Canada: Implications Of Copthorne On Tax Planning

In Copthorne,¹ the Supreme Court of Canada ("SCC") addressed anticipatory tax planning under the general-anti avoidance rule ("GAAR"). In this case, an additional step was added to a transaction that prevented paid-up capital ("PUC") from being eliminated. A year later, this planning allowed for a tax-free return of capital, in the form of a share redemption, in an amount that exceeded the amount of tax-paid capital originally invested.

Without the anticipatory planning, the redemption would have given rise to $9 MM in tax. The Minister of National Revenue (the "Minister") reassessed the taxpayer by applying GAAR to impose tax as though the preserved PUC was eliminated. The Minister's reassessment was upheld by both the Tax Court of Canada ("TCC") and the Federal Court of Appeal ("FCA"). The taxpayer's further appeal to the SCC was unanimously dismissed in a judgment penned by Justice Rothstein.

I. TAX PLANNING IMPLICATIONS

Taxpayers and advisors should be aware of the following implications of Copthorne on tax planning in Canada.

1. The Test to Apply GAAR is Clear

The SCC reaffirmed the test to be met before GAAR can apply.

(a) A tax benefit must exist, often identified by comparison to an alternative transaction with a different tax result;

(b) An avoidance transaction must exist, in the sense of a transaction (or single step within a transaction) that results in, and is undertaken to achieve, the tax benefit; and

(c) After establishing the "object, spirit or purpose" of the relevant provisions, the Minister must clearly establish that the transaction abused the object, spirit or purpose of at least one provision.

2. The GAAR Test is Objective – It is Not a Smell Test

The SCC reiterated that the GAAR is not a "moral opprobrium"; the GAAR does not allow the Minister to simply recharacterize transactions he dislikes. Taxpayers are entitled to plan to reduce tax, subject to GAAR, which can only be applied through "an objective, thorough and step-by-step analysis". The Court must go behind the words of the provisions at issue to understand their purpose. Once the purpose is carefully determined, then the Court can assess whether such purpose was clearly abused. In Copthorne, the SCC devotes more than one third of its lengthy analysis to a consideration of the purpose of the provisions at issue.

3. The Threshold to be Part of a Series of Transactions is Low

GAAR could only apply in Copthorne if the avoidance transaction (which prevented PUC from being eliminated) and the tax benefit (arising from the share redemption) were part of the same "series of transactions". This phrase is statutorily defined to deem any transaction that is "in contemplation" of a series to be part of that series. The SCC held that "in contemplation" of can be read both on a forward-looking basis and retrospectively. The SCC did not overturn the trial judge's decision that the redemption was completed "in contemplation" of the already completed PUC preservation transaction. As such, both transactions were part of the same series. Whether a transaction is in contemplation of a series is a fact specific analysis and factors to consider include the timeline of events and whether intervening events exist.

4. Appellate Courts Will Defer to the Trial Judge on Factual Matters

The trial judge in Copthorne found as a fact that there was a "strong nexus" between the anticipatory planning to preserve PUC and the redemption. This factual finding made it easier for the SCC to conclude that the anticipatory planning and redemption were part of the same series. The SCC would not overturn this factual finding unless there was a "palpable and overriding error". When a trial judge reaches a conclusion on a factual matter, such as the degree of connection between separate transactions, it is difficult to overturn such conclusion on appeal. Accordingly, success at trial is critical. Notably, the SCC has now heard four GAAR cases and in each case the SCC upheld the FCA decision, which in turn upheld the TCC decision.

II. COPTHORNE: THE FACTS

1. The Corporate Group

In the tax years under review, Li Ka-Shing and his son, Victor Li, controlled a group of Canadian and non-resident companies that included:

Investments received $97 MM in after-tax funds, resulting in PUC of $97 MM in the shares of Investments.² Investments paid $67 MM to acquire Holdings, resulting in PUC of $67 MM in connection with the Holdings shares. The combined PUC of the parent and subsidiary exceeded the actual amount of tax-paid funds invested, which occurs in many circumstances where a parent corporation invests in a subsidiary.

2. Internal Restructuring: 1991-1994

Over time, Holdings had accrued capital losses and Copthorne had realized taxable capital gains. In order to apply Holdings' accrued losses against Copthorne's gains, Copthorne acquired Holdings in 1991 and the underlying assets were sold to an arm's length party to recognize the losses.

In 1993, it was decided that Copthorne and its subsidiary Holdings would amalgamate. It was recognized that, without any other step, the PUC in connection with the Holdings shares would be eliminated on amalgamation.³

To avoid this elimination of PUC, Copthorne first sold the Holdings shares to another related corporation such that, at the time of the amalgamation, Copthorne and Holdings were "sister" corporations. This anticipatory planning changed the "vertical amalgamation" into a "horizontal amalgamation" of sister corporations, resulting in a combination rather than an elimination of PUC.

On January 1, 1994, the amalgamation was carried out (forming "Copthorne II") and the PUC of the Copthorne II shares was $67 MM, all of which arose from the PUC associated with the Holdings shares.⁴ But for the anticipatory planning, the PUC of the Copthorne II shares would have been $1.

3. Further Restructuring and Share Redemption: 1994-1995

In June 1994, amendments to the foreign accrual property income ("FAPI") rules in the Income Tax Act (the "Act") prompted further reorganizations within the related group of companies.

Subsequently in 1994, L.F. Investments (Barbados) Ltd. acquired all of the issued shares of Copthorne II (PUC of $67 MM) and Investments (PUC of $97 MM). The PUC of both corporations arose from the same initial investment of $97 MM in after-tax funds in Investments.

On January 1, 1995, the sister companies of Copthorne II and Investments were amalgamated (forming "Copthorne III"), the shares of which had PUC of $164 MM as a result of combining the PUC of the two companies.

Copthorne III then redeemed shares held by its non-resident shareholder L.F. Investments (Barbados) Ltd. for a redemption amount of $142 MM. Since the redemption amount did not exceed the PUC, the redemption did not give rise to a deemed dividend and no tax was withheld.

4. The Reassessment

The Minister assessed Copthorne III by applying GAAR to reduce the PUC of Copthorne III by $67 MM. As a result of this PUC reduction, the redemption payment exceeded PUC, creating a deemed dividend. Copthorne III was assessed withholding tax on the deemed dividend at 15%, resulting in a tax bill of $9 MM, plus penalty and interest. The Minister's reassessment was upheld by the TCC and the FCA and the taxpayer appealed to the SCC.

III. THE GAAR ANALYSIS

1. Tax Benefit

A tax benefit was found to exist by comparing the transaction as carried out with an alternative arrangement. The alternative arrangement was the amalgamation of Copthorne and Holdings without interjecting the share sale to preserve PUC. The taxpayer argued that a vertical amalgamation "was never a live and reasonable option" because the taxpayer never would have chosen this higher tax option. The SCC concluded that the comparison to a vertical amalgamation was appropriate and held that there was a tax benefit.

2. Avoidance Transaction

Where a tax benefit is alleged to result from a series of transactions, rather than a single transaction, it is necessary to determine:

If any transaction within the series was not undertaken primarily for a bona fide non-tax purpose, then an avoidance transaction exists.

A. Series of Transactions The taxpayer and the Crown agreed that the initial share sale completed to preserve PUC and the amalgamation of Copthorne and Holdings was part of a series of transactions (the "Series"). However, the tax benefit was not realized until a year later when shares of Copthorne III were redeemed. As such, the SCC had to determine whether the redemption was part of the Series.

(i) Series of Transactions Defined

The starting point is the common law meaning of a series of transactions, which requires a finding that each transaction must be "pre-ordained to produce a final result" in order to be part of the series.⁵ This meaning is extended by the statutory definition of "series of transaction" in s.248(10) of the Act which deems "any related transactions" completed "in contemplation" of the series to be part of such series.

In OSFC Holdings,⁶ the FCA applied the statutory definition by asking whether the parties knew of the common law series and took such series into account when deciding to complete the transaction under review. In Canada Trustco,⁷ the SCC followed this approach and elaborated that Courts are required to consider whether the series was taken into account when the decision was made to undertake the related transaction in the sense that is was done "in relation to" or "because of" the series.

In Copthorne, the TCC agreed with the taxpayer that transactions only remotely connected to a common law series should not be included. However, the TCC concluded that there was a "strong nexus" between the Series and the redemption and, as such, the Series was deemed to include the redemption.

(ii) A "Strong Nexus" is Not Required

The FCA confirmed the TCC decision, but noted that a finding of a "strong nexus" between the redemption and the Series was not necessary. A strong nexus involves a greater degree of connection than is needed for a related transaction to be 'because of' or 'in relation to' a series of transactions.

The SCC agreed that a "strong nexus" was a stronger connection than required and confirmed, on the other end of the spectrum, that a "mere possibility" or a connection with "an extreme degree of remoteness" was insufficient. Relevant factors to consider as part of this factual analysis include the timeline of events and whether intervening events exist. The taxpayer argued that intervening events broke the series. The SCC noted that the TCC was aware of the intervening changes to the FAPI rules and the timeline of events and found that, since there was no "palpable or overriding error", the trial judge's finding that there was a strong nexus could not be overturned. That factual finding was more than sufficient to reach a conclusion that the redemption was completed "in contemplation" of the anticipatory planning.

(iii) Contemplation can be Prospective or Retrospective

The SCC rejected the taxpayer's argument that the extended meaning of a series of transactions in s.248(10) should only be considered on a prospective basis. The SCC acknowledged that the more common use of the term "contemplation" is prospective. However, the SCC concluded that the text of s.248(10) does not restrict when the contemplation must take place. The SCC further noted that the context of the statutory definition is to expand the definition of a series and that the SCC had recently concluded, in Canada Trustco, that the test can be applied retrospectively. As such, completing a transaction "in contemplation" of prior anticipatory tax planning may result in the transaction being part of the same series as the anticipatory planning.

B. Avoidance Transaction Within the Series

The SCC rejected the taxpayer's argument that all steps of the Series were undertaken for a non-tax purpose. The avoidance transaction was the addition of the share sale prior to the amalgamation of Copthorne and Holdings. This planning step allowed for the amalgamation to be horizontal rather than vertical, resulting in the preservation of the PUC related to the Holdings shares. Since there was an avoidance transaction within the same series of transactions that resulted in the tax benefit, the SCC had to consider the remaining issue of whether there was an abuse within the meaning of the GAAR.

3. Abusive Tax Avoidance

The SCC reaffirmed the Duke of Westminster ⁸ principle that taxpayers are entitled to structure their affairs to minimize tax and then acknowledged that the GAAR does introduce some uncertainty. However, the uncertainty is reduced by the obligation of Courts to approach GAAR cases cautiously and the fact that the abusive nature of the transaction must be "clear" before GAAR can apply. The Court's role is to conduct an objective, thorough and step-by-step abuse analysis, explaining the reasons for its conclusion.

A. Provisions at Issue

The SCC considered each provision alleged by the Crown to be abused and concluded that s.87(3) was central to the abuse analysis. The definition of "paid-up capital" in s.89(1) incorporates, as a starting point, stated capital as determined under corporate law, which amount reflects the investment made in the corporation. PUC then deviates from corporate stated capital based on specific adjustments, such as provided for in s.87(3).

The SCC found that the text of s.87(3) operates to ensure that the PUC of an amalgamated corporation will be reduced if it exceeds the PUC of the shares of the amalgamating corporations. The text also operates to aggregate the PUC of amalgamating corporations, except on a vertical amalgamation. Where a subsidiary amalgamates with its parent, the PUC of the subsidiary's shares is cancelled. The SCC then turned to a contextual and purposive analysis of this provision.

B. Context of Subsection 87(3)

(i) The Scheme of the Act Relating to PUC

The SCC's contextual analysis focused on the PUC scheme in the Act which involves several provisions, making observations including that:

Within this context, the SCC concluded that s.87(3) is designed to preclude the preservation of PUC where such preservation would allow for a tax-free payment from a corporation in excess of the tax-paid investment in the corporation.

(ii) Non-Consolidation

The taxpayer argued that since the Act does not generally consolidate the financial results of separate corporations for tax purposes, the shares of a corporation have their own PUC that exists independently from the PUC of the shares of other corporations, whether or not the corporations are related. The SCC acknowledged that the principle of non-consolidation recognizes the valid creation of PUC in a subsidiary corporation; however, it does not justify the preservation of PUC when the subsidiary and its parent are amalgamated.

(iii) No Single, Integrated Scheme

The taxpayer asserted that the statutory provisions relating to capital gains and PUC form a single integrated scheme that ensures that shareholder returns are eventually taxed, either as a deemed dividend or as a capital gain. The SCC found no such integrated scheme, noting that:

The taxpayer argued that the Act does not have a policy against PUC preservation since it does not have specific "stop-PUC" rules similar to the "stop-loss" rules that exist in the Act. The SCC held that s.87(3) could viewed as a "stop-PUC" rule.

The taxpayer further argued that, since the detailed PUC provisions in the Act did not address this precise situation, the transactions could not be considered to abuse the purpose of those provisions. While not ruling out the possibility that this "implied exclusion" argument could have merit where the text of a provision fully explains its underlying rationale, the SCC concluded that such an interpretation would render the GAAR useless in most cases: "the implied exclusion argument is misplaced where it relies exclusively on the text of the PUC provisions without regard to their underlying rationale. If such an approach were accepted, it would be a full response in all GAAR cases, because the actions of a taxpayer will always be permitted by the text of the Act."⁹

C. Purpose of Subsection 87(3)

(i) Multiple Purposes

The SCC agreed with the taxpayer that a purpose of s.87(3) is to prevent corporate law increases to stated capital on horizontal amalgamations. However, the SCC noted that provisions can have more than one purpose. Another purpose of s.87(3) is to prevent corporations from preserving the PUC of the shares of a subsidiary corporation on an amalgamation with a parent corporation, because the subsidiary's PUC reflects investment of the same tax-paid dollars as in the parent corporation.

(ii) Purpose Goes Beyond Maintaining Consistency

The SCC dismissed the taxpayer's assertion that s.87(3) is simply intended to maintain consistency between corporate law and tax law, and that s.87(3) takes its purposes from the corporate law cancellation of shares upon a vertical amalgamation. It was noted that the cancellation of PUC under s.87(3) occurs independently from corporate law, suggesting that Parliament had a tax reason for precluding the aggregation of PUC on a vertical amalgamation. The SCC emphasized that its conclusion was not based on a determination of a general policy in the Act against surplus stripping, but instead was based on an analysis of the purpose of the specific PUC provisions that apply to amalgamations and redemptions.

(iii) Not Creating Impermissible Uncertainty

The SCC also rejected the taxpayer's argument that upholding the application of the GAAR would create impermissible uncertainty for taxpayers as to whether PUC validly created in a subsidiary would be subject to cancellation if it was sold to an unrelated non-resident purchaser. The SCC responded that, unless there was an avoidance transaction resulting in a tax benefit, a sale of shares to an unrelated non-resident purchaser would not trigger the GAAR.

(iv) Purpose Limits Tax-free Return to Tax-paid Investment

Based on a detailed textual, contextual and purposive analysis, the SCC concluded that the object, spirit and purpose of the part of s.87(3) dealing with vertical amalgamations is "to preclude preservation of PUC of the shares of a subsidiary corporation upon amalgamation of the parent and subsidiary where such preservation would permit shareholders, on a redemption of shares by the amalgamated corporation, to be paid amounts as a return of capital without liability for tax, in excess of the amounts invested in the amalgamating corporations with tax-paid funds."¹⁰

D. Application of Abuse Test

The SCC held that the anticipatory step of preserving PUC, which later allowed for a tax-free return of capital from Copthorne III in excess of the tax-paid investment in Copthorne III, circumvented the application of s.87(3). The transaction was therefore abusive and the SCC affirmed the GAAR assessment.

Footnotes

1 Copthorne Holdings Ltd. v. The Queen, 2011 SCC 63, released December 16, 2011 ("Copthorne").

2 PUC generally represents the amount a corporation can return to shareholders as a tax-free return of capital.

3 On a "vertical amalgamation" of a parent and wholly-owned subsidiary, PUC of the subsidiary, which reflects the same tax-paid funds invested in the parent corporation, is eliminated.

4 The PUC of the Copthorne shares prior to the amalgamation was only $1.

5 As noted in Copthorne, para. 43.

6 OSFC Holdings Ltd. v. Canada, 2001 FCA 260, ("OSFC Holdings").

7 Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54. ("Canada Trustco").

8 Commissioners of Inland Revenue v. Duke of Westminster, [1936] A.C. 1.

9 Copthorne, para. 111.

10 Copthorne, para. 122.

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