Foreign Affiliate Dumping

go
beyond
borders
go
break
ground
strength
in
numbers
FOREIGN AFFILIATE DUMPING
Jennifer Hanna

Foreign Affiliate Dumping Jennifer Hanna March 2013
2
Agenda
• Introduction
• Conditions for application
• Consequences
• Meaning of “investment”
• PLOI
• Dividend substitution election
• PUC suppression and reinstatement
• Closely connected business exception
• Internal reorganization exceptions
• Miscellaneous supporting rules

History
• 2008 – Advisory Panel on Canada’s system of
international taxation
• “foreign debt dumping”
• March 28, 2012 Federal Budget
• “foreign affiliate dumping”, deemed interest rules
• August 14, 2012 – Legislative proposals released
for consultation
• Indirect investment
• October 15, 2012 – NWMM
• Tweaks and fixes
3

Introduction – Example of dumping
• Can Sub incurs interest
expense to fund
investment in preferred
shares of foreign sub of
Parent
• Can Sub earns a fixed
rate of return on the
preferred shares
• Preferred share return is
paid via exempt surplus
dividends
• No expectation of “equity-
like” return on investment
• No Canadian taxation of
income
4
Foreign Parent
Foreign Sub1 Can Sub
Foreign Sub2
Interest bearing
debt
Fixed rate preferred
shares
Operations
generating exempt
surplus
common
shares

Introduction - legislation
• Section 212.3 – anti-FA dumping rules
• Section 17.1 – deemed interest inclusion rules
for downstream debt elected to be PLOI
• Section 15.1 – deemed interest inclusion rules
for shareholder debt elected to be PLOI
5

Introduction – Coming into force
• Generally applies to transactions and events occurring after March 28,
2012
• Grandfathering - rules do not apply to pre-2013 transactions between
parties dealing at arm’s length if:
• Either
• (A) indirect acquisition; CRIC obligated to complete acquisition under
a written agreement with a public company target dated pre-March
29, 2012, or
• (B) parties obligated to complete transaction under pre-March 29,
2012 written agreement, and
• No release from obligation due to amendments to Act
• Rules modified for pre-August 14, 2012 transactions on elective basis
• Elections for substituted dividends and/or PLOI - extension to 365
days after Royal Assent
6

Conditions for application – Anti-Dumping
• 212.3(1)
• Corporation resident in Canada (CRIC)
• CRIC is controlled by a foreign corporation
(Parent)
• CRIC makes an “investment” in a subject
corporation
• Subject corporation is a foreign affiliate of CRIC
7

Conditions for application – Example of Parent
• 212.3(15)(a)
• Foreign sub 1 is the
controlling “Parent” of
Can Sub
• Foreign Co is not the
“Parent” for purposes of
the dumping rules
8
Foreign Co
Foreign Sub1
CRIC
Foreign Sub2
51%
49%
100%

Conditions for application – Example of Parent
• Foreign Co is the
controlling “Parent” of
Can Sub
9
Foreign Co
Foreign Sub1
CRIC
Foreign Sub3
50%
100%
Foreign Sub2
50%
100%

Conditions for application – Example of no Parent
• 212.3(15)(b)
• CRIC is deemed not controlled
by Foreign Sub 1 or Foreign Co
because both are controlled by
Canadian parent
10
Foreign Co
Foreign Sub1
CRIC
Foreign Sub2
51%
49%
100%
Canadian
Parent

Consequences
• 212.3(2)
(a) deemed dividend paid by CRIC to Parent =
FMV of
• any property (other than shares of the CRIC) transferred,
obligation assumed, benefit otherwise conferred, by the
CRIC, or
• property transferred to the CRIC which results in a
reduction of an amount owing to the CRIC
that reasonably relates to the “investment”
11

Consequences
• 212.3(2)
(b) PUC reduction of CRIC shares = increase in
PUC that reasonably relates to the “investment”
12

Consequences (a)
• 212.3(2)(a)
• CRIC deemed to pay dividend to
parent (Foreign Sub1)
• But, see whether PUC
suppression rule under 212.3(7)
applies to override dividend
treatment
13
Foreign Parent
Foreign Sub1
CRIC
Foreign Sub2
51%
49%
100%
Dividend
Investment

Consequences (b)
• 212.3(2)(b)
• E.g. CRIC receives Foreign Sub2
shares from Foreign Parent
and/or Foreign Sub1 in exchange
for CRIC shares, resulting in an
increase to the PUC of CRIC
shares
• 212.3(2)(b) reduces the PUC of
CRIC shares
14
Foreign Parent
Foreign Sub1
CRIC
Foreign Sub2
51%
49%
100%
PUC reduction

What is an “Investment”? (a)
• 212.3(10)(a)
• Acquisition of shares of the
subject corporation by the
CRIC
15
Foreign Parent
CRIC
Foreign Sub

Investment (b)
• 212.3(10)(b)
• Contribution of capital to the
subject corporation by the
CRIC
• Includes any benefit conferred
on the CRIC
16
Foreign Parent
CRIC
Foreign Sub
$$

Investment (c)
• 212.3(10)(c)
• An amount becomes owing to
the CRIC by the subject
corporation
• Excludes:
• Ordinary course of business, repaid
w/in 180 days, or
• Pertinent loan or indebtedness
(“PLOI”)
17
Foreign Parent
CRIC
Foreign Sub
Loan

Investment (d)
• 212.3(10)(d)
• Acquisition of debt of subject
corporation from another person
• Excludes:
• Acquired in the ordinary course of
business from arm’s length person,
or
(“PLOI”)
18
Foreign
Parent
CRIC
Foreign
Sub 2
Loan
Bank
Foreign
Parent
CRIC
Foreign
Sub 2
Loan
Bank

Investment (e)
• 212.3(10)(e)
• Extension of maturity date of
shares or debt
• Excludes:
(“PLOI”)
• 212.3(5) – Deems there to be
a transfer of property equal
to the amount owing or the
FMV of the shares
immediately after the time of
the extension
19
Foreign Parent
CRIC
Foreign Sub
Existing loan –
maturity date is
extended
Shares – redemption/
acquisition/ cancellation
date is extended

Investment (f)
• 212.3(10)(f)
• Indirect acquisition through
acquisition of a Canadian
corporation (Target)
• FMV of Target’s shares of foreign
affiliates (directly or indirectly
owned) > 75% of the FMV of all of
Target’s property
• Without reference to debt obligations of
Canadian resident corporation(s) in
which Target has a direct/indirect interest
• Without double-counting value of tiered
FA shares
20
Foreign Parent
CRIC
Foreign Sub
Can Target

Investment (f)
• 212.3(10)(f)
• Some anomalies in value test
• Value of Foreign Sub debt is a
“good” property?
• Likely exempt from s.17 income
attribution rules under 17(8)
• Value of Can Sub debt is not
included in “good” property?
• Canadian debt is deemed to be
disregarded
• Disregarding debt may not
always result in an increase in
the value of the other good
property (Can Sub shares) – e.g.
shares of a joint venture
company
21
Foreign Parent
CRIC
Foreign Sub
Can Target
Can Sub
50%50%
100%
Debt
Third
party
Debt

Investment (f) – “anti-stuffing” rule
• 212.3(14)(a) deems 75% test in
(10)(f) to be satisfied (and an
“investment” to be made) if
• after the acquisition of Can Target
by CRIC and as part of the series,
Can Target property (direct/indirect,
other than FA shares) is disposed of,
and
• after the acquisition and during the
series, the 75% test would have
been satisfied
• E.g. Can Target sells non-core
Canadian assets after CRIC
acquires Can Target
22
Foreign Parent
CRIC
Foreign Sub
Can Target
Can Sub 2Can Sub 1
Non-core assets

Investment (g)
• 212.3(10)(g)
• An acquisition of an option,
interest in, right in… shares,
debt of subject corporation
• Excludes:
• Amounts that would be excluded
under (c) or (d)
23
Foreign Parent
CRIC
Foreign Sub
Interests/ rights/
options, etc.

Pertinent Loan or Indebtedness
• 212.3(11)
• Excludes debt from being an “investment”
• Amount owing by subject corporation to CRIC
• Amount became owing after March 28, 2012 (or the
maturity date was extended after that date)
• CRIC and parent jointly elect
• On or before filing due-date for the year in which the
amount becomes owing or in which the maturity date
extension is made
• Three-year period for late-filing (212.3(12))
24

Pertinent Loan or Indebtedness
• 17.1(1) applies instead of 212.3:
• Deemed interest income to the CRIC
• Greater of prescribed rate (currently 5%) and the
amount of interest payable on debt incurred by the
CRIC (or certain non-arm’s length persons) in order
to fund the PLOI
• 17.1(2)
• 180 days of transitional relief from 17.1(1) where non-
resident acquires control of CRIC
• 17.1(3)
• Deemed not to be PLOI where a treaty would apply to
reduce the income of the CRIC
25

Dividend substitution election
• 212.3(3)
• Election to modify the (2)(a) deemed dividend
• Election is made among:
• CRIC
• Qualifying substitute corporation(s)
• Parent and/or another non-resident corporation that is controlled by the
parent
• Agreed amounts are deemed to be paid as dividend(s) by the
qualifying substitute corporation and not the CRIC
• Also, they are deemed to be paid to the parent and/or other non-
resident corporation
• Election due on filing due-date – with 3 year late filing period
26

“Qualifying substitute corporation”
• 212.3(4) definition
• QSC:
• Controlled by Parent
• Has an equity % in CRIC
• Shares of which are owned by the
Parent or other non-resident
corporation not at arm’s length with
Parent
• Can Sub deemed to pay dividend
to Parent
• Allows for treaty relief on deemed
dividend
• 5% rate applies under many treaties if
the recipient of the dividend is a
corporation that owns >10% of the
shares of the dividend payer
27
Foreign Parent
CRIC
Foreign Sub
100%
Investment
DividendCan Sub
QSC

“Other non-resident corporation”
• 212.3(3)(a)
• Also for accessing treaty
protection
• Also, to optimize PUC
suppression rules
• Normally (2)(a) dividend deemed
paid by CRIC to foreign parent
• Election permits some/all of
dividend to be deemed to be
paid by CRIC to Foreign Sub1
28
Foreign Parent
CRIC
Foreign Sub 2
Investment
Foreign Sub 1
50%
50%
100%
Dividend
Dividend

“QSC” and “other non-resident corporation”
• 212.3(3)(b)
• Normally (2)(a) dividend is
deemed paid by CRIC to
foreign parent
• Election permits dividend to be
deemed to be paid by Can Sub
to Foreign Sub1 to Foreign
Parent
• Can still have any portion of
the dividends to be paid by
CRIC to Foreign Sub1 and/or
Foreign Parent
29
Foreign Parent
CRIC
Foreign Sub 2
95% equity
Investment
Dividend
Can Sub
Foreign Sub1
5% equity
100% votes
100%
Dividend

Dividend substitution election
• 212.3(3)
• Can Sub1 and Can Sub2
must each be a party in
making the election even if
they are not “paying” any of
the deemed dividends.
30
Foreign Parent
CRIC
Foreign Sub 2
Investment
Can Sub1
Foreign Sub1
100%
Dividend
Can Sub2
100%
45%45%
10%

PUC suppression rule
• 212.3(6) and (7)
• Reduces or eliminates deemed dividend(s)
• Reduces the PUC of CRIC and/or QSC shares
• In previous drafts, PUC suppression was by
election, now automatic (if conditions met)
• Controlled by making dividend substitution election
(DSE)
31

PUC suppression - consequences
Consequences: (212.3(7))
• Each deemed dividend is reduced by least of:
• the dividend otherwise determined,
• if no DSE, and if only one class of CRIC shares, the PUC of that
single class of shares,
• if no DSE, and more than one class of shares of the CRIC, the
PUC of the class(es) of shares that increased due to the
transfer(s) of property used to make the investment
• if DSE, the PUC of the class of shares on which the dividend is
elected to be paid - may be multiple elected dividends
• PUC of the shares of the CRIC and/or QSC reduced in a
corresponding manner to the reduction of the deemed
dividend(s)
32

• If no DSE, conditions for PUC suppression are as follows:
(212.3(6)(b))
1. Any shares of CRIC that are not owned by the Parent are
owned by an arm’s length person or a non-arm’s length non-
resident
AND
2. Either
• Only 1 class of CRIC shares outstanding,
or
• PUC in respect of CRIC’s shares arose from transfer(s) of
property to the CRIC and CRIC used all of the property to
make the investment (or indirect investment)
33
PUC suppression – no DSE

• CRIC has only one class of
shares
• Owned by
• Foreign Parent,
• Foreign non-arm’s length
corporation, and/or
• Arm’s length persons
• I.e. – no non-arm’s length
Canadian residents
34
Foreign Parent
CRIC
Foreign Sub 2
Arm’s length
Canadians /
non-residents
Common shares
Foreign Sub 1

• CRIC receives property
from any/all of Foreign
Parent, Foreign Sub 1, or
Arm’s length Canadians,
resulting in PUC increase
• CRIC makes investment in
Foreign Sub 2 (may be
direct or indirect through a
Can Target)
• CRIC uses all of the
property from the PUC
increase to make the
investment
35
Foreign Parent
CRIC
Foreign Sub 2
Arm’s length
Canadians
Foreign Sub 1
Class A Class A
Class B
All property from PUC
increase is used to make
investment

• PUC suppression DOES
NOT apply unless a
dividend substitution
election is made.
36
Foreign Parent
CRIC
Foreign Sub 2
Non-arm’s
length
Canadian
Foreign Sub 1

PUC suppression – DSE made
• If DSE is made, the conditions for PUC suppression are as
follows: (212.3(6)(a))
• The dividend substitution election is made in a manner that
maximizes the aggregate reduction of cross-border, non-arm’s
length PUC after the PUC suppression rules apply
• (3)(b) election would need to allocate the deemed dividend as follows:
• first to the class of shares of the CRIC/QSC of which the parent/NAL
non-resident owns the greatest proportion (up to the PUC of such
class)
• then to the class of which the parent/NAL non-resident holds the next-
largest proportionate share
• and so on
37

PUC suppression – DSE made
• The (3)(b) election
maximizes the deemed
dividends on the Class B
shares before the Class A
shares
• Under (7) the PUC of the
Class B shares must be
“used up” before the PUC
of the Class A shares is
accessed
38
Foreign Parent
CRIC
Foreign Sub 2
Arm’s length
Canadians
Foreign Sub 1
Can Sub
Class A
Class B
Class A

PUC reinstatement election
• 212.3(9)
• Adds back previously suppressed PUC
• Conditions:
• Previous investment under (10)(a), (b) or (f)
• Previous reduction of PUC under (2)(b) or (7) of a
“particular corporation” (i.e. CRIC or QSC)
• Particular corporation subsequently reduces its PUC
and makes distribution of capital
• PUC is deemed to be increased immediately before
the subsequent reduction of the PUC
39

• Amount added back to PUC is least of:
• Amount of PUC reduction at the “subsequent time”
• The amount of PUC previously suppressed under (2)(b) or (7)
• The amount(s) that are distributed on the PUC reduction which
are:
• (i) the value of the subject corporation or substituted foreign affiliate
shares that are distributed as at the subsequent time, or
(ii) the proceeds of disposition of the subject corporation shares (or
substituted shares), or of dividend/paid-up capital reduction received
in respect of such shares (within 180 days)
• If (i) or (ii) n/a, nil
40

• 212.3(9)
• PUC of CRIC was
suppressed upon
original investment in
FA
• CRIC reduces PUC and
distributes shares of
FA to Parent
• Election reinstates
previously suppressed
PUC immediately
before distribution of
FA shares
41
Foreign
Parent
CRIC
Foreign
Sub
Foreign
Parent
CRIC
Foreign
Sub
Suppressed
PUC
Reinstated,
then reduced
PUC

• 212.3(9)
• PUC of CRIC suppressed on
acquisition of Can Target
• CRIC and Can Target
amalgamate, bump shares of
Foreign Sub
• 212.3(22) supporting rule for
amalgamation/wind-up
• CRIC Amalco reduces PUC
and distributes shares of FA
to Parent
• Election reinstates
previously suppressed PUC
immediately before
distribution of FA shares
42
Foreign
Parent
Can
Target
Foreign
Sub
Foreign
Parent
CRIC
Amalco
Foreign
Sub
Suppressed
PUC
Reinstated,
then reduced
PUC
CRIC

Exemption from FAD: Closely connected business
• 212.3(16) – FAD rules N/A if CRIC demonstrates:
• The business carried on by subject corporation and all other
corporations in which the subject corporation has an equity
percentage (subject subsidiary corporations) are, and are expected to
remain,
more closely connected to
the business activities carried on in Canada by the CRIC (or Canadian
resident non-arm’s length corporation)
than to
the business activities carried on by any non-resident corporation with
which the CRIC does not deal at arm’s length (other than the business
activities of pre-existing controlled foreign affiliates (s.17) of the CRIC,
the subject corporation or the subject subsidiary corporations)
43

Closely connected business (cont)
• CRIC also demonstrates that with respect to officers of the CRIC:
• They had and exercised (and continue to exercise) principal decision-
making authority in respect of the investment
• Majority were (and will continue to be) resident and working principally in
Canada or in a country where a “connected affiliate” is resident
• Connected affiliate is a CFA of the CRIC, carries on business that is
as closely connected with that of the subject corporation (and the
subject corporation’s subsidiaries) as the Canadian company’s
activities are connected with the subject corporation (and its
subsidiaries)
• Performance evaluations of officers who are resident in and work
principally in Canada (or above-mentioned connected affiliate’s country)
are based on the results of the operations of the subject corporation to a
greater extent than will be the performance evaluation of any other officer
of a non-arm’s length non-resident corporation (other than an officer of
the subject corporation, controlled subsidiary of the subject corp., or a
connected affiliate)
44

Closely connected business (cont)
• Dual officers rule in 212.3(17)
• An officer of both the CRIC and a non-arm’s length non-resident corporation (other
than the subject corporation, subject subsidiary or connected affiliate) is deemed
not to be resident and not to work principally in a country in which a connected
affiliate is resident.
45

Closely connected business 212.3(16)
• Is the business of
Foreign Sub 2 and
its subsidiaries
more closely
connected to the
CRIC than to any
business of Foreign
Parent, sister,
aunts,
grandparents,
cousins…?
• Imagine if Foreign
Parent is state-
owned
46
Foreign Parent
CRIC
Foreign Sub 2
Foreign Sister
Foreign Aunt
Foreign
Grandparent
Foreign Cousin
Foreign Sub 3 Foreign Sub 4

Exceptions for Internal Reorganizations
• Reorganization exceptions – laundry list:
• Acquisition of FA shares (212.3(18)(a), (b)):
• from related Canadian corporation, at no time during
the series dealing at arm’s length
• on 87(1) amalgamation forming the CRIC between
related, non-arm’s length predecessor corporations
• Under 51(1), 85.1(3), 86(1), 87(8.1) foreign merger,
88(3) liquidation/dissolution, redemption of shares of
another pre-existing FA, or as a dividend/PUC
reduction on shares of another pre-existing FA
47

• 212.3(18) (c):
• Acquisition of Can Target shares
• from related Canadian corporation, at no time during
the series dealing at arm’s length
• on 87(1) amalgamation forming the CRIC between
related, non-arm’s length predecessor corporations
• Under 51(1), 86(1)
48

• 212.3(18)(d)
• Acquisition of subject corporation or Can Target shares that
results from the direct acquisition of shares of a Canadian
resident corporation
• The subject corporation or Can Target shares are received by
CRIC as sole consideration for an exchange of a debt obligation
owing to the CRIC (other than exchange to which 51(1) applies)
49

• 212.3(18)(c)(v) double-counting
relief
• Can Target (or Canadian corporation
related to both CRIC and Can
Target) makes an investment in the
subject corporation, using property
transferred by the CRIC, within 30
days and as part of the same series
• Note: the investment by Can Target
may be caught by the anti-dumping
rules
50
Foreign Parent
CRIC
Foreign Sub
Can Target
Investment
Investment

Miscellaneous supporting rules
• 212.3(19) – certain internal reorganization exceptions and
the closely connected exception do not apply to an
acquisition of preferred shares of the subject corporation
unless all of shares of the subject corporation are wholly-
owned by the CRIC and/or Canadian resident subsidiary
and/or Canadian resident parent of the CRIC
• (20) – assumption of debt on liquidation/dissolution is not
excepted under internal reorganization rules
• (21) – anti-avoidance rule – artificially related persons
deemed not to be related for purposes of (18) internal
reorganization rules
• (22) – amalgamation/windup supporting rules
51

Miscellaneous supporting rules
• (23) – No getting around rules by making indirect investment in
another subject corporation which itself makes an investment
• (24) – Rules do not apply to investment in subject corporation
by CRIC if
• The transferred property is used by subject corporation to
make a loan to a controlled foreign affiliate under s. 17
(“particular corporation”)
• Particular corporation is a corporation to which the closely
connected business exception would apply
• Particular corporation uses the proceeds of the loan in an
active business (95(1)) in its country of residence
• (25) – Partnership supporting rules
52

montréal  ottawa  toronto  hamilton  waterloo region  calgary  vancouver  moscow  london
Thank You
www.taxand.com
Jennifer Hanna, LL.B
Tel: 403-298-1892
Email: jennifer.hanna@gowlings.com

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