This article discusses the new proposals on the taxation of private corporations that will prevent some normal post death tax planning aimed at preventing double taxation of the same economic gain.
Much has been written regarding the proposals released by the Department of Finance on July 18, 2017 to limit income splitting and holding passive investments inside a private corporation. A third measure, namely, placing limits on the conversion of income to capital gains is aimed at preventing an individual selling shares of a corporation to a non-arm’s length person followed by a sale by the non-arm’s length person to a connected corporation. The foregoing transaction would result in the individual realizing a capital gain based on the fair market value of the transferred share followed by the tax-free extraction of corporate surplus of the transferred corporation. This is considered an inappropriate conversion of what would otherwise be a payment of dividend income into a capital gain. The difference in tax rates is about 14%.
The problem is in the application. Discussions with officials from the Department of Finance indicate that these proposals will prevent some normal post death tax planning aimed at preventing double taxation of the same economic gain (the “pipeline plan”).
The pipeline plan is illustrated in the following example: Taxpayer A incorporates a company and invests $100 for shares of the company. The company starts a business or buys investments for $100. Ten years later the shares of the company are worth $5 million. Taxpayer A dies, a capital gain of $4,999,900 is realized. However, the cost of the assets or investments in the company remains at $100. Thus, if the assets or the investments are sold for $5 million, there is a gain of the same $4,999,900, i.e., the same gain is taxed twice, once in the hands of the deceased taxpayer and once in the hands of the company. To prevent this economic double taxation, the shares of the company are sold by the estate of Taxpayer A to a new corporation for the same $5 million which then is amalgamated with the company. The tax result is that the cost base of the assets in the amalgamated company and paid-up capital of the shares of the amalgamated company is increased to $5 million. This prevents double taxation of the same gain.
Yet, the Department of Finance officials have indicated that the pipeline plan is not available because the transfer of the shares from the deceased Taxpayer A to his estate is a non-arm’s length transfer that is caught by the new proposal. It is a stretch to think of death as a “specific type of avoidance transaction”.
There is a procedure available to deal with the double taxation issue but there is a stringent time requirement which often causes such a procedure to not be available.
The Minister of Finance should heed the words of Shakespeare “Striving to do better, oft we mar what’s well”. At a bare minimum, the Minister should announce that these rules will not affect pipeline transactions.
By: Alan Schwartz, Partner, Fasken Martineau
 See also our commentary on the proposal, “Targeting Private Corporation Tax Planning: the Canadian Federal Government’s Proposal“.
 Namely, making an election pursuant to subsection 164(6).
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