An arm’s length employee (“Employee”) exercises stock options in Year 1 to acquire shares of the employer Canadian-controlled private corporation (“Opco”) having an FMV of $200,000 for an exercise price of $50,000 in Year 1. In Year 3, Opco becomes a bankrupt and, in Year 4, it is wound up and its shares cancelled. Does the deemed disposition under s. 50(1)(b), due to the bankruptcy of Opco, trigger a $150,000 benefit (the “Benefit”) to Employee? Is there any forgiveness deduction?
CRA indicated that a deemed disposition under s. 50(1)(b) (where the Employee made a valid election) applied for subdivision c rather than subdivision a purposes, so that it did not result in a disposition for s. 7 purposes. However, the winding-up of Opco and the cancellation of its shares will result in an inclusion of the Benefit in Year 4, although the Employee may be entitled to a deduction under s. 110(1)(d.1). There is no provision of the Act permitting a forgiveness deduction from the s. 7 inclusion.
However, the Benefit would increase the adjusted cost base of the shares under s. 53(1)(j) to $200,000, and if Opco qualified as a small business corporation, the capital loss arising thereon under s. 50(1)(b) or on the shares’ cancellation should qualify as a business investment loss.