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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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food and dining

One Eleven Grill shows off new renovations and some new menu creations

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One of Red Deer’s favourite restaurants has put some major effort into updating their space and creating some new menu items. One Eleven Grill opened its doors in 2011 with as a fresh and innovative entry into the local dining scene.

They’ve recently completed renovations and spent considerable time and effort developing some tasty new menu items. Watch the video above to get an idea of what you’re in store for next time you head down to one of the city’s finest restaurants.

About One Eleven Grill: An inviting and stylish restaurant tucked into the heart of Red Deer just waiting for you to discover or rediscover.

Opened on the first day of November in 2011, One Eleven has been thoughtfully and skillfully preparing delicious food and drinks for Central Alberta for years.

Our passion is STEAK! We are committed to quality, serving only the very best locally-owned, grass fed Alberta Triple AAA Beef in both classic and unique cuts.

Our warm, inviting ambiance is the perfect backdrop for everything from a romantic evening, a gathering with friends and family and even a quiet business lunch during the week. We even feature live jazz every Friday and Saturday. Add in one of the best selections of wine in the region, and One Eleven will set the perfect tone for your weekend.

At One Eleven we’re committed to your total satisfaction and we celebrate the people and food of Red Deer and Central Alberta every day.

For amazing food, great music and good times with family and friends, keep One Eleven in mind.

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Red Deer Chamber of Commerce accepting nominations for Business of the Year

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Now Accepting Nominations for the 2019 Business of the Year Awards

The Business of the Year Awards are organized by the Red Deer & District Chamber of Commerce and held annually in conjunction with Small Business Week.

The Business Awards are presented, in five categories, to exceptional businesses within the Red Deer area. All companies, Chamber members and non-members, are eligible for nomination for an award in their respective category.

“We have organizations doing extraordinary work in our community and far too often their accomplishments and charitable activities go unrecognized. Our entrepreneurs and businesses are incredibly humble so it gives of great pleasure to be able to recognize them” said Rick More, CEO of the Red Deer & District Chamber of Commerce.

The Red Deer & District Chamber of Commerce is now accepting nominations for the Business of the Year Awards in the following categories: 1-10 employees, 11-20 employees, 21+ employees, Young Entrepreneur and Non-Profit. Nominations can be submitted from the online nominations form. The deadline for application submission is July 26, 2019 at 4:30pm.

The Business of the Year Awards will be held on October 16, 2019 at the RDC Arts Centre & Foyer.

The Red Deer & District Chamber of Commerce is a collaborative leader in building a vibrant community and fosters an environment where businesses can lead, be innovative, sustainable, and grow.

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