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. Alternatively, there might be circumstances (referred to in the summary as the situation where “the benefit is conferred by a shareholder rather than by the corporation,” i.e., by X rather than Opco) 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 for the FMV of that interest – which, in turn, could engage s. 74.1(1) where the subscriber was X’s spouse.