DATE DEC 14 1988
TO - Memo to File
FROM - Specialty Rulings Directorate R. Langevin 957-2138
SUBJECT: Qualified Small Business Corporation Share
The difficulty in this file was that Opco was unable to meet the requirement in (c)(i), and Holdco was unable to meet the requirement in (c)(ii), of the definition of a "qualified small business corporation share". When Opco borrowed the $6,000,000, XXXX said was the situation in the case he had, so that it could pay a dividend to Holdco it would be considerably offside the 50% ratio required until the funds were paid to Holdco. The same would occur after Holdco received the dividend and before it loaned the amount back to Opco. After Opco received the loan it would be offside until it repaid the amount borrowed from the bank.
The only argument presented to us XXXX was that we should be prepared to overlook these momentary discrepancies. Our difficulty is that the language of the provision implies a strict test. The key word used is "throughout" and it appears at the beginning of both paragraph (c) and clauses (c)(ii)(A) and (B). In this context this word is taken to mean that the test must be complied with at any and all times during the relevant periods. It is not conducive to an interpretation that the test must be complied with most of the time. For instance, the provision could have read as follows: "during 95% of that part of the 24 month period". It would have been quite easy for Finance to so word the legislation. Such wording would have permitted occasional lapses in the percentage requirement. However, such wording was not used. Instead the term "throughout" was selected by Finance and adopted by Parliament.
Finally, as Joe Yukich admitted that this matter could easily be circumvented by paying a number of dividends over a number of days, we had difficulty reaching an interpretation favourable to him. During our last converstation (XXXX /McColm), he indicated that if he wanted to pursue the matter further he would send in a further submission, otherwise we could treat the file as closed.
Chief Services, Public Utilities and Exempt Corporations Small Business and General Division Specialty Rulings Directorate Legislative and Intergovernmental Affairs Branch