2019-0811641R3 Multi-wing split up butterfly

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA. Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Principal Issues: Whether the butterfly dividends arising on the proposed transactions are exempt under paragraph 55(3)(b) from the application of Subsection 55(2).

Position: Yes.

Reasons: Proposed transactions meet the requirements of the Act.

Author: XXXXXXXXXX

Section: 55(2), 55(3)(b), 55(3.1), 13(7)(e), 1100(2.2), 1102(14)

XXXXXXXXXX                                                                          2019-081164

XXXXXXXXXX, 2019

Dear XXXXXXXXXX

Re:   Advance Income Tax Ruling
         XXXXXXXXXX

We are writing in response to your request for an advance income tax ruling (Ruling request) dated XXXXXXXXXX on behalf of the above-noted taxpayers (the “Taxpayers”). We also acknowledge the additional information provided in your letters and in various email correspondence, as well as information provided during telephone conversations. The documents submitted as part of your Ruling request are part of this document only to the extent described herein.

We understand that to the best of your knowledge and that of the Taxpayers, none of the proposed transactions and/or issues involved in this Ruling request are the same as or substantially similar to transactions or issues that are:

i    in a previously filed tax return of the Taxpayers or a related person and;

(A)   being considered by the CRA in connection with any such tax return;

(B)   under objection by the Taxpayers or a related person;

(C)   the subject of a current or completed court process involving the Taxpayers or a related person; or

ii    the subject of a ruling request previously considered by the Income Tax Rulings Directorate in relation to the Taxpayers or a related person.

The tax account numbers, Tax Services Offices and the Tax Centres and addresses of the Taxpayers involved are as follows:

XXXXXXXXXX

The above-referenced Taxpayers have confirmed that the proposed transactions described herein will not affect their ability to pay any of their outstanding tax liabilities.

DEFINITIONS

Unless otherwise stated:

i.    all references herein to a part, section, subsection, paragraph or subparagraph is a reference to the relevant provision of the Income Tax Act, R.S.C. 1985 (5th Suppl.) c.1, as amended, (the Act);

ii.   all terms and conditions used in this Ruling request that are defined in the Act (or in the Regulations) have the meaning given in such definition;

iii.  all references to monetary amounts are in Canadian dollars; and

iv.   the singular should be read as plural and vice versa where the circumstances so require.

The following abbreviations, terms and expressions have the meanings specified, and the relevant parties to the Proposed Transactions (as defined below) will be referred to as follows:

“ACB” means “adjusted cost base” as that expression is defined in section 54 and subsection 248(1);

“Act1” means the XXXXXXXXXX;

“agreed amount” means the amount that a transferor and a transferee have agreed on in a joint election under subsection 85(1) in respect of the transfer of an “eligible property”;

“arm’s length” has the meaning assigned by subsection 251(1);

“BN” means “business number” as that term is defined in subsection 248(1);

“Butterfly Shares” means shares of capital stock to be issued by a TC Sub, which will be non-voting, will entitle the holder to discretionary non-cumulative dividends, will be redeemable and retractable at any time (subject to applicable law) for an amount equal to the aggregate FMV of the consideration received on the issuance thereof (excluding the amount of any liabilities assumed) plus any declared but unpaid dividends, and will have priority over a share of any other classes of shares of capital stock on a liquidation or other dissolution. No dividends or other distribution will be paid on shares ranking junior to the Butterfly Shares if the effect of such dividends or other distribution would be to reduce the net realizable value of the assets to an amount less than the aggregate redemption amount of the issued and outstanding Butterfly Shares;

“capital property” has the meaning assigned by section 54;

“CCPC” means “Canadian-controlled private corporation” as that term is defined in subsection 125(7);

“CDA” means “capital dividend account” as that term is defined in subsection 89(1);

“cost amount” has the meaning assigned by subsection 248(1);

“CRA” means the Canada Revenue Agency;

“DC” means XXXXXXXXXX;

“DC Sub” means XXXXXXXXXX;

“DC Transfer” refers to the transfer of property by DC to the TC Subs on the Distribution as described in Paragraph 22;

“Distribution” has the meaning assigned by subsection 55(1);

“eligible dividend” has the meaning assigned by subsection 89(1);

“eligible property” has the meaning assigned by subsection 85(1.1);

“ERDTOH” means “eligible refundable dividend tax on hand” as that term is defined in subsection 129(4);

“FMV” means fair market value or more specifically the highest price available in an open and unrestricted market, between informed prudent parties, acting at arm’s length and with no compulsion to act, expressed in terms of money or money’s worth;

“GRIP” means “general rate income pool” as that term is defined in subsection 89(1);

“NERDTOH” means “non-eligible refundable dividend tax on hand” as that term is defined in subsection 129(4);

“Paragraph” refers to a numbered paragraph in this letter;

“pre-1972 CSOH” means “pre-1972 capital surplus on hand” as that term is defined in subsection 88(2.1).

“proceeds of disposition” has the meaning assigned by section 54;

“property” has the meaning assigned by subsection 248(1);

“Proposed Transactions” means the transactions described in Paragraphs 8 to 36;

“PUC” means paid-up capital as that term is defined in subsection 89(1);

“RDTOH” means “refundable dividend tax-on-hand” as that term is defined in subsection 129(3);

“series of transactions or events” includes the transactions or events referred to in subsection 248(10);

“short-term preferred shares” has the meaning assigned by subsection 248(1);

“Sibling 1” means XXXXXXXXXX, an adult individual resident in Canada and brother of Sibling2 and Sibling3;

“Sibling 2” means XXXXXXXXXX, an adult individual resident in Canada and brother of Sibling1 and Sibling3;

“Sibling 3” means XXXXXXXXXX, an adult individual resident in Canada and the sister of Sibling1 and Sibling2;

“significant influence” has the meaning assigned in section XXXXXXXXXX;

“SN” means social insurance number;

“specified financial institution” has the meaning assigned by subsection 248(1);

“specified investment business” has the meaning assigned by subsection 125(7);

“taxable dividend” has the meaning assigned to that term by subsection 89(1);

“taxable preferred shares” has the meaning assigned by subsection 248(1);

“TC” refers to any of TC1, TC2 or TC3 singularly and “TCs” refers to TC1, TC2 and TC3 collectively, as the case may be;

“TCC” means “taxable Canadian corporation” as that term is defined in subsection 89(1);

“TC1” means a corporation to be incorporated under Act1 by Sibling 1;

“TC Sub” refers to any of TC Sub1, TC Sub2 or TC Sub3 singularly and “TC Subs” refers to TC Sub1, TC Sub2 and TC Sub3 collectively, as the case may be;

“TC Sub1” means a corporation to be incorporated under Act1 by TC1;

“TC Sub1 Butterfly Shares” means the Butterfly Shares to be issued by TC Sub1 to DC;

“TC Sub1 Redemption Note” means the non-interest bearing demand promissory note to be issued by TC Sub1 to DC as consideration for TC Sub1’s Butterfly Shares to be redeemed as described in Paragraph 26;

“TC2” means a corporation to be incorporated under Act1 by Sibling 2;

“TC Sub2” means a corporation to be incorporated under Act1 by TC2;

“TC Sub2 Butterfly Shares” means the Butterfly Shares to be issued by TC Sub2 to DC;

“TC Sub2 Redemption Note” means the non-interest bearing demand promissory note to be issued by TC Sub2 to DC as consideration for TC Sub2’s Butterfly Shares to be redeemed as described in Paragraph 26;

“TC3” means a corporation to be incorporated under Act1 by Sibling 3;

“TC Sub3” means a corporation to be incorporated under Act1 by TC3;

“TC Sub3 Butterfly Shares” means the Butterfly Shares to be issued by TC Sub3 to DC;

“TC Sub3 Redemption Note” means the non-interest bearing demand promissory note to be issued by TC Sub3 to DC as consideration for TC Sub3’s Butterfly Shares to be redeemed as described in Paragraph 26;

“terminal loss” has the meaning assigned by subsection 20(16);

“UCC” means “undepreciated capital cost” as that term is defined in subsection 13(21); and

“Winding-up Dividend” means the dividend arising on the winding-up of DC by virtue of subsection 84(2) and paragraph 88(2)(b), as described in Paragraph 33 and Ruling D.

FACTS

1.    DC was originally incorporated under the laws of XXXXXXXXXX on XXXXXXXXXX. On XXXXXXXXXX, DC amalgamated with a predecessor corporation (XXXXXXXXXX) and the amalgamated corporation continued as DC. DC is engaged in XXXXXXXXXX. The amalgamation was not implemented in contemplation of the Proposed Transactions. DC’s fiscal period and taxation year ends on XXXXXXXXXX and DC has always been, and will continue to be, a CCPC and a TCC.

2.    DC has a single class of voting and participating common shares issued and outstanding. In particular, the issued and outstanding share capital of DC consists of XXXXXXXXXX common shares. Sibling 1, Sibling 2, and Sibling 3 XXXXXXXXXX. All of the issued and outstanding common shares of DC are held as capital property by Sibling 1, Sibling 2, and Sibling 3 and none of the common shares of DC were acquired in contemplation of the Proposed Transactions. The common shares have an aggregate PUC of $XXXXXXXXXX.

3.    DC had an RDTOH balance of $XXXXXXXXXX and no GRIP balance as at XXXXXXXXXX. The balance of the RDTOH is expected to change during its XXXXXXXXXX taxation year. There is no expectation that a GRIP balance will be created during its XXXXXXXXXX taxation year.

4.    The significant assets of DC include: cash and cash equivalents; accounts receivable; land and investments in XXXXXXXXXX; XXXXXXXXXX common shares of DC Sub and amounts due from related corporations. DC’s liabilities include: accounts payable and accrued liabilities, which include such liabilities that relate specifically to the XXXXXXXXXX.

5.    DC Sub was incorporated under the laws of XXXXXXXXXX on XXXXXXXXXX. DC Sub’s fiscal period and taxation year ends on XXXXXXXXXX. DC Sub is engaged in XXXXXXXXXX. DC Sub has always been, and will continue to be, a CCPC and a TCC.

6.    The issued and outstanding share capital of DC Sub consists of XXXXXXXXXX common shares. Sibling 1 and Sibling 2 each own XXXXXXXXXX common shares while, as noted above, DC owns XXXXXXXXXX common shares. Each common share of DC Sub is entitled to one vote. DC Sub does not have a Unanimous Shareholder Agreement and DC does not have de jure control of DC Sub. All of the issued and outstanding common shares of DC Sub are held as capital property by Sibling 1, Sibling 2, and DC. None of the common shares of DC Sub were acquired in contemplation of the Proposed Transactions.

7.    The assets of DC Sub consist of the following: cash and near cash equivalents; land inventory XXXXXXXXXX; and development expenses XXXXXXXXXX. DC Sub’s liabilities include; accounts payable and accrued liabilities; deposits payable; amounts owing to related parties and shareholders; and a mortgage payable to DC.

PROPOSED TRANSACTIONS

The following transactions will be implemented in the order presented unless otherwise noted.

Stock Split of DC Shares

8.    The directors of DC will resolve to implement a stock split whereby XXXXXXXXXX new common shares of DC will be issued to each existing common shareholder in exchange for each common share currently held. Sibling 1, Sibling 2, and Sibling 3 will each hold XXXXXXXXXX common shares of DC immediately after the stock split has been enacted. There will be no change in the interest, rights or privileges of the shareholders and no concurrent changes in the capital structure of DC.

Incorporation of holding companies, TC1, TC2 and TC3.

9.    Sibling 1 will incorporate a new corporation, TC1 under Act1. The authorized share capital of TC1 will consist of an unlimited number of fully participating, voting common shares.

10.   At the time of incorporation of TC1, Sibling 1 will subscribe for XXXXXXXXXX for $XXXXXXXXXX per share. TC1 will be a TCC and a CCPC.

11.   Sibling 2 will incorporate a new corporation, TC2, under Act1. The authorized share capital of TC2 will consist of an unlimited number of fully participating, voting common shares.

12.   At the time of incorporation of TC2, Sibling 2 will subscribe for XXXXXXXXXX for $XXXXXXXXXX per share. TC2 will be a TCC and a CCPC.

13.   Sibling 3 will incorporate a new corporation, TC3, under Act1. The authorized share capital of TC3 will consist of an unlimited number of fully participating, voting common shares.

14.   At the time of incorporation of TC3, Sibling 3 will subscribe for XXXXXXXXXX for $XXXXXXXXXX per share. TC3 will be a TCC and a CCPC.

Incorporation of transferee companies - TC Sub1, TC Sub2 and TC Sub3.

15.   TC1, TC2 and TC3 will each incorporate a new wholly-owned subsidiary under Act1. In particular, TC1 will incorporate TC Sub1; TC2 will incorporate TC Sub2 and TC3 will incorporate TC Sub3. The authorized share capital of each of the TC Subs will consist of an unlimited number of fully participating, voting common shares as well as an unlimited amount of Butterfly Shares. Each of the TC Subs will be a TCC and a CCPC.

16.   On incorporation of the TC Subs, TC1, TC2 and TC3, as the case may be, will subscribe for XXXXXXXXXX of its respective TC Sub for $XXXXXXXXXX per share.

17.   [Reserved]

Transfer of DC shares to newly incorporated TCs.

18.   On a contemporaneous basis, each of Sibling 1, Sibling 2 and Sibling 3 will transfer all of their common shares of DC to their respective TC. In particular, Sibling 1 will transfer his XXXXXXXXXX common shares of DC to TC1 in exchange for TC1 issuing XXXXXXXXXX of its common shares as sole consideration therefore having an aggregate FMV equal to the aggregate FMV of the XXXXXXXXXX common shares of DC so transferred; Sibling 2 will transfer his XXXXXXXXXX common shares of DC to TC2 in exchange for TC2 issuing XXXXXXXXXX of its common shares as sole consideration therefore having an aggregate FMV equal to the aggregate FMV of the XXXXXXXXXX common shares of DC so transferred; and Sibling 3 will transfer her XXXXXXXXXX common shares of DC to TC3 in exchange for TC3 issuing XXXXXXXXXX of its common shares as sole consideration therefore having an aggregate FMV equal to the aggregate FMV of the XXXXXXXXXX common shares of DC so transferred.

Sibling 1, Sibling 2, and Sibling 3, as the case may be, will jointly elect with their respective TC in the prescribed form and within the time limit referred to in subsection 85(6) to have the provisions of subsection 85(1) apply to the transfers. The agreed amount in respect of the shares of DC so transferred will not be greater than their FMV nor will such agreed amounts be less than the lesser of the amounts described in subparagraphs 85(1)(c.1)(i) and (ii).

The amount added to the stated capital account in respect of the common shares issued to Sibling 1, Sibling 2 and Sibling 3, as the case may be, by their respective TC will be restricted to the greater of (i) the aggregate PUC, immediately before the disposition, in respect of their common shares of DC so transferred to such TC; and (ii) their aggregate ACB of the common shares of DC, immediately before the disposition, determined in accordance with paragraph 84.1(2)(a.1). For greater certainty, the increase to the PUC of each TC’s common shares will not exceed the maximum amount that could be added to the PUC of such shares without an adjustment under paragraph 84.1(1)(a).

Types of Property

19.   DC has significant influence over DC Sub. Consequently, DC would normally be required to use the consolidated look-through method for determining the appropriate proportion of each of the three types of property that the shares of DC Sub would represent. However, since DC will transfer to each TC Sub that TC’s proportion of the DC Sub shares, as described in Paragraph 22, the determination using the consolidated look-through method will not actually be undertaken for the purposes of the definition of Distribution.

20.   The property of DC will be classified into the following three types of property for the purposes of the definition of Distribution as follows:

(a)   cash or near-cash property, comprising of DC’s cash, accounts receivable, taxes receivable, advances to related parties, prepaid expenses and guaranteed investment certificates;

(b)   investment property, comprising all of the assets of DC, other than cash or near-cash property, any income from which would, for purposes of the Act, be income from property or income from a specified investment business. This will include XXXXXXXXXX; and

(c)   business property, comprising all of the assets of DC, other than cash or near-cash property, and investment property.

For greater certainty, for purposes of the DC Transfer:

(i)   any tax accounts of DC, such as any non-capital loss, net capital loss, the balance of any ERDTOH, NERDTOH or CDA, will not be considered property or a liability, as the case may be, for purposes of the Proposed Transactions;

(ii)  deferred expenses, if any, which are expenses that are deferred and amortized for accounting purposes, but fully deducted for tax purposes, and any deferred income tax or future income tax assets recorded in the financial statements of DC, if any, will not be considered property;

(iii) the amount of any loan or advance owing to DC that is due in less than XXXXXXXXXX months or is due on demand, if any, is considered cash or near-cash property;

(iv)  the amount of any loan or advance owing by DC that is due in less than XXXXXXXXXX months or is payable on demand, if any, is considered a current liability; and

(v)   no amount will be considered a liability unless it represents a true legal liability capable of quantification. For greater certainty, the amount of any deferred income tax liability or future income taxes owing recorded in the financial statements of DC, if any, will not be considered a liability because such amount does not represent a legal obligation of DC at the time of the Proposed Transactions.

21.   In determining the net FMV of each type of property of DC immediately before the DC Transfer, the liabilities of DC will be allocated to, and deducted in, the calculation of the net FMV of each such type of property of DC in the following manner:

(a)   all current liabilities, will be allocated to each cash or near-cash property in the proportion that the FMV of each such property is of the aggregate FMV of all cash or near-cash property. The total amount of current liabilities to be allocated to cash or near cash property is not expected to exceed the aggregate FMV of the corporations’ cash or near-cash property;

(b)   liabilities of DC, other than those described in Paragraph 21(a), that relate to a particular property will then be allocated to the particular property (and effectively to the type of property to which the particular property belongs) to the extent of its FMV. The liabilities that pertain to a type of property but not to a particular property will be allocated to that type of property, but not in excess of the net FMV of such type of property after the allocation of liabilities to a particular property, as described herein; and

(c)   if any liabilities remain after the allocations described in Paragraphs 21(a) and (b) are made, such remaining liabilities will then be allocated to the cash or near-cash property, business property and investment property of DC, on the basis of the relative net FMV of each type of property immediately prior to the allocation of such remaining liabilities, but after the allocation of the liabilities as described in Paragraphs 21(a) and (b). However, where DC is considered to have a negative amount of a type of property because of the allocations in Paragraphs 21(a) or (b), for the purposes of allocating the remaining liabilities, the net FMV of that type of property will be deemed nil resulting in none of those remaining liabilities being allocated to that type of property.

DC Transfer

22.   Immediately following the determination of the net FMV of each type of property of DC, as described in Paragraphs 20 and 21, DC will contemporaneously transfer to each of TC Sub1, TC Sub2 and TC Sub3, a pro-rata portion of the net FMV of each type of property owned by it at that time, including the shares of DC Sub, such that immediately following the transfer of the properties and the assumption of DC’s liabilities as described in Paragraph 24(a), the aggregate net FMV of each type of property transferred by DC to TC Sub1, TC Sub2 or TC Sub3, as the case may be, will be equal to or approximate that proportion of each type of property determined by the formula:

A x B/C, where

A is the net FMV (determined as described above), immediately before the DC Transfer, of all property of that type owned at that time by DC;

B is the FMV, immediately before the DC Transfer, of all the issued and outstanding shares of the capital stock of DC owned, at that time, by TC1, TC2 or TC3, as the case may be; and

C is the FMV, immediately before the DC Transfer, of all the issued and outstanding shares of the capital stock of DC.

For the purposes of this Paragraph, the expression “approximate that proportion” means that the discrepancy from that proportion, if any, will not exceed XXXXXXXXXX percent (XXXXXXXXXX%), determined as a percentage of the net FMV of each type of property that TC Sub1, TC Sub2 and TC Sub3 has received on such transfer as compared to what it would have received had it received its particular TC’s exact pro-rata share of the net FMV of that type of property.

23.   [Reserved]

24.   As consideration for the property transferred by DC to TC Sub1, TC Sub2 and TC Sub3, TC Sub1, TC Sub2 and TC Sub3, as the case may be, will:

(a)   assume such liabilities of DC, as appropriate, so that each of TC Sub1, TC Sub2 and TC Sub3 will receive a proportionate share of the net FMV of each type of property owned by DC; and

(b)   issue a number of its Butterfly Shares to DC which will have an aggregate redemption amount and aggregate FMV equal to the amount by which the aggregate FMV, at the time of the DC Transfer, of the property received by such TC Sub, exceeds the aggregate amount of the liabilities of DC assumed by such TC Sub, as described in Paragraph 24(a).

25.   DC will jointly elect with TC Sub1, TC Sub2 and TC Sub3, as the case may be, in prescribed form within the time limit referred to in subsection 85(6), to have the provisions of subsection 85(1) apply to the transfer of each eligible property that is transferred by DC to TC Sub1, TC Sub2 or TC Sub3. The agreed amount in respect of each eligible property so transferred will not be greater than the FMV of such property nor will it be less than the FMV, at the time of disposition, of the consideration therefor other than shares of the capital stock of that corporation or a right to receive such shares. For greater certainty, the agreed amount in respect of each such transferred property will be within the limits prescribed as follows:

(a)   in the case of capital property (other than depreciable property of a prescribed class), an amount equal to the lesser of the amounts described in subparagraphs 85(1)(c.1)(i) and (ii);

(b)   in the case of depreciable property of a prescribed class, if any, an amount not less than the least of the amounts described in subparagraphs 85(1)(e)(i), (ii) and (iii).

TC Sub1, TC Sub2 and TC Sub3, as the case may be, will add to its respective stated capital account for the Butterfly Shares, an amount equal to the aggregate of (a) the agreed amounts, in the case of each eligible property transferred to such TC Sub, and (b) the aggregate FMV, in the case of each property transferred to such TC Sub that is not an eligible property, less (c) the aggregate amount of DCs liabilities assumed by such TC Sub as described in Paragraph 24(a).

For greater certainty, the amount to be added to the stated capital account of a TC Sub for it’s Butterfly Shares issued as partial consideration for the property transferred to it on the DC Transfer will not exceed the maximum amount that could be added to the PUC of such shares without a reduction taking place pursuant to subsection 85(2.1).

Redemption of Butterfly Shares

26.   Immediately after the transfer of the property to TC Sub1, TC Sub2 and TC Sub3 on the DC Transfer, each of TC Sub1, TC Sub2 and TC Sub3 will redeem its Butterfly Shares owned by DC for an amount equal to the aggregate redemption amount and FMV of such shares. As consideration therefore, TC Sub1, TC Sub2 and TC Sub3, as the case may be, will issue to DC a non-interest-bearing demand promissory note (the “TC Sub1 Redemption Note” in respect of TC Sub1’s share redemption, the “TC Sub2 Redemption Note” in respect of TC Sub2’s share redemption and the “TC Sub3 Redemption Note” in respect of TC Sub3’s share redemption) each having a principal amount and FMV equal to the redemption amount of such TC Sub’s Butterfly Shares. DC will accept the TC Sub1 Note, TC Sub2 Note and the TC Sub3 Note, respectively, as payment in full for the redemption of that particular TC Sub’s Butterfly Shares.

Winding Up of TC Sub1, TC Sub2 and TC Sub3

27.   Immediately following the share redemptions described in Paragraph 26 above, TC Sub1, TC Sub2 and TC Sub3’s shareholders, as the case may be, will each pass a Special Resolution to wind-up and dissolve their respective TC Sub under the applicable provisions of Act1.

28.   All properties of TC Sub1, TC Sub2 and TC Sub3 will be distributed and all liabilities of TC Sub1, TC Sub2 and TC Sub3, if any, will be either discharged or assumed by its TC. In connection with the winding-up, the TC Sub1 Redemption Note will be assumed by TC1, the TC Sub2 Redemption Note will be assumed by TC2 and the TC Sub3 Redemption Note will be assumed by TC3.

29.   Articles of Dissolution for each of TC Sub1, TC Sub2 and TC Sub3 will be filed with the Director. Upon receipt of the Articles of Dissolution, the Director will issue a Certificate of Dissolution. TC Sub1, TC Sub2 and TC Sub3 will cease to exist on the date shown on it’s Certificate of Dissolution.

30.   Any excess dividend refund or refund of overpayment of taxes for TC Sub1, TC Sub2 and TC Sub3 current taxation year to which TC Sub1, TC Sub2 and TC Sub3 becomes entitled in the course of the Proposed Transactions described herein or otherwise will be distributed, as part of the winding-up process, to it’s TC. The dividend refund, if any, will not arise until after the end of the fiscal period in which the Proposed Transactions described above are completed.

Winding up of DC

31.   Following the wind-up of TC Sub1, TC Sub2 and TC Sub3, TC1, TC2 and TC3 will resolve to wind-up and dissolve DC pursuant to the relevant provisions of Act1.

 

32.   In connection with the winding-up of DC, DC will distribute all of its assets, which will consist only of TC Sub1 Redemption Note, TC Sub2 Redemption Note and the TC Sub3 Redemption Note and the rights to any tax refunds referred to in Paragraph 34, to TC1, TC2 and TC3, as the case may be, in accordance with their respective shareholdings. In particular, DC will:

(a)   Assign and distribute TC Sub1 Redemption Note issued by TC Sub1 to TC1;

(b)   Assign and distribute TC Sub2 Redemption Note issued by TC Sub2 to TC2; and

(c)   Assign and distribute TC Sub3 Redemption Note issued by TC Sub3 to TC3.

As a result of the assignment and distribution of the Redemption Notes held by DC as described in this Paragraph, the obligation of TC1, TC2 and TC3 under the note it assumed in Paragraph 28 will merge and be extinguished.

33.   To the extent that DC has a GRIP balance at the time of the winding-up of DC, DC will designate, pursuant to subsection 89(14), to treat a portion of the Winding-up Dividend referred to in subparagraph 88(2)(b)(iii) to be an eligible dividend by notifying each of TC1, TC2 and TC3 in writing, within the time limit prescribed in section 89(14), that the portion of such dividend is an eligible dividend.

34.   Any refund of tax to which DC is entitled pursuant to the provisions of the Act as a result of over-payment of tax instalments will be distributed (under the terms of the agreement governing the winding-up of DC) pro rata to each of TC1, TC2 and TC3.

35.   After the distribution of the TC Sub1 Note, TC Sub2 Note and TC Sub3 Note as described in Paragraph 32 and the distribution of any tax refunds as described in Paragraph 34, but immediately before the formal dissolution of DC described in Paragraph 36, DC will not own or acquire any property or carry on any activity or undertaking.

36.   Within a reasonable time following the distribution of any tax refund by DC described in Paragraph 34, articles of dissolution will be filed by DC with the appropriate Corporate Registry and, upon receipt of a certificate of dissolution, DC will be dissolved.

Subsequent Event

37.   Sibling 1 and Sibling 2 will each transfer their XXXXXXXXXX common shares of DC Sub to their respective TC (TC1 and TC2) receiving common shares of their respective TC having an aggregate FMV equal to the aggregate FMV of their XXXXXXXXXX common shares of DC Sub. For greater certainty, there will be no non-share consideration on the transfer of DC Sub shares.

38.   Sibling 1 and Sibling 2, as the case may be, will jointly elect with their respective TC in the prescribed form and within the time limit referred to in subsection 85(6) to have the provisions of subsection 85(1) apply to the transfer. The agreed amount in respect of the shares of DC Sub so transferred will not be greater than their FMV nor will it be less than the FMV, at the time of disposition, of the non-share consideration received as consideration. The increase to the PUC of the common shares of their respective TC will not exceed the maximum amount that could be added to the PUC of such shares without an adjustment under paragraph 84.1(1)(a).

ADDITIONAL COMMENTS

39.   Except as described in this letter, DC did not own shares of any other corporation over which it exercise significant influence.

40.   Except as described in this letter, no property has been or will be acquired, and no liabilities have been or will be incurred or paid by DC in contemplation of and before the Proposed Transactions, other than in a transaction described in subparagraphs 55(3.1)(a)(i) to (iv).

41.   There has not been and will not be, as part of a series of transactions or events that includes the Proposed Transactions, any disposition or acquisition of property in circumstances described in subparagraphs 55(3.1)(b)(i) or (iii), or an acquisition of control in the circumstances described in subparagraph 55(3.1)(b)(ii).

42.   None of the property received by a TC on the DC Transfer will be acquired by a person unrelated to a TC, or by a partnership, as part of a series of transactions or events that includes the Proposed Transactions, in the circumstances described in paragraph 55(3.1)(c).

43.   At any time before and during the series of transactions and events that include the Proposed Transactions, none of the shares of any of the predecessor corporations, DC, TC Sub1, TC Sub2 or TC Sub3, as the case may be, will be:

(a)   the subject of any undertaking or agreement that is referred to in subsection 112(2.2) as a “guarantee agreement”;

(b)   issued or acquired as part of a transaction, event or series of transactions or events of the type described in subsection 112(2.5);

(c)   the subject of a dividend rental arrangement;

(d)   the subject of any secured undertaking of the type described in paragraph 112(2.4)(a); or

(e)   issued for consideration that is or includes:

(i)   an obligation of the type described in subparagraph 112(2.4)(b)(i), other than an obligation of a corporation that is related (otherwise than by reason of a right referred to in paragraph 251(5)(b)); or

(ii)  any right of the type described in subparagraph 112(2.4)(b)(ii).

44.   None of the corporations referred to herein is, or will be, a specified financial institution.

45.   None of the corporations referred to herein will be a corporation described in any of paragraphs (a) to (f) of the definition of “financial intermediary corporation” in subsection 191(1).

46.   TC Sub1, TC Sub2 and TC Sub3 will each have the financial capacity to honour, upon presentation for payment, the amount payable under the promissory note issued by it as part of the Proposed Transactions.

47.   None of the Taxpayers have any outstanding tax liabilities that could be affected by the Proposed Transactions and no transactions are contemplated involving TC1, TC2 and/or TC3 aside from holding the assets each acquired as a result of the Proposed Transactions and there is no plan to transfer any other assets into these corporations or to wind-up or amalgamate these corporations.

PURPOSES OF THE PROPOSED TRANSACTIONS

48.   The overall purpose of the Proposed Transactions is to allow Sibling 1, Sibling 3 and Sibling 2 to separate their interests in DC in a tax efficient manner which allows them to undertake future investments and estate planning independent from each other.

49.   The purpose of the stock split is to provide DC and its shareholders flexibility with respect to DC’s share capital and implementing the proposed transactions and subsequent to the requested transactions.

50.   The purpose of the transaction described in Paragraph 37 is to enable Sibling 1 and Sibling 2 to have their respective direct interests in DC Sub held by their respective TC. This will alleviate the need for Sibling 1 and Sibling 2 to have an additional holding corporation which will simplify their respective organizational structures.

RULINGS GIVEN

Provided that the above statements of Facts, Proposed Transactions, Purposes of the Proposed Transactions and Additional Information are accurate and constitute a complete disclosure of all relevant information, and provided that the Proposed Transactions are completed in the manner described above, our rulings are as follows:

A.    Subject to the application of subsection 69(11), provided the appropriate joint elections are filed in the prescribed form and manner within the time limit specified in subsection 85(6), subsection 85(1) will apply to:

(a)   the transfer of the common shares of DC held by Sibling 1, Sibling 2 and Sibling 3 to their respective TC as described in Paragraph 18.

(b)   the transfer of each eligible property owned by DC to TC Sub1, TC Sub2 and TC Sub3, as the case may be, on the DC Transfer described in Paragraph 22;

such that the agreed amount in respect of each such transfer of eligible property will be deemed to be the transferor’s proceeds of disposition of the particular property and the transferee’s cost thereof.

For the purposes of the joint elections, when determining the agreed amounts of depreciable property in the course of these transfers, the reference in subparagraph 85(1)(e)(i) to “the undepreciated capital cost to the taxpayer of all of the property of that class immediately before the disposition” shall mean that proportion of the UCC to the taxpayer of all the property of that class immediately before the disposition that the FMV at that time of the property that is transferred is of the aggregate FMV at that time of all the property of that class.

For greater certainty, paragraph 85(1)(e.2) will not apply to these property transfers.

B.    On the redemption by each of TC Sub1, TC Sub2 and TC Sub3 of its particular class of Butterfly Shares owned by DC, as described in Paragraph 26, by virtue of paragraph 84(3)(a) and (b), each of TC Sub1, TC Sub2 and TC Sub3, as the case may be, will be deemed to have paid, and DC will be deemed to have received, a taxable dividend at that time equal to the amount, if any, by which the amount paid in respect of the redemption of the Butterfly Shares of such TC Sub exceeds the aggregate PUC in respect of those particular shares immediately before the redemption.

C.    The provisions of subsection 88(1) will apply on the winding-up of TC Sub1 into TC1; TC Sub2 into TC2; and TC Sub3 into TC3, as the case may be, as described in Paragraph 27, so that

(a)   each property of the particular TC Sub distributed to its respective TC on the winding-up will be deemed by paragraph 88(1)(a) to have been disposed of by that TC Sub for proceeds of disposition determined under that paragraph;

(b)   the shares in the capital stock of TC Sub1, TC Sub2 and TC Sub3 held by TC1, TC2 and TC3, as the case may be, immediately before the winding-up, will be deemed by paragraph 88(1)(b) to have been disposed of by such particular TC for proceeds of disposition determined under that paragraph; and

(c)   each property of TC Sub1, TC Sub2 and TC Sub3 distributed to TC1, TC2 and TC3, as the case may be, on the winding-up will be deemed to have been acquired by such particular TC for an amount equal to the amount deemed by paragraph 88(1)(a) to be the respective TC Sub’s proceeds of disposition of the property.

D.    Subsection 84(2) and paragraph 88(2)(b) will apply to the distributions by DC described in Paragraph 32 such that:

(a)   DC will be deemed to have paid a dividend (the “Winding-up Dividend”) on the DC common shares held by TC1, TC2 and TC3, as the case may be, equal to the amount, if any, by which:

(i)   the amount or value of the funds or property distributed with respect to the shares of that class, as the case may be,

exceeds

(ii)  the amount, if any, by which the aggregate PUC in respect of the shares of that class is reduced on the distribution, as the case may be,

and each of TC1, TC2 and TC3 will be deemed to have received a taxable dividend on such class equal to that proportion of the amount of the excess that the number of shares of that class held by TC1, TC2 and TC3, as the case may be, immediately before the distribution is of the number of shares of that class outstanding immediately before the distributions;

E.    The taxable dividends described in Rulings B and D:

(a)   will be included in computing the income of the recipient corporation deemed to have received such a dividend pursuant to subsection 82(1) and paragraph 12(1)(j);

(b)   will be deductible by the recipient corporation pursuant to subsection 112(1) in computing its taxable income in the year in which such a dividend is deemed to have been received, and, for greater certainty, will not be prohibited by subsections 112(2.1), (2.2), (2.3), or (2.4);

(c)   will be excluded in determining the recipient corporation proceeds of disposition of the shares so redeemed, purchased or cancelled pursuant to paragraph (j) of the definition of “proceeds of disposition” in section 54;

(d)   will, by virtue of subsection 112(3), reduce the loss, if any, in respect of the disposition of the shares on which the dividend is deemed to be received;

(e)   will not give rise to tax under Part IV except as provided in paragraph 186(1)(b); and

(f)   will not be subject to tax under Part IV.1 or VI.1.

F.    The distribution and extinguishment of the TC Redemption Notes as described in Paragraph 32 will not, in and of itself, give rise to a “forgiven amount” within the meaning of either subsection 80(1) or section 80.01. In addition, none of DC, TC1, TC2 or TC3, as the case may be, will realize any gain or incur a loss as a result of such extinguishment.

G.    Provided that as part of the series of transactions or events that includes the Proposed Transactions, there is not:

(a)   an acquisition of property in the circumstances described in paragraph 55(3.1)(a);

(b)   a disposition of property in the circumstances described in subparagraph 55(3.1)(b)(i);

(c)   an acquisition of control in the circumstances described in subparagraph 55(3.1)(b)(ii);

(d)   an acquisition of shares in the circumstances described in subparagraph 55(3.1)(b)(iii); or

(e)   an acquisition of property in the circumstances described in subparagraph 55(3.1)(c) or (d);

which has not been described herein, then by virtue of paragraph 55(3)(b), subsection 55(2) will not apply to the taxable dividends referred to in Rulings B and D and, for greater certainty, subsection 55(3.1) will not apply to deny the exemption under paragraph 55(3)(b).

H.    On the transfer of depreciable property by DC to TC Sub1, TC Sub2, and TC Sub3, as the case may be, described in Paragraph 22, the provisions of:

(a)   subsection 1102(14) of the Regulations will apply (and subsection 1102(20) of the Regulations will not apply) to deem each depreciable property transferred to the particular transferee to be property of the same prescribed class as that of the respective transferor immediately before the transfer;

(b)   provided that the conditions specified in paragraphs 1100(2.2)(f) and (g) of the Regulations are satisfied, paragraph 1100(2.2)(h) of the Regulations will apply such that no amount will be included by any of the transferees under paragraph 1100(2)(a) of the Regulations in respect of each depreciable property of a prescribed class that is property acquired by TC Sub1, TC Sub2 or TC Sub3 from DC as described above.

I.    The provisions of subsection 15(1), 56(2), 69(1) and 246(1) will not apply to any of the Proposed Transactions, in and by themselves.

J.    The provisions of subsection 245(2) will not be applied as a result of the Proposed Transactions, in and by themselves, to re-determine the tax consequences confirmed in the rulings given herein.

These rulings are given subject to the limitations and qualifications set forth in Information Circular 70-6R9 issued on April 23, 2019, and are binding on the CRA, provided that the Proposed Transactions are completed on or before XXXXXXXXXX.

The above rulings are based on the Act in its present form and do not take into account any proposed amendments to the Act, which if enacted, could have an effect on the rulings provided herein.

Other Comments

Unless otherwise confirmed in the above rulings, nothing in this letter should be construed as implying that the CRA has confirmed, reviewed or has made any determination in respect of:

a)    The PUC of any share or the ACB or FMV of any property referred to herein;

b)    The balance of the CDA, GRIP, RDTOH, ERDTOH or NERDTOH of any corporation;

c)    The amount of any capital loss or terminal loss of any entity referred to here.

Any other tax consequence relating to the facts, Proposed Transactions, additional information, or any transaction or event taking place either prior to the Proposed Transactions or Subsequent to the Proposed Transactions, whether described in this letter or not, other than those specifically described in the rulings given above, including whether any of the Proposed Transactions would also be included in a series of transactions or events that includes other transactions or events that are not described in this letter. Nothing in this letter should be construed as confirmation, express or implied, that, for the purposes of any of the rulings given above, any adjustment to the FMV of the properties transferred or the redemption amount of the shares issued as consideration, whether pursuant to a price adjustment clause or otherwise, will be effective retroactively to the time of the transfer and issuance of shares. Furthermore, none of the rulings given in this letter are intended to apply to or in the event of the operation of a price adjustment clause, since such adjustment will be due to circumstances that do not constitute proposed transactions that are seriously contemplated.

The general position of the CRA with respect to price adjustment clauses is stated in Income Tax Folio S4-F3-C1 Price Adjustment Clauses.

An invoice for our fees in connection with this ruling request will be forwarded to you under separate cover

Yours truly,

 

XXXXXXXXXX
For Division Director
Reorganizations Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch

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© Her Majesty the Queen in Right of Canada, 2020

Tous droits réservés. Il est permis de copier sous forme électronique ou d'imprimer pour un usage interne seulement. Toutefois, il est interdit de reproduire, de modifier, de transmettre ou de redistributer de l'information, sous quelque forme ou par quelque moyen que ce soit, de facon électronique, méchanique, photocopies ou autre, ou par stockage dans des systèmes d'extraction ou pour tout usage autre que ceux susmentionnés (incluant pour fin commerciale), sans l'autorisation écrite préalable de l'Agence du revenu du Canada, Ottawa, Ontario K1A 0L5.

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