10 months after the formation by him of a small business corporation, A agrees with an arm’s length employee of the corporation to sell 1/3 of his shares to him for their fair market value on that agreement date, but with the transfer of ownership postponed for 14 months, in order that the two-year holding requirement in the qualified small business corporation definition can be satisfied.
CRA confirmed that if the sale price was fixed, this would likely qualify as a “synthetic disposition arrangement” (SDA), so that the shares would be deemed to be disposed of for their FMV at the time of making the agreement. However, if the agreement instead provided that the aggregate share price would be increased by 20% of the profits made during the 14-month period, “it appeared” that there would no longer be an SDA, i.e., although there still was no downside risk, the opportunity for gain was no longer substantially eliminated.
CRA did not demur to the implicit proposition that, in the absence of the SDA rules applying, and consistently with 1999-0006705 (containing essentially the same facts as in the base case), the 2-year holding requirement in the QSBC share definition could be satisfied.