2020-0860231R3 Post-mortem planning

Principal Issues: Post-mortem pipeline and bump transaction ruling

Position: Favourable rulings issued.

Reasons: In accordance with the Act and our published positions.

Author: XXXXXXXXXX
Section: 84(2), 84.1, 88(1), 245(2)

XXXXXXXXXX                                                                                                        2020-086023

XXXXXXXXXX, 2020

Dear Sir:

Re:   Advance Income Tax Ruling
        XXXXXXXXXX (collectively referred to as the “Taxpayers”)

This is in reply to your letter dated XXXXXXXXXX, in which you requested an advance income tax ruling on behalf of the Taxpayers.

This letter is based solely on the facts, proposed transactions, additional information and purposes of the proposed transactions described below. Any documentation submitted in respect of your request does not form part of the facts, proposed transactions or additional information unless specifically reproduced therein and any references to documentation are provided solely for the convenience of the reader.

We understand that to the best of your knowledge and that of each of the Taxpayers involved, none of the issues described herein are:

(a)   in a previously filed tax return of the Taxpayers or person related to the Taxpayers;

(b)   being considered by the CRA in connection with a previously filed tax return of the Taxpayers or a person related to the Taxpayers;

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

(d)   before the courts or, if a judgment has been issued, the time limit for appeal to a higher court has expired; and

(e)   the subject of an advance income tax ruling previously issued by the Income Tax Rulings Directorate of the CRA in connection with the Taxpayers or a person related to the Taxpayers.

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. 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”), or the Income Tax Regulations, C.R.C., c.945 (the “Regulations”), as appropriate;

ii.   All terms and conditions used in this letter 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.

DEFINITIONS

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 term is defined in section 54;

“Act 1” means the Business Corporations Act (XXXXXXXXXX);

“agreed amount” means the amount agreed on by the transferor and transferee in respect of a transfer of an eligible property in a joint election filed pursuant to subsection 85(1);

“Amalco” means a corporation to be formed by way of an amalgamation of Opco and Newco as described in Paragraph 22;

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

“Beneficiary” means XXXXXXXXXX, the son of the late XXXXXXXXXX;

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

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

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

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

“CRA” means the Canada Revenue Agency;

“Deceased” means the late XXXXXXXXXX;

“depreciable property” has the meaning assigned by subsection 13(21);

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

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

“Estate” means the estate of the late XXXXXXXXXX which is governed by the Deceased’s last will and testament. The Estate is and will be a resident of Canada at all relevant times and its first taxation year-end will be XXXXXXXXXX.

“Eligible property” means the following lands owned by Opco immediately before the amalgamation:

XXXXXXXXXX

“ERDTOH” means “eligible refundable dividend tax on hand” which has the meaning assigned by subsection 129(4);

“FMV” means “fair market value,” which refers to the amount, expressed in money terms, that is the highest price available in an open and unrestricted market between informed and prudent parties dealing at arm's length and under no compulsion to act and contracting for a taxable purchase and sale, expressed in terms of cash;

“GRE” means “graduated rate estate” and has the meaning assigned by subsection 248(1);

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

“NERDTOH” means “non-eligible refundable dividend tax on hand” which has the meaning assigned by subsection 129(4);

“Newco” means a corporation to be incorporated under Act 1;

“Note 1” means the demand non-interest bearing promissory note described in Paragraph 13;

“Note 2” means the demand non-interest bearing promissory note described in Paragraph 19;

“Opco” means XXXXXXXXXX, a corporation incorporated under Act 1;

“Paragraph” refers to a numbered or lettered paragraph of this letter and
“Subparagraph” refers to a numbered subparagraph in this letter;

“private corporation” has the meaning assigned by subsection 89(1);

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

“Proposed Transactions” means the transactions described in Paragraphs 17 to 24 of this letter;

“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 former subsection 129(3);

“resident of Canada” means resident of Canada for purposes of the Act;

“taxable Canadian corporation” has the meaning assigned in subsection 89(1);

“taxation year” has the meaning assigned by subsection 249(1);

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

“V-Day basis” has the meaning determined under paragraph 84.1(2)(a.1) for the purposes of element “B” in paragraph 84.1(1)(a); and

“Will” means the last will and testament of the Deceased.

FACTS

1.    Opco is a CCPC and a taxable Canadian corporation with a taxation year end of XXXXXXXXXX. Opco carries on a business which operates real estate rental property in XXXXXXXXXX. The business of Opco had been operated by the Deceased prior to her death.

2.    Opco’s authorized share capital consists of the following classes of shares:

a.    An unlimited number of Opco Class A and Class B common shares

i.    entitling the holder to XXXXXXXXXX per share;

ii.   entitling the holder to receive dividends; and

iii.  entitling the holder to participate in the remaining assets of Opco in the event of a wind-up, liquidation or dissolution of Opco.

b.    An unlimited number of Opco Class C, D, E and F preferred shares

i.    that do not entitle the holder to vote;

ii.   are redeemable and retractable at a price equal to a fixed amount per share, as determined by the board of directors prior to the issuance of such preferred shares of any class;

iii.  entitling the holder to receive a fixed non-cumulative dividend and the holders of the preferred shares rank head of the Class A and B common shares as to dividends; and

iv.   entitling the holder to the declared and unpaid dividends and the redemption price, in priority to any participation by the holders of the Class A and B common shares in the event of a winding-up, liquidation or dissolution of Opco.

Currently, there are XXXXXXXXXX Opco Class A common shares issued and outstanding.

3.    The Deceased passed away on XXXXXXXXXX. Immediately prior to the time of the Deceased’s death the Deceased was a resident of Canada.

4.    Immediately prior to the time of the Deceased’s death the Deceased owned the XXXXXXXXXX Opco Class A common shares having an aggregate FMV of $XXXXXXXXXX and an aggregate ACB and PUC of $XXXXXXXXXX.

5.    As a consequence of the Deceased’s death, the Deceased was deemed to have disposed of the XXXXXXXXXX Opco Class A common shares immediately before her death, and to have received proceeds of disposition equal to their FMV at that time. The Estate was deemed to have acquired the XXXXXXXXXX Opco Class A common shares for a FMV of the same amount.

6.    Due to a calculation error, the FMV that was used to report the deemed disposition of the XXXXXXXXXX Opco Class A common shares on the Deceased’s terminal T1 income tax return was overstated by $XXXXXXXXXX. This resulted in the capital gain reported on the Deceased’s terminal T1 income tax return in respect of the deemed disposition of the XXXXXXXXXX Opco Class A common shares being overstated by $XXXXXXXXXX, and the capital gains exemption claimed in respect of the XXXXXXXXXX Opco Class A common shares being overstated by $XXXXXXXXXX. The amount of the capital gain and capital gains exemption that should have been reported/claimed on the Deceased’s terminal T1 income tax return are $XXXXXXXXXX and $XXXXXXXXXX, respectively. An amended terminal T1 income tax return for the Deceased will be made by the executor to correct this calculation error as soon as possible. The ACB attributable to the XXXXXXXXXX Opco Class A shares held by the Estate, as adjusted by paragraphs 84.1(2)(a) and (a.1), is $XXXXXXXXXX (“hard ACB”).

7.    The Estate holds the Opco Class A common shares as capital property.

8.    The Beneficiary, who is a resident of Canada, is the sole executor and sole beneficiary of the Estate. The Estate will be designated as a GRE when the executor files the T3 Trust Income Tax and Information Return for the Estate’s first taxation year, due on XXXXXXXXXX.

9.    Subsequent to the passing of the Deceased, the Beneficiary became the sole director of Opco. The business of Opco is currently being operated by the Beneficiary.

10.   Opco’s significant assets consist of XXXXXXXXXX.

11.   Opco’s liabilities include current liabilities for operations, taxes, security deposits, bonuses payable, amounts due to shareholders and long-term mortgage liabilities.

12.   As of XXXXXXXXXX, Opco had the following tax account balances:

a.    NERDTOH - $XXXXXXXXXX
b.    ERDTOH - $XXXXXXXXXX
c.    GRIP - $XXXXXXXXXX

13.   To assist the Estate with funding the Deceased’s terminal T1 income tax liability, on XXXXXXXXXX, the following real estate assets (land and buildings) owned by the Estate were transferred to Opco:

XXXXXXXXXX

As consideration for these transfers, the Estate received: a demand, non-interest bearing promissory note (“Note 1”) from Opco having a principal amount and FMV equal to $XXXXXXXXXX, being equal to the lessor of the aggregate FMV of the real estate assets transferred to Opco at the date of their transfer and the aggregate ACB, or aggregate cost amount, as the case may be, of these properties to the Estate immediately before their transfer less $XXXXXXXXXX; and XXXXXXXXXX Class C preferred shares of Opco having an aggregate FMV and redemption amount equal to $XXXXXXXXXX.

The Estate and Opco will jointly elect, in prescribed form and within the time frame referred to in subsection 85(6), to have the provisions of subsection 85(1) apply to the transfer of the properties held by the Estate to Opco. The agreed amount in respect of the transfer will be $XXXXXXXXXX, the lessor of the cost base of the properties and the FMV of the properties as at the date of the transfer. The amount added to the stated capital in respect of the Class C preferred shares of Opco will be $XXXXXXXXXX, which for greater certainty, will not exceed the maximum amount permitted to be added to the PUC of the shares, having regard to subsection 85(2.1).

14.   On XXXXXXXXXX, a mortgage, secured by the real estate properties owned by Opco totalling $XXXXXXXXXX, was obtained by Opco from the XXXXXXXXXX. A CMHC certificate was obtained for these mortgages and after deducting all fees and repayment of prior mortgages, Opco received $XXXXXXXXXX.

15.   On XXXXXXXXXX Opco repaid Note 1 using a portion of the mortgage proceeds. The proceeds from Note 1 were used by the Estate to pay the Deceased’s terminal T1 income tax liabilities.

16.   On or before the date this letter is issued, the Estate will incorporate Newco under Act 1 and subscribe for XXXXXXXXXX Class A common shares of Newco for a nominal amount. Newco will be a CCPC and a taxable Canadian corporation. Newco’s authorized share capital will be comprised of an unlimited number of the following classes of shares:

a.    Class A common shares that are fully participating and carry XXXXXXXXXX per share;
b.    Class B common shares that are fully participating and carry XXXXXXXXXX per share; and
c.    Class C, D, E and F preferred shares that are non-voting, redeemable, retractable, having a redemption amount equal to the FMV of the consideration received.

PROPOSED TRANSACTIONS

The Proposed Transactions will occur in the order presented unless otherwise indicated, with the exception of filing the applicable election forms, which will be filed within the applicable due dates following the completion of the Proposed Transactions.

17.   The Estate will redeem XXXXXXXXXX Class A common share of Opco on which the capital gains exemption was claimed resulting in a deemed dividend and a capital loss expected to be $XXXXXXXXXX.

18.   The executor of the Estate will elect in prescribed manner, and within the prescribed time under subsection 164(6), to carry back the Estate’s capital loss, described in Paragraph 17, to reduce a portion of the capital gain that arose from the deemed disposition of the Opco Class A common shares realized on the Deceased’s terminal T1 income tax return (as amended) as described in Paragraph 6.

19.   The Estate will transfer its XXXXXXXXXX Class A common shares of Opco to Newco in exchange for consideration consisting of:

a.    a demand non-interest bearing promissory note (“Note 2”) having a principal amount and FMV equal to the lesser of:

i.    the aggregate FMV of the XXXXXXXXXX Class A common shares of Opco as at XXXXXXXXXX; and

ii.   the aggregate FMV of such shares at date of the transfer by Opco to Newco;

iii.  less $XXXXXXXXXX, and

b.    a number of Class C preferred shares of Newco having an aggregate FMV and redemption amount equal to:

i.    the greater of $XXXXXXXXXX and

ii.   the amount, if any, by which the aggregate FMV of the XXXXXXXXXX Class A common shares of Opco at the date of the transfer exceeds the FMV of Note 2.

The Estate and Newco will jointly elect, in prescribed form and within the time referred to in subsection 85(6), to have the provisions of subsection 85(1) apply to the transfer of the XXXXXXXXXX Class A common shares held by the Estate to Newco. For greater certainty, the agreed amount will not be more than the amount described in paragraph 85(1)(c), will not be less than the lesser of the two amounts specified in paragraph 85(1)(c.1) and will not be less than the amount described in paragraph 85(1)(b).

The amount added to the stated capital in respect of the Class C preferred shares of Newco will not exceed the maximum amount permitted to be added to the PUC of such shares resulting in an adjustment in computing the PUC, having regard to paragraph 84.1(1)(a).

For greater certainty, the sum of the principal amount of Note 2 and the PUC of the Class C preferred shares of Newco issued as consideration for the XXXXXXXXXX Class A common shares of Opco so transferred will not exceed the aggregate FMV of the XXXXXXXXXX Class A common shares owned by the Deceased immediately before the Deceased’s death.

20.   The Estate will transfer its XXXXXXXXXX Class C preferred shares of Opco to Newco in exchange for consideration consisting of XXXXXXXXXX Class D preferred shares of Newco having an aggregate redemption amount equal to the aggregate FMV of the XXXXXXXXXX Class C preferred shares of Opco so transferred, which for greater certainty, is equal to the aggregate redemption amount of the XXXXXXXXXX Class C preferred shares of Opco.

The Estate and Newco will jointly elect, in prescribed form and within the time referred to in subsection 85(6), to have the provisions of subsection 85(1) apply to the transfer of the Class C preferred shares held by the Estate to Newco.

For greater certainty, the agreed amount will not be more than the amount described in paragraph 85(1)(c), will not be less than the lesser of the two amounts specified in paragraph 85(1)(c.1).

The amount added to the stated capital in respect of the XXXXXXXXXX Class D preferred shares of Newco will not exceed the maximum amount permitted to be added to the PUC of such shares, having regard to subsection 84.1(1)(a).

21.   Opco will continue to carry on its business for at least twelve months following the share transfers described in Paragraphs 19 and 20. During the twelve months period, Newco may pay taxable dividends equal to the amount of the dividends paid by Opco. If any dividends are paid such dividends will be funded from the ongoing business operations of Opco, and for greater certainty, these dividends will not be funded by way of a disposition of corporate assets or investments. When the dividends are received by the Estate, they may be distributed to the Beneficiary of the Estate.

22.   Opco will amalgamate with Newco to form Amalco after a period of at least twelve months has elapsed from the time of the share transfers described in Paragraphs 19 and 20. In accordance with subsection 87(1), all of the property and all of the liabilities of Opco and Newco immediately before the amalgamation, will become property and liabilities of Amalco. As all of the shares of Opco prior to the amalgamation were owned by Newco, the shares of Newco will be designated as shares of Amalco and there will be no new shares issued on the amalgamation.

23.   In connection with the amalgamation of Opco and Newco described in Paragraph 22, Amalco will designate, in its return of income for its first taxation year, an amount under the provisions of subsection 87(11) and paragraphs 88(1)(c) and (d) and within the limits thereto, to increase the ACB of the capital property, other than ineligible property, previously owned by Opco. For greater certainly, such capital property consists only of the Eligible property which has been owned continuously by Opco, from a time that is before the date of death of the Deceased until immediately prior to the amalgamation and the shares of the capital stock of Opco will not be acquired by a person described in subclauses 88(1)(c)(vi)(B)(I), (II) or (III) as part of the series of transactions or events that includes the amalgamation of Opco with Newco.

24.   Note 2 will be gradually repaid over a period of at least one year after the amalgamation of Newco and Opco. For greater certainty, the amount of the repayments in any given quarter of that year will not exceed XXXXXXXXXX% of the principal amount of Note 2 when it was issued. While Amalco may sell some of its assets to repay Note 2, at all times, it will continue to carry on the business formerly carried on by Opco.

ADDITIONAL INFORMATION

25.   For greater certainty, there is no V-day basis included in the ACB of any class of Opco shares.

26.   The Taxpayers have represented that in its first taxation year, the Estate will not realize a capital gain which would reduce the capital loss described in Paragraph 17.

27.   Reserved.

PURPOSES OF THE PROPOSED TRANSACTIONS

28.   The purpose of the Proposed Transactions is to reduce the capital gain reported on the Deceased’s terminal T1 income tax return, and to return to the Estate an amount up to the FMV, immediately before the Deceased’s death, of the Opco Class A common shares while minimizing the inherent double tax exposure that can result from the application of subsections 70(5), 84(2) and 84(3).

29.   Specifically, the purpose of the Proposed Transactions described in Paragraphs 17 and 18 is to trigger a deemed dividend to the Estate and a capital loss, which is then carried back to the Deceased’s terminal T1 income tax return to eliminate the capital gain on the deemed disposition imposed by paragraph 70(5)(a).

30.   The purpose of the Proposed Transactions is also to create a “pipeline” in order to allow for the distribution of funds from Opco to the Estate, without triggering additional taxes on the value of the Estate’s interest in Opco for which the taxes were already paid or payable as a result of death of the Deceased.

31.   The purpose of the Proposed Transaction described in Paragraph 23 is to avoid potential double tax resulting from the cancellation of the Opco Class A common shares on the amalgamation of Opco and Newco, by obtaining an increase in the ACB of the Eligible property owned by Opco, in accordance with subsection 87(11) and paragraphs 88(1)(c) and (d).

RULINGS GIVEN

Provided the foregoing statements constitute a complete and accurate disclosure of all the relevant facts, additional information, Proposed Transactions and purpose of the Proposed Transactions, and provided that the Proposed Transactions are completed in the manner described above, we confirm the following:

A.    Section 84.1 will not apply to deem the Estate to have received a dividend from Newco, on the disposition of the XXXXXXXXXX Class A common shares of Opco, described in Paragraph 19, provided that the aggregate FMV of Note 2 and the PUC of the Class C preferred shares of Newco received as consideration for such shares, immediately after the disposition, is equal to or less than the aggregate ACB of such Opco shares to the Estate, immediately before the disposition, as modified by paragraph 84.1(2)(a.1).

B.    Section 84.1 will not apply to cause a reduction in the PUC of the Class D preferred shares of Newco, described in Paragraph 20, provided that the aggregate PUC of the Class D preferred shares of Newco received as consideration for such shares, immediately after the disposition, is equal to or less than the aggregate ACB of such Opco shares to the Estate, immediately before the disposition, as modified by paragraph 84.1(2)(a.1).

C.    Subsection 84(2) will not apply as a result of the Proposed Transactions, in an by themselves, to deem Opco to have paid, and the Estate to have received, a dividend on the Opco Class A common shares owned by the Estate on the disposition of the XXXXXXXXXX Opco class A common shares to Newco.

D.    Subsection 84(2) will not apply as a result of the Proposed Transactions, in an by themselves, to deem Opco to have paid, and the Estate to have received, a dividend on the Opco Class C preferred shares owned by the Estate on the disposition of the XXXXXXXXXX Opco Class C preferred shares to Newco.

E.    As a result of the application of paragraphs 88(1)(d.2) and (d.3), for the purposes of paragraphs 88(1)(c) and (d), Newco will be deemed to have last acquired control of Opco from an arm’s length person at the time immediately after the death of the Deceased.

F.    The provisions of subsections 87(11) and 88(1) will apply to the amalgamation of Opco and Newco to form Amalco as described in Paragraph 22 such that:

(a)   provided Amalco makes the appropriate designation as described in Paragraph 23, paragraphs 88(1)(c) and 88(1)(d) will apply to increase the cost basis of the Eligible property to the amount designated, which for greater certainty, will not exceed the maximum amount that could be added to the ACB for such Eligible property having regard to paragraph 88(1)(d) and provided the Eligible property will not be acquired by a person described in subclauses 88(1)(c)(vi)(B)(I), (II) or (III) as part of the series of transactions or events that includes the amalgamation of Opco and Newco; and

(b)   paragraph 88(1)(b) will apply to deem Newco to dispose of its shares of Opco upon the amalgamation for proceeds equal to the greater of the amounts described in subparagraphs 88(1)(b)(i) and (ii).

G.    The provisions of subsection 245(2) will not apply as a result of the Proposed Transactions, in and by themselves, to re-determine the tax consequences stated in the rulings given above.

The above rulings are given subject to the limitations and qualifications set out in Information Circular 70-6R10 dated September 29, 2020 and are binding on the CRA provided that the Proposed Transactions are completed within the time frame described in this letter, unless otherwise stated.

The above rulings are based on the law as it presently reads and do not take into account any proposed amendments to the Act and the Regulations which, if enacted, could have an effect on the rulings provided therein.

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, UCC or FMV of any share or property referred to herein;

(b)   the balance of the NERDTOH, ERDTOH, CDA, GRIP, or any other tax account for any corporation described herein;

(c)   that the executors of the Estate are able to complete the Proposed Transactions under the terms of the Will;

(d)   that any person or individuals described therein deal, or do not deal, with any other person or individuals at arm’s length; and

(e)   any other tax consequence relating to the facts, additional information, Proposed Transactions 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, including, but not limited to the tax consequences associated with the settlement and distribution of Note 1 and Note 2, as well as any other assets of the Estate, other than those specifically described in the rulings given above.

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

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