Understanding the Mechanics of Section 80: Forgiven Debts and Income Tax in Canada, Exercises of Financial Management

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FINANCING ISSUES

OVERVIEW OF SECTION 80

RON DURAND STIKEMAN ELLIOTT LLP June 2, 2011

TABLE OF CONTENTS

SELECTED BIBLIOGRAPHY

• OVERVIEW OF SECTION 80 ..........................................................................................
• PURPOSE
• OLD RULE
• OLD PLANNING OPPORTUNITIES ............................................................................
• OFFICIAL REACTION TO OLD OPPORTUNITIES ...................................................
• THE BASIC RULE ...........................................................................................................
  • Commercial Obligation ..........................................................................................
  • Debtor .......................................................................................................................
  • Forgiven Amount ....................................................................................................
    • Excluded Obligation .......................................................................................
  • Settled .......................................................................................................................
    • Parked Obligation ...........................................................................................
• THE MECHANICS OF SECTION 80 ...........................................................................
  • Non-Capital Loss Carryforwards .........................................................................
  • Capital Loss Carryforwards ..................................................................................
  • Capital Cost of Depreciable Property ..................................................................
  • Cumulative Eligible Capital ..................................................................................
  • Resource Pools .........................................................................................................
  • Capital Properties....................................................................................................
    • Capital Properties - Category I ......................................................................
    • Capital Properties - Category II.....................................................................
    • Capital Properties - Category III ...................................................................
  • Current Year Capital Losses ..................................................................................
  • Transfer of Unapplied Forgiven Amounts ..........................................................
  • Income Inclusion .....................................................................................................
  • Partnerships .............................................................................................................
  • Reserves and Deductions in Respect of Income Inclusions ..............................
    • Reserve for Corporations, Trusts and Non-Resident Persons ..................
    • Reserve for Resident Individuals (Other than Trusts) ...............................
    • Deduction for Insolvent Corporations .........................................................
  • Gains on Subsequent Dispositions .......................................................................
  • Distress Preferred Shares .......................................................................................
• ORDERING OF UNPAID AND FORGIVEN DEBT RULES ....................................
  • Employee and Shareholder Benefits ....................................................................
  • Profit..........................................................................................................................
  • Repossessions and Other Seizures of Property ..................................................

assets. In broad terms, section 80 attempts to force taxpayers to choose between a reduction of the tax attributes of a related entity and an income inclusion.

The policy behind section 80 differs from the alternative, and relatively straightforward policy accepted in the United States; that any gain realized from the settlement of debt is generally included in the income of the debtor. The policy of the Department of Finance has resulted in a very complex set of technical rules that have become the subject of criticism because of just that, their complexity.

Special provisions governing mortgage foreclosures and conditional sales repossessions are to be found in sections 79 and 79.1, while subsection 39(3) governs the purchase in the open market by a taxpayer of bonds, debentures or similar obligations issued by the taxpayer.

OLD RULE

The "old rule" was introduced in 1972, presumably as a result of the acceptance by Canadian courts of certain U.K. caselaw that suggested that gains resulting from the forgiveness of debt is capital in nature, and therefore does not give rise to an income inclusion. However, the Canadian courts began to distinguish between trade debts resulting from a vendor-purchaser relationship, and capital debts resulting from a borrower-lender relationship, with gains resulting from the extinguishment of trade debts considered to be profit under section 9. The old section 80 rules applied with respect to the settlement of all debt, but specifically did not apply where any resulting gain was otherwise included in income under section 9 (i.e., where the debt was a trade debt). The new section 80 rules, as discussed below, maintain this distinction.

Under the "old rule", when a taxpayer was relieved of the obligation to pay a debt, the forgiven amount was applied to reduce, in order, the taxpayer's:

• non-capital losses
• capital losses
• capital cost of depreciable property
• adjusted cost base of capital property, other than depreciable property.

If the taxpayer did not have sufficient basis in capital property to absorb the forgiven amount, any excess simply disappeared and there were no adverse consequences to the taxpayer.

However, as noted above, where the debt was not a capital debt, the forgiven amount may have been included in the income of the taxpayer pursuant to section 9, and thereby excluded from the application of the section 80 rules. The Canada Revenue Agency has had mixed results pursuing the application of section 9 to gains arising from the settlement of debt before the Courts. They were successful in Alco Dispensing Canada Ltd. v. The Queen , [1997] 3 CTC 145 (FCA), [1996] 1 CTC 2662 (TCC), dealing with the reversal of management bonuses. But see also Queenswood Land Associates Ltd. v. The Queen , [2000] 1 CTC 352 (FCA), [1997] 2 CTC 2688 (TCC), where funds were borrowed to acquire inventory and Molstad Development Co. Ltd. v. The Queen , [1997] 2 CTC 2360 (TCC) where money borrowed to finance assets, including inventory, was held to be a capital transaction and therefore a partial forgiveness of the debt did not give rise to an income inclusion under section 9. In Denthor Developments Ltd. v. The Queen , [1997] 1 CTC 2075 (TCC) section 9 did not apply where money had been borrowed to acquire real estate for resale. The Court determined that no business profit could arise prior to the disposition of the real estate, and that section 9 would only apply to include a forgiven amount in income where the forgiveness was in respect of an expense that was deductible in computing income for the year of the forgiveness. For a situation where a forgiven amount

general, the amount agreed upon and added to stated capital was conclusive of the amount paid by the debtor to repay the debt. See King Rentals Limited v. The Queen , [1995] 2 CTC 2612 (TCC).

Taxpayers were generally willing to spend a considerable amount of time planning around the old rules. Absent total financial collapse, it is always better not to throw away losses or basis. In addition, in most cases where losses are being sold or otherwise transferred, such losses have been funded with debt that is being settled and a method must be devised to defeat the application of section 80 for the transaction to be economically viable.

Where there was a desire to preserve cost base in assets, most of the basic planning techniques involved transferring the assets of the debtor corporation to a subsidiary, prior to the application of section 80. When section 80 applied, the debtor would have no assets, other than the shares of the subsidiary, which would be ground down with no detrimental effect.

Where there was also a desire to preserve losses, the planning techniques generally included some form of "debt parking". Rather than having the debtor settle its debt for, say, 20¢ on the $1, a corporation affiliated with the debtor would acquire the debt from the creditor for the same 20¢ on the $1. The purchaser would then hold the debt indefinitely and the parties would take the position that section 80 never applied because the debt remained outstanding between the two affiliated corporations. The Courts supported this position. See Wigmar Holdings Ltd. (sub nom. Diversified Holdings Ltd.) v. The Queen , [1997] 2 CTC 263 (FCA), [1994] 2 CTC 2369 (TCC). However, as illustrated in Central City Financial Services Ltd. v. The Queen , [1997] 3 CTC 2949 (TCC), the assignment must not be preceded by a settlement between the debtor and the creditor.

In Jabin Investments Ltd ., [2003] 2 CTC 25 (FCA) the Court held that the general anti-avoidance rule did not apply to a blatant debt parking arrangement.

The Court held that where the application of section 80 is avoided, the section cannot be said to have been misused as any provision of the Act which is not used cannot be misused. In addition, the Court concluded that there was no clear and unambiguous policy in the Act that debts that are not legally extinguished are to be treated as if they were.

Any attempt to park debt generally ran into hurdles, emanating from the fact that if the debt is acquired by a related corporation, it generally has to be amended to become non-interest bearing. Otherwise the related corporation may be in a position of having to pay tax on the interest while the debtor is unable to utilize the deduction of same. However, amending the debt to provide that it was not interest bearing might have triggered the application of section 80, with the debtor being regarded as having issued a new non-interest bearing debt in repayment of the old interest bearing debt, resulting in a novation of the debt. It is the Department's stated position that a change from interest-bearing to interest-free status will almost invariably precipitate a disposition. However, the jurisprudence does not support the Canada Revenue Agency's views. See Wigmar Holdings Ltd. (sub nom. Diversified Holdings Ltd.) v. The Queen , [1997] 2 CTC 263 (FCA), [1994] 2 CTC 2369 (TCC), where it was held that removal of security in the form of a mortgage did not create a new debt. However, see also General Electric Capital Equipment Finance Inc. v. The Queen , 2001 FCA 392 where the Court held changes can give rise to a new obligation without necessarily causing a novation.

Any debt which is non-interest bearing is caught by paragraph 7000(1)(a) of the Income Tax Regulations since it is a "debt obligation in respect of which no interest is stipulated to be payable". If such debt is acquired at a discount, paragraph 7000(2)(a) could then apply to cause the taxpayer to include in its income the difference between the face amount of the debt and the cost to it. In

between the lender and the borrower is conclusive of the amount paid by the borrower to retire the debt.^3 Third, no matter what the fair market value of the debt, from the borrower's perspective, it has received an amount equal to the principal amount of the debt - since it has been relieved of the obligation to pay that amount.

The later statement is supported by the relevant corporate law. For example, under the Canada Business Corporations Act, "a share shall not be issued until the consideration for the share is fully paid in money or in property or past services that are not less in value than the fair equivalent of the money that the corporation would have received if the share had been issued for money.^4 The CBCA also provides that "a corporation shall add to the appropriate stated capital account the full amount of any consideration it receives for any shares it issues".^5 Where the principal amount of the debt is added to the stated capital account, it appears clear that, as a matter of general law, the corporation has received an amount equal to the principal amount of the debt in return for the issue of shares. The fact that the debtor may have paid an amount equal to the face amount of a debt when it issues shares does not mean that the creditor has received the same amount. From the creditor's perspective "it is the real or actual value of the shares which must be considered rather than the par value even if the issuing corporation has agreed to issue them at their par value as fully paid".^6

(^3) Stanton v. Drayton Commercial Investment Co. Ltd. , [1982] 2 All E.R. 942 (HL). (^4) Subsection 25(3), Canada Business Corporations Act. (^5) Subsection 26(2), Canada Business Corporations Act. (^6) Praxair Canada Inc. (sub nom. Union Carbide Canada Limited) v. The Queen , [1993] 1 CTC 130 (FCTD) at 142 reversing [1989] 1 CTC 2356 (TCC). But see also Saskatchewan Co-operative Credit Society Ltd. v. The Queen , [1986] 1 CTC 53 (FCA), [1984] CTC 628 (FCTD) where, perhaps on special facts, the Court reached an apparently contrary position.

OFFICIAL REACTION TO OLD OPPORTUNITIES

The response from the Department of Finance to the perceived problems with the old rules is all too apparent. Rather than relying on GAAR and a substance over form approach to statutory interpretation, Finance chose to create a set of supposedly tight rules, which are so complex that it is difficult to imagine how they can ever be properly administered.

Meanwhile, the Canada Revenue Agency has pursued, with a fair amount of enthusiasm, the techniques designed to avoid the old rules. This pursuit has not always resulted in success before the courts. The Canada Revenue Agency's reasonably standard list of arguments include GAAR, ineffective transactions and novation. On the issue of novation, the Canada Revenue Agency's general position has been that if there are any significant amendments to the loan documentation, a new loan has been created. In effect, they argue that there has been a barter transaction with a new debt instrument being swapped for the old debt instrument. Under the old rules, it follows that the old debt instrument is settled or extinguished for an amount less than its principal amount, to the extent that the fair market value of the new debt is less than such principal amount. This could arise, for example, where an arrangement has been made with a creditor to settle certain indebtedness, and as part of these arrangements it is planned that the debtor drop assets down into a subsidiary so as to avoid the impact of section 80. However, the creditor has security against such assets and, therefore, must release such security in order for the assets to be transferred down to the subsidiary. The Canada Revenue Agency has taken the position in some cases that the release of such security so fundamentally alters the nature of the debt that novation has occurred. As illustrated by King Rentals Limited v. The Queen , [1995] 2 CTC 2612 (TCC), the Canada Revenue Agency's position has not been supported by the Courts.

Debtor

A debtor includes a partnership. For the purposes of these rules, either a partnership or a trust is treated as though it is a corporation with 100 issued shares and each partner or beneficiary is considered to own the proportion of shares equal to the proportion of the value of its interest compared to the value of all interests. In general terms, a beneficiary's interest in a discretionary trust is deemed to be 100%. See the definition of "debtor" in subsection 80(1) and paragraph 80(2)(j).

Forgiven Amount

The forgiven amount, as defined in subsection 80(1), is, essentially, the excess of the amount of the debt over the amount paid to settle the debt, less:

• any amount included in income as an employee or shareholder benefit,
• an amount deductible under paragraph 18(9.3)(f) as prepaid interest in respect of a future period,
• any gain realized under subsection 39(3) from an obligation repurchased in the open market,
• amounts previously renounced under the resource rules in respect of the obligation,
• amounts included under section 79 upon seizure of property for unpaid debts,
• previously parked or statute-barred amounts,
• the portion of the principal amount arising from section 80. inclusions in income in respect of employee or shareholder loans,
• the entire debt if the taxpayer is bankrupt,
• the portion of the debt which is an excluded obligation ,
• the entire debt if owed by a partnership to an active partner, and

• any amount paid to another to assume the debt.

Excluded Obligation

An excluded obligation is defined in subsection 80(1) as an obligation where:

• the proceeds were included in income,
• the proceeds reduced deductible expenses or the cost of property,
• it relates to an unpaid amount that is only deductible when and if paid,
• section 78 applies to the debt, and
• without the provisions of sections 79 and 80, the forgiven amount would nonetheless be included in income.

This last exclusion maintains the distinction between a trade debt and a capital debt for the purpose of these rules. See the discussion above under "Old Rule" regarding the relationship between sections 9 and 80.

Settled

An obligation is considered to have been settled where it has been settled or extinguished, otherwise than by bequest or inheritance or upon the issuance of distress preferred shares.^7 An obligation is deemed to be settled upon a winding-up or an amalgamation involving the debtor, or where the obligation becomes a parked obligation (discussed below), or becomes statute-barred. For a discussion of the meaning of settlement, see Central City Financial Services Ltd. v. The Queen , [1997] 3 CTC 2949 (TCC) and Carma Developers Ltd. v. The Queen , [1996] 3 CTC 2029 (TCC).

(^7) See generally paragraph 80(2)(a), subsections 80.01(3), (4), (5), (8), (9), paragraphs 80(2)(g), (g.1) (h), (k), and (l).

Parked Obligation

Where a commercial debt obligation (that is, a commercial obligation, other than a distress preferred share) becomes a parked obligation and the cost at that time to the holder is less than 80% of the principal amount of the obligation, the obligation is deemed to have been settled at that time for a payment equal to the cost of the obligation to the holder.^8 In general terms, a parked obligation is a specified obligation which is owned by a significant shareholder , or a person who does not deal at arm's length with the debtor. A significant shareholder is defined as a person who, if the debtor is a corporation, together with another person with whom the person does not deal at arm's length, owns 25% or more in votes or in value of the shares of the debtor. A specified obligation includes an obligation (a) which is acquired by the holder from a person unrelated to the holder, or (b) if, at any previous time, a person who owned the obligation either dealt at arm's length with the debtor, or if the debtor is a corporation, did not hold a significant interest in the debtor.

The purpose of this rule is, of course, to prevent the debtor from avoiding a settlement of debt by having its debt acquired at less than its principal amount from the original lender by a non-arm's length party to the debtor. However, the concept of non-arm's length has been expanded to include, amongst others, any shareholder who holds more than 25% in votes or value of the shares of the debtor. This rule may well be triggered in reorganization scenarios where a financial institution acquires 25% in value of the shares of a debtor, and also acquires debt from other financial institutions at a discount of more than 20%.

(^8) See subsections 80.01(2)(b), (6), (7), (8), (10).

The rule has been drafted so that the order of either becoming a specified shareholder or acquiring a specified obligation does not matter. As soon as both conditions are met, the debt parking rule will apply.

Relief is available, in the form of a deduction in computing income, where a debt that has been parked, or has become statute barred, is subsequently repaid.

THE MECHANICS OF SECTION 80

Where a commercial obligation is settled , the forgiven amount is, in general terms, applied to reduce, in order:

• non-capital loss carryforwards,
• capital loss carryforwards,
• capital cost of depreciable property,
• cumulative eligible capital,
• resource pool balances,
• adjusted cost bases of capital properties (other than shares and debts of corporations in which the debtor is a specified shareholder and interests in partnerships which are related to the debtor),
• adjusted cost bases of shares and debts of corporations in which the debtor is a specified shareholder (other than shares and debts of corporations which are related to the debtor),
• adjusted cost bases of capital properties that are interests in, or debts of, related persons.

A specified shareholder is defined in section 248 as a shareholder who, alone or together with other non-arm's length parties, owns not less than 10% of the issued shares of any class of the corporation. See paragraph 80(2)(c), subsections 80(3), (4), (5), (7), (8), (9), (10), (11), and the definition of "specified shareholder" in subsection 248(1).

Capital Cost of Depreciable Property

The third category of tax attributes which absorbs a forgiven amount is the capital cost of depreciable property, to the extent of the undepreciated capital cost of the pool to which the asset belongs. In the case of depreciable assets which do not belong to a prescribed class the reduction is limited to the undepreciated cost of the asset itself. The debtor may designate the manner by which the forgiven amount is to be applied. See subsections 80(5) and (6).

Cumulative Eligible Capital

Forgiven amounts are then applied against cumulative eligible capital. As cumulative eligible capital is increased by 3/4 of eligible capital expenditures, for each $4 of unapplied forgiven amount, cumulative eligible capital is reduced by $3. The debtor may designate the extent to which the forgiven amount is to be applied. See paragraph 80(2)(f), and subsection 80(7).

Resource Pools

Resource pools no longer escape section 80. With respect to successored pools, a rule similar to the rule with respect to streamed non-capital losses applies. If the obligation being settled was issued prior to the event which triggered the successoring, or was issued in substitution for such an obligation, then the successored pools are available to offset a forgiven amount. The debtor may again designate the extent to which the forgiven amount is to be applied. See subsection 80(8).

Capital Properties

It is generally less detrimental to a debtor to reduce the cost base of an interest in other entities, than to reduce losses or the cost base of depreciable or otherwise deductible balances. In fact, in the absence of special rules, in many

cases, reducing the cost of an interest in other entities could avoid any negative effects of having a forgiven amount. For this reason, the rules that allow for the erosion of the cost base of capital properties have three special characteristics. First, they are divided into the following three ordered categories:

• the adjusted cost bases of capital properties (other shares or debts of corporations of which the debtor holds 10% of the shares of any class, or interests in partnerships that are related to the debtor) (Category I),
• the adjusted cost bases of shares of, or debts owing by, corporations of which the debtor holds 10% of the shares of any class, but which corporations are not related to the debtor (Category II), and
• the adjusted cost bases of the shares of, and debt issued by, related corporations, and interests in partnerships which are related to the debtor (Category III).

Second, the tax bases in any one category is only available, if the tax attributes of all prior categories have been reduced to the fullest extent permissible. Third, there is no advantage to reducing the adjusted cost bases of the shares in, or debts of, a related corporation, or an interest in a related partnership, unless such entities have first used the transfer of a portion of the forgiven amount to eliminate their tax attributes (see discussion below). See subsections 80(9), (10), and (11).

In all cases, a partnership which is a debtor cannot reduce the adjusted cost bases to it of capital property below the fair market value of such property. This rule is designed to prevent a partnership from hiding tax attributes in another entity in which it has an interest. See subsection 80(18).

Capital Properties - Category I

A deduction against the adjusted cost base of this category of capital property is available under subsection 80(9), but only if the maximum