August 24, 2011
Foreign Affiliate Tax Rules Get a Make-Over
Canadian multinationals may be able to clarify many tax issues affecting their foreign affiliates now that the Department of Finance has released long-awaited new foreign affiliate proposals. The 200-page package of legislative proposals, released on August 19, 2011, replaces a large number of controversial amendments that were announced in 2004 but never passed into law. These new proposals should provide much-needed clarity that was not available under the seven-year-old draft legislation that was generally considered too complex and cumbersome.
The Department of Finance will accept comments on the proposals until October 19, 2011. Although the government may make changes after this consultation period, we would not be surprised to see the proposed measures passed into law without significant amendments. Since the government has a majority, the proposals could receive first reading in the House of Commons (and thus be considered substantively enacted for purposes of Canadian GAAP) before the end of 2011 or early in 2012.
Tune in to KPMG’s New Foreign Affiliate Rules webcast — August 31, 2011
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Inside this Issue
This TaxNewsFlash-Canada summarizes the new foreign affiliate proposals in the following areas:
· Highlights of the new rules
· Coming-into-force provisions
· Avoidance transactions cause recast of surplus
· “Hybrid surplus” combines exempt and taxable surplus
· Upstream loans could create an income inclusion
· Canadian stop-loss rules extended to foreign affiliates
· Dividends vs. returns of capital
· Other amendments
· Action required
Highlights of the new rules
The new proposals eliminate many of the controversial aspects of the 2004 amendments. For example, the suspended gain provisions that would have prevented the recognition of surplus on certain related-party transactions until a triggering event occurred have been replaced with the new concept of “hybrid surplus”. As a result, taxpayers can now potentially access surplus relating to transactions undertaken prior to August 19, 2011 that would have otherwise been suspended under the previous version of the draft legislation.
As well, the concept of “foreign paid-up capital” introduced in the 2004 amendments has been dropped, and some new rules introduced that essentially treat all distributions from a foreign affiliate as dividends subject to the surplus ordering rules, unless an election is made to treat the distribution as a pre-acquisition dividend and return of tax basis in the foreign affiliate’s shares.
One of the unexpected changes introduces an upstream loan rule similar to the current shareholder benefit rules. Such a loan that remains outstanding for more than two years could result in an income inclusion, subject to certain exceptions. This measure could have a significant impact on many Canadian multinationals, as such loans have been common.
Most provisions in the proposals have their own coming-into-force rules, many of which apply on or after the Announcement Date (i.e., August 19, 2011). Some coming-into-force measures will allow a taxpayer to elect to have the new rules apply to all foreign affiliates in its corporate group back to 2004 or prior years, with some modifications to the wording of the applicable provisions.
More problematic, however, are the coming-into-force measures that apply to taxation years of foreign affiliates that end after August 19, 2011. As a result of these measures, changes to the rules could apply to transactions that have already occurred in the affiliate’s current taxation year. These changes could have a negative impact that was unforeseen at the time the transactions took place. Some of these provisions are highlighted below.
KPMG observation — Coming-into-force rules get complicated
Even though the new draft proposals themselves seem simpler, some of the related coming-into-force measures are complicated. This complication is due in part to the transitional nature of the rules, and the ability to make elections to have the rules apply to a foreign affiliate group back to 2004 and prior years. As a result, these measures will require careful consideration by the group before a taxpayer makes such an election.
Avoidance transactions cause recast of surplus
A new provision that applies to tax avoidance transactions could result in amounts that would otherwise be included in exempt surplus being recast as taxable surplus.
This new rule relies on the definition of “avoidance transaction” in the Income Tax Act’s general anti-avoidance rules (GAAR). An avoidance transaction is one that results, directly or indirectly, in a tax benefit, unless it is undertaken primarily for bona fide purposes other than to obtain the tax benefit.
Accordingly, if a transaction that increases exempt surplus is undertaken primarily to achieve that increase, the increase will be included in taxable surplus, and not in exempt surplus.
KPMG observation — No “misuse or abuse” exception
The recast of exempt surplus as taxable surplus
relies on the GAAR definition of “avoidance transaction”, but does not
incorporate the exception in the rules that requires the transaction to
result in a misuse of a specific provision, or of the Income Tax Act as a
whole, in order for GAAR to apply.
“Hybrid surplus” combines exempt and taxable surplus
The 2004 amendments included rules that effectively suspended gains and related surplus increases that arose from transfers of excluded property between related parties. The rules also suspended losses from transfers of non-excluded property between related parties.
This suspended gain/loss concept has been replaced with a new category of surplus referred to as “hybrid surplus”. Hybrid surplus will include, among other items, 100% of the capital gains and losses that arise on a foreign affiliate’s disposition of shares of another foreign affiliate, a partnership interest and certain financial instruments.
One-half of dividends from hybrid surplus will be eligible for a deduction in Canada, while the remaining half will be eligible for relief depending on the amount of foreign tax paid by the foreign affiliate on the capital gain.
These measures oblige taxpayers to repatriate an equal share of both portions (exempt and taxable with relief for underlying foreign tax) at the same time. The ordering of surplus distributions has been changed such that distributions will, absent any special elections, be considered to be made in the following order: exempt surplus, hybrid surplus, taxable surplus and pre-acquisition surplus. A proposed rule will allow taxpayers to select taxable surplus before hybrid surplus.
Up to the end of 2012, hybrid surplus will only arise on dispositions to “designated persons or partnerships” (generally persons within the corporate group). After 2012, the hybrid surplus rule will apply to all dispositions.
Previously, capital gains arising on the
disposition of excluded property, such as shares of another foreign
affiliate, would be allocated 50% to exempt earnings and 50% to taxable
earnings. As such, a taxpayer could choose to have a foreign affiliate
distribute the exempt portion only, and lend the taxable portion back to the
Upstream loans could create an income inclusion
The proposals introduce new rules modeled on the current shareholder benefit rules (in subsection 15(2) of the Income Tax Act). These new rules will require a taxpayer to include in income an amount in respect of a loan from a foreign affiliate to a “specified debtor”. Specified debtor is defined to include most persons that do not deal at arm’s length with the taxpayer, other than certain foreign affiliates that are controlled by the taxpayer or a related Canadian corporation.
Like the existing shareholder benefit rules, no income inclusion will arise if the loan is repaid within two years or if the loan was made in the ordinary course of the creditor’s business.
A deduction is available if it can be demonstrated that, had a dividend been paid instead of the loan being made, the taxpayer would have been able to deduct the full amount as an exempt, taxable or hybrid surplus dividend. In order to claim this deduction, no dividends can be paid to the taxpayer by any relevant affiliate during the portion of the year that the loan is outstanding, and the same surplus balances cannot be relied on for another loan. Also, similar to the existing shareholder benefit rules, a deduction is available to the extent the loan is repaid in a later year.
These rules apply to loans or advances made after August 19, 2011. For loans and advances that existed prior to August 19, 2011, a transitional rule deems them to have been made on August 19, 2011, thereby allowing taxpayers two years to unwind such loans.
The definition of “specified debtor”
includes most persons that do not deal at arm’s length with the taxpayer.
Therefore, for example, a loan by a foreign affiliate to another Canadian
corporation within the Canadian corporate group that is not the direct
shareholder of the foreign affiliate will still be caught by these rules.
Canadian stop-loss rules extended to foreign affiliates
foreign affiliate shares
Under the proposals, this transfer will no longer be permitted to occur on a roll-over basis if there is an inherent loss in the shares of FA1. Accordingly, the fair market value of FA1’s shares will need to be determined, and the resulting loss on the transfer will be subject to the same capital loss suspension rules as currently apply to dispositions of capital property by Canadian taxpayers. The loss will be suspended in the hands of the Canadian taxpayer, and will only be released when a specific triggering event occurs, such as the sale of the shares of FA1 to an arm’s length person.
The same roll-over rules also currently apply to the transfer by a foreign affiliate (FA1) of shares of another foreign affiliate (FA2) to a third foreign affiliate (FA3) for consideration that includes shares of FA3. If there is an inherent loss in the shares of FA2, a roll-over will no longer be allowed, and the resulting loss will only be allowed if the shares of FA2 are excluded property. Otherwise, the loss will be suspended in FA1 as long as the shares of FA2 continue to be held in the corporate group.
Both of the proposals apply to dispositions that occur after August 19, 2011.
Reduction of loss
on dispositions of foreign affiliate shares
Previously announced changes to these rules attempted to ensure that any foreign exchange or other capital gains realized as a result of a settlement of a debt obligation or currency hedge related to the acquisition of the foreign affiliate shares be taken into consideration in the determination of the loss reduction. Unfortunately, these prior changes did not accomplish their objective of effectively preserving all or a portion of the loss otherwise realized.
The changes to these measures now more effectively allow some or all of the realized loss to be re-instated if there is a corresponding gain on the settlement of a foreign currency debt or hedge. In addition, if the realized gain is greater than the balance of the loss after it is reduced by any exempt dividends, the exempt dividends cease to be a factor in the determination of the amount of the loss that can be claimed. However, one important condition required in order to incorporate the corresponding gain in the calculation of the permitted loss balance is that the gain must be realized within 30 days before or after the disposition of the foreign affiliate shares.
These proposals apply to share dispositions that occur after February 27, 2004. However, numerous elective transitional coming-into-force measures can apply for up to one year after August 19, 2011.
KPMG observation — Coordinated approach for foreign affiliate losses
Prior to these proposals, the application of
Canada’s stop-loss rules in a foreign affiliate context were not obvious. In
some situations, there were specific loss limitation rules, while in other
cases there were no specific rules that would stop the realization or
transfer of a loss within a related group, such as the rules discussed above.
Dividends vs. returns of capital
From a Canadian perspective, the determination of whether a distribution from a foreign affiliate should be treated as a dividend, a return of capital or some other type of payment is generally based on the characterization of the distribution under foreign corporate law.
However, this treatment caused concern for both Finance and the Canada Revenue Agency (CRA) because some foreign corporate laws do not specifically refer to the character of distributions. If there is no such characterization, the CRA has stated that the distribution could be treated as a shareholder benefit, which could be potentially taxable in Canada either as other income or as foreign accrual property income (FAPI).
The draft legislation released in 2004 introduced the concept of “foreign paid-up capital” in an attempt to ensure that distributions from a foreign affiliate were recognized appropriately in the context of Canadian rules.
In contrast, the new proposals ignore a foreign affiliate’s paid-up capital and treat most distributions as dividends, subject to the usual surplus ordering rules, regardless of their treatment under foreign corporate law. Taxpayers can also now elect to treat a distribution as a pre-acquisition dividend, effectively deeming it to be a return of the adjusted cost base (ACB) in the foreign affiliate’s shares.
This rule gives taxpayers the flexibility to choose to return ACB first before receiving dividends. Thus, if a foreign affiliate only has taxable surplus with minimal underlying foreign tax, the taxpayer can elect to treat a distribution as a return of ACB rather than a dividend which would be subject to Canadian tax.
If such an election results in a capital gain because the ACB in the shares goes negative, the taxpayer will be forced to treat all or a portion of the capital gain as a dividend paid out of exempt, hybrid or taxable surplus. Accordingly, it will not be possible to convert taxable surplus dividends, which could be subject to tax in Canada at full rates, into capital gains.
These rules generally apply to dividends paid after August 19, 2011 but an election can be made to have these rules apply to dividends paid after February 27, 2004 by all foreign affiliates in the corporate group.
liquidations and mergers
The first set of rules introduces the concept of a “qualifying liquidation and dissolution”, which is meant to mirror the requirements and results of the tax-deferred wind-up rules that apply to Canadian corporations, allowing property of the foreign affiliate to be distributed to the Canadian shareholder on a roll-over basis if certain ownership levels are met.
The second set of rules includes the same tax-deferral results if the liquidation is a “designated liquidation and dissolution”. If the requisite ownership requirements are not met, a liquidation would be a taxable event under both sets of provisions.
The first set of rules generally applies to liquidations that begin after February 27, 2004, while the second set of rules generally applies to liquidations that begin after August 19, 2011.
The proposed rules that apply to mergers of foreign affiliates will allow the merger to occur on a tax-deferred basis as long as one or more of the predecessor corporations, and the newly merged company, are foreign affiliates. These rules apply to mergers that occur after August 19, 2011.
The definition of foreign merger is also expanded to include “absorptive” mergers that can apply under the corporate law of some foreign jurisdictions such as the U.S. This new provision applies to mergers that occur after 1994 if the taxpayer so chooses.
Streaming capital losses and capital gains for FAPI purposes
Under current rules, certain capital losses can offset income, such as interest income, that is included in FAPI. The proposals would stream the use of capital losses relevant for FAPI purposes (referred to as “foreign accrual capital losses”) solely against capital gains that are also included in FAPI.
Under the proposals, foreign accrual capital losses can be used to offset relevant capital gains of the same year, the previous three years or the subsequent 20 years. This change applies to taxation years ending after August 19, 2011.
KPMG observation — No offset of domestic capital gains with FAPI capital losses
The proposals do not provide equivalent treatment of capital gains and losses realized by controlled foreign affiliates with that of capital gains and losses realized directly by a Canadian taxpayer. For instance, a Canadian corporation owning shares of a controlled foreign affiliate may itself realize a capital gain while its controlled foreign affiliate sustains a foreign accrual capital loss. The proposals do not allow the offset of the capital gain by the foreign accrual capital loss.
Foreign exchange gains and losses
Under current rules, gains made or losses sustained by virtue of currency fluctuations relative to the Canadian dollar are generally treated as capital gains or capital losses from the disposition of currency. Further, the current rules are broad enough to apply to gains made or losses sustained by corporations related to transactions in respect of their own shares, such as the redemption of shares denominated in a foreign currency.
The proposals limit the application of these rules to debt obligations denominated in a foreign currency. In addition, they will treat each currency gain or loss in respect of such debt obligations as a separate capital gain or loss from the disposition of currency.
This change provides a more effective carve-out for accrued currency gains and losses on debt obligations owing by a non-resident corporation prior to it becoming a foreign affiliate.
These changes apply to gains made and losses sustained in taxation years that begin after August 19, 2011, except where they apply to a foreign affiliate, in which case they apply to taxation years ending after August 19, 2011.
KPMG observation — No grandfathering for existing hedging arrangements
Some companies may have arrangements whereby
currency-related risks in respect of certain of their assets are hedged for
tax purposes by offsetting currency-related risks in respect of foreign
currency-denominated issued share capital.
Many taxpayers have been using Canadian rules in the calculation of a foreign affiliate’s exempt earnings and not claiming discretionary deductions, such as capital cost allowance, thereby maximizing the balance of earnings available for distribution as exempt surplus. Accordingly, this measure could be a significant change for some taxpayers. This measure applies to taxation years of foreign affiliates that end after August 19, 2011.
Other rules are introduced to ensure that no prescribed FAT is available where the amount is in respect of a foreign accrual capital loss that could not have been used because of the proposed limitation on using foreign accrual capital losses against foreign accrual capital gains.
The new draft proposals seem much simpler than the previous iteration of the rules, eliminating much of the detailed complexity that caused uncertainty. However, some provisions could result in unexpected consequences to taxpayers, who may need to take steps to ensure that such consequences do not result in an unexpected Canadian tax liability.
Corporations that currently have upstream loans in place may need to unwind them within the next two years so that an income inclusion does not arise.
Corporations will need to revisit their surplus calculations because some provisions that they would have previously relied on in preparing the calculations may no longer apply. This change could significantly affect the treatment of dividends paid by foreign affiliates to Canadian taxpayers over the past seven years.
Corporations should also review foreign affiliate transactions that took place in the taxation year that includes August 19, 2011 because some of the new proposals’ coming-into-force provisions apply retroactively.
We can help
Your KPMG adviser can help your Canadian corporation assess the effect of the new foreign affiliate proposals on your business, and point out ways to take advantage of any benefits arising from the proposals or help mitigate their impact. For more details on these measures and their potential impact, contact your KPMG adviser.
Information is current to August 23, 2011. The information contained in this TaxNewsFlash-Canada is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act upon such information without appropriate professional advice after a thorough examination of the particular situation. For more information, contact KPMG’s National Tax Centre at 416.777.8500.
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