Opco, a Canadian-controlled private corporation owning and operating a seniors' residence, and whose shares (which are qualified small business corporation shares) are held equally by X, Y and Z (the "Taxpayers") carries out the following transactions in order to shield assets from commercial risks relating to its business, the Taxpayers cause the following transactions:
- they transfer their shares of Opco to a newly-incorporated corporation (Propertyco) in consideration for Class F Shares;
- Opco redeems its shares held by Propertyco;
- Opco transfers its real estate and other investments to Propertyco in consideration for Class F shares;
- the repurchase of the shares of the capital stock of Propertyco held by Opco.
The issuance of Class F Shares by Propertyco to Opco increases the paid-up capital of the Class F Shares held by the Taxpayers. Does s. 245 apply to this increase? CRA responded:
The CRA has determined in the past that some of the transactions in circumstances similar to those described above have as their principal purpose the obtaining of a tax benefit such as the creation of paid-up capital and the increase (or transfer) of that paid-up capital or a portion thereof to individuals. The corporation that sustained a corresponding decrease in paid-up capital was not at a disadvantage because subsection 112(1) generally allowed it to deduct an amount equal to its additional dividends.
… The CRA has already concluded in some of these types of cases that avoidance transactions are caught by subsection 245(4) and that the general anti-avoidance rule applies. The CRA is currently reviewing additional cases that are similar in their results but have some variations.