January 3, 2012
The Supreme Court of Canada recently rendered its long-awaited decision in Copthorne Holdings Ltd. V. R., 2011 SCC 63. KPMG is pleased to provide this analysis of the decision and its implications for Canadian tax planning arrangements.
This special edition of TaxNewsFlash-Canada was written by Evy Moskowitz and Mark Meredith, partners and tax lawyers in KPMG’s affiliated law firm Moskowitz + Meredith.
Join our webcast on January 5, 2012 for more detailed analysis and discussion regarding the Copthorne decision.
As noted in our previous TaxNewsFlash-Canada on December 16, 2011, the Supreme Court of Canada (SCC) found in favour of the CRA with respect to the application of the “general anti-avoidance rule” (GAAR)2 to the transactions undertaken by the taxpayers (the Transactions). The SCC’s decision affirmed the decisions of the Tax Court of Canada and the Federal Court of Appeal in the CRA’s favour.
Having now taken the opportunity to reflect upon the views the SCC expressed, we have concluded that the decision has both its strengths and weaknesses. We discuss these in greater detail below.
We will not belabour the facts of the case here, as more detailed analyses may be found in any number of places.3 Accordingly, the following is a general summary of the Transactions, simplified to allow us to focus on the issues the SCC addressed.
Prior to 1992, a non-resident family group directly or indirectly held shares in two corporate chains, each of which culminated in the ownership of a Canadian investment.
- One corporate chain (the Loss Chain) consisted of a top Canadian holding company (Investments) and a wholly owned Canadian subsidiary (Holdings). The non-resident shareholders funded Investments with share subscriptions totalling approximately $97 million; Investments, in turn, invested approximately $67 million of that amount in shares of Holdings. As a result of these share subscriptions, the paid-up capital (PUC) for tax purposes of the Investments and Holdings shares was approximately $97 million and $67 million, respectively. The CRA did not dispute the validity of these PUC figures.
- The other corporate chain (the Gain Chain) included in relevant part a top Canadian company (Copthorne), the shares of which were also owned by non-residents of Canada. Before the Transactions, the shares of Copthorne itself had minimal PUC.
Holdings invested the proceeds of its share issuance in shares of a Canadian public company, while Copthorne invested in real property. The Holdings’ investment subsequently declined in value. As a result, when disposed of, that investment would have given rise to a loss for tax purposes. Conversely, the real property investment held by Copthorne increased in value and, when disposed of, resulted in the recognition of a substantial gain for tax purposes.
In 1992, as part of a series of steps employed to shift the inherent loss from the Loss Chain to the Gain Chain (and thereby shelter the gain the latter had realized), Investments sold the shares of Holdings to Copthorne. At this point, the fair market value (FMV) of the Holdings shares was negligible, but their PUC remained at $67 million.
In 1993, after the completion of the foregoing loss shifting steps (with which the CRA had no issue), it was determined that Copthorne and Holdings should be merged. Had such merger been effected by way of a vertical amalgamation of the two companies (which at this point were parent and subsidiary), the $67 million PUC of the Holdings shares would have been eliminated both under the relevant corporate law and under subsection 87(3) of the Income Tax Act (Canada) (the Act).4 Copthorne, however, recognized that this PUC was a valuable tax attribute because the amount thereof could be distributed to its non-resident shareholders free of Canadian withholding tax. At this point in time, however, no specific plans were in place to make any such distribution.
Accordingly, Copthorne decided to preserve the PUC of the Holdings shares by first selling them to Copthorne’s non-resident parent for FMV consideration (the 1993 Share Sale), which resulted in Copthorne and Holdings becoming sister corporations, and then merging Copthorne and Holdings by way of a horizontal (rather than a vertical) amalgamation (the Horizontal Amalgamation). The PUC elimination rule that applied to vertical amalgamations under the governing corporate law and in accordance with the provisions of subsection 87(3) (the PUC Elimination Rule) did not apply to horizontal amalgamations, with the result that the aggregate PUC of the merged entity (referred to as Copthorne II) was equal to the aggregate of the (preserved) PUC of the Holdings shares ($67 million) and the PUC of the Copthorne shares (nominal) — i.e., $67 million in total.
In 1995, Copthorne II and Investments were also merged by way of a horizontal amalgamation (the Second Amalgamation). The PUC of the resulting merged corporation (Copthorne III) was in turn equal to the aggregate (preserved) PUC of the Copthorne II shares ($67 million) and the PUC of the Investments shares ($97 million) ) — i.e., $164 million in total.
Following the Second Amalgamation, approximately $142 million of earnings of other underlying entities in the Gain Chain were distributed up through that chain, and ultimately by Copthorne III to its non-resident shareholder through a redemption of a portion of Copthorne III’s outstanding shares (the Redemption). Copthorne III took the position, in accordance with the provisions of the Act (other than GAAR), that no Canadian withholding tax was exigible in respect of this distribution (the Distribution) to the extent of the PUC attributable to the redeemed shares.
The CRA, however, argued that the 1993 Share Sale, which enabled the Horizontal Amalgamation and the consequent preservation of the $67 million of PUC attributable to the Holdings shares (the Preserved PUC), constituted an abuse of subsection 87(3) and specifically, the PUC Elimination Rule therein.
For GAAR to apply to a particular transaction, the transaction itself, or a series of transactions of which the particular transaction forms a part, must give rise to a “tax benefit”. GAAR will then apply to deny that tax benefit if the transaction:
- is an “avoidance transaction”, meaning that it was undertaken primarily to obtain that tax benefit; and
- results in a “misuse or abuse” of the Act.
The SCC held that the 1993 Share Sale gave rise to a tax benefit (i.e., the avoidance of Canadian withholding tax on such portion of the Distribution as was attributable to the Preserved PUC), which tax benefit was realized at the time of the Redemption. The SCC further found that the 1993 Share Sale:
- was part of the same series of transactions that included the Redemption, notwithstanding that, at the time of the 1993 Share Sale, no specific plans were in place for the Redemption to occur;
- had been undertaken primarily to obtain the foregoing withholding tax benefit, and that the 1993 Share Sale was therefore an avoidance transaction; and
- resulted in an abuse of the PUC Elimination Rule found in subsection 87(3).
Since its release, the SCC’s decision has been summarized at length in numerous publications and, as such, we do not propose to undertake that same approach to the decision. Instead, we thought it would be of interest to focus on what we view as the “good” and the “not-so-good” aspects of the decision.
The two most immediately striking “good” aspects of the decision are that it is unanimous, and that the SCC has taken pains to formally address every step required of a GAAR analysis, i.e., tax benefit, avoidance transaction and abuse. We anticipate that the tax community will regard both these aspects of the decision as a welcome return from the fractured 4:2:1 split decision in the SCC’s more recent GAAR decision in Lipson.5
Reaffirmation of “GAAR” principles
The Court also reasserted the following “GAAR” principles, which it previously set out in Canada Trustco,6 but which might have been interpreted as having been diluted somewhat by the Lipson decision:
Right to minimize tax — The Court clearly reaffirmed the long-standing principle expressed in the Duke of Westminster case that taxpayers are entitled to plan their affairs so as to minimize the taxes they pay. In Copthorne, in fact, the Court went further, making it clear that even where such tax planning gives rise to an “abuse” for purposes of GAAR, that does not connote immoral or inappropriate behaviour. The Court stated that:
The terms abuse or misuse might be viewed as implying moral opprobrium regarding the actions of a taxpayer to minimize tax liability utilizing the provisions of the Income Tax Act in a creative way. That would be inappropriate. Taxpayers are entitled to select courses of action or enter into transactions that will minimize their tax liability (see Duke of Westminster).7
Further, the Court stated that:
… determining the rationale of the relevant provisions of the Act should not be conflated with a value judgment of what is right or wrong nor with theories about what tax law ought to be or ought to do.8
GAAR is a provision of last resort — In similar vein, the Court reasserted the countervailing principle it expressed in Canada Trustco that even while Parliament intended to provide some scope for a Court to apply GAAR to override the result of the application of specific provisions of the Act, the rule is a “provision of last resort”, and Parliament must also be taken to intend to afford taxpayers “consistency, predictability and fairness in tax law”.9
Onus on the CRA to show clear “abuse” — To further the objectives of consistency, predictability and fairness in tax law, the Court reiterated its determination in Canada Trustco that the “abuse” in question must be clear, and that the onus is on the Minister to establish the tax policy the contravention of which constitutes such clear abuse. The Court also reaffirmed that “the benefit of the doubt is given to the taxpayer” in this regard.10
Text sometimes prevails — The Court acknowledged the possibility that, in some cases, the words of a particular provision in the Act may constitute a full statement of the statutory scheme underlying that provision, and that there may simply be no more tax policy rationale for the provision other than as indicated by those words.11
No general anti-surplus stripping rule in the Act
Notwithstanding its decision that GAAR applied to the PUC planning undertaken in Copthorne, the SCC concluded that there is no “general policy against surplus stripping” in the Act.12 The SCC stated rather that its decision was based on a relatively narrow statutory scheme relating specifically to the treatment of PUC on an amalgamation.
As such, in our view, the Court made it clear that its decision is intended to be of relatively narrow application and, in particular, does not provide authority for the CRA to assert the existence of a broad anti-surplus stripping statutory scheme in the Act as a basis for attacking other types of PUC planning.
PUC and third-party sales
The SCC affirmed the general view that PUC is an attribute that inheres in shares themselves, irrespective of whether the holder of those shares changes. In that context, the Court at least attempted to address some of the uncertainties to which its conclusions in this case could give rise, such as cases involving third-party sales of shares having PUC in excess of their value.13
Despite this reaffirmation of principles, a number of GAAR questions arise from the SCC’s decision. Some of these questions relate specifically to the PUC planning at issue, while others are more relevant to the general application of GAAR. While it is perhaps understandable that the SCC did not wish to delve into some of the hypothetical issues discussed below, given that Copthorne will likely be the last GAAR case the SCC will hear for quite some time, one would have hoped for more discussion of these issues by the Court.
Tax benefit and the reasonable comparative
The determination as to whether a particular transaction or series gives rise to a tax benefit is sometimes quite evident on the facts while at other times, it involves a comparison with an alternative transaction or series that the taxpayer might instead have reasonably undertaken to achieve the same commercial result as the transaction or series under review.
In Copthorne, the SCC used this comparative approach to conclude that the PUC preservation planning gave rise to a tax benefit (i.e., no withholding tax on the portion of the Distribution attributable to the Preserved PUC). Specifically, Copthorne had argued that the purpose of the Horizontal Amalgamation (as preceded by the 1993 Share Sale) had been to simplify the Copthorne structure and to utilize the inherent losses in Holdings against the gain realized in the Gain Chain.
Rejecting this assertion of purpose, the SCC nonetheless found that this commercial purpose could have been more simply achieved by vertically amalgamating Copthorne with Holdings, and that, under this reasonable alternative structure, no withholding tax savings would have resulted. The 1993 Share Sale and the Horizontal Amalgamation therefore clearly gave rise to a tax benefit.
On the facts in Copthorne, the choice of the vertical amalgamation as an appropriate comparative is relatively unsurprising. Prior to the 1993 Share Sale, the corporate structure was poised for a vertical amalgamation — the 1993 Share Sale was simply “inserted” to achieve the PUC preservation objective through the Horizontal Amalgamation, and, as such, the alternative of a “simple” vertical amalgamation stands out as rather obvious.
Unfortunately, however, for those who might seek a deeper understanding of this “reasonable comparative” test, the SCC was not required to address the more difficult general question as to how one is to choose among different possible comparative transactions if several appear equally “reasonable”. For example, consider how much more difficult the SCC’s tax benefit analysis might have been had Holdings never been a subsidiary of Copthorne but instead, had Investments sold the shares of Holdings in 1992 directly to the non-resident shareholder of Copthorne.14 In such circumstances, would the SCC have concluded that it would have been “reasonable” to, in effect, require the non-resident shareholder to forgo a horizontal amalgamation — which, in this example, would have been the natural next step in corporate simplification — and instead to first transfer the shares of Holdings under Copthorne and then proceed with a vertical amalgamation?
It will remain for subsequent decisions to expand on this “reasonable comparative” test, and to determine whether the choice between different reasonable comparatives is one that is to be governed by principles of law or merely by the facts in question.
Avoidance transaction and the concept of “series”
As noted above, for a transaction to be an avoidance transaction, it must be undertaken primarily to obtain the tax benefit in question, and it must either itself result in that tax benefit or it must be part of a series of transactions that results in that tax benefit.
The CRA argued, and the SCC agreed, that the 1993 Share Sale was the key transaction that gave rise to the withholding tax benefit, and that such transaction was undertaken primarily to obtain that benefit. The problem, however, was that the 1993 Share Sale did not itself result in the tax benefit. That benefit was realized only on the Redemption.15 Thus, for the Court to characterize the 1993 Share Sale as an avoidance transaction, it had to first find that the Redemption was part of the same series of transactions as the 1993 Share Sale.
The taxpayer argued that a particular transaction (here, the Redemption) could only be part of a prior series of transactions (here, at least the 1993 Share Sale and the Horizontal Amalgamation) if the particular transaction was “contemplated” at the time the prior transactions were undertaken. Since Copthorne had no specific plans in place to redeem the Copthorne II shares at the time of the 1993 Share Sale, the Redemption could not be viewed as part of the same series of transactions that included the 1993 Share Sale. Accordingly, the 1993 Share Sale transaction was not part of the series of transactions that gave rise to the withholding tax benefit, it could not therefore be an avoidance transaction, and GAAR could therefore not apply.
The SCC, however, disagreed.
The notion of “series” for purposes of the Act is extended by a specific provision in the Act,16 which deems a series to include any “related transaction” completed “in contemplation of” a particular series of transactions.
While perhaps somewhat grammatically surprising, the SCC’s prior interpretation of this phrase was that a particular transaction may be completed “in contemplation of” a series if the particular transaction either precedes or follows the series.17 Therefore, it is not surprising to find that the SCC in Copthorne reaffirmed that interpretation. Moreover, on the facts in Copthorne, it appeared fairly clear that, while there were no specific plans in place at the time of the 1993 Share Sale to repatriate the Preserved PUC on a tax-free basis to Copthorne’s non-resident shareholder, the SCC found that the preservation of that PUC could only have reasonably been undertaken to allow for just such an occurrence.
Our disappointment with the SCC’s findings on “series” thus stems not from the particular conclusion the Court reached in Copthorne, but from its having refrained from expanding upon how closely linked a particular transaction must be to a series for that transaction to be considered a “related transaction” completed “in contemplation of” that series. The SCC simply repeated earlier judicial pronouncements regarding the “series” test18 (which, with respect, we find does not take us very far in understanding the criterion), added, without discussion, a suggestion that the length of time or the existence of intervening events between the series of transactions and the particular event “may” be relevant considerations, and then concluded with the general statement that the issue of series was one to be decided on the facts.
While it is perhaps not surprising that the SCC chose not to undertake an open-ended exploration of hypotheticals to test the bounds of the “in contemplation” test, the tax community was certainly hoping for more concrete guidance from the SCC in this regard.
Abuse and bright-line tests
As noted above, the SCC found that the PUC planning in question frustrated and defeated the purpose of the PUC Elimination Rule in subsection 87(3) and, as such, amounted to an abuse for purposes of GAAR. This was so because the planning allowed the non-resident shareholder of Copthorne to be paid, tax-free, amounts in excess of the tax-paid funds that had been invested in Copthorne — or, more accurately, in the Loss Chain and the Gain Chain.
Specifically, the total tax-paid amount invested by the non-resident shareholder in both such chains was approximately $97 million (comprising the $97 million invested in the shares of Investments and the nominal amount invested in Copthorne), while the aggregate amount available for distribution to the non-resident shareholder was $164 million (comprising the aforementioned $97 million plus the $67 million of Preserved PUC), of which $142 million had been paid to the non-resident shareholder, tax-free, on the Redemption.
While the SCC’s analysis of the rationale underlying the PUC Elimination Rule may be open to debate, we do not so much take issue with that analysis as we do with the fact that the analysis (and the PUC Elimination Rule) is only relevant to vertical amalgamations. The amalgamation at issue in Copthorne was a horizontal amalgamation. Not until the last five paragraphs of the decision, however, does the SCC advert to this fact in the course of its abuse analysis, and then it simply says that the 1993 Share Sale (which allowed for the Horizontal Amalgamation to take place) was undertaken to circumvent a vertical amalgamation and the consequent application of the PUC Elimination Rule. As such, the 1993 Share Sale was abusive, and GAAR therefore applied.
The Court reached this conclusion without explaining why it was not permissible for Copthorne to take advantage of the clear distinction drawn by Parliament in subsection 87(3) between vertical and horizontal amalgamations. To merely state that it was abusive to do so seems to suggest that when a provision in the Act sets out a “bright line” before it can apply to tax the taxpayer, the taxpayer must structure its transactions so as to meet or go beyond that bright line. Thus, for example, if a provision only applies if shares are held at the end of a 30-day period (as is the case with the stop-loss rules in subsection 40(3.3)) or if the shareholder owns more than 10% of the voting and participating shares of a corporation (as is the case with the PUC grind rules in sections 84.1 and 212.1), is it abusive for the shareholder to respectively sell its shares on the 29th day or acquire just under 10% of the shares for the specific purpose of avoiding the application of those provisions? If so, what is the purpose of having the 30-day or 10% test in the provisions? If not, why then was it abusive for Copthorne to avoid the bright-line test (i.e., a vertical amalgamation) in subsection 87(3)? Is it because the result — i.e., the ability to withdraw, tax-free, more than the tax-paid amount invested in the corporation — is so offensive? If so, it appears the SCC may have gone against its own admonition made earlier in the decision that “determining the rationale of the relevant provisions of the Act should not be conflated with a value judgment of what is right or wrong nor with theories about what tax law ought to be or ought to do”.
By simply stating that it was abusive for Copthorne to have chosen to do a horizontal amalgamation instead of a vertical amalgamation, without identifying what exactly precluded it from doing so, the SCC, with respect, seems perilously close to having reached its decision based on a “smell” test. Moreover, in so doing, it has also made it very difficult for taxpayers to ascertain how and when GAAR applies in the context of statutory bright-line tests.
Abuse and the right to choose
The SCC’s abuse analysis also raises the issue as to when a taxpayer is entitled to choose between various options available to it to effect a particular transaction. Must the taxpayer always choose the option that gives rise to the most tax? Based on the Court’s comments with respect to the Duke of Westminster principle, we assume that the answer to this question must be “no”. However, if this is so, we again ask why it was not open to Copthorne to choose a horizontal amalgamation over a vertical amalgamation. Was it because, as stated above, the corporate structure, prior to the 1993 Share Sale, was poised for a vertical amalgamation, and the 1993 Share Sale was simply “inserted” into the structure to achieve the PUC preservation objective? If so, would a horizontal amalgamation have been abusive had Holdings never become a subsidiary of Copthorne but instead, had from the beginning been inserted into the Gain Chain structure as a sister of Copthorne?19 If no abuse would have arisen in these latter circumstances, this would suggest that Copthorne, having chosen a particular course of action with respect to where to insert Holdings into the Gain Chain (i.e., as a subsidiary of Copthorne), was forever precluded from a GAAR perspective from later making those two corporations sisters, even though it could have done so from the outset had it so wished.
That said, the SCC did agree with the taxpayer’s argument that there was no policy in the Act that parent and subsidiary corporations must always remain as parent and subsidiary, and that there was no general principle against corporate reorganizations, even if undertaken for tax purposes.20 The Court, however, went on to state that when the reorganization is undertaken primarily for tax purposes and is done in a manner that circumvents a provision in the Act, the reorganization may be found to be abusive. This latter statement therefore again brings to the fore the question asked earlier — when is it abusive for a taxpayer to change its mind and choose a course of action that was open to it initially but which, for whatever reason, it chose not to follow at that time? Unfortunately, the Copthorne decision provides very little guidance in this regard.
Abuse and the onus of proof
As noted above, the SCC in Copthorne reiterated its previously stated finding that for the abuse test to be satisfied, the abuse in question must be clear and that the onus is on the CRA to show that clear abuse. However, nowhere in its abuse analysis does the Court refer to any argument put forth by the CRA in support of its position that the 1993 Share Sale was abusive. Indeed, the entire analysis consists of rejecting one-by-one the taxpayer’s arguments as to why there was no abuse, and then, as noted above, simply finding that the 1993 Share Sale was abusive because it allowed Copthorne to circumvent the PUC Elimination Rule and thereby pay out tax-free more than was invested tax-paid. In so doing, the SCC, notwithstanding its comments to the contrary, appears to have implicitly placed the burden of the abuse test directly on the taxpayer.
Abuse — What if the horizontal amalgamation had not occurred?
In addition to the more general abuse issues raised above, one might argue, with respect, that the SCC’s finding of abuse on the specific facts in Copthorne does not hold up to closer scrutiny. Specifically, as discussed above, this finding is based entirely on the PUC Elimination Rule in subsection 87(3), which is relevant to amalgamations. But what if there had been no Horizontal Amalgamation? What if the taxpayer had simply undertaken the 1993 Share Sale, and then just funded Investments and Holdings by whatever means necessary to allow them to redeem all or part of their shares and pay out tax-free all or part of their PUC (including the Preserved PUC of $67 million)? How in these circumstances, in the absence of any amalgamation, could the PUC Elimination Rule be said to be relevant or to be circumvented, and how then could the SCC find there to be an abuse, even though the taxpayer would have achieved the very same result (ignoring GAAR) as that achieved in Copthorne — i.e., the payment tax-free of more funds than were invested tax-paid?
As noted above, it seems unlikely that the SCC will be interested in revisiting any of these questions any time soon, so it will remain for the CRA, private practitioners, taxpayers and the lower courts to wrestle with these issues. In our view, the one clear result of the Copthorne decision is that dealing with these issues has not become any easier.
Moskowitz + Meredith LLP (M+M) is a tax law firm affiliated with KPMG LLP. With offices in major centres across Canada, M+M offers knowledge and experience not only in Canadian corporate income tax but also in international tax, transfer pricing, indirect tax and U.S. corporate tax.
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1 TaxNewsFlash-Canada 2011-37, “Supreme Court Rules GAAR Applies to Copthorne PUC Transaction”, issued on December 16, 2011.
2 Section 245 of the Income Tax Act
3 Mark Meredith and Nancy Diep, “Duplication of Tax Attributes” in Canadian Tax Foundation 2010 Conference Report, publication forthcoming.
4 All statutory references herein are to the relevant provisions of the Act.
5 Lipson v. R., 2009 SCC 1.
6 Canada Trustco Mortgage Co v. R., 2005 SCC 54.
7 Copthorne, paragraph 65.
8 Ibid., paragraph 70.
9 Ibid., paragraph 67.
10 Ibid., paragraphs 68 and 72.
11 Ibid., paragraph 110.
12 Ibid., paragraph 118. This conclusion is consistent with the tenor of the more recent decisions of the lower courts in this area, such as Evans v. R., 2005 TCC 684, at paragraph 34 and Collins & Aikman Products Co. v. R., 2009 TCC 299, at paragraph 73 and following; affirmed 2010 FCA 251, which have retreated from the assertions in early cases such as RMM Canadian Enterprises Ltd v. R., 1997 TCJ 302.
13 Ibid., paragraphs 119 and following.
14 This assumes that the desired loss shifting could have been achieved in this manner; however, that nuance is irrelevant to the question being raised.
15 Copthorne, paragraph 42.
16 Subsection 248(10).
17 Canada Trustco, supra note 6, paragraph 20, and the authorities cited therein.
18 That is, that the words “in contemplation of” should be interpreted as equivalent to “in relation to” or “because of”, and that these phrases meant something more than a “mere possibility” or a “connection with an extreme degree of remoteness” (paragraph 47 of the decision).
19 Supra note 14.
20 Copthorne, paragraph 121.
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