CRA provided detailed comments on Foix (finding that s. 84(2) applied to a particular hybrid sale transaction) in 10 October 2024 APFF Roundtable, Q.3. In brief oral comments regarding Foix when a question about this case was repeated at the 2024 CTF Roundtable, CRA indicated that: the reasons in Foix should be carefully considered in connection with any proposed hybrid sale, with the one exception of transactions identical to those in Geransky; the decision reinforces the broad scope of s. 84(2), and the role of that subsection as an anti-avoidance provision; and that it represents a departure in some respects from the more restrictive view of s. 84(2) evident in some earlier cases.
In its written response, it further stated:
[T]he decision in Foix confirms that subsection 84(2) is to be applied in a manner that supports its anti-avoidance purpose. With this in mind, it is incumbent on the CRA to determine whether, in any particular case, the transactions underlying a particular hybrid sale involve the distribution or appropriation of property of a corporation in circumstances where the entirety of the conditions for the application of subsection 84(2) are met.