FA Finco (a foreign affiliate of Canadian Parent) lends to FA Holdco (a Delaware subsidiary of Canadian Parent), which uses the borrowed money to acquire all of the shares of FA Target, which are not excluded property. FA Target is merged into FA Opco (wholly-owned by FA Holdco), so that FA Holdco receives shares of the merged corporation (Mergeco), replacing its shares of FA Target and FA Opco. After the merger, substantially all of the property of Mergeco is excluded property.
Is the interest on the loan recharacterized under s. 95(2)(a)(ii)(D) as active business income? After finding that it would be reasonable to consider that the current use test in s. 95(2)(a)(ii)(D)(I) would be satisfied, given that the current use of borrowed money was linked to the Mergeco shares and there presumably was a reasonable expectation that FA Holdco would receive dividends on those shares, CRA did not appear to demur to the implicit proposition that the property referenced under the current use test in s. 95(2)(a)(ii)(D)(I) was excluded property (namely, the Mergeco shares following the merger) - even though the shares acquired with the borrowed money were not excluded property (presumably FA Target was small relative to FA Opco).