The Canadian Spin-Off Edge

Favorable tax treatment awaits Canadian parent companies that structure reorganizations as "amalgamations," although such deals could be considered taxable transactions in the United States.

It is important to note that subsection 87(4) is a “rollover” provision that applies to the amalgamation of two or more taxable Canadian corporations. The general rule, found in paragraph 87(4)(a), states: When two corporations are amalgamated, a shareholder of a predecessor corporation, who receives nothing except new shares of the amalgamated corporation, is deemed to have disposed of the shares of the predecessor corporation for proceeds equal to their “adjusted cost base,” and to have acquired the shares of the amalgamated corporation at a cost equal to the same amount.

However, under subsection 87(4)(b), no rollover is available to a shareholder of a predecessor corporation if (1) the fair-market value of the old shares immediately before the amalgamation exceeds the fair-market value of the new shares immediately after the amalgamation, and (2) it is reasonable to regard all or a portion of the excess as a benefit that the shareholder desired to have conferred on a person related to the shareholder.

In such a case, the shareholder generally is treated as having realized a capital gain on the disposition of the old shares. The amount of the capital gain is typically equal to the “gift portion” of the transaction; that is, the amount by which the value of the old shares exceeds the value of the new shares.

In the example case, the Canadian authorities argued that there were several reasons the 87(4) exception applied to MuCorp on the amalgamation. For example, the fair-market value of the Lambda shares immediately before the amalgamation was $15.5 million, none of the preferred shares of LA issued on the amalgamation had any value, the $15.5 million difference in value represented a benefit MuCorp wished to confer on H Corp., and MuCorp was related to H Corp. at the time of the amalgamation.

However, the Federal Court of Appeal disagreed with the Canadian tax authorities. In Husky Oil Ltd., the court noted the basis for the 87(4) exception. Basically, the exception is intended to deter a taxpayer from using amalgamations to shift part or all of the value of a predecessor corporation to the amalgamated corporation, if — but only if — a person related to the taxpayer has a direct or indirect interest in the amalgamated corporation that will be enhanced by the shift in value.

In the example case, the supposed shift in value accrues to the benefit of Beta through its ownership of the only common stock of LA. There is no person related to MuCorp who stands to benefit from the shift in value to Beta. Therefore, the 87(4) exception cannot apply.

In an amalgamation to which 87(4) applies, the shareholders of each of the predecessor corporations dispose of their shares in exchange for shares of the amalgamated corporation. Subsection 87(4) deems the proceeds of disposition to be equal to their adjusted cost base unless the 87(4) exception applies. Here, the exception does not apply, and the court concluded that the specific provisions of 87(4) must trump the more general rule found in 69(4). As a result, the Canadian Minister of Taxation’s fallback position was also rejected.

In the United States, a split-off is taxable because the distributed stock forfeits its status as “qualified” property for the reasons described above. In the example case, the distribution by MuCorp of its Lambda stock to Beta was part of a plan pursuant to which one or more persons (the shareholders of H Corp.) acquired (indirectly) a greater than 50% interest in MuCorp. That means that in the United States, MuCorp would have been taxed on the disposal of its Lambda stock. However, in Canada, such a transaction, so long as it is implemented by means of an amalgamation, can, apparently, be accomplished without unfavorable tax consequences.






Contributor Robert Willens, founder and principal of Robert Willens LLC, writes a weekly tax column for CFO.com.




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