R.B. Day (613) 957-2136
19(1)
October 31, 1989
We are writing in reply to your letter of July 5, 1989, wherein you requested our views as to whether or not a disposition of property, as defined in paragraph 54(c) of the Income Tax Act, would occur in the following situation.
1. Corporation X, a Canadian Corporation, carries on a business in Canada. Such business is conducted in a property which Corporation X currently owns (Property A).
2. Corporation X is entering into an arrangement for the acquisition of a piece of land and the construction of a building thereon (Property B) together with Corporation Y on a 50/50 basis.
3. Upon completion of Property B, Corporation X intends to dispose of Property A and relocate its business operation from Property A to Property B.
4. Property A has all the attributes of a "former business property" as defined under subsection 248(1) for the purpose of the "replacement property rules" under subsections 13(4) and 44(1).
5. Corporation X will only be occupying 1/4 of the premises of Property B. Corporation X would like to claim this portion of property B as a replacement property. The remainder of Property B will be leased to other parties.
It is your view that, pursuant to subsection 13(4.1) a replacement property must be "acquired by the taxpayer for the same or a similar use to which he put the former property". Further, Interpretation Bulletin IT 259R2 on "Exchanges of Property" indicates that a property would not qualify as a replacement property if it provides substantial other uses. Therefore it is likely that Corporation X's interest in Property 9, whether under a co-tenancy or partnership arrangement, will not qualify.
You then state that, in order to ensure that the portion of Property B used by the business of Corporation X may be claimed as a replacement property, Corporations X and Y have agreed to set up Property B as four condominium units. Each of the corporations will, therefore, hold two. In your view, since one of the two condominiums held by Corporation X will be fully occupied by its business, this condominium unit should then qualify as a "replacement property."
It is also your understanding that a property under construction cannot be registered as a condominium until substantial completion of construction. It will therefore be necessary for Corporations X and Y to initially hold the property as tenants- in-common and then, upon substantial completion, to register the condominium and effectively exchange their co-tenancy interests in the project for title to specific condominium units. Your concern is whether this exchange of units will, for income tax purposes, give rise to a disposition and reacquisition of property, which may create taxable gains to the two corporations.
OUR COMMENTS
Although it is not completely clear from the information provided, it would appear that Corporations X and Y each acquired an undivided one-half interest in the property upon which the building is to be constructed. This undivided one- half interest will, upon registration of the condominium, become an undivided one-half interest in each of four condominium units. Corporations X and Y will then each exchange their undivided one-half interest in the four units for ownership title in two specific units each.
Based on the above assumptions, it would appear that Corporations X and Y are, in effect, giving up their undivided interest in the condominium units not allocated to them in order that they may receive full ownership in the two condominium units allocated to them. This exchange of interests would, in our view, constitute a disposition of property for purposes of paragraph 54(c) which may create taxable capital gains for Corporations X and Y.
We apologize for the delay in replying to your inquiry.
Yours truly,
E.M. Wheeler for Director Business and General Division Specialty Rulings Directorate Legislative and Intergovernmental Affairs Branch