Borrowings Used: Section 80: > To pay expenses > To acquire property
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2 Borrowings Used: > To pay expenses > To acquire property Section 80: > Reduces losses > Grinds basis > Uses an income inclusion to prevent hiding losses or basis LLP I SLIDE 1
3 Former Rule: > Reduce losses > Grind basis > Any excess simply disappeared Former Planning Techniques: > Transfer assets to subsidiary or to a partnership > Debt parking > 7000(1)(a) > fmv of shares issued for debt irrelevant LLP I SLIDE 2
4 Nature of Legislation > It sweats difficulty at every paragraph > Every provision breeds a dilemma > Every clause ends in a cul-de-sac > Dangers lurk in every line > Mischiefs abound in every sentence > An air of evil hangs over it all LLP I SLIDE 3
5 Legislation, which, although it may be easy to understand, people continually try to misunderstand, and in which therefore it is not enough to attain to a degree of precision which a person reading in good faith can understand; but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand. Stephen J. In re Castioni (1891) 1 Q.B. 149, 167 LLP ^ SLIDE 4
6 Rules apply where there is: > A commercial obligation - 248(26) definition of obligation - 80(2)(b) interest - Distressed preferred share > A debtor - Includes a partnership LLP SLIDE 5
7 Rules apply where there is: > A forgiven amount - Amount of debt less amount paid to settle debt - Numerous anti-double counting rules > A settlement - Settled or extinguished - Exception for distress preferred shares - Parked obligation - Statute barred LLP I SLIDE 6
8 Settlement > Amount Paid: - Fair market value of shares l increase in value of shares - Principal amount of any new debt - Does not include amount forgiven by bequest > Parked Obligation: - Cost less than 80% of principal amount - Significant shareholder (25% votes or value) Specified obligations; generally acquired from arm's length person Order of significant shareholder and specified obligation does not matter 80.01(10) deduction where debt is subsequently repaid LLP ^ SLIDE 7
9 Debt Substitution old debt- $10 million new debt (a) - $7 million at 10% - p+iduein4years - $3 million debt forgiveness - $3 million interest expense (b) - $10 million with no interest -due in 4 years -0 debt forgiveness -0 interest LLP I SLIDE 8
10 Significant Shareholder Trap 2003 > creditors agree to 70 on the $1 > main banker acquires old debt from syndicate for 70 on the $1 as part of settlement > main banker agrees to waive interest for next 5 years > main banker gets warrants to acquire preferred shares 2005 > main banker exercises warrants and acquires prefs representing 15% of total share value 2007 > common shares drop in value and pref become worth 26% of total share value LLP I SLIDE 9
11 Partial Parking (27) 1.settle $10 million debt for $7 million $3 million forgiven amount 2.settle $8,750,000 debt for $7 million no forgiven amount settle $1,250,000 debt for $1 $1,250,000 forgiven amount LLP I SLIDE 10
12 Basic Rules Forgiven amount is reduced by: A) Loss carry forwards B) Amortizable basis C) Basis in non-related entities D) Transfers to directed persons any remaining amounts produces E) Income inclusion LLP ^ SLIDE 11
13 Capital Properties Three categories: I. Acb of shares - less that 10% holding - or unrelated partnership II. Acb of shares - 10% or more, but not related III. Acb of shares - related - or related partnership All prior categories must first be exhausted No advantage to Ill if such entities retain tax attributes LLP I SLIDE 12
14 A. 1. Operating losses 2. Capital losses B. 3. Depreciables 4. Eligible capital 5. Resource pools C. 6. Cat. I capital Non connected persons 7. Current year capital losses 8. Cat. II capital Connected corporations LLP I SLIDE 13
15 D. 9. Transfers to directed persons 10. Cat. Ill capital Related persons E. 11. Income inclusion LLP I SLIDE 14
16 Hiding Depreciables opco 40% PRE-EXISTING CORP NEW SUB I, LLP I SLIDE 15
17 Hiding Losses > debtor is a subsidiary of a Canadian holding company > debtor has substantial loss carryforwards > debtor is wound-up into parent, with parent assuming debt > after wind-up but in the same taxation year of parent debt is settled > 88(1.1) and (1.2) say loss carryforwards not available to parent in year of winding-up LLP I SLIDE 16
18 Doubling Up Acquisitionco HOLDCO - capital losses debt Opco - operating losses New Sub LLP I SLIDE 17
19 Income Inclusion [80(13)] > Unapplied amount (ignoring transferred amounts) > Plus cat. Ill amounts, up to tax attributes of directed persons > Amounts transferred to directed persons > 50% inclusion for non-partnership amounts LLP I SLIDE 18
20 Reducing the Hit > large operating loss carryforwards > small pool balances > accelerate income by receiving prepaid amounts followed by a year end, then settlement - income absorbed by losses - almost all forgiven amount results in a 50% income inclusion over 5 years - consequence of not taking a reserve on prepaid income is ordinary losses over prepayment period. LLP I SLIDE 19
21 > Reserves > Deduction for insolvent corporations > Gains on subsequent dispositions - Claw-back of distributions that reduce subsequent capital gains - Preservation rules where shares are transferred on a rollover basis - Forgiven amount on a "surrender" of previously ground property LLP I SLIDE 20
22 Timing for Insolvent Corporations > section 80 applies to - losses at beginning of year - pool balances immediately after settlement > in the normal course - losses are used at end of the year - pool balances are reduced by prior dispositions > if transferring assets out of an insolvent company, may want disposition to occur before settlement LLP I SLIDE 21
23 > Unpaid amounts - 78 > Employee benefits - 6(1) and (15) > Shareholder benefits - 15(1) and (1.2) > Ordinary income - 9 > Seizures - 79 > General forgiveness - 80
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