Foreign-Controlled Canadian Corporations Beware The New Foreign Affiliate Dumping Proposals

by Bennett Jones LLP
Contact

[author:  John R. Owen]

On August 14, 2012, the Department of Finance released draft legislation that includes a revised version of the foreign affiliate dumping proposals tabled with the March 29 Federal Budget. The stated objective of the proposals is to curtail the inappropriate erosion of the Canadian tax base but the rules are much broader than that. The revised proposals have potentially adverse income tax consequences where a corporation resident in Canada (CRIC) that is, or becomes, controlled by a non-resident corporation (a parent) makes an investment in a non-resident corporation (a subject corporation) that is, or becomes, a foreign affiliate of the CRIC. Many submissions have been made to the Department of Finance raising concerns with the proposals and a further draft of the legislation is expected. However, it remains to be seen whether these concerns will be fully addressed.

The adverse income tax consequences can include the deemed payment of a dividend by the CRIC to the parent equal to the amount of the investment. The dividend is subject to dividend withholding tax at 25 percent (or such lower rate as is available under an applicable tax treaty). Other possible tax consequences include the reduction of the paid-up capital of the shares in the CRIC which may have an impact on repatriation strategies and meeting thin capitalization debt limits.

This summary is not a technical review of the proposals but an aid in identifying the circumstances in which the proposals might apply. Because of the breadth of the rules, a tax professional should be consulted before a foreign controlled CRIC does anything that might be viewed as an investment in a subject corporation.

Investment in a subject corporation by a CRIC is very broadly defined and can potentially encompass a wide range of transactions or events, including:

  • an acquisition of shares in a non-resident corporation from treasury or from another person,
  • a contribution of capital to a non-resident corporation, the conferral of a benefit on a non-resident corporation such as the provision of services to the non-resident corporation for below market consideration or the forgiveness of an existing debt of the non-resident corporation,
  • the creation or acquisition of a debt obligation of a non-resident corporation,
  • the extension of the term of an existing debt owed by, or the extension of the redemption, acquisition or cancellation date of existing shares held in, a non-resident corporation, and
  • the acquisition of an option, right or interest in any of the forgoing.

Importantly, an investment in a subject corporation can also include an acquisition by a foreign controlled CRIC of shares in another Canadian resident corporation if that other corporation derives more than 50 percent of its value from one or more non-resident corporations that are foreign affiliates.

While there are exceptions and qualifications to the above situations, the rules are tricky and some of the exceptions require a joint election and have their own tax implications, such as the imputation of interest income to the CRIC. The grandfathering is limited and generally only excuses arm’s length transactions completed before 2013 in accordance with a written agreement entered into before March 29, 2012. Taxpayers can elect to have the Budget version of the proposals apply to transactions that occur after March 28, 2012, and before August 14, 2012.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP
Contact
more
less

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!