See Also
Bergeron v. The Queen, 2013 DTC 1081 [at 450], 2013 TCC 13
The taxpayer managed a the immigrant investor program at an investment dealer ("Cannacord") and was entitled to receive certain amounts from his employer upon the maturity of the underlying investments. The program was transferred to another firm, for whom the taxpayer continued to manage the program on a contractual basis. Under the transfer agreement, the taxpayer was entitled to "deferred closing fess" in respect of the above deferred amounts.
Boyle J affirmed the Minister's position that the deferred closing fees, when later received, were paid pursuant to a contract for services, and thus gave rise to income rather than capital gains. Section 42 stipulates a disposition of capital property, and therefore did not apply.
Fortino v. The Queen, 97 DTC 55 (TCC), briefly aff'd on procedural grounds 2000 DTC 6060 (FCA)
Lump sums received by individual vendors of shares for their execution of non-competition agreements with the share purchaser did not form part of the proceeds of disposition of their shares because their non-compete covenants did not represent "conditional obligations" i.e., obligations where there is uncertainty in respect of any of three things: "(1) whether the payment will be made; (2) the amount payable; or (3) the time at which the payment shall be made". (p. 71)
Administrative Policy
19 January 2015 T.I. 2013-0511381E5 F - Disposition subject to warranty
An estate pays pursuant to a claim made on a warranty clause in a real estate sale agreement made by the deceased. Can the estate claim a loss under s. 42(1)(b)? CRA responded (TaxInterpretations translation):
[T]he outlay incurred by the estate, under the terms of the indemnity given by the vendor respecting property sold before the vendor's death, became payable after the death by the estate. Consequently, the estate cannot claim a capital loss…for purposes of paragraph 42(1)(b).
26 November 2014 T.I. 2014-0551641E5 F - Winding-up and subsection 42(1)
In accordance with IT-126R2, para. 5(b), a corporation is considered to have "been wound up" on the basis that it has been liquidated and the only reasons for not yet filing articles of dissolution is outstanding litigation. CRA considers that if the corporation subsequently settles the litigation by making a payment that otherwise qualifies as a deemed capital loss under s. 42(1)(b)(ii), it can claim that capital loss in the year of payment thereof (i.e., after it is considered for s. 88 purposes to have been wound up).
See summary under s. 88(2).
2 October 2014 T.I. 2013-0513281E5 F - Interaction entre 42(1) et 39(1)c)
An individual after having sold shares of a small business corporation is required to pay $100,000 to the purchaser and incurs related legal expenses of $20,000 as a result of a breach of the terms of the sale agreement. May a business investment loss be claimed respecting a taxation year ending after 4 November 2010, or after 27 February 2004 and before 5 November 2010? CRA responded (TaxInterpretations translation):
For the taxation years and the fiscal periods ending after 27 February 2004, …if subparagraph 42(1)(b)(i) applies…the proceeds of disposition of the SBC shares would be reduced. Consequently, if all the conditions stipulated in paragraph 39(1)(c) were satisfied respecting that SBC shares, it would be possible…to claim a BIL for those years.
For taxation years ending before 28 February 2004, section 42 provides that the expense is deemed to be a loss sustained on the disposition of a property. Given that the deemed loss would not be connected to a particular property,…no BIL could be claimed… .
[F]or expenses made in a taxation year which ends after 4 November 2010…no BIL can be claimed respecting a capital loss resulting from the disposition of property deemed to occur in accordance with subparagraph 42(1)(b)(ii) because the loss would not be connected to a particular property.
[F]or taxation years or fiscal periods ending after 27 February and before 5 November 2010… subparagraph 42(1)(b)(ii) deems a capital loss to result from the disposition of shares of the SBC in the current situation. Consequently, if all the conditions stipulated in paragraph 39(1)(c) were satisfied, it would be possible…to claim a BIL for those years.
25 October 1994 T.I. 5-942648 -
When a taxpayer is disposing of the shares of a corporation as well as land and building held personally by him and used in the business of the corporation, a non-competition covenant generally will be given by him with respect to the sale of the shares, with the result that s. 42 should apply.
10 September 1991 T.I. (Tax Window, No. 11, p. 15, ¶1512)
S.42 applies to warranties implied or imposed by law.
Articles
Keith R. Hennel, "Escrow Arrangements in Acquisition Agreements: What Are You Creating?", CCH Tax Topics, No. 2176, November 21, 2013, p. 1, at 3
Where an amount of the purchase price is held back by the purchaser to satisfy warranties given by the vendor in relation to the sale of shares, for example, it is possible that separate consideration has been identified for the warranties. In such a case the treatment of the amount for tax purposes is governed by section 42 of the Act.