Mr. X held all the preferred shares of Opco Inc. representing more than 50% of the voting rights. Opco paid a $10,000 capital dividend on its common shares held by a discretionary family trust (the "Trust") whose beneficiaries were Mr. X's three children, including Child A, aged 20. Child A used that sum to subscribe for Opco preferred shares.
Was that subscription a contribution of “arm’s length capital”? After referring inter alia to the exclusion in para. (c) of the “arm’s length capital” definition, CRA stated:
[T]he $10,000 received by Child A as a capital dividend is not arm’s length capital of Child A since it is property transferred indirectly (i.e., through the Trust) by Opco, a person related to Child A. …
Thus, Child A's subscription for shares of the capital stock of Opco with the proceeds of the capital dividend received from Opco (through the Trust) would not be considered an arm’s length capital contribution … .
Depending on the circumstances, however, Child A may be able to benefit from the specified individual's safe harbour capital return exclusion in subparagraph (f)(i) of the definition of "excluded amount" in subsection 120.4(1). … [T]hat safe harbour capital return would be calculated by reference to the amount of the subscription to the shares of the capital stock of Opco and the appropriate prescribed rate.