A Canadian-controlled private corporation (StartupCo) was incorporated in 2006. StartupCo was not a "specified investment business" or a "personal services business" for purposes of the Act. StartupCo needed money to make a deposit on a bid for oil and gas properties that were being held in receivership.
In September 2007, the taxpayer (Mr. O) loaned more than $600,000 to StartupCo. StartupCo agreed to pay Mr. O a $100,000 "commission" for making the loan. The loan was to be paid back to Mr. O by October 4, 2007.
By October 10, 2007, the receiver terminated the purchase agreement for the properties, and StartupCo's deposit was forfeited in accordance with that agreement.
Mr. O claimed his uncollectible debt from StartupCo as a business investment loss of over $600,000 (or allowable business investment loss of over $300,0000) on his 2007 income tax return.
The CRA denied Mr. O's claim on the basis that StartupCo was not a "small business corporation" because it did not carry on an "active business" in 2007 or the twelve preceding months. Instead, the CRA treated Mr. O's uncollectible debt as a capital loss.
At issue in this appeal is whether StartupCo was an "active business" during the relevant period.
Mr. O argued that the definition of "active business" is meant to exclude a "specified investment business" and a "personal services business". As these concepts did not apply to StartupCo, Mr. O argued "that 'active business' meant only 'business' in this case". The TCC disagreed with Mr. O's argument, as the word "active" is an adjective that modifies "business", and "should not be overlooked".
The TCC found inconsistencies between StartupCo's business summary, which had been used to raise funds in 2007, and its president's testimony. In fact, StartupCo had no management team other than the president and one other person, neither of whom were paid by the company. The president testified that StartupCo's stationery, business cards, letterhead and website clearly showed that the company was in business, and were necessary because "when you're asking someone for $50 million [you need to have more than] air...to be legitimate".
The TCC agreed with the CRA's comments that the "accoutrements of business" do not create a business.
The TCC's view was that Mr. O did not meet his onus to produce credible evidence to support his position that
StartupCo was an active business and that he was entitled to a business investment loss. As a result, the TCC dismissed the appeal.
For more information, contact your KPMG adviser.