5-901556
Dear Sirs:
Re: Subsections 15(1) and 56(2) of the Income Tax Act (Canada) (the "Act")
We are writing in response to your letter dated July 10, 1990 in which you requested our views on the application of the above-noted provisions of the Act in the following hypothetical situation:
1. Company A is a Canadian corporation which is controlled by X, a Canadian resident.
2. Company A carries on an active business and has excess cash.
3. X will incorporate a new Canadian corporation ("Newco") which he will control. Newco will carry on an active business.
4. Company A will make an interest-free demand loan to Newco.
You requested our views on whether the interest-free loan made to Newco by Company A would result in a taxable benefit to X under either subsection 15(1) or 56(2). You also requested our comments on the applicability of these subsections to the situation with one additional assumption:
5. Newco's business is not successful and Company A has to write off the loan. Assume section 80 applies to the forgiveness of debt.OUR COMMENTS
INTEREST-FREE LOAN
A determination that a benefit has been conferred on a shareholder as a result of intercompany loans will depend on an examination of all of the relevant facts of a particular situation.
The Department will generally not seek to apply subsection 15(1) of the Act in respect of bona fide intercorporate loans arising in the course of carrying on a business of the two corporations resident in Canada.
The Courts have held (see, for example, Fraser Companies. Limited v. The Queen, 81 DTC 5051) that a bona fide intercompany loan does not constitute a payment or transfer of property. For this reason, it is our view that subsection 56(2) of the Act would ordinarily not be applicable in the circumstances outlined.
FORGIVENESS OF DEBT
It is our view that the Department would generally not seek to apply subsection 15(1) or 56(2) if a bona fide intercompany loan were forgiven in the above circumstances.
The foregoing comments are given in accordance with the practice referred to in - paragraph 21 of Information Circular 70-6R2 dated September 28, 1990 and are not binding on Revenue Canada, Taxation.
Yours truly,
for DirectorReorganizations and Non-resident DivisionRulings DirectorateLegislative and Intergovernmental Affairs Branch