28 May 1990 Income Tax Severed Letter AC59646 - Employee Stock Options

5-9646
                    24(1)                     J.D. Jones
                                              613-957-2104

                   19(1)
May 28, 1990

Dear Sirs:

Re: Section 7 of the Income Tax Act (the "Act")

This is in reply to your letter of February 21, 1990, wherein you requested a technical interpretation with respect to the application of subsection 7(1.1) of the Act in the following situation.

A Canadian controlled private corporation, as employer, has a bonus plan available to employees such that an employee can elect to receive cash or shares as a year-end bonus. You have requested our confirmation that, in the above situation, if an employee elects to receive shares in lieu of cash under such a bonus plan, subsection 7(1.1) of the Act will apply and the employee will not be subject to tax until such time as he actually disposes of the shares.

It is our view that in situations of this nature, the agreement to issue shares must be looked at as a whole. The key question to be determined is whether the employee could have acquired shares under the agreement if he so chose or, alternatively, whether the employer had the ultimate discretion to pay only cash and did in fact elect to pay cash. In the above situation, as the employee had the option of acquiring shares under the agreement and did in fact acquire those shares, it is our view that the resultant benefit would not be subject to tax under subsection 7(1) of the Act by virtue of subsection 7(1.1) of the Act until the taxation year in which the employee actually disposes of or exchanges the shares.

We trust our comments are of assistance to you.

Yours truly,

for Director Business and General Division Specialty Rulings Directorate Legislative and Intergovernmental Affairs Branch