News of Note
Suncor Energy – Tax Court of Canada finds that a s. 13(31)(a) deemed property acquisition by an LP did not accord it a corresponding deemed taxation year under the 2-year rolling start rule
Email this ContentSuncor acquired a Class 41 property in January 2005, then on January 1, 2006 transferred it on a s. 97(2) rollover basis to a limited partnership (the “LP”) of which it was the 99.9% general partner and whose first taxation year extended from February 1, 2005 to January 31, 2006 and second taxation year ended on January 31, 2007 (the “2007 taxation year”). S. 13(31)(a) deemed the LP to have acquired the property for purposes of s. 13(27)(b) at the time of its acquisition by Suncor, i.e., in January 2005. The LP claimed CCA in its 2007 taxation year on the basis that s. 13(31)(a) deemed it to have acquired the property on the first day of that taxation year, i.e., it was effectively deemed by s. 13(31)(a) to have a notional taxation year beginning on February 1, 2004 and ending on January 31, 2005, so that on the beginning of its 2007 taxation year it satisfied the test in s. 13(27)(b) that such time followed the end of a taxation year of more than 357 days which, in turn, followed the taxation year in which the taxpayer had acquired the property.
In rejecting this position, so that the LP could not claim CCA on the property in its 2007 taxation year, D’Arcy J stated:
Subsection 13(31) deems an acquisition of property to occur on a different day than the day that the property was actually acquired. However, that is all it does … .
There is nothing in the wording of subsection 13(31) that creates the fiction of the Limited Partnership having a year-end prior to February 1, 2005 … .
[T]he Appellant’s position defeats the purpose of the two-year rolling start rule by shortening the length of time that the Limited Partnership is required to have held the property to one completed taxation year.
Neal Armstrong. Summary of Suncor Energy Inc. v. The King, 2024 TCC 31 under s. 13(31)(a).
CRA indicates that it would continue to be bound by a ruling regarding the deductibility of interest accruing to a US parent notwithstanding s. 69(2) being supplanted by s. 247(2)
In the early 1980s, Holdco received a ruling as to the deductibility (subject to s. 18(4)) of its interest expense on a 40-year U.S. $15 million debenture (“Debenture”) issued by it to Parent, which bore interest for each year of the lesser of 11% per annum and Holdco’s profits in that year. The principal was payable on demand, but only if Holdco satisfied a net-worth test. Holdco currently has 14 subordinated income instruments (“SIIs”) owing in an aggregate amount of C$1.6 B to a related non-resident entity.
Headquarters indicated that CRA would continue to be bound by the ruling notwithstanding the replacement of s. 69(2) by s. 247(2). The ruling did not apply to the other SIIs.
Regarding whether the terms of those SIIs complied with s. 247(2), it summarized statements in Chapter X of the current OECD Transfer Pricing Guidelines, and then stated:
In the case of any particular SII, the economically relevant characteristics include those that were in existence at the time the instrument was executed. Thus, for transfer pricing purposes, the expected yield to maturity of a particular SII is a relevant factor in determining whether the interest rate of the SII is consistent with the arm’s length principle.
Neal Armstrong. Summary of 7 July 2022 Internal T.I. 2021-0893791I7 under s. 247(2).
CRA indicates that it will not impose penalties for late-filed 2023 bare-trust returns except in extreme circumstances
Absent CRA relief (and ignoring any due diligence defence), a bare trust which fails to timely file a T3 return and Sched. 15 for its 2023 taxation year will be subject to a s. 162(7) penalty of $25 per late-filing day up to a maximum of $2,500, and also might be exposed to a gross negligence penalty equal to the greater of $2,500 and 5% of the highest amount at any time in the year of the fair market value of all the trust property.
In a March 12 update to its webpage on bare trust reporting, CRA stated:
As some bare trusts may be uncertain about the new requirements, the CRA is adopting an education-first approach to compliance and providing relief to bare trusts by waiving the penalty payable under subsection 162(7) … for the 2023 tax year in situations where the T3 Return and Schedule 15 are filed after the filing deadline for reasons other than gross negligence. …
While the Act also includes a gross negligence penalty under subsection 163(5), as part of the CRA’s education-first approach, the CRA will only apply this penalty in the most egregious cases where a bare trust fails to file. Imposing such penalty would only occur in the context of a compliance action, such as an audit, where all factors and circumstances of the taxpayer’s particular situation are considered together. A gross negligence penalty for failing to file will be subject to oversight and approval by Headquarters, following a mandatory referral.
Neal Armstrong. Summaries of CRA Webpage, New reporting requirements for trusts: T3 returns filed for tax years ending after December 30, 2023, updated on 12 March 2024 under s. 162(7), s. 163(5) and s. 150(1.2).
Income Tax Severed Letters 13 March 2024
This morning's release of four severed letters from the Income Tax Rulings Directorate is now available for your viewing.
STEP Canada submits that the names of individuals with significant control of CBCA corporations should not be posted on-line (and that their names not be searchable)
Since January 2024, the on-line corporate register for federally incorporated (CBCA) companies. has been posting the names of individuals who are the ultimate beneficial owners and controllers of CBCA companies. STEP has submitted that this represents an unjustified invasion of privacy to persons involved with companies.
The submission supports a stated goal for the register of combatting tax evasion and money laundering, but suggests that the information can be submitted to the government without there being a requirement to post the information on-line (as is the case in the US under their federal Corporate Transparency Act in force there since January 1, 2024). The submission requests that the government reverse its decision to post on-line the beneficial owners (called individuals with significant control in the legislation) but, failing that, there should only be the ability for the public to search by company name, and not the implementation of a search by name of individuals so as to obtain a list of all companies in which they are involved: this would constitute a serious invasion of privacy.
Neal Armstrong. Summary of STEP Canada, 21 February 2024 submission to Genevieve Gobeil, Acting Senior Policy Manager, Innovation, Science and Economic Development Canada entitled “Re: Bill C-42, Canada Business Corporations Act amendments (public disclosure of the beneficial ownership register)” under CBCA, s. 21.303.
Singapore Telecom – Federal Court of Australia, Full Court finds that an independent enterprise would have agreed to allow cross-border interest to be capitalized, but not to make it contingent on cash flow
The taxpayer (“STAI”) - a wholly-owned Australian subsidiary of a Singapore public company - purchased in June 2002 all the shares of an Australian telecommunications company from a Singapore sister company (“SAI”). SAI provided $5.2 billion of vendor financing pursuant to a note facility that had a term of 10 years and provided for interest at the one year bank bill swap rate from time to time plus 1%. However, SAI had the right to choose to defer the payment of the interest, which it did for the first tax year given the initial low cash flow of STAI.
Under a loan amendment made at the end of the first taxation year (on March 31, 2003), the accrued interest was forgiven, a profitability benchmark was introduced so that no interest would be payable unless that benchmark was met and the (now contingent) rate of interest was increased by a further 4.552% per annum of the principal. A further amendment made on March 30, 2009 replaced the variable interest rate with a fixed rate of 13.2575% for the balance of the loan term.
The Commissioner applied the Australian transfer-pricing rules (which referenced the related-person Article of the Singapore-Australia Treaty, and tested whether conditions operated between the two enterprises (STAI and SAI) in their commercial or financial relations which differed from those which might be expected to operate between independent enterprises dealing wholly independently with one another) to substantially reduce the interest claims of STAI for its tax years ending on 31 March 2011, 2012 and 2013.
The primary judge had found that independent enterprises in the positions of SAI and STAI might have been expected to have agreed at the time of the notes’ issuance that the interest rate applicable to the notes would be the rate actually agreed (the swap rate plus 1%) and that such interest rate could be deferred and capitalized. This interest rate took into account that, in such circumstances, there would be a guarantee by the parent, given that it would not be commercially rational to bear the significantly higher interest rate that would have been required without such a guarantee, and it would have been reasonable for a party like SAI to seek security. Furthermore, no guarantee fee should be imputed as there was no evidence that under the hypothetical conditions the parent would have charged such a fee.
In addition, an independent party in the position of SAI would not have agreed to make the changes contained in the two amendments.
The Full Court found no reversible error in the findings of the primary judge. It rejected the contention of STAI that the amount of interest actually paid over the 10 year period was equal to or less than that which might be expected to have been paid between independent parties in similar circumstances over the same period, as the transfer-pricing standard was required to be met on a tax year by tax year basis – and the Commissioner had the discretion to adjust the interest for earlier years upwards. Regarding the 2003 amendment, it noted the primary judge’s finding that there did not appear to be any commercial rationale for it, and that it had been implemented to avoid withholding tax. It noted that it was consistent with applying the independent enterprises hypothesis having regard to the circumstances of each enterprise to impute that the creditor (SAI) would have required a parent guarantee for a $5.2 billion loan.
Neal Armstrong. Summary of Singapore Telecom Australia Investments Pty Ltd v Commissioner of Taxation [2024] FCAFC 29 under Treaties – Income Tax Conventions – Art. 9.
We have translated 6 more CRA interpretations
We have translated 6 further CRA interpretations issued in April of 2002. Their descriptors and links appear below.
These are additions to our set of 2,774 full-text translations of French-language Technical Interpretation and Roundtable items (plus some ruling letters) of the Income Tax Rulings Directorate, which covers all of the last 22 years of releases of such items by the Directorate. These translations are subject to our paywall (applicable after the 5th of each month).
CRA will not change its GAAR positions in IC 88-2 and the Supplement as a result of the GAAR amendments
Regarding the impact of Bill C-59 on the GAAR positions in IC 88-2 and IC 88-2 Supplement 1, CRA stated:
[T]he application of the amended section 245 must be in accordance with the object, spirit and purpose of such provision and of the other provisions that are relied upon by the taxpayer as well as, ensure that economic substance receives proper consideration.
That being said, our general view is that the conclusions reached in the examples provided in IC 88-2 and IC 88-2 Supplement 1 should remain the same under the amended section 245.
Neal Armstrong. Summary of 28 February 2024 Internal T.I. 2024-1008251I7 under s. 245(4).
CRA concludes that a Liechtenstein stiftung was a trust for ITA purposes
A Liechtenstein stiftung was formed in order to invest its funds and make distributions to beneficiaries as determined in the discretion of its foundation council. It had legal personality and owned the property allocated by the founder.
CRA first noted that “[d]escribing a trust by reference to dual ownership or equity in an international context would have the result of ignoring all civil law arrangements that have adopted the trust idea of the administration of assets for the benefit of others.” It concluded that the stiftung had more in common with a trust than a corporation (and, thus, should be treated as a trust for ITA purposes) given inter alia that:
- it had no form of “share capital” or other ownership interests which conveyed a right to distributions of earnings or capital
- it was created by an endowment from a founder much like a trust settlement
- it had beneficiaries, named in its by-laws
- its executive bodies administered and used the property transferred by the founder for the benefit and advantage of the beneficiaries similarly to a trustee
- unlike a corporation, it was restricted to investing rather than carrying on a commercial business.
These conclusions were consistent with 2008-0266251I7 and 2010-0388611I7.
Neal Armstrong. Summary of 22 July 2023 Internal T.I. 2021-0883241I7 under s. 104(1).
3295940 Canada – Federal Court of Appeal finds no abuse in a tax plan producing the same gain as if the ultimate shareholder had directly used its high outside basis for its investment
The taxpayer (3295) was a holding company with a minority shareholding in a target company (Holdings) with a low ACB, whereas 3295’s parent (Micsau) had a high ACB for its 3295 shares. Unfortunately, the majority shareholder of Holdings (RoundTable) negotiated the initial terms of the sale without Micsau’s involvement, which provided for a sale of the shares of Holdings to Novartis by its two shareholders. However, Micsau subsequently contacted Novartis, and negotiated that it could sell its shares of Holdings through a Newco (4244 referred to below).
Under that plan:
- Micsau created a sister company (4244) to 3295 to which it transferred newly-created preference shares of 3295 having an ACB (of $31.5M) equal to their redemption amount in exchange for full-ACB shares of 4244.
- 3295 then transferred its Holdings shares to 4244 on a partial s. 85 rollover basis in exchange for Class D and common shares, and realized a capital gain corresponding to the capital gain (of $53M) that it would have realized had it sold its 3295 shares to Novartis; this capital gain was reflected in the full-ACB (of $57M) Class D shares which it received from 4244, whereas its common shares of 4244 had a high FMV (of $31.5M) and nominal ACB.
- 3295 redeemed the preference shares held by 4244 (see 1 above) for a $31.5M note, and elected for the resulting $31.5M deemed dividend to be a capital dividend paid to 4244.
- 4244 redeemed $31.5M of the low-ACB common shares that it had issued to 3295 in Step 2 for a $31.5M note, and elected for the resulting $31.5M deemed dividend to be a capital dividend paid to 3295.
- Then the two notes were set off, Micsau transferred its shares of 4244 to 3295, and 3295 sold the shares of 4244 to Novartis at no further capital gain.
Goyette JA found that in determining “whether transactions forming part of a series are abusive, one must consider the ‘entire series of transactions’ or its ‘overall result’” and that, here, the overall result of the series was the same as if Micsau had sold its 3295 shares to Novartis.
Furthermore, the Tax Court had erred in considering that the cross-redemption capital dividend (Steps 3 and 4) reduced the capital gain that 3295 would have realized from disposing of its commons shares in 4244 immediately before the dividend. Thus, the “series’ overall result [was] consistent with the object, spirit and purpose of the capital gains regime as previously identified by this Court—that is, to tax real economic gains: Triad Gestco … “.
In addition, "courts consider alternative transactions’ tax consequences when determining whether tax avoidance is abusive”. The Tax Court had erred in failing to consider four alternative transactions which would have produced the same tax result (of using the high outside tax basis in 3295 shares) as those implemented, such as a tuck-under transaction, or having RoundTable purchase the 3295 shares, and bump the Holdings’ shares under s. 88(1)(d) on winding-up 3295.
Goyette JA stated that these transactions were relevant because they were: available under the Act; realistic alternatives; commercially similar to the subject transactions and with similar tax results; and reflecting a similar absence of abuse, i.e., they “would have enabled Micsau to realize its high ACB without attracting the application of the GAAR.”
Neal Armstrong. Summary of 3295940 Canada Inc. v. Canada, 2024 FCA 42 under s. 245(4).