Upon the incorporation of Opco, X subscribed for and continued thereafter to hold all the Class A voting participating shares of Opco, whose terms provide for a participating dividend. At that time or thereafter, a Holding company owned by X, or X’s spouse, subscribed a modest amount for Class B non-voting participating shares so that dividends thereon may accomplish a creditor-proofing or income-splitting objective.
CRA noted that it could consider that Opco had conferred a s. 15(1) benefit on the subscriber to the Class B shares if their fair market value was higher than the subscription price. “For example, we might reach this conclusion in a situation where the amount paid for the Class B shares did not represent the fair market value of the Class B shares at the time of subscription.” Alternatively, there might be circumstances (referred to in the summary as those where X rather than Opco had conferred the benefit) where CRA would apply s. 69(1)(b) and Kieboom on the basis that X had disposed of an interest in Opco to the Class B share subscriber. – which, in turn, could engage s. 74.1(1) where the subscriber was X’s spouse.