In order to make a donation to a registered charity and public foundation (the "Donee"), a CCPC wholly-owned by Mr. X and with a NERDTOH balance of $750,000 (the “Corporation) has its capital reorganized under s. 86(1) such that 10% of its outstanding common shares (having an FMV of $1 million and a nominal ACB and PUC) are converted into preferred shares (the “Shares”) with a $1 million redemption value. Mr. X makes a donation (being an excepted gift described in s. 118.1(19) ) of the Shares to the Donee with which (and with whose officers etc.) he deals at arm's length.
Mr. X thereby realizes a capital gain of $1 million, while being entitled to a donation receipt in the same amount. Shortly after the donation, the Corporation redeems all of the Shares, thereby resulting in a $1 million deemed dividend under s. 84(3) (with no s. 89(14) designation being made.) This generates a $383,333 dividend refund ("DR").
Considering that the Corporation had liquid assets of $4 million, which would have allowed it to claim the DR had it instead paid a taxable dividend to, or redeemed shares of, Mr. X, would CRA nonetheless apply s. 129(1.2) to deny the DR? CRA responded:
CRA is of the view that the series of transactions of which the acquisition of the Shares by Donee is a part could satisfy the Purpose Test [in s. 129(1.2)] and subsection 129(1.2) could have application… .
Furthermore, the CRA took a similar approach in … 2016-0628181R3 by adding an opinion that any dividend … paid … on the shares of … the private corporation (Holdco) to the foundation (Foundation), which had previously acquired the shares as a result of the transfer of the shares by the testamentary spousal trust for the spouse of the deceased following the death of the spouse, would be considered not to be a taxable dividend, with the result that subsection 129(1. 2) would apply … .
Whether the Purpose Test is satisfied is a question of fact that can only be resolved on the basis of the facts and circumstances … .