Striving To Measure Non- Arm s Length for Charities Under The ITA

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1 Presented by: David Stevens Partner, Gowling Lafleur Henderson LLP Striving To Measure Non- Arm s Length for Charities Under The ITA Presentation to 2012 National Charity Law Symposium May 4, 2012 Doc. # v.1

2 TOPICS 1. Context - NAL as a Concept in Tax Law 2. Definition of NAL 3. Non-Standard Uses of NAL in the Charity Rules 4. Standard Uses of NAL in the Charity Rules 5. Applications of NAL in the Non-Standard Uses 2

3 CONTEXT ITA assumes Individuals or corporations as taxpaying unit Tax is an accessory system to private law Market or arm s length transactions Self-assessment These assumptions give rise to real economic results income which is taxed at progressive rates The third assumption breaks down in a multitude of ways when taxpayers co-operate, typically in transactions, to modify tax results 3

4 CONTEXT ITA uses a variety of relationship concepts to combat this NAL is the most fundamental and most widely used relationship concept NAL focuses on transactions or dealings In general, NAL is used in the ITA charity rules to address selfdealing concerns and concerns about unacceptable uses of tax exempt status of charities and donation credits 4

5 CONTEXT Use of NAL in charity rules is limited and generally nonproblematic, but perhaps expanding Where its use does present problems, the problems can generally be avoided by appropriate planning But these rules, especially the non-standard uses, can apply unexpectedly in a harmful way 5

6 DEFINITION NAL is defined in 251(1) of the ITA There are three components (a) Related Persons are deemed not to deal at arm s length (b) Personal trusts and their beneficiaries are deemed not to deal at arm s length - not relevant for present purposes (c) Factual NAL 6

7 DEFINITION Related Person NAL 251(1)(a) Related persons are: Individuals connected by blood relationship, marriage, commonlaw partnership or adoption A corporation and a person or related group of persons who control it Any two corporations controlled by the same person or same group of person Any two corporations.(ii) to (vi). identifying 5 other similar scenarios including a concept of related group 7

8 DEFINITION Related Person NAL 251(1)(a) Other components for related person NAL rules include: Definition of blood relationship Definition of related group Control means de jure control, which is essentially the power to elect the board of corporation Rule that treats the trustee of a trust as the/an individual when applying the concept to a trust that owns shares in a corporation 8

9 DEFINITION Factual NAL Three main tests/concepts: There is a common mind directing the bargaining for both parties to a transaction The parties to a transaction act in concert without separate interests There is de facto control of one party over the other Or, transactions should reflect ordinary commercial dealings between parties acting in their own interests 9

10 DEFINITION Factual NAL Common mind Exact same person on both sides of the transaction Acting in Concert Swiss Bank Essentially, common mind, but the mind is located in a group who are acting in concert with a common interest Emphasis in some cases on common interest (narrower) and in other cases on acting in concert (broader) leading to some uncertainty 10

11 DEFINITION Factual NAL Acting in Concert Swiss Bank (continued) Re common interest Parties adverse in interest can share common goals, such as choosing a structure that minimizes tax Parties adverse in interest can share advisers Adverse interests need not be monetary, but should be economic Court should evaluate why the rule in questions requires arm s length transaction 11

12 DEFINITION Factual NAL De facto control A person has the clear right and ability to effect a significant change in the board of directors or the powers of the board of directors or to influence in a very direct way the shareholders who would otherwise have the ability to elect the board of directors 12

13 NON-STANDARD USES Excess Corporate Holdings (ECH) Rules ECH rules apply at 2% and 20% thresholds that measure the percentage holdings of the private foundation and relevant persons in a class of shares in a corporation relevant person is a person who deals NAL with the private foundation, determined as if 251(2) were applied as if the foundation were a corporation 13

14 NON-STANDARD USES Charity to Charity Transfers (149.1(4.1)(d)) Minister may revoke registration of a registered chairity if (d) it has in a taxation year received a gift of property (other than a designated gift) from another registered charity with which it does not deal at arm s length and it has expended, before the end of the next taxation year, in addition to its disbursement quota for each of those taxation years, an amount that is less than the fair market value of the property, on charitable activities carried on by it or by way of gifts made to qualified donees with which it deals at arm s length There is also a penalty in 188.1(12) equal to 110% of the property not so expended 14

15 STANDARD USES Definition of Charitable Organization and Public Foundation More than 50% of the fiduciaries must deal at arm s length with each other and with any person or group of persons who de facto control the foundation and who contributed more than 50% of the capital of the charity Definition of Eligible Donee (188(1.3)) A charity is an eligible donee if more than 50% of its fiduciaries deal at arm s length with each fiduciary of the revoked charity 15

16 STANDARD USES Non-Qualifying Securities Rules (118.1) Non-qualifying security of an individual donor is defined to include obligations of or a share in any person who deals NAL with the donor immediately after the donation Non-qualified investment (149.1 and 189) non-qualified investment of a private foundation is defined to include a debt of a person who is NAL to a fiduciary of the foundation or to 50% contributor or to a non-arm s length group of persons who have contributed 50% 16

17 APPLICATIONS Examples for the ECH Rules When will a person be NAL to a charity? A relevant person? 1. Family foundation organized as a trust, with the four family members as the trustees and father as the trustee appointer Who are the as if shareholders for the purpose of related person NAL? The trustees? The trustee appointer? If related person NAL does not apply, how does factual NAL apply? 17

18 APPLICATIONS Examples for the ECH Rules 2. Charity organized as a non-share capital corporation and the members are the founder and his lawyer and accountant Related person NAL does not apply Does factual NAL apply? Are professionals NAL to their client? Probably not relevant re the relevant person enquiry. But note that if they are all NAL, the charity will be a private foundation, and ECH rules will apply. 18

19 APPLICATIONS Examples for the Charity to Charity Transfer Rules 1. Two family foundations organized as trusts and the trustees are the same four family members Related person NAL does not apply But factual NAL clearly does 2. Two foundations organized as trusts with overlapping ( 2 out of 4) trustees Related person NAL does not apply Does factual NAL apply to dealings between two trusts? There is no guidance, but it would seem a fair conclusion on the basis of the case law that It could. 19

20 APPLICATIONS Examples for the Charity to Charity Transfer Rules 3. Two family foundations organized as non-share capital corporations, with the same four family members as the fiduciaries of each Related person NAL clearly applies Perhaps solution is, when in doubt re NAL, make provision for designated gift in the gift agreement 20

21 Thank You David Stevens montréal ottawa toronto hamilton waterloo region calgary vancouver moscow london

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