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Tax – Settling a Shareholder Dispute under a Unanimous Shareholders Agreement is taxed as a Restrictive Covenant – Tax Court of Canada

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  • Tax – Settling a Shareholder Dispute under a Unanimous Shareholders Agreement is taxed as a Restrictive Covenant – Tax Court of Canada

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

    From the WTF (Weird Tax Findings) department…

    Consider this, you have three shareholders with a Unanimous Shareholder Agreement (USA) that says you can’t sell shares to a third party without consent of the other shareholders. Pretty standard stuff in agreements that I’ve seen.

    Now if two of the shareholders want to sell, and one does not want to agree. What do you do?

    In the Tax Court of Canada ruling in Pangea v The Queen (2018 TCC 158) that came out July 31, 2018, it became a little murkier.

    The day-to-day common understanding of the Restrictive Covenant rules was that it was mainly for things like Non-Competition Agreements when selling a business, etc.

    In this case, a shareholder that did not want to sell received an amount from the other shareholders. Basically, they paid him to go along with the sale of the shares and not exercise their right to veto the sale.

    Now to a Canadian shareholder, such a payment could be also taxed as business income as an “inducement payment” so it really doesn’t matter the characterization. However, to a non-resident shareholder, inducement payments could be treaty exempt as business profits, but restrictive covenant payments are not. This was the case for Pangea, and why it went to court.

    The commentary provided by the Tax Court of Canada however got me to thinking how far does this reach, and is there something else that could have been done?

    You see, the agreement between the disputing shareholders does not have to be a formal agreement. The restrictive covenant rules say that it can be an “agreement”, “undertaking”, or “waiver of an advantage or right” whether legally enforceable OR NOT.

    This wording makes me concerned.

    So even if the other two shareholders, tied me up, held a gun to my head, and made me agree under duress to accept the payment and sell my shares, I would still be taxed as though I was a willing participant?

    Now, this didn’t happen (I think) in this case, however, it begs the “what if” question, and brings a whole new meaning to “shotgun clause” in Unanimous Shareholder Agreements.

    So what if the transaction would have been structured differently?

    The interpretation by the tax court, although likely correct based on the extremely broad wording of the provisions, begs the question “what if” when viewing this scenario.

    The questions below do not imply that they would have been viewed favourably by the CRA or the Tax Court Justice, but it makes me wonder how they would view it.

    What if, instead of the amount being to agree, it was an outright sale of the right from Pangea to the other shareholders to veto the sale? Would the result be different? Would it be considered a disposition of property and exempted from the restrictive covenant rules? The Tax Court Justice hinted that this didn’t occur, so he does not have to consider it, but what would the ruling be if he did?

    What if the purchaser agreed to pay more for the shares held by Pangea than the amount paid to other shareholders?

    What if the other two shareholders assigned some of the sale proceeds directly to Pangea instead of receiving it first? Would it change the outcome?

    If the two shareholders committed a criminal act (which they didn’t) in forcing Pangea to agree under duress, would the CRA and Tax Court still enforce the restrictive covenant rules? It appears that they could.

    Unfortunately, this ruling raises more questions than answers with disagreeing shareholders tied to a Unanimous Shareholder Agreement trying to solve a dispute.

    One can only pop some popcorn and stay tuned…

    Cory G. Litzenberger, CPA, CMA, CFP, C.Mgr is the President & Founder of CGL Strategic Business & Tax Advisors; member of CPA Alberta Tax Working Group advisory panel; and recently, moderator at the 2018 Canadian Tax Foundation Prairie Provinces Tax Conference in Saskatoon, SK; and Master of Ceremonies at the 2018 Canadian Association of Farm Advisors Alberta Update


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    Health

    A LUXURY SPA experience in the heart of Central Alberta

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  • Safari Spas welcomed its first guests in 2003 with a goal of creating a truly exceptional luxury experience for residents in Red Deer and Central Alberta.

    Our team visits luxury spas all over the world in an effort to continually improve what we do.  We want our guests to feel like they are on a mini vacation each and every time they visit.  Our customer surveys tell us we hit the mark on a very consistent basis!

    Come relax in our beautiful spa, where we’ve created a deluxe environment: everything from glass mosaic and Italian tiles, fireplaces, frosted glass, lighted mirrors and extra plush chairs. Safari Spa & Salon offers massages, facials, manicures, pedicures, body wraps, body polishes, aromatherapy, waxing, and hair styling for men, women and children, among other services.

    Our level of service is over the top.

    We cater to our guests at every turn. We have created an experience within Red Deer that you would expect at a resort spa. It’s all about helping you recharge your batteries, getting your body, mind and soul back into alignment.

    We have a staff of 45, including four managers who ensure your experience is always 5 star. As long term members of our team, they care for the business as if it was their own.  Janelle has been with us since we opened. Chana started as a  hair stylist  and is now an integral part of our management team. Heather and Natasha are newer to the team and are our Customer Service gurus, always taking care of every little wish and desire of our guests.

    We are very proud of our deep roots in this community and support many worthwhile organizations and events.

    Of particular note is our annual Red Deer Festival of Trees, supporting the Red Deer Regional Health Foundation.  We’ve been an active sponsor of this amazing community event since we opened in 2003.

    We offer a variety of sublime services in a luxurious environment.  Click to take a virtual tour.

    We are proud to be the only AVEDA Lifestyle Spa in the region.

    Here are some of our most popular packages:

    Safari Ultimate $355

    Shampoo and Style, 60 minute Chakra massage, 90 minute customized facial, Aveda Spa manicure and pedicure.

    Couple’s Escape $485

    This is the perfect way to spend a relaxing day together. You will each receive a one hour relaxation massage, men’s spa facial for him, customized Aveda facial for her, then enjoy a spa snack and refreshment while sitting next to each other experiencing spa pedicures in our whirlpool pedicure spa chairs with fully adjustable heated massage chairs.

    Oasis $405

    Complete luxury in a serene atmosphere. This ultimate package includes: 1 hour relaxation massage, aromatherapy body wrap, customized Aveda facial, spa manicure, and spa pedicure. Relax in our serenity area and enjoy.

    Savanna $320

    Complete treatment for the body. One hour relaxation massage, spa facial, body polish and shampoo & style.

    Safari Indulge $300

    Sixty minute customized facial, 60 minute hot stone massage, pedicure, shampoo, condition and style.

    Safari Head To Toe $245

    Get pampered from head to toe with our customized Aveda facial, spa pedicure and one hour relaxation massage.

    Rain Forest $225

    A mini sampling of the spa experience. This package includes a customized Aveda facial, spa pedicure and spa manicure with paraffin wax.

    Gentlemen’s Oasis $245

    This package is created for the special man in your life. One hour relaxation massage, men’s spa facial and a spa pedicure.

    Stress Fix Pamper Package $230

    Stress can really take its toll on your physical and spiritual health.  Try our French Lavender infused Stress Fix Massage, pedicure and manicure to help reduce everyday stress.

    Pamper Package $195

    This is for those deserving to be pampered. Included in this package is a spa pedicure, spa manicure and one hour relaxation massage.

    Browse some photos and please click here to learn more about Safari Spa and Salon.   We are located in Unit 100, 31 Clearview Market Way, Red Deer.

    Please contact us through email clearview@safarispa.com or phone 403.314-9628.

    We have really convenient hours:

    Monday – Friday 9:00am to 9:00pm, Saturday 9:00am to 5:00pm and Sunday 10:00am to 4:00pm

    We are closed on the following days:

    • New Year’s Day
    • Family Day (February)
    • Easter Sunday
    • Labour Day (September)
    • Thanksgiving Day
    • Christmas Day
    • Boxing Day

    We are open from 9:00am -3pm on Good Friday, Victoria Day (May), Canada Day (July 1) and Heritage Day (August).

    We are open from 9-5 on Christmas Eve so you can start your Christmas celebration off right.

    Getting ready to celebrate the New Year?  We have you covered from 9-5 on New Year’s Eve.

    We open at noon on Remembrance Day so that we, along with our guests,  can attend services throughout the region.

    Please visit and let us spoil you soon!


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    Branded Content

    One Eleven Grill’s New Year’s Eve party includes a stellar band, great food and NO COVER!

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  • Let’s face it.  Making decisions about New Year’s Eve is tough, but it doesn’t have to be! We can make that decision a LOT easier!

    Join us New Year’s Eve for an amazing meal and excellent entertainment as Claude Godin and the Groove Ensemble take the stage with a combination of jazz, blues, funk, latin.  It’s going to be a fantastic night.

    Claude has shared stages with many well-known musicians, including Bo Diddley, The Platters, Powder Blues Band, Jack Semple, Matt Andersen, Matt Minglewood, Kim Mitchell, Fred Eaglesmith, Ian Mitchell & the Bay City Rollers, Big Dave McLean, Amos Gareth, David Ward, Russell Broom, Donald Ray Johnson, J.W. Jones Blues Band, Elmer Ferrer, Kenny Blues ‘Boss’ Wayne, Legends of Rock N Roll, Tim Williams, just to name a few.  Seriously, this will be a total musical treat. 

    So, what do you need to do?  Simply call us at 403.347-2111 and reserve your table today.  There is no cover charge.  You can also book online, but we really want to ensure that we have your correct booking information so please make the call. It’s going to be a great night and we don’t want any surprises beyond the usual wonder that is New Year’s Eve!

    Here’s a Youtube audio track that will give you a great sense of Claude and his stellar band.

    You like to know a bit about your food? We are serious about our steak.  Watch this short video to learn about how we hand cut each and every steak we serve.

    A bit about Claude A. Godin (Saxophonist) – Biography

    A dynamic and versatile musician, Claude Godin creates mood and memories with music. Born on July 27, 1963, in Montreal and raised in the village of Robertville in New Brunswick, Mr. Godin deeply believes in sharing the gift of music. He spent much of his youth in New Brunswick and a decade in Prince Albert Saskatchewan, setting the foundation for an enduring career in the arts. He desired to see the west and later relocated to the growing suburban city of Red Deer, Alberta, Canada.

    Coming from an extremely musical family, Claude Godin was immersed in music from early childhood. Initial training began with inspiration from his father who often held jam sessions at the family home. He diligently focused on the basics and grew as a musician over the years. Focused and driven to perfect his art, Claude became well versed in Alto, Tenor and Soprano Saxophones as well as the Clarinet. He is also well versed in many other complementary instruments including: piano, guitar, bass and the drums.

    Claude invested time training with a variety of bands across the country while developing a love for what he calls ‘rootsy’ styles of music such as Jazz, Latin, Blues and Funk. He expanded his social circle to make contact with great players and producers in the local and national industry, those that encouraged his unique voice and expression.

    Claude is a promoted artist on the national scene and plays at open microphone opportunities to expose his style and the sultry pretty tones of his saxophones. He performs with several bands, some specifically designed for certain special gigs. Currently, he is excited to be forming a groove and funk band under his own name ‘Claude Godin Groove Ensemble’ and is performing with Edmonton Blues/Funk band -‘The Whisper Kings’. He has been featured as a solo artist on many albums with bands such as Greg Godovitz ‘Goddo’, produced by the Canadian rock guitarist Paul Dean of ‘Loverboy’.

    In 2011 & 2015, Claude won the prestigious ‘Saxophone Player of the Year’ from the Calgary International Blues Music Association. He has been featured in print and radio across the country and television on CBC. His enduring passion is; “To elevate the value and importance of the arts in our world, it is a gift and therefore should be treated with respect and shared freely with all humankind. If you can speak the language of music, share it with the world…it is yearning for it.”

     

     

    About One Eleven Grill:

    One Eleven Grill brings a chic, sophisticated vibe to the heart of Red Deer. Situated in the historic Old Brew Plaza building, constructed in the 1800’s, the restaurant is a combination of industrial and classic modernism. Our menu features the best market-driven, seasonal ingredients prepared in a simple yet elegant style. We use only the best Alberta Beef produced under our supervision. (read more)

    If you are looking for a restaurant with great food, great company, and an amazing atmosphere, you can find it every day or night at One Eleven Grill.


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    december, 2018

    wed21nov - 21decAll DayAlberta Sports Hall of Fame and Museum - Deck the Hall 31 Days of Giving-31 Days of giving(All Day) Event Organized By: Alberta Sports Hall of Fame and Museum

    sat15dec10:00 am- 4:00 pmParkland Garden Centre Craft and Market Sale10:00 am - 4:00 pm

    sat15dec12:00 pm- 6:00 pmArtisan Market Sale for Nuit Blanche Winter CarnivalArtisan Market12:00 pm - 6:00 pm

    sat22dec10:00 am- 4:00 pmParkland Garden Centre Craft and Market Sale10:00 am - 4:00 pm

    mon31dec - 1jandec 317:00 pmjan 1- 2:00 amBlack & White ballRed Deer\'s Party of the Year!7:00 pm - (january 1) 2:00 am

    mon31dec - 1jandec 317:00 pmjan 1- 1:00 amOne Eleven Grill New Year's Eve with Claude Godin and his Groove EnsembleCall 403.347-2111 to reserve for New Year7:00 pm - (january 1) 1:00 am

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