Section 18.21

Subsection 18.21(1)

Acceptable Accounting Standards

Articles

PWC, "Tax Insights: Excessive interest and financing expenses limitation (EIFEL) regime", Issue 2022-06, 15 February 2022

Non-recognition of local European GAAP

  • The group ratio rule in draft s. 18.21, which may enable taxpayers to access a higher fixed percentage than 30% where the group as a whole is bearing higher interest and financing expenses as a result of its external debt and as measured by the group GAAP financial statements, does not recognize any local European GAAP – so that the group ratio calculations could be unavailable for European-headed groups that do not consolidate using IFRS.

Subsection 18.21(2)

Articles

EY, "Proposed EIFEL rules", Tax Alert 2022 No. 13, 9 March 2022

Effective transfer of excess capacity to or from group trusts (p.10)

Unlike the s. 18.2 rules, under which there is no ability for trusts within a group to transfer or receive excess capacity, the mechanics of the s. 18.21 rules effectively permit the transfer of excess capacity to or from trusts within the Canadian group (although the s. 18.21 rules are unavailable where a group member is a mutual fund trust).

PWC, "Tax Insights: Excessive interest and financing expenses limitation (EIFEL) regime", Issue 2022-06, 15 February 2022

Potential difficulties in annually assessing whether the election should be made or is practicable

  • Application of the group ratio regime requires an annual election and, therefore, annual consideration as to whether it would be beneficial. This regime “requires information that may not easily be available to the Canadian group members, particularly in large conglomerate or private equity structures.”

Subsection 18.21(3)

Articles

EY, "Proposed EIFEL rules", Tax Alert 2022 No. 13, 9 March 2022

No requirement to determine “excess capacity” (p. 9)

Unlike [under s. 18.2], there is no requirement to determine the “excess capacity” for any particular group member and then separately transfer excess capacity of one particular group member to another. Rather, the total amount of IFE that may be deducted for the group (i.e., the [allocated group ratio amount] AGRA) is determined and as part of the joint election is merely allocated out to each member in that election itself. No group member should have restricted IFE to the extent that the AGRA allocated to that member is less than that member’s net IFE. Part of the reason for this rather streamlined approach is that if an election under subsection 18.21(3) is made for a year, unused excess capacity for each member is deemed to be nil for the year. However, restricted IFE, if any, may be carried forward. Further, if the total AGRA otherwise exceeds the net IFE of the group for the year, any restricted IFE from a prior year may be applied in the year (up to the amount of that excess).