Subsection 181.2(3) - Capital
Cases
Autobus Thomas Inc. v. The Queen, 2000 DTC 6299 (FCA), briefly aff'd 2001 DTC 5665, 2001 SCC 64
The taxpayer partly financed the acquisition of buses by means of its bank purchasing conditional sales contracts from a manufacturer. Marceau J.A. found that the contractual relationship between the bank and the taxpayer was determined by the initial contract between them when a line of credit was established. Accordingly, both ss.181.2(3)(c) and (d) applied: the money owed by the taxpayer to the bank under the line of credit was both a loan and also a debt secured by the transfer of rights set out in the conditional instalment sales contracts.
Oerlikon Aérospatiale Inc. v. The Queen, 99 DTC 5318, Docket: A-460-97 (FCA)
The taxpayer financed its work on the manufacture of defence products under two contracts by receiving advances from the prime contractor or an affiliated company. Noël J.A. found that the advances did not qualify as reserves which were included in capital under s. 181.2(3)(b) because the taxpayer had claimed a reserve for s. 20(1)(m) purposes. Instead, the amounts were included under s. 181.2(3)(c) as advances. Noël J.A. stated (at p. 5325):
"The effect of an advance, be it in the sense of a payment on account or a loan, is to make the amount of money it represents available to the person or corporation which receives it. In the instant case, the advances were an integral part of the financial resources available to the appellant at the end of its 1989 fiscal year ... ."
See Also
Canadian Forest Products Ltd. v. The Queen, 2004 DTC 2869, 2004 TCC 405
The amount of outstanding cheques of the taxpayer that it had issued to suppliers but which had not yet cleared were not includable in its capital. They did not represent an "advance" ("something made before it is actually due") nor a "loan" ("a liability created between the lender and the borrower resulting from the advancing of the funds") (p. 2882).
There was no basis for extending the administrative policy of the Minister, that allowed corporations to offset cash balances against unpresented cheques, to permit the taxpayer to set-off bankers' acceptances and commercial paper against the amount of outstanding cheques.
Upper Lake Shipping Ltd. v. Minister of Finance, 98 DTC 6264 (Ont CA)
Given that generally accepted accounting principles require that a government grant relating to a capital asset be included in retained earnings or "earned surplus" only as the assets are used in the operation of the business, the taxpayer was permitted to follow the same approach in computing its paid-up capital for Ontario capital tax purposes.
Administrative Policy
12 February 2004 Memorandum 2003-002720
Where the principal amount under interest rate or currency swap contracts was only notionally exchanged, there was no amount that would constitute a "loan or advance" for purposes of either the computation of "capital" or of the "investment allowance". The result would be the same even where under the confirmation in the related ISDA Master Agreement there was provision for actual exchanges of principal amounts provided that (having reference to s. 181.2(3)(f)) indebtedness had not remained outstanding for more than 365 days at the end of the taxpayer's fiscal period.
31 December 2002 T.I. 2002-016354 -
In light of the decision in PCL Construction Management Inc. v. The Queen, 2002 DTC 2624 (TCC), deferred revenue of a contractor with respect to its long-term construction contract would be included in capital only to the extent that amounts had been received under the contract (on the basis that such amounts represented advances and would be included under s. 181.2(3)(c)). As indicated in that decision, the words "reflected in the balance sheet" indicated that it is appropriate to examine the components of an amount on the balance sheet to determine what portion thereof reflected amounts that were included in capital.
Income Tax Technical News, No. 18, 16 June 2000
Discussion of Oerlikon decision.
29 November 2001 Memorandum 2001-010622
The taxpayer transfers a portfolio of office equipment and related leases to a special purpose vehicle ("SPV"), the SPV uses borrowed money to pay the purchase price to the taxpayer, the taxpayer repurchases the equipment from the SPV using securitization proceeds as payment, the SPV leases the equipment from the taxpayer, and the SPV prepays its lease obligations utilizing the proceeds received by it from the sale of the assets to the taxpayer, and the taxpayer uses the lease prepayment to reduce its outstanding indebtedness. Although the lease prepayment received by the taxpayer from the SPV would be considered to be an "advance", it would not give rise to capital for LCT purposes because no amount would be reflected in the corporation's balance sheet in respect of those amounts. "Unless the prepaid lease amounts can be clearly identified as a component of the amounts reflected in the notes to the financial statements (i.e., part of an aggregate amount), we are of the view that no amount is included in [the taxpayer's] capital in respect of prepaid lease amounts for the [taxpayer's] taxation year ..."
3 July 2001 Memorandum 2001-007891 -
"A corporate partner's share of earnings from a partnership's fiscal period ended in the corporate partner's taxation year would have to be included in the corporate partner's taxable capital, whether or not such earnings have been distributed to the corporate partner ... . With respect to undistributed stub period earnings of a partnership, it is our general view that such amounts would not be included in the corporate partner's taxable capital."
IT-532 "Income Tax Act, Part I.3 - Tax on Large Corporations"
1 June 2000 Memorandum 2000-000616 -
A consignment agreement between a bullion bank and a jeweller was characterized as a loan or advance for LCT purposes.
5 April 2000 Memorandum 1999-001508 -
"Amounts billed by a subcontractor that are subject to a holdback requirement constitute a contingent liability of the contractor, and generally would be included in the contractor's capital as a reserve. Once the subcontractor's work that is the subject of the billing is certified, the amount owing by the contractor in respect of the certified work constitutes a legal liability of the contractor, and would be included in the contractor's capital as indebtedness, if the amount has had the character of indebtedness for more than 365 days at the end of the taxation year."
10 February 1997 Memorandum 7-970127 -
The obligation of the taxpayer under a purchase and sale agreement where a condition precedent had not yet been fulfilled did not represent either a reserve or a liability for large corporations tax purposes notwithstanding the inclusion of the liability in the taxpayer's balance sheet.
7 November 1996 T.I. 5-963680 -
A deficit shown as such on a balance sheet and created by the application of section 3860 of the CICA Handbook to redeemable and retractable high-low preferred shares is deductible under s. 181.2(3)(i).
9 September 1996 T.I. 5-962185 -
It appeared that where an automobile dealership acquired vehicles from the manufacturer by way of a wholesale conditional sales contract, the obligation of the dealership to the manufacturer would be a loan or an advance under s. 181.2(3)(c) or a note or similar obligation under s. 181.2(3)(d), rather than other indebtedness under s. 181.2(3)(f).
8 July 1996 Memorandum 7-961771 -
A prepaid pension asset reflecting pension funding amounts which have been deducted for income tax purposes but not for accounting purposes is not deducted in computing capital.
22 February 1996 Memorandum 960450 (C.T.O. "Part I.3 - Capital Leases and Conditional Sales Agreements")
The obligation of a purchaser under a conditional sales agreement generally will be included in its capital only where such obligation has been outstanding for more than 365 days, unless the obligation is evidenced by the issuance by it to the vendor of a note.
1996 Tax Executive Institute Round Table, Q. 16 (No. 9638910)
Where, in accordance with CICA Handbook Section 3860, a U.S. $100 million debt is hedged through entering into a currency swap, an increase in the Canadian dollar equivalent of the debt will not be offset through any deduction being available for the accrued gain on the swap. Conversely, if the Canadian dollar equivalent of the debt declines, there is no provision to recognize the liability under the hedge (although it may be arguable that this amount may be included in capital under s. 181.2(3)(b)).
1996 Tax Executive Institute Round Table, Q. 8 (No. 9638920)
As the Tax Court did not consider the legal basis for RC's position on the capital tax treatment of outstanding cheques, the adverse decision in Grocery People Ltd. v. MNR has not caused RC to reconsider its position.
20 July 1995 Memorandum 951794 (C.T.O. "Deferred Revenue and Large Corporations Tax")
Detailed discussion of the circumstances in which deferred revenue amounts will be included in capital.
9 June 1995 Memorandum 951517 (C.T.O. "Large Corporations Tax Health Welfare Plan")
Where the corporate taxpayer (which was not a financial institution) had an actuarial determination done of the amount that would be necessary to fund its obligations in respect of retired employees covered under a health and welfare plan, then set up a deferred charge for accounting purposes in respect of such obligation, with this deferred charge being reduced over time as the taxpayer started to fund its obligation, the amount of the deferred charge would represent a reserve for purposes of s. 181.2(3)(b).
May 1995 Tax Executive Institute Round Table, Q. 22 (C.T.O. "Part I.3, Advances")
An advance billing, that remains unpaid at a year end, made with respect to services to be rendered in a subsequent year, would not be considered to be an "advance" (as defined, for example, in Black's Law Dictionary, and in TransCanada Pipelines Ltd. v. Minister of Revenue (Ontario) (1992), 62 O.A.C. 105).
May 1995 Tax Executive Institute Round Table, Q. 22 (C.T.O. "Part I.3, O/S Cheques & Overdrafts")
Bank overdrafts are considered to have arisen to the extent that they have been utilized or drawn upon. For these purposes, RC, in common law jurisdictions, applies the conditional payment principle established in such cases as Marreco v. Richardson (1908), 2 K.B. 584, at 593 (C.A.) and Moody v. MNR, 57 DTC 1050, at 1054 (Ex Ct).
Furthermore, the writing of a cheque by a corporation which has overdraft privileges, with a resulting negative bank balance on the corporation's balance sheet, is regarded as a loan or advance in that the "bank has, by granting the taxpayer overdraft privileges, tacitly acknowledged or agreed to the overdraft".
13 October 1994 T.I. 941309 (C.T.O. "Corp. Partnerships and Part I.III")
Discussion of the application of Part I.3 to loans to and from corporate partnerships, loans between partnerships and the impact of equity-based accounting for partnership interests.
Revenue Canada Round Table, 1994 Alberta Conference, Q. 10 (C.T.O. "Large Corporation Tax - Foreign Exchange Gains/Losses")
There is no adjustment to capital in respect of the amount of deferred foreign exchange losses reported on the balance sheet. Deferred unrealized foreign gains reflected in the balance sheet may constitute a reserve that would be required to be included in capital.
Revenue Canada Round Table TEI, 16 May 1994, Q. 6 (C.T.O. "Part I.3 Tax - Deferrred Revenue")
Deferred revenue must be included in the computation of capital irrespective whether or not a tax deductible reserve is available.
Revenue Canada Round Table TEI, 16 May 1994, Q. 6
A bank overdraft is excluded from a corporation's capital to the extent it is made up of outstanding cheques assuming that the giving of the cheques did not operate as payment at that time.
13 May 1994 Memorandum 933301 (C.T.O. "Large Corporation Tax and Investment Tax Credits")
Unclaimed or unexpired investment tax credits are not deferred tax debits and therefore do not reduce capital pursuant to s. 181.2(3)(h).
10 January 1994 T.I. 933286 (C.T.O. "Large Corporation Tax")
Where a corporation that issues bankers' acceptances and deposits the proceeds with the bank in order for the bank to provide operating loans to affiliates of the corporation, the indebtedness represented by the bankers' acceptances will not be reduced by the amount on deposit with the bank.
December 1992 B.C. Tax Executives Institute Round Table, Q. 7 (October 1993 Access Letter, p. 479)
Deferred revenue constitutes a "loan or advance" to the corporation. A deferred charge is a "reserve", and therefore must be included in capital to the extent it has not been deducted in computing Part I income. Share warrants or options potentially can give rise to "other surplus".
10 September 1992 Memorandum (Tax Window, No. 24, p. 18 ¶2194)
Contributions received by a regulated utility from its customers to compensate it for the insufficiency of revenue it will receive from special equipment installed by it to service that customer, where such contributions appear on the corporation's balance sheet, will constitute advances for purposes of s. 181.2(3)(c).
92 CPTJ - Q.9
Because the term "advance" often means simply "pay" or "pay money before it is due", a take- or-pay amount is an advance for purposes of s. 181(3)(c).
5 August 1992 T.I. 921651 (May 1993 Access Letter, p. 207, ¶C180-138; Tax Window, No. 23, p. 16, ¶2132)
Where a property development company has debited "land under development" and credited "provision for cost to complete" for an estimate of costs to complete land under development, that amount will not constitute a reserve assuming that it does not represent a liability, an expense for accounting purposes, an adjustment of retained earnings, or an appropriation of retained earnings similar to a reserve for plant expansion.
16 March 1992 T.I. (Tax Window, No. 18, p. 14, ¶1808)
The factoring by a foreign parent of accounts receivable owing to it by its Canadian subsidiary will not, by itself, convert that indebtedness of the Canadian subsidiary into a loan for large corporations tax purposes.
10 March 1992 T.I. (Tax Window, No. 17, p. 22, ¶1794)
Both security deposits and deferred revenue of a corporation are considered to be advances to the corporation that must be included in capital.
91 C.R. - Q.37
A corporate member of a joint venture will have its share of the indebtedness of the joint venture included in its capital.
91 C.R. - Q.36
Where there has been a write-down in accordance with GAAP to reflect other than a temporary decline in the value of a capital asset, the write-down will not be considered to be a "reserve".
91 CPTJ - Q.13
Amounts received by a vendor under a take-or-pay gas purchase contract are "advances to the corporation".
November 1991 Memorandum and 14 November 1991 T.I. (Tax Window No. 13, p. 15, ¶1582)
If a corporation that is a member of a joint venture is solely liable for any indebtedness related to the joint venture, the full amount of such indebtedness will be included in its capital. Alternately, if it is jointly liable, only its share of the indebtedness will be included.
25 October 1991 T.I. (Tax Window, No. 12, p. 14, ¶1553)
A policy loan to a corporation against the cash render value of a life insurance policy is an advance within the meaning of s. 181.2(3)(c), although the cash render value of the policy is not included as "long-term debt" for purposes of the investment allowance under s. 181.2(4).
The definiton of "subordinated indebtedness" in the Insurance Companies Act (Canada) is relevant to the determination of subordinate indebtedness of an insurer for purposes of the Act.
18 September 1991 T.I. and 27 September 1991 T.I. (Tax Window, No. 9, p. 14, ¶1454)
Where a corporation issues a bond to a partnershp of which it has a 1/3 interest, it is required to include the bond in computing its capital but is entitled to an investment allowance of 1/3 of that amount.
Where a partnership issues a bond to a corporate member, no part of the indebtedness will be included in the computation of the capital of the corporate partners.
Where a partnership issues a bond to a corporation which is not a member, each corporate partner will include its proportionate share of the bond in computing its capital, and the corporation holding the bond will not be entitled to an investment allowance. Accordingly, both the holder of the bond and the corporate partners may pay Part I.3 tax on the same amount.
8 July 1991 T.I. (Tax Window, No. 5, p. 6, ¶1329)
Discussion of various issues.
10 June 1991 T.I. (Tax Window, No. 4, p. 26, ¶1294)
Amounts in respect of the write-down of amortizable capital assets which are included in accumulated depreciation pursuant to paragraph 3060.58 of the CICA Handbook are not included in "reserves".
5 June 1991 T.I. (Tax Window, No. 4, p. 25, ¶1281)
The undistributed earnings of a partnership are not included in the capital of a corporate partner.
Articles
Anthony Schiefer, "Buyer Beware - Structuring to Minimize to Minimize Capital Tax Consequences of a Share Purchase", Corporate Structures in Groups, Vol. IV. No. 1, p. 300
Discussion of techniques to use interest expense of purchaser to shelter taxable income of target.
Harris, "Developments in Asset-backed Financing: Tax Considerations", Business Vehicles, Vol. III, No. 3, 1997, p. 136
It is suggested that a rent prepayment under a lease is not an "advance".
Paragraph 181.2(3)(c)
Cases
ADP Canada Co. v. The Queen, 2009 DTC 5091, 2009 FCA 117
The taxpayer, which provided payroll services for a fee, received funds from its clients in advance of the required remittance of such funds by it on their behalf. The funds received:
"were not 'advances' to ADP because they were neither a payment made to ADP before it was due nor an amount to be applied against the price of the service, paid before the service is rendered, nor an amount paid to ADP for an expenditure of ADP."
Subsection 181.2(4) - Investment allowance
Cases
Federated Co-operatives Ltd. v. The Queen, 2001 DTC 5414, 2001 FCA 23
Bankers acceptances held by the taxpayer were not "advances" to the issuer because the issuer had no obligation to repay the same sum of money to the taxpayer or to provide any goods or services, and its only payment obligation to the taxpayer was a contingent obligation to pay the face amount if the accepting bank failed to do so. Furthermore, the bankers acceptances were not bonds, debentures, notes, mortgages or similar obligation because the bank alone was primarily liable to pay the holder. A "bond, debenture, note or mortgage" is "a document evidencing indebtedness of the maker in the form of a promise to pay" and, accordingly, a banker's acceptance was not similar to any such obligation.
The result that no investment allowance was available conformed with a possible policy objective of excluding short-term bank debts from eligibility.
See Also
Federated Co-operatives Ltd. v. The Queen, 2000 DTC 1946, Docket: 97-1185-IT-G (TCC), aff'd supra.
Bankers' acceptances purchased by the taxpayer were not eligible for an investment allowance. In finding that they did not qualify as an "advance" under s. 181.2(4)(b), Mogan TCJ. stated (at p. 1951):
"An 'advance' in the context of that phrase ['loans and advances'] is an amount paid before the completion of an obligation for which it is to be paid; or an amount paid before the performance of a resulting reciprocal obligation. In that sense, an amount paid by the Appellant for the purchase of a BA is the cost of an investment and not an advance to another corporation."
In finding that bankers' acceptances were not notes for purposes of s. 181.2(4)(c), Mogan TCJ. noted that the accepting bank is the party primarily liable to the holder in due course of a BA and found that as a BA is not a debt instrument, it is not described in s. 181.2(4)(c) which is concerned only with obligations having the character of a debt.
TransCanada Pipelines Ltd. v. Minister of Revenue (1992), 62 O.A.C. 105
The respondent (a pipeline company) agreed to purchase certain minimum quantities of gas each year. If it was unable to take delivery of the agreed minimum it was nevertheless required to pay the producer the full minimum purchase price and it correspondingly became entitled to credit for such payments against future purchases of gas.
Because the respondent expected in making the required minimum payments that it would, in the fullness of time, call for a delivery of an equivalent amount of gas for which it had so paid, such minimum fell within dictionary definitions of 'advance' as a 'payment [made] beforehand or in anticipation' and a 'payment made before ... the completion of an obligation for which it is to be paid' (at p. 107). Because the object of the contracts was to secure gas for the respondent's business, it also followed that the advances were "investments", i.e., expenditures "for future benefits or advantages".
Administrative Policy
2000 Roundtable Q. , 2000-005117
In the situation where a parent has made a contribution of capital to a subsidiary (in this case a foreign subsidiary), GAAP views the resulting increase to the investment account of the parent in the subsidiary as a reflection of the enhancement of the value of the shares held by the parent rather than as a recharacterization of the contributed surplus as share capital. Accordingly, the full amount of the "investment in subsidiary" account will be eligible for the investment allowance.
21 March 2001 Memorandum 2000-005629
Where landlords agree to pay tenant inducements over a period of twenty years, the taxpayers would account for the amounts payable as "secured receivables" on the balance sheets in some instances, and in others as deferred income. Such amounts would not be loans or advances for purposes of s. 181.2(4)(b) because there is no lender and borrower relationship between the taxpayer and its landlord. "In order for there to be a loan at law, it is necessary that there be a delivery of the subject of the loan by the lender to the borrower and that there be an obligation on behalf of the borrower to return the subject matter of the loan".
IT-532 "Income Tax Act, Part I.3 - Tax on Large Corporations"
22 February 1996 Memorandum 960450 (C.T.O. "Part I.3 - Capital Leases and Conditional Sales Agreements")
A lease obligation reflected as an asset on the balance sheet of a lessor corporation is not eligible for an investment allowance as a loan or advance.
The amount owing by the purchaser under a conditional sale agreement will not be eligible for an investment allowance to the vendor unless the purchaser issues a note to the vendor.
9 January 1996 T.I. 952924 (C.T.O. "Cash Concentration Accounts and Part I.3")
Inconclusive discussion of group concentration accounts.
10 August 1995 T.I. 951845 (C.T.O. "Stripped Bonds - Eligible for Investment Allowance?")
"Where a corporation acquires a 'stripped bond' (i.e., a bond certificate from which the interest coupons have been detached prior to maturity), a detached coupon, or an undivided interest in a right to receive principal or interest in respect of a bond, such bond, detached coupon or undivided interest will be eligible for an investment allowance as long as the underlying bond, on the assumption that it had not been stripped, would have otherwise been eligible."
27 June 1994 T.I. 941019 (C.T.O. "Large Corporations Tax & Conditional Sales Contracts")
Where a party (other than a financial institution) acquires a note issued by the purchaser under a conditional sales agreement, the note will be included in the party's investment allowance.
Revenue Canada Round Table TEI, 16 May 1994, Q. 6 (C.T.O. "Part I.3 Tax - Deferred Revenue")
Generally, where an amount of expenses is paid before it is due by one corporation to another corporation that is not a "financial institution", and reported on the annual financial statements as a deferred charge it will be considered to be an advance pursuant to s. 181.2(4)(b).
93 CPTJ - Q.15
RC will consider applying s. 245(2) where the primary purpose of a transaction is to obtain a tax advantage through a temporary acquisition of assets which qualify for the investment allowance under Part I.3.
December 1992 B.C. Tax Executives Institute Round Table, Q. 7 (October 1993 Access Letter, p. 479)
Prepaid expenses paid to another corporation (other than a financial institution) will qualify for inclusion in the investment allowance of the payor as an "advance".
27 September 1991 T.I. (Tax Window, No. 11, p. 21, ¶1510)
A promissory note issued by a corporation (other than a financial institution) is included in the investment allowance even if the notice is guaranteed by a bank or other financial institution.
27 September 1991 T.I. (Tax Window, No. 10, p. 19, ¶1486)
Bankers acceptances are not "loans and advances" and accordingly do not qualify for the investment allowance.
25 June 1990 T.I. (November 1990 Access Letter, ¶1544)
Instruments issued by foreign corporations also are included.
Paragraph 181.2(4)(b)
Administrative Policy
25 March 2002 T.I.
A lease receivable reported on the financial statements of a lessor that is not a financial institution generally will not be eligible for an investment allowance; and the lessee's lease payable generally will be considered to be other indebtedness in respect of a lease which is excluded from inclusion in the computation of capital pursuant to s. 181.2(3)(f).
Paragraph 181.2(4)(d.1)
Administrative Policy
21 February 1994 T.I. 933303 (C.T.O. "Investment Allowance-Large Corporations Tax")
Where one or more of the members of a partnership is an individual, the pro-rata capital component of loans made to the partnership must be reported as capital by the corporate partners, whereas the loan will fail to qualify for an investment allowance in the hands of the corporate lender.