Technical Tax Amendments Act, 2012 (S.C. 2013, c. 34)
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Assented to 2013-06-26
PART 5OTHER AMENDMENTS TO THE INCOME TAX ACT AND RELATED LEGISLATION
R.S., c. 1 (5th Supp.)Income Tax Act
224. (1) Paragraph 88(1)(c.1) of the Act is replaced by the following:
(c.1) for the purpose of determining after the winding-up the amount to be included under subsection 14(1) in computing the parent’s income in respect of the business carried on by the subsidiary immediately before the winding-up
(i) there shall be added to the amount otherwise determined for each of the descriptions of A and F in the definition “cumulative eligible capital” in subsection 14(5), the total of all amounts, each of which is the amount, if any,
(A) determined for the description of F in that definition in respect of that business immediately before the winding up,
(B) determined under this subparagraph as it applied to the subsidiary in respect of a winding-up before that time, or
(C) determined under paragraph 85(1)(d.11) as it applied to the subsidiary in respect of a disposition to the subsidiary before that time, and
(ii) there shall be added to the amount determined for the description of C in the formula in paragraph 14(1)(b), the total of all amounts, each of which is an amount that is
(A) one-half of the amount, if any, determined for the description of Q in that definition in respect of that business immediately before the winding up,
(B) determined under this subparagraph as it applied to the subsidiary in respect of a winding-up before that time, or
(C) determined under paragraph 85(1)(d.1) as it applied to the subsidiary in respect of a disposition to the subsidiary before that time;
(2) Paragraph 88(1)(c.3) of the Act is amended by striking out “or” at the end of subparagraph (iv) and by adding the following after subparagraph (v):
(vi) a share of the capital stock of the subsidiary or a debt owing by it, if the share or debt, as the case may be, was owned by the parent immediately before the winding-up, or
(vii) a share of the capital stock of a corporation or a debt owing by a corporation, if the fair market value of the share or debt, as the case may be, was not, at any time after the beginning of the winding-up, wholly or partly attributable to property distributed to the parent on the winding-up;
(3) Subparagraph 88(1)(c.4)(i) of the Act is replaced by the following:
(i) a share of the capital stock of the parent that was
(A) received as consideration for the acquisition of a share of the capital stock of the subsidiary by the parent or by a corporation that was a specified subsidiary corporation of the parent immediately before the acquisition, or
(B) issued for consideration that consists solely of money,
(4) Paragraph 88(1)(e.6) of the Act is replaced by the following:
(e.6) if a subsidiary has made a gift in a taxation year (in this section referred to as the “gift year”), for the purposes of computing the amount deductible under section 110.1 by the parent for its taxation years that end after the subsidiary was wound up, the parent is deemed to have made a gift, in each of its taxation years in which a gift year of the subsidiary ended, equal to the amount, if any, by which the total of all amounts, each of which is the amount of a gift or, in the case of a gift made after December 20, 2002, the eligible amount of the gift, made by the subsidiary in the gift year exceeds the total of all amounts deducted under section 110.1 by the subsidiary in respect of those gifts;
(5) The portion of paragraph 88(1.1)(e) of the Act before subparagraph (i) is replaced by the following:
(e) if control of the parent has been acquired by a person or group of persons at any time after the commencement of the winding-up, or control of the subsidiary has been acquired by a person or group of persons at any time whatever, no amount in respect of the subsidiary’s non-capital loss or farm loss for a taxation year ending before that time is deductible in computing the taxable income of the parent for a particular taxation year ending after that time, except that such portion of the subsidiary’s non-capital loss or farm loss as may reasonably be regarded as its loss from carrying on a business and, where a business was carried on by the subsidiary in that year, such portion of the non-capital loss as may reasonably be regarded as being in respect of an amount deductible under paragraph 110(1)(k) in computing its taxable income for the year is deductible only
(6) Subsection (1) applies in respect of the disposition of an eligible capital property by a subsidiary to a parent unless
(a) the disposition by the subsidiary occurred before December 21, 2002; and
(b) the parent disposed of the eligible capital property, before November 9, 2006, and in a taxation year of the parent ending after February 27, 2000, to a person with whom the parent did not deal at arm’s length at the time of that disposition by the parent.
(7) Subsections (2) and (3) apply to windings-up that begin, and amalgamations that occur, after 1997.
(8) Subsection (4) applies to windings-up that begin, and amalgamations that occur, after December 20, 2002.
(9) Subsection (5) applies to windings-up that begin after May 1996.
225. (1) Clause (a)(i)(A) of the definition “capital dividend account” in subsection 89(1) of the Act is replaced by the following:
(A) the amount of the corporation’s capital gain — computed without reference to subparagraphs 52(3)(a)(ii) and 53(1)(b)(ii) — from the disposition (other than a disposition that is the making of a gift after December 8, 1997 that is not a gift described in subsection 110.1(1)) of a property in the period beginning at the beginning of its first taxation year that began after the corporation last became a private corporation and that ended after 1971 and ending immediately before the particular time (in this definition referred to as “the period”)
(2) Clause (a)(i)(A) of the definition “capital dividend account” in subsection 89(1) of the Act, as enacted by subsection (1), is replaced by the following:
(A) the amount of the corporation’s capital gain — computed without reference to subparagraphs 52(3)(a)(ii) and 53(1)(b)(ii) — from the disposition (other than a disposition under subsection 40(12) or that is the making of a gift after December 8, 1997 that is not a gift described in subsection 110.1(1)) of a property in the period beginning at the beginning of its first taxation year (that began after the corporation last became a private corporation and that ended after 1971) and ending immediately before the particular time (in this definition referred to as “the period”)
(3) Clause (a)(i)(A) of the definition “capital dividend account” in subsection 89(1) of the Act, as enacted by subsection (2), is replaced by the following:
(A) the amount of the corporation’s capital gain — computed without reference to subparagraphs 52(3)(a)(ii) and 53(1)(b)(ii) — from the disposition (other than a disposition under paragraph 40(3.1)(a) or subsection 40(12) or a disposition that is the making of a gift after December 8, 1997 that is not a gift described in subsection 110.1(1)) of a property in the period beginning at the beginning of its first taxation year that began after the corporation last became a private corporation and that ended after 1971 and ending immediately before the particular time (in this definition referred to as “the period”)
(4) Clause (a)(ii)(A) of the definition “capital dividend account” in subsection 89(1) of the Act is replaced by the following:
(A) the amount of the corporation’s capital loss — computed without reference to subparagraphs 52(3)(a)(ii) and 53(1)(b)(ii) — from the disposition (other than a disposition that is the making of a gift after December 8, 1997 that is not a gift described in subsection 110.1(1)) of a property in the period
(5) Clause (a)(ii)(A) of the definition “capital dividend account” in subsection 89(1) of the Act, as enacted by subsection (4), is replaced by the following:
(A) the amount of the corporation’s capital loss — computed without reference to subparagraphs 52(3)(a)(ii) and 53(1)(b)(ii) — from the disposition (other than a disposition under subsection 40(3.12) or a disposition that is the making of a gift after December 8, 1997 that is not a gift described in subsection 110.1(1)) of a property in the period
(6) The portion of paragraph (f) of the definition compte de dividendes en capital in subsection 89(1) of the French version of the Act before clause (i)(B) is replaced by the following:
f) le total des montants représentant chacun un montant relatif à une distribution qu’une fiducie a effectuée sur ses gains en capital en faveur de la société au cours de la période et dont le montant est égal au moins élevé des montants suivants :
(i) l’excédent du montant visé à la division (A) sur le montant visé à la division (B) :
(A) le montant de la distribution,
(7) Clause (f)(i)(B) of the definition “capital dividend account” in subsection 89(1) of the Act is replaced by the following:
(B) the amount designated under subsection 104(21) by the trust (other than a designation to which subsection 104(21.4), as it read in its application to the corporation’s last taxation year that began before November 2011, applied) in respect of the net taxable capital gains of the trust attributable to those capital gains, and
(8) The portion of paragraph (g) of the definition compte de dividendes en capital in subsection 89(1) of the French version of the Act before subparagraph (ii) is replaced by the following:
g) le total des montants représentant chacun un montant relatif à une distribution qu’une fiducie a effectuée en faveur de la société au cours de la période au titre d’un dividende (sauf un dividende imposable) qui a été versé à la fiducie au cours d’une année d’imposition de celle-ci tout au long de laquelle elle a résidé au Canada, sur une action du capital-actions d’une autre société résidant au Canada, et dont le montant est égal au moins élevé des montants suivants :
(i) le montant de la distribution,
(9) Paragraph (b) of the definition “taxable Canadian corporation” in subsection 89(1) of the Act is replaced by the following:
(b) was not, by reason of a statutory provision other than paragraph 149(1)(t), exempt from tax under this Part;
(10) Subsections (1) and (4) apply in respect of dispositions that occur on or after November 9, 2006.
(11) Subsection (2) applies to dispositions that occur on or after March 22, 2011.
(12) Subsection (3) applies to dispositions under paragraph 40(3.1)(a) of the Act that occur after October 31, 2011.
(13) Subsection (5) applies to dispositions under subsection 40(3.12) of the Act that occur after October 31, 2011, other than dispositions that relate to amounts deemed under subsection 40(3.1) of the Act to have been a gain from a disposition that occurred before November 1, 2011.
(14) Subsections (6) and (8) apply to elections in respect of capital dividends that become payable after 1997.
(15) Subsection (7) applies to taxation years that begin after October 31, 2011.
(16) Subsection (9) applies in respect of taxation years that end after 1999.
226. (1) Subparagraph 91(4)(a)(ii) of the Act is replaced by the following:
(ii) the taxpayer’s relevant tax factor for the year, and
(2) Section 91 of the Act is amended by adding the following after subsection (4):
Marginal note:Denial of foreign accrual tax
(4.1) For the purposes of the definition “foreign accrual tax” in subsection 95(1), foreign accrual tax applicable to a particular amount included in computing a taxpayer’s income under subsection (1) for a taxation year of the taxpayer in respect of a particular foreign affiliate of the taxpayer is not to include the amount that would, in the absence of this subsection, be foreign accrual tax applicable to the particular amount if, at any time in the taxation year (referred to in this subsection as the “affiliate year”) of the particular affiliate that ends in the taxation year of the taxpayer,
(a) a specified owner in respect of the taxpayer is considered,
(i) under the income tax laws (referred to in subsections (4.5) and (4.6) as the “relevant foreign tax law”) of any country other than Canada under the laws of which any income of a particular corporation — that is, at any time in the affiliate year, a pertinent person or partnership in respect of the particular affiliate — is subject to income taxation, to own less than all of the shares of the capital stock of the particular corporation that are considered to be owned by the specified owner for the purposes of this Act, or
(ii) under the income tax laws (referred to in subsections (4.5) and (4.6) as the “relevant foreign tax law”) of any country other than Canada under the laws of which any income of a particular partnership — that is, at any time in the affiliate year, a pertinent person or partnership in respect of the particular affiliate — is subject to income taxation, to have a lesser direct or indirect share of the income of the particular partnership than the specified owner is considered to have for the purposes of this Act; or
(b) where the taxpayer is a partnership, the direct or indirect share of the income of the partnership of any member of the partnership that is, at any time in the affiliate year, a person resident in Canada or a foreign affiliate of such a person is, under the income tax laws (referred to in subsection (4.6) as the “relevant foreign tax law”) of any country other than Canada under the laws of which any income of the partnership is subject to income taxation, less than the member’s direct or indirect share of that income for the purposes of this Act.
Marginal note:Specified owner
(4.2) For the purposes of subsections (4.1) and (4.5), a “specified owner”, at any time, in respect of a taxpayer means the taxpayer or a person or partnership that is, at that time,
(a) a partnership of which the taxpayer is a member;
(b) a foreign affiliate of the taxpayer;
(c) a partnership a member of which is a foreign affiliate of the taxpayer; or
(d) a person or partnership referred to in any of subparagraphs (4.4)(a)(i) to (iii).
Marginal note:Pertinent person or partnership
(4.3) For the purposes of this subsection and subsection (4.1), a “pertinent person or partnership”, at any time, in respect of a particular foreign affiliate of a taxpayer means the particular affiliate or a person or partnership that is, at that time,
(a) another foreign affiliate of the taxpayer
(i) in which the particular affiliate has an equity percentage, or
(ii) that has an equity percentage in the particular affiliate;
(b) a partnership a member of which is at that time a pertinent person or partnership in respect of the particular affiliate under this subsection; or
(c) a person or partnership referred to in any of subparagraphs (4.4)(b)(i) to (iii).
Marginal note:Series of transactions
(4.4) For the purposes of subsections (4.2) and (4.3), if, as part of a series of transactions or events that includes the earning of the foreign accrual property income that gave rise to the particular amount referred to in subsection (4.1), a foreign affiliate (referred to in this subsection as the “funding affiliate”) of the taxpayer or of a person (referred to in this subsection as the “related person”) resident in Canada that is related to the taxpayer, or a partnership (referred to in this subsection as the “funding partnership”) of which such an affiliate is a member, directly or indirectly provided funding to the particular affiliate, or a partnership of which the particular affiliate is a member, otherwise than by way of loans or other indebtedness that are subject to terms or conditions made or imposed, in respect of the loans or other indebtedness, that do not differ from those that would be made or imposed between persons dealing at arm’s length or by way of an acquisition of shares of the capital stock of any corporation, then
(a) if the funding affiliate is, or the funding partnership has a member that is, a foreign affiliate of the related person, the following persons and partnerships are deemed, at all times during which the foreign accrual property income is earned by the particular affiliate, to be specified owners in respect of the taxpayer:
(i) the related person,
(ii) each foreign affiliate of the related person, and
(iii) each partnership a member of which is a person referred to in subparagraph (i) or (ii); and
(b) the following persons and partnerships are deemed, at all times during which the foreign accrual property income is earned by the particular affiliate, to be pertinent persons or partnerships in respect of the particular affiliate:
(i) the funding affiliate or the funding partnership,
(ii) a non-resident corporation
(A) in which the funding affiliate has an equity percentage, or
(B) that has an equity percentage in the funding affiliate, and
(iii) a partnership a member of which is a person or partnership referred to in subparagraph (i) or (ii).
Marginal note:Exception — hybrid entities
(4.5) For the purposes of subparagraph (4.1)(a)(i), a specified owner in respect of the taxpayer is not to be considered, under the relevant foreign tax law, to own less than all of the shares of the capital stock of a corporation that are considered to be owned for the purposes of this Act solely because the specified owner is not treated as a corporation under the relevant foreign tax law.
Marginal note:Exceptions — partnerships
(4.6) For the purposes of subparagraph (4.1)(a)(ii) and paragraph (4.1)(b), a member of a partnership is not to be considered to have a lesser direct or indirect share of the income of the partnership under the relevant foreign tax law than for the purposes of this Act solely because of one or more of the following:
(a) a difference between the relevant foreign tax law and this Act in the manner of
(i) computing the income of the partnership, or
(ii) allocating the income of the partnership because of the admission to, or withdrawal from, the partnership of any of its members;
(b) the treatment of the partnership as a corporation under the relevant foreign tax law; or
(c) the fact that the member is not treated as a corporation under the relevant foreign tax law.
Marginal note:Deemed ownership
(4.7) For the purposes of subsection (4.1), if a specified owner owns, for the purposes of this Act, shares of the capital stock of a corporation and the dividends, or similar amounts, in respect of those shares are treated under the income tax laws of any country other than Canada under the laws of which any income of the corporation is subject to income taxation as interest or another form of deductible payment, the specified owner is deemed to be considered, under those tax laws, to own less than all of the shares of the capital stock of the corporation that are considered to be owned by the specified owner for the purposes of this Act.
(3) Subsection (1) applies to the 2002 and subsequent taxation years.
(4) Subsection (2) applies in respect of the computation of foreign accrual tax applicable to an amount included in computing a taxpayer’s income under subsection 91(1) of the Act, for a taxation year of the taxpayer that ends after March 4, 2010, in respect of a foreign affiliate of the taxpayer. However, for taxation years of the taxpayer that end on or before October 24, 2012,
(a) subsection 91(4.1) of the Act, as enacted by subsection (2), is to be read as follows:
(4.1) For the purposes of the definition “foreign accrual tax” in subsection 95(1), foreign accrual tax applicable to a particular amount included in computing a taxpayer’s income under subsection (1) for a taxation year in respect of a particular foreign affiliate of the taxpayer shall not include the amount that would, in the absence of this subsection, be foreign accrual tax applicable to the particular amount if the particular amount is earned during a period in which
(a) if the taxpayer is a partnership, the share of the income of any member of the partnership that is a person resident in Canada is, under the income tax laws (referred to in subsection (4.6) as the “relevant foreign tax law”) of any country, other than Canada, under the laws of which the income of the partnership is subject to income taxation, less than its share of the income for the purposes of this Act; or
(b) in any other case, the taxpayer is considered, under the income tax laws (referred to in subsection (4.5) as the “relevant foreign tax law”) of any country, other than Canada, under the laws of which the income of the particular affiliate is subject to income taxation, to own less than all of the shares of the capital stock of the particular affiliate, of another foreign affiliate of the taxpayer in which the particular affiliate has an equity percentage, or of another foreign affiliate of the taxpayer that has an equity percentage in the particular affiliate, that are considered to be owned by the taxpayer for the purposes of this Act.
(b) subsection 91(4.5) of the Act, as enacted by subsection (2), is to be read as follows:
(4.5) For the purposes of paragraph (4.1)(b), a taxpayer is not to be considered, under the relevant foreign tax law, to own less than all of the shares of the capital stock of a foreign affiliate of the taxpayer that are considered to be owned by the taxpayer for the purposes of this Act solely because the taxpayer or the foreign affiliate is not treated as a corporation under the relevant foreign tax law.
(c) the portion of subsection 91(4.6) of the Act before paragraph (a), as enacted by subsection (2), is to be read as follows:
(4.6) For the purposes of paragraph (4.1)(a), a member of a partnership is not to be considered to have a lesser share of the income of the partnership under the relevant foreign tax law than for the purposes of this Act solely because of one or more of the following:
(d) section 91 of the Act is to be read without reference to its subsections (4.2) to (4.4) and (4.7), as enacted by subsection (2).
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