In order for Brother to avoid the application of s. 84.1 to a sale of his shareholding of Opco (representing ½ of its common shares) to a corporation (“Sister-Holdco”) owned by his Sister, he sells such shares through a newly-incorporated corporation wholly-owned by him (“Brother-Portfolioco”). In particular:
- He transfers such shares to Brother-Portfolioco at a nominal s. 85(1) agreed amount.
- Brother-Portfolioco sells those shares to Sister-Holdco for $1 million, so that the resulting capital gain increases its capital dividend account – but with a capital gains reserve being claimed because most of the sales proceeds are deferred.
Would CRA apply s. 245(2) because of the specific creation of Brother-Portfolioco to avoid s. 84.1? CRA responded:
The CRA remains concerned about any form of corporate surplus stripping arrangement and tax planning that is contrary to the integration principle. …
However, in a situation such as the one described, the CRA would not rely on the application of the GAAR solely because of the specific formation of Brother-Portfolioco to proceed with the Sale.