - Section 95 - Subsection 95(1) - Excluded Property - Paragraph (e) 155
Tax Topics - Income Tax Act - Section 95 - Subsection 95(1) - Excluded Property - Paragraph (a) 368
Tax Topics - Income Tax Act - Section 95 - Subsection 95(1) - Excluded Property - Paragraph (c) 290
Tax Topics - Income Tax Act - Section 95 - Subsection 95(2) - Paragraph 95(2)(y) 64
Tax Topics - Income Tax Act - Section 95 - Subsection 95(2) - Paragraph. 95(2)(z) 332
Tax Topics - Income Tax Act - Section 95 - Subsection 95(2) - Paragraph 95(2)(a) - Subparagraph 95(2)(a)(ii) - Clause 95(2)(a)(ii)(B) - Subclause 95(2)(a)(ii)(B)(II) 169
Tax Topics - Income Tax Act - Section 95 - Subsection 95(2) - Paragraph 95(2)(a) - Subparagraph 95(2)(a)(ii) - Clause 95(2)(a)(ii)(D) 688
Tax Topics - Income Tax Act - Section 94 - Subsection 94(1) - Exempt Foreign Trust - Paragraph (h) - Subparagraph (h)(ii) - Clause (h)(ii)(C) 615

Clara Pham, "Paying FA Dividends When Surplus Balances are Unclear", Canadian Tax Focus, Vol. 7, No. 1, February 2017, p. 2

Greater flexibility for subsequent surplus ascertainment if multiple dividends paid (p. 2)

Up-to-date figures on an FA's surplus pools may not be available at the time that a dividend is to be paid….

[T]he FA [could] pay multiple smaller dividends totalling the desired distribution amount

In this way, there is more flexibility to elect under regulation 5901(2)(b) as needed in respect of each whole, smaller dividend at a later time when surplus and basis computations are clearer or more complete. … Any dividend on which an election is not made will first come out of exempt surplus….

Geoffrey S. Turner, "June 2014 Election Deadlines for Retroactive Application of New Foreign Affiliate Reorganization Rules", CCH International Tax, No. 74, February 2014, p. 1.

Retroactive election (p. 3)

… Bill C-48 permits taxpayers to electively apply Regulation 5901(2)(b) (together as a package with subsections 90(2) and 93(1.11)) retroactively to foreign affiliate distributions made after December 20, 2002.

Choice between surplus and basis grind (p. 3)

By electing to apply Regulation 5901(2)(b) retroactively, and by thereby electing to apply subsection 90(2) retroactively to deem each post-December 20, 2002 foreign affiliate distribution to be a dividend (regardless whether it was in fact paid as a dividend or a capital distribution), taxpayers can either (i) choose to treat the particular distribution as a dividend that accessed the relevant surplus balances of the distributing foreign affiliate (by not further electing to apply Regulation 5901(2)(b) to that particular dividend or deemed dividend), or (ii) choose to treat the particular distribution as a pre-acquisition surplus dividend that accessed the basis of the foreign affiliate before potentially dipping into the relevant surplus balances of the distributing foreign affiliate (by further electing to apply Regulation 5901(2)(b) to that particular dividend or deemed dividend).

E.g., resolving divided/capital character or surplus balances or using subsequently-ground exempt surplus (p. 3),

For example, consider an historic foreign affiliate distribution, paid for foreign corporate law purposes out of share premium, contributed surplus, or similar equity-type account where the Canadian tax treatment (as a dividend or capital distribution) might have been unclear. Or consider an historic dividend where the surplus balances might have been uncertain and there was a risk of elevating taxable surplus with insufficient underlying tax. Alternatively, consider an historic capital distribution paid by a foreign affiliate with exempt surplus that might have subsequently been eroded by exempt losses. In each of these cases, the Canadian parent now has the time-limited opportunity to reconsider the originally intended surplus and basis consequences of the distribution….

Geoffrey S. Turner, "New Foreign Affiliate Capital Distribution Elections: QROCs and Reg. 5901(2)(b) Dividends", CCH International Tax, No. 67, p. 1

From a group structure perspective, taxpayers may also wish to capitalize on the enhanced superiority of basis over surplus, by reorganizing their foreign affiliate groups to consolidate basis in one or more holding company foreign affiliates....The effect is to aggregate and consolidate the basis in those transferred top-tier foreign affiliate shares, into the basis of the newly issued top-tier foreign affiliate holding company shares held directly by the Canadian parent corporation. Future distributions sourced from the various underlying chains could then ultimately be paid to the Canadian parent by the top-tier foreign affiliate "basis consolidator" as dividends electively deemed by Regulation 5901(2)(b) to be pre-acquisition surplus dividends. In this manner, the potential adverse consequences from elevating possible "bad" hybrid surplus or taxable surplus from the underlying foreign affiliates could be deferred to the greatest extent. Moreover, by strategically electing under Regulation 5901(2)(b) in respect of those lower-tier foreign affiliate distributions, it may be possible to defer the elevation of any such "bad" hybrid surplus or taxable surplus up the chain.

Geoffrey S. Turner, "Upending the Surplus Ordering Rules: Implications of the New Regulation 5901(2)(b) Election", CCH Tax Topics, No. 2079, p. 1, 12 January 2012

Taxpayers may now hold their foreign affiliate groups under a "basis and surplus mixer" foreign affiliate holding company, and routinely use the Reg. 5901(2)(b) election for top-tier foreign affiliate distributions.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 90 - Subsection 90(2) 0

Elaine Buzzell, "Distributions of Share Premium by Foreign Affiliates", Corporate Finance, Vol. XVII, No. 2, 2011, p. 1962

Includes comparison with previous comfort letter proposals.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 90 - Subsection 90(2) 25

Subparagraph 5901(2)(b)(i)

Articles

Tim Fraser, Jim Samuel, "The Preacquisition Surplus Election: More Than Meets the Eye?", Canadian Tax Journal (2021) 69:2, 595 - 627

Whether the holding of an interest in the FA by an LP with unrelated CRICs or their FAs as members precludes making the election (pp. 605-608)

  • Interpreted literally, the Reg. 5901(2)(b)(ii) precludes the election - for a whole dividend paid by a foreign affiliate (FA) of a corporation resident in Canada (a “CRIC”) to come out of preacquisition surplus – if any other CRIC (or a foreign affiliate of any other CRIC) is a member of a partnership that is a shareholder of the FA, regardless whether the other CRIC is related to the particular CRIC, or the partnership is a recipient of any portion of the dividend.
  • However, 2020 IFA Roundtable, Q.7 found that where Canco1 owned 100% of the Class A shares, and a limited partnership (LP) with partners (including Canco 2) at arm’s length with Canco1 owned 100% of the Class B shares, of a foreign affiliate (FA) respecting Canco1 and 2, and FA paid a dividend to Canco1 on the Class A shares, the Reg. 5901(2)(b)(ii)(A) requirement, that no member of LP (i.e., Canco 2) be a corporation that is otherwise eligible to elect under Reg. 5901(2)(b)(i), was only applicable where such LP in fact was receiving a dividend that otherwise could be elected upon to reduce the ACB of shares, so that Canco1 was not disqualified from making the election – but that the Reg. 5901(2)(b)(ii)(A) tainting of a dividend by FA to Canco1 (and Canco 2) would apply if FA had only one class of shares and a dividend was paid on a pro rata basis to both Canco1 and LP.
  • Since the surplus pools of FA are computed separately from the perspective of each of Canco 1 and Canco 2, and the election relevant only to the computation of surplus pools from the perspective of the electing CRIC, it is not clear from a policy perspective why Canco 1 should be prohibited from making such an election in the latter circumstances.

Subparagraph 5901(2)(b)(ii)

Administrative Policy

15 September 2020 IFA Roundtable, Q.7

Reg. 5901(2)(b)(ii)(A) does not taint a siloed dividend paid by FA to Canco1 even though another Canco holds other FA shares through an LP

Canco1 owns 100% of the Class A shares, and a limited partnership (LP) with partners (including Canco 2) at arm’s length with Canco1 owns 100% of the Class B shares, of a foreign affiliate respecting Canco1 and 2. FA pays a dividend to Canco1 on the Class A shares.

Could Canco1 elect under Reg. 5901(2)(b)(i) respecting the above (Class A) dividend given the Reg. 5901(2)(b)(ii)(A) requirement that no member of LP (i.e., Canco 2) be a corporation that is otherwise eligible to elect under Reg. 5901(2)(b)(i)?

After noting that the Finance Technical Notes indicated that this “election is meant to allow the shareholders of a foreign affiliate to access their capital first as measured by the adjusted cost base … of the shares,” CRA stated:

Even though the preamble of paragraph 5901(2)(b) … does not specify to whom the “whole dividend” … is paid … based on a contextual and purposive analysis … the “whole dividend” … is a reference to a dividend that would cause a consequential ACB adjustment to the shares of the foreign affiliate on which it is paid, if a Regulation 5901(2)(b) election could be made in respect of that dividend.

This state of affairs did not apply here because, even if “Canco2 was entitled to make a Regulation 5901(2)(b) election in respect of the Class A dividend, there would be no consequential ACB adjustments with respect to Canco2 or LP since neither Canco2 nor LP owns any Class A shares.” Accordingly, the election was available to Canco1.

CRA went on to note that the Reg. 5901(2)(b)(ii)(A) tainting of a dividend by FA to Canco1(and Canco 2) would apply if FA had only one class of shares and a dividend was paid on a pro rata basis to both Canco1 and LP.

Subsection 5901(2.2)

Administrative Policy

15 May 2019 IFA Roundtable Q. 9, 2019-0798761C6 - Surplus Documentation

failure by Canco to prepare surplus accounts precludes late- filed Reg. 5901(2)(b) election
essentially the same comments made in 11 October 2019 APFF Roundtable, Q.8

Canco, did not prepare detailed calculation of its various surplus and underlying tax balances in respect of a wholly-owned subsidiary (FA) from which it received a dividend, and nonetheless claims a full s. 113(1) deduction for that dividend. After indicating that if a complete surplus computation is not provided to it, its current general practice is to deny the s. 113(1) deduction, CRA went on to address the question of whether it would accept the late filing by Canco of an election under Regs. 5901(2.1) and (2.2) in order for the dividend to be completely sheltered by the s. 113 (e.g., if it discovered that it had hybrid or taxable surplus)?

CRA indicated that relying on surplus balances unsubstantiated by a detailed computation would generally not meet the condition in Reg. 5901(2.1)(b) of having demonstrated the making of a determination using reasonable efforts to not make an acquisition surplus election in respect of the whole dividend before the filing due-date.

In addition to the situation submitted not satisfying that test, it also would be the CRA view that it would not be “just and equitable” (per Reg. 5901(2.2)) to permit the filing of a late election where Canco did not make detailed calculations of its relevant surplus accounts because of its assumption that the late election, and related ACB deduction, would result in no income inclusion.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 113 - Subsection 113(1) - Paragraph 113(1)(a) CRA generally denies a s. 113(1) deduction where Canco has failed to prepare surplus accounts 179

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