2019-0828571C6 Disposition

Principal Issues: Whether a change in benchmark rate from an Interbank Offering Rate (IBOR) to a Risk-Free-Rate (RFR) in a financial instrument could result in a disposition under the Income Tax Act.

Position: The law. Factual determination. Generally, such change, in and of itself, would not result in a disposition. Whether a disposition occurs can be determined only after a review of the facts and circumstances and based on the law that governs a financial instrument.

Reasons: Whether changes to the terms of a financial product result in a disposition depends on the facts and circumstances and the law that governs the financial product.

Author: Duong, Robert
Section: 248(1) "disposition"

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                                                                                                                                      Robert Duong
December 16, 2019

Dear XXXXXXXXXX:

Re:   December 12, 2019 CRA/Financial Services Liaison Committee

We are writing in response to your question for the Financial Services Liaison Committee wherein you asked the following question:

Adjustment from the Interbank Offered Rate to alternative overnight risk-free rate

For decades, interbank offered rates (IBOR) have been at the core of the financial system’s plumbing, providing a reference for the pricing of a wide array of financial contracts affecting banks, asset managers, insurers and corporates. These include contracts for derivatives, loans and securities, etc. Benchmark transition has been on the global agenda since 2014, but in 2017, the UK’s Financial Conduct Authority (FCA) announced that by the end of 2021, it would no longer seek to compel or persuade panel banks to submit quotes for LIBOR, making clear that reliance on LIBOR (and similarly other IBORs) could no longer be assured beyond this date. Regulators globally have signaled that firms should transition away from the IBOR to alternative overnight risk-free rates (RFRs).

A number of jurisdictions, including Canada, have been working on developing alternative RFRs to replace current referenced rates (e.g. most used LIBOR currencies, other IBORs, etc.) in financial contracts. For example, the following rates have been recommended by working groups in their respective jurisdictions:

*    In Canada, the Enhanced Canadian Overnight Repo Rate Average (CORRA) for CDOR

*    In the US, the Secured Overnight Funding Rate (SOFR) will be the replacement rate for USD LIBOR 

*    In the UK, the Sterling Overnight Index Average (SONIA) will be the replacement rate for GBP LIBOR

*    In Europe, the Euro Short-Term Rate (ESTER) as the RFR in Europe

Many financial institutions around the world (including Canada) are in the process of undertaking extensive IBOR transition programs as there are number of complex operational, financial, accounting, legal, etc. issues associated with the transition.

As CRA takes the position that alterations made in the rights, preferences, terms, conditions, restrictions or limitations attaching to shares, bonds, debentures, notes, certificates, mortgages, hypothecs, agreements of sale or similar obligations (hereafter referred to collectively as “property”) can in certain instances result in a disposition of the property.

The industry would like to know whether the modifications/alterations that may be required as a result of replacement of LIBOR or other IBORs with RFRs results in a “disposition” of the property at fair market value by the holder of such property resulting in potential gains/losses to be included in computing taxable income.

Question:

Is the CRA aware of these developments and considered whether any tax consequences are triggered by a transition from an Interbank Offered Rate (IBOR) to alternative overnight risk-free rates (RFRs)?

CRA Response:

The CRA is aware of the developments regarding the change of IBORs (notably LIBOR) with alternative RFRs and the issue as to whether modifications/alternations that may be required as a result of the transition from IBORs to RFRs could result in a disposition resulting in gains or losses.

In general terms, the determination of whether an obligation has been disposed of for Canadian income tax purposes depends on whether these events are considered to result in the discharge of the obligation and the substitution of a new obligation under the law governing the former obligation, taking into account the facts and circumstances of each case.

Where the governing law is Canadian law, it is our view that making a RFR Amendment to an IBOR Instrument to accommodate the transition from IBOR to RFRs, in and of itself, would generally not constitute a disposition of the IBOR Instrument for Canadian income tax purposes.

Where foreign law governs an obligation, the determination of whether the obligation has been disposed of for Canadian income tax purposes depends, in part, on foreign legal principles. In other words, the legal effect of these events on such an obligation under the relevant foreign law must be considered in order to determine if the obligation has been disposed of for Canadian income tax purposes.

Yours truly,

G. Moore
For Director
Partnerships and Corporate Financing Section
Reorganizations Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch

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