Background
A non-resident subsidiary of Canco (“CFA”) had made loans out of its retained earnings (the “Equity Funded Loans”) to Finco 1 and Finco 2, which were non-resident “sisters” of Canco and CFA, i.e., Finco 1 and Finco 2 were “grandchild” or “greatgrandchild” subsidiaries of the non-resident parent of Canco. Thus, Finco 1 and Finco 2 were “specified debtors” in respect of Canco.
Proposed transactions
Finco 1 and Finco 2 will repay the Equity Funded Loans to CFA using new borrowing from an external bank; and CFA will distribute all or substantially all of the cash so received pro-rata to its shareholders (i.e., substantially to Canco).
Canco will sell all of its shares of CFA to Canco’s foreign parent for cash consideration equal to their fair market value and elect under s. 93(1) to the extent of any capital gain.
Ruling
To the extent that the Equity Funded Loans are fully repaid on or before XXXXXXXXXX, s. 90(8)(a) will apply such that s. 90(6) will not apply to require an amount to be included in Canco’s income in respect of the Equity Funded Loans.