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GAARbage in… GAARbage out? – Even if you follow the letter of the tax law, can you pass the “smell test”?

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GAARbage in… GAARbage out? – Even if you do everything by the letter of the tax law, can you pass the “smell test”? – A June 2018 Federal Court of Appeal ruling might make it difficult?

By Cory G. Litzenberger, CPA, CMA, CFP, C.Mgr – President & Founder of CGL Strategic Business & Tax Advisors.

No, those aren’t typos. For the non-tax nerds (ie: normal people) reading this, GAAR is the General Anti-Avoidance Rule under Section 245 of the Income Tax Act. More commonly referred to as “the smell test.” In other words, even if you do everything by the letter of the law, if it looks and smells funny, the government might not agree with you and you might be reassessed.

To the tax nerds, I will be simplifying this article but with a few legislative references to keep you happy.

This smell test brings us to the Pomerleau v Canada (2018 CAF 129) ruling issued in French on June 29, 2018 by the Federal Court of Appeal.

To put this in context, the transactions occurred in 2004 and 2005. We are now looking at items that are 13-14 years old, that were also common practice among many tax practitioners back then.

Let’s take a high-level approach to see how we got here:

The taxpayer, Pomerleau, and his family sought tax advice on how to transfer the $3 million family owned business from the parents to their children. There are many provisions that allow us to do this on a tax-deferred (not tax-free) basis.

The advisors had developed a plan to pass on the family business on this tax-deferred basis, but also thought they had discovered a way to reduce the amount of that deferred tax as well.

Layman Technical Background

In tax planning with company shares we have two types of adjusted cost bases (ACB) referred to as “hard ACB” and “soft ACB”. Hard ACB is when tax was fully paid on the transfer or was acquired from someone not related to you. Soft ACB is when you have bought the shares from a related person and that person had used part of their Lifetime Capital Gains Deduction on the sale.

Hard ACB can be planned with to eventually convert into a shareholder loan without triggering a dividend under 84.1, whereas soft ACB cannot.

What happened?

In 1995, the family started to reflect on the continuity of the business. Several decisions were taken. One of those decisions was that the business would be divided among the original shareholder’s four children. As a result, the business was divided as follows: the two daughters obtained part of the business, which consisted of real estate, and the two sons obtained the other part, which consisted of the construction business.

As part of this transfer of the family business, which had been in the works for over 10 years, a series of transactions was undertaken in 2004 and 2005.

One of the transactions was the redemption by Pomerleau’s holding company (HoldCo) of its shares. The ACB and the paid-up capital (PUC) of these shares totaled $2 million.

If the ACB was considered hard ACB, then Pomerleau could sell the shares to a new corporation for a $2M Promissory Note, have the old corporation redeem the shares, pay the $2M to the new corporation (inter-corporate dividends from connected corporations don’t create tax) then use the $2M to pay out the promissory note.

This is similar to what is done as a pipeline transaction for deceased persons after capital gains have been triggered on death.

If the ACB is soft ACB, then the transactions above would actually cause a taxable dividend under 84.1 of the Income Tax Act.

How did we get to $2M of PUC and ACB?

In 1989 (likely under fears that the capital gains deduction may be eliminated in the next federal election) Pomerleau, his mother, and his sister, all increased their ACB in their Operating Company (OpCo) shares utilizing a provision of the Act under Section 85, that (with a lot of complexity) allows you to sell shares to a corporation in exchange for more shares. If done properly, you can do this with your own corporation and trigger capital gains on purpose in order to use your lifetime capital gains deduction under 110.6 (as was the case here).

Some of these shares were eventually transferred to Pomerleau from his mother and sister in taxable events. As a result, the shares had both soft and hard ACB at this point.

Fast forward 15 years.

Those previously mentioned shares of OpCo were eventually transferred to HoldCo.

In 2004, as the sole shareholder of HoldCo, Pomerleau wanted to split his $3M company among his children. He had $1M in soft ACB with only $15,000 of PUC (the tax-free amount you can get back) tied up in Class G Preferred Shares (Class G) and had at least $2M in value of Class A common shares with $1M in hard ACB.

The Transactions and Application of Law

On January 3, 2005, HoldCo repurchased the $1M of Class G shares that the taxpayer owned, this triggered a deemed dividend under 84(3) and was taxable to Pomerleau.

When a deemed dividend occurs, the shares are considered to be sold for zero proceeds. Since there was ACB of $1M on those shares, this would be a capital loss.

40(3.6)(a) deems the loss to be zero since Pomerleau was affiliated with HoldCo because he still owned the Class A shares.

Since it would not be fair to pay tax on a dividend for something with ACB (meaning someone likely paid tax on it before), then the Act transfers this capital loss that has been denied to ACB of existing shares owned. In this case, the ACB then moved over to the Class A shares under 40(3.6)(b) and 53(1)(f.2).

This increased the ACB from $1M to $2M.

So far so good right?

All that was left was to create a pipeline transaction, so Pomerleau transferred his Class A shares to a newly created corporation using Section 85 for new shares with $2M in ACB, PUC, and Fair Market Value.

These shares were then repurchased and eventually paid out $2M to Pomerleau with no additional tax.

So, how was the ACB cooked? Soft or Hard?

According to the transactions, the ACB would be considered hard.

Enter the Canada Revenue Agency (CRA) and the smell test (GAAR).

In order for something to be considered abusive under the GAAR in section 245, there must be:

1) A tax benefit

2) An avoidance transaction, and

3) A misuse or abuse of the Income Tax Act

Pomerleau’s position (in sort-of-simple terms) = hard ACB and no misuse of the Act

1) The stop-loss rules of 40(3.6) converted the cost basis from soft ACB to hard ACB.

2) Section 85 allows for transfers to another corporation, and hard ACB can be used to create Paid Up Capital

3) 84.1 only creates a dividend for shares that have been redeemed for more than their Paid Up Capital.

4) Although there was a tax benefit, the motivation for the transactions was to assist in the transfer of the family business.

5) No misuse of the Act occurred, rather, to the contrary, the Act operated as written.

The Government’s position (in sort-of-simple terms) = GAAR (it stinks)

1) Even though you followed the law, we don’t like it and so we think it shouldn’t be treated like this, so we’re going to apply GAAR under Section 245 because we think it smells funny.

The Lower Court Ruling

At the Tax Court of Canada, Justice Favreau concluded that the GAAR was applicable in this case since section 84.1 of the Act prevents taxpayers from undertaking surplus stripping transactions on a tax-free basis. In the TCC Justice’s opinion this is what Pomerleau had done in this case, because the series of transactions resulted in the avoidance of the purpose of section 84.1.

More specifically, Justice Favreau opined that the effect of paragraph 40(3.6) of the Act permitted the taxpayer to increase the PUC of the shares in a subsequent rollover and therefore to avoid the application of section 84.1 of the Act.

As a result, this planning had the effect of circumventing in an abusive manner the purpose of section 84.1 of the Act (i.e., to prevent surplus stripping on a tax-free basis).

As a result, the Tax Court of Canada maintained the Minister’s initial assessment, as it determined that the GAAR applied to the series of transactions so that a taxable dividend of $994,628 had to be attributed to the taxpayer.

The Federal Court of Appeal Decision

In paragraph 78 of their unanimous ruling, the Federal Court of Appeal asked what is the purpose and spirit of section 84.1?

Upon analysis, the court decided that the purpose and intent of this provision, is to prevent amounts that have not been taxed to a related person from being distributed tax-free.

Even though the letter of the law was followed by Pomerleau, the court ruled against him in deciding that the intent and spirit of 84.1 was avoided, and so the GAAR under Section 245 applied.

Since it was a unanimous ruling, the taxpayer is not able to appeal to the Supreme Court of Canada as a matter of “right” … so we will wait to see if Pomerleau attempts to apply for a “Leave to Appeal” and if he is granted.

Translation: the smell test said the transactions stink like GAARbage.

CEO | Director CGL Tax Professional Corporation With the Income Tax Act always by his side on his smart-phone, Cory has taken tax-nerd to a whole other level. His background in strategic planning, tax-efficient corporate reorganizations, business management, and financial planning bring a well-rounded approach to assist private corporations and their owners increase their wealth through the strategies that work best for them. An entrepreneur himself, Cory started CGL with the idea that he wanted to help clients adapt to the ever-changing tax and economic environment and increase their wealth through optimizing the use of tax legislation coupled with strategic business planning and financial analysis. His relaxed blue-collar approach in a traditionally white-collar industry can raise a few eyebrows, but in his own words: “People don’t pay me for my looks. My modeling career ended at birth.” More info: https://CGLtax.ca/Litzenberger-Cory.html

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Business

Celebrate National Small Business Week October 16-20, 2023!

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From Community Futures Central Alberta

National Small Business Week is an annual celebration of entrepreneurship that has been celebrated for over 40 years.

Did you know:

  • Canada has over 1 million small businesses currently in operation!
  • For statistical purposes, a small business has between 1-99 employees, but most have less than 10.
  • These small businesses employ over 8 million Canadians.
  • By comparison, only 2.5 million Canadians are employed in medium sized businesses (100-500 employees).
  • In 2019, Canadian small businesses contributed 36.7% of our gross domestic product (GDP).

*Statistics taken from Statistics Canada – Innovation, Science and Economic Development website.

Time is running out to apply for the
Catalyst Incubator!

Calling local entrepreneurs! The Catalyst Incubator, funded through the Central Alberta Innovation Network (CARIN) and provided by Community Futures Central Alberta, is nearing its registration deadline.

Both Fall and Winter registration dates for this unique, cohort-based program helping to foster new ideas, make critical connections, and help start-up businesses are now open. The Catalyst Incubator is 100% FREE and focuses on supporting start-ups in manufacturing, agriculture, technology, energy innovation, and more.

Learn more about how to register

Increase your business’ online presence with free help from the Digital Service Squad

The Digital Service Squad (DSS) is designed to help small businesses take their businesses online. This program, a partnership between Business Link, Community Futures and Digital Main Street, will help small businesses in Alberta undergo digital transformations and adopt eCommerce practices. DSS is open to home-based or commercial small businesses registered in Alberta with less than 50 employees.

Digital Service Squads guides businesses through digital transformation. Small businesses can apply to participate in the program, free of charge.

Book your free consultation today

Lending Spotlight: Flex Loans

In this edition of our Quarterly Update, we shine a spotlight on the Community Futures Central Alberta Flex Loan. Flex Loans are available to clients in all industries, including home-based and storefront. The loans can be used for equipment, inventory, renovations, marketing, working capital, etc.

According to CFCA Business Analyst Kelsey Krieger, “Flex loans offer our clients a lower interest rate and a lower barrier to entry to qualify for financial support for their small business or startup. This product allows clients to make near-term plans for purchasing needed equipment or doing important upgrades to their business.”

•    Qualification for unsecured (will still take GSA and personal guarantee) will be based on credit history and net worth.

Learn more about Flex Loans today – call us at 403.342.2055 and make an appointment!

CFCA introduces Tyler Harke as its new Community Economic Development Coordinator

Community Futures Central Alberta is pleased to welcome Tyler Harke as its newest staff member.

Tyler is a life-long Albertan who comes from a family of entrepreneurs. He is excited to serve in both the Community Economic Development role as well as part of the Digital Services Squad.

Tyler brings over 15 years of experience in marketing and communications roles and looks forward to playing a key role in helping small business thrive in this great region!

Contact Tyler and discuss your community’s involvement with CFCA

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Arts

CFR Rodeo, live music, street dancing, art, theatre and more downtown celebrations..

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Live Music at The Velvet Olive

Mike Szabo at The Velvet Olive

October 26th @7:30

Join Mike Szabo on a journey of stories and songs he wrote and the covers that inspired him. Mike is promoting the release of his debut vinyl LP, Take My Heart 2020. Cover for the show is by donation and guests will be seated first come, first served.

Fish in a Birdcage at The Velvet Olive

October 28th @8:30

Dustan Townsend AKA “Fish in a Birdcage” is a young and passionate musical virtuoso. Townsend is originally from Red Deer, Alberta and is now on a two year long busking/street performing adventure around Europe with Spain being his next destination.

(2) The Velvet Olive Lounge | Facebook

Family Street Dance October 29th

(2) CFR Family Street Dance | Facebook

Grand Opening Celebration

October 29th

Yep, you heard that right! We’re hosting a Grand Opening celebration for Red Deer’s largest music store! When Long and McQuade bought the business in February of 2020, plans to renovate the store were made but had to be postponed. Fast forward to 2022, renovations are now finished and we would like to take this opportunity to celebrate the occasion with YOU, our amazing customers!

Come to the store on Oct. 29 for some awesome giveaway prizes, live music, and free food. Our BBQ will be fired up from 12 to 2 and we have live music scheduled from some excellent local musicians!

(2) Long & McQuade (Red Deer) | Facebook

Trick or Treat Downtown Red Deer

October 31st

Trick or Treat October 31st-

12-4 pm

Trick or Treat with your little one at your favorite businesses and stop by the Ross Street Pation for a photobooth!

Contact Carbon + Oak for location information.

Carbon + Oak | Facebook

Rodeo on Ross

November 2nd, 3rd ,4th

(2) CFR live Screening | Facebook

Celebration 6 Years Arts & Culture

November 4th

A + Art Gallery & unique collections

Celebration 6 Years Exhibition

Details:

Opening Reception

Date: Friday, November 4th

Time: Noon to 4 pm

FREE Event

(1) Celebration 6 Years Arts & Culture | Facebook

The Games of Love and Chance

November 10th to 27th

Prime stock Theater

@ Scott block theatre

November 10th to 27th.

Thursdays – Sundays 7 pm

PLUS 2 pm Matinees on Saturdays

Love must conquer clever disguises in this delightful comic masterpiece.

The Games of Love and Chance was originally written by Pierre de Marivaux at the height of opulence and extravagance during the reign of Louis XV in France. This playful and witty comedy has been newly translated and adapted by Artistic Director, Richard Beaune and this is it’s world premiere! Indulge in an evening (or afternoon) of love, laughter and decadent silliness as Red Deer’s only professional theatre company brings this sumptuous story of love and deception to life on stage.

(2) The Games of Love and Chance | Facebook

Starpainter w/ Curtis Phagoo at The Velvet Olive

The Velvet olive

Starpainter is a folk rock band from Lethbridge, Alberta. They wear their influences on their sleeves, showcasing strong songwriting and an affinity for gently psychedelic alt-country tones. The band has been growing a following on the strength of their debut full-length titled Bury Me By My Family (2020). Their imaginative, guitar-heavy live show is built on a foundation of prairie-born craftsmanship with a pop sensibility that defies their youth.

(2) The Velvet Olive Lounge | Facebook

Follow along with our NEW mural map, to enjoy the amazing murals that Downtown Red Deer has to offer!

Looking for a paper copy? Head to the Downtown Business Association office.

120, 5009 50 Ave.

 

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