Technical Tax Amendments Act, 2012 (S.C. 2013, c. 34)
Full Document:
Assented to 2013-06-26
402. (1) The portion of paragraph 6202.1(1)(a) of the French version of the Regulations before subparagraph (i) is replaced by the following:
a) conformément aux conditions de l’action ou à une convention relative à l’action ou à son émission, l’un des énoncés ci-après se vérifie :
(2) Clauses 6202.1(1)(a)(iii)(A) and (B) of the Regulations are replaced by the following:
(A) it is convertible or exchangeable only into
(I) another share of the corporation that, if issued, would not be a prescribed share,
(II) a right (including a right conferred by a warrant) that
1. if it were issued, would not be a prescribed right, and
2. if it were exercised, would allow the person exercising it to acquire only a share of the corporation that, if the share were issued, would not be a prescribed share, or
(III) both a share described in subclause (I) and a right described in subclause (II), and
(B) all the consideration receivable by the holder on the conversion or exchange of the share is the share described in subclause (A)(I) or the right described in subclause (A)(II), or both, as the case may be, or
(3) Section 6202.1 of the Regulations is amended by adding the following after subsection (1):
(1.1) For the purpose of the definition “flow-through share” in subsection 66(15) of the Act, a new right to acquire a share of the capital stock of a corporation is a prescribed right if, at the time the right is issued,
(a) the amount that the holder of the right is entitled to receive in respect of the right on the dissolution, liquidation or winding-up of the corporation or on the redemption, acquisition or cancellation of the right by the corporation or by specified persons in relation to the corporation (referred to in this section as the “liquidation entitlement” of the right) can reasonably be considered to be, by way of a formula or otherwise, fixed, limited to a maximum or established to be not less than a minimum;
(b) the right is convertible or exchangeable into another security issued by the corporation unless
(i) the right is convertible or exchangeable only into
(A) a share of the corporation that, if issued, would not be a prescribed share,
(B) another right (including a right conferred by a warrant) that
(I) if it were issued, would not be a prescribed right, and
(II) if it were exercised, would allow the person exercising it to acquire only a share of the corporation that, if the share were issued, would not be a prescribed share, or
(C) both a share described in clause (A) and a right described in clause (B), and
(ii) all the consideration receivable by the holder on the conversion or exchange of the right is the share described in clause (A) or the right described in clause (B), or both, as the case may be;
(c) any person or partnership has, either absolutely or contingently, an obligation (other than an excluded obligation in relation to the right)
(i) to provide assistance,
(ii) to make a loan or payment,
(iii) to transfer property, or
(iv) to otherwise confer a benefit by any means whatever, including the payment of a dividend,
either immediately or in the future, that can reasonably be considered to be, directly or indirectly, a repayment or return by the corporation or a specified person in relation to the corporation of all or part of the consideration for which the right was issued or for which a partnership interest was issued in a partnership that acquires the right;
(d) any person or partnership has, either absolutely or contingently, an obligation (other than an excluded obligation in relation to the right) to effect any undertaking, either immediately or in the future, with respect to the right or the agreement under which the right is issued (including any guarantee, security, indemnity, covenant or agreement and including the lending of funds to or the placing of amounts on deposit with, or on behalf of, the holder of the right or where the holder is a partnership, the members of the partnership or specified persons in relation to the holder or the members of the partnership, as the case may be) that can reasonably be considered to have been given to ensure, directly or indirectly, that
(i) any loss that the holder of the right and, where the holder is a partnership, the members of the partnership or specified persons in relation to the holder or the members of the partnership, as the case may be, may sustain because of the holding, ownership or disposition of the right or any other property is limited in any respect, or
(ii) the holder of the right and, where the holder is a partnership, the members of the partnership or specified persons in relation to the holder or the members of the partnership, as the case may be, will derive earnings, because of the holding, ownership or disposition of the right or any other property;
(e) the corporation or a specified person in relation to the corporation can reasonably be expected
(i) to acquire or cancel the right in whole or in part otherwise than on a conversion or exchange of the right that meets the conditions set out in subparagraphs (b)(i) and (ii), or
(ii) to make a payment, transfer or other provision (otherwise than pursuant to an excluded obligation in relation to the right), directly or indirectly, by way of a dividend, loan, purchase of rights, financial assistance to any purchaser of the right or, where the purchaser is a partnership, the members of the partnership or in any other manner whatever, that can reasonably be considered to be a repayment or return of all or part of the consideration for which the right was issued or for which a partnership interest was issued in a partnership that acquires the right,
within five years after the date the right is issued, otherwise than as a consequence of an amalgamation of a subsidiary wholly-owned corporation, a winding-up of a subsidiary wholly-owned corporation to which subsection 88(1) of the Act applies or the payment of a dividend by a subsidiary wholly-owned corporation to its parent;
(f) any person or partnership can reasonably be expected to effect, within five years after the day the right is issued, any undertaking which, if it were in effect at the time the right was issued, would result in the right being a prescribed right because of paragraph (d);
(g) it can reasonably be expected that, within five years after the date the right is issued,
(i) any of the terms or conditions of the right or any existing agreement relating to the right or its issue will be modified in such a manner that the right would be a prescribed right if it had been issued at the time of the modification, or
(ii) any new agreement relating to the right or its issue will be entered into in such a manner that the right would be a prescribed right if it had been issued at the time the new agreement is entered into; or
(h) it can reasonably be expected that the right, if exercised, would allow the person exercising the right to acquire a share in a corporation that, if that share were issued, would be a prescribed share within five years after the day the right was issued.
(4) Subsections 6202.1(3) and (4) of the Regulations are replaced by the following:
(2.1) For the purpose of the definition “flow-through share” in subsection 66(15) of the Act, a new right is a prescribed right if
(a) the consideration for which the new right is to be issued is to be determined more than 60 days after entering into the agreement pursuant to which the new right is to be issued;
(b) the corporation or a specified person in relation to the corporation, directly or indirectly, for the purpose of assisting any person or partnership to acquire the new right or any person or partnership to acquire an interest in a partnership acquiring the new right (otherwise than because of an excluded obligation in relation to the new right),
(i) provided assistance,
(ii) made or arranged for a loan or payment,
(iii) transferred property, or
(iv) otherwise conferred a benefit by any means whatever, including the payment of a dividend; or
(c) the holder of the new right or, where the holder is a partnership, a member of the partnership, has a right under any agreement or arrangement entered into under circumstances where it is reasonable to consider that the agreement or arrangement was contemplated at or before the time the agreement to issue the new right was entered into,
(i) to dispose of the new right, and
(ii) through a transaction or event or a series of transactions or events contemplated by the agreement or arrangement, to acquire
(A) a share (referred to in this paragraph as the “acquired share”) of the capital stock of another corporation that would be a prescribed share under subsection (1) if the acquired share were issued at the time the new right was issued, other than a share that would not be a prescribed share if subsection (1) were read without reference to subparagraphs (1)(a)(iv) and (1)(d)(i) and (ii) where the acquired share is a share
(I) of a mutual fund corporation, or
(II) of a corporation that becomes a mutual fund corporation within 90 days after the acquisition of the acquired share, or
(B) a right (referred to in this paragraph as the “acquired right”) to acquire a share of the capital stock of another corporation that would, if it were issued at the time the new right was issued, be a prescribed right, other than a right that would not be a prescribed right if subsection (1.1) were read without reference to subparagraph (1.1)(e)(i) where the acquired right is a right to acquire a share of the capital stock
(I) of a mutual fund corporation, or
(II) of a corporation that becomes a mutual fund corporation within 90 days after the acquisition of the acquired right.
(3) For the purposes of subsections (1) and (1.1),
(a) the dividend entitlement of a share of the capital stock of a corporation is deemed not to be fixed, limited to a maximum or established to be not less than a minimum where all dividends on the share are determined solely by reference to a multiple or fraction of the dividend entitlement of another share of the capital stock of the corporation, or of another corporation that controls the corporation, where the dividend entitlement of that other share is not described in subparagraph (1)(a)(i); and
(b) the liquidation entitlement of a share of the capital stock of a corporation, or of a right to acquire a share of the capital stock of the corporation, as the case may be, is deemed not to be fixed, limited to a maximum or established to be not less than a minimum where
(i) all the liquidation entitlement is determinable solely by reference to
(A) the liquidation entitlement of another share of the capital stock of the corporation (or a share of the capital stock of another corporation that controls the corporation), or
(B) the liquidation entitlement of a right to acquire the capital stock of the corporation (or another corporation that controls the corporation),
(ii) the liquidation entitlement described in clause (i)(A), if any, is not described in subparagraph (1)(a)(ii), and
(iii) the liquidation entitlement described in clause (i)(B), if any, is not described in paragraph (1.1)(a).
(4) For the purposes of paragraphs (1)(c) and (e) and (1.1)(d) and (f), an agreement entered into between the first holder of a share or right and another person or partnership for the sale of the share or right to that other person or partnership for its fair market value at the time the share or right is acquired by the other person or partnership (determined without regard to the agreement) is deemed not to be an undertaking with respect to the share or right, as the case may be.
(5) The definition “excluded obligation” in subsection 6202.1(5) of the Regulations is replaced by the following:
- “excluded obligation”
“excluded obligation”, in relation to a share or new right issued by a corporation, means
(a) an obligation of the corporation
(i) with respect to eligibility for, or the amount of, any assistance under the Canadian Exploration and Development Incentive Program Act, the Canadian Exploration Incentive Program Act, the Ontario Mineral Exploration Program Act, R.S.O., c. O.27, or The Mineral Exploration Incentive Program Act, S.M. 1991-92, c. 45, or
(ii) with respect to the making of an election respecting such assistance and the flowing out of such assistance to the holder of the share or the new right in accordance with any of those Acts,
(b) an obligation of the corporation, in respect of the share or the new right, to distribute an amount that represents a payment out of assistance to which the corporation is entitled
(i) as a consequence of the corporation making expenditures funded by consideration received for shares or new rights issued by the corporation in respect of which the corporation purports to renounce an amount under subsection 66(12.6) of the Act, and
(ii) under section 25.1 of the Income Tax Act, R.S.B.C., 1996, c. 215, or
(c) an obligation of any person or partnership to effect an undertaking to indemnify a holder of the share or the new right or, where the holder is a partnership, a member of the partnership, for an amount not exceeding the amount of any tax payable under the Act or the laws of a province by the holder or the member of the partnership, as the case may be, as a consequence of
(i) the failure of the corporation to renounce an amount to the holder in respect of the share or the new right, or
(ii) a reduction, under subsection 66(12.73) of the Act, of an amount purported to be renounced to the holder in respect of the share or the new right; (obligation exclue)
(6) Subsection 6202.1(5) of the Regulations is amended by adding the following in alphabetical order:
- “new right”
“new right” means a right that is issued after December 20, 2002 to acquire a share of the capital stock of a corporation, other than a right that is issued at a particular time before 2003
(a) pursuant to an agreement in writing made on or before December 20, 2002,
(b) as part of a distribution of rights to the public made in accordance with the terms of a prospectus, preliminary prospectus, registration statement, offering memorandum or notice, required by law to be filed before distribution of the rights begins, filed on or before December 20, 2002 with a public authority in Canada in accordance with the securities legislation of the province in which the rights are distributed, or
(c) to a partnership interests in which were issued as part of a distribution to the public made in accordance with the terms of a prospectus, preliminary prospectus, registration statement, offering memorandum or notice, required by law to be filed before distribution of the interests begins, filed on or before December 20, 2002 with a public authority in Canada in accordance with the securities legislation of the province in which the interests are distributed, where all interests in the partnership issued at or before the particular time were issued
(i) as part of the distribution, or
(ii) before the beginning of the distribution; (nouveau droit)
(7) Subsections (1) to (6) apply to shares and rights issued under an agreement made after December 20, 2002.
- Date modified: