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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

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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