Jul 19, 2017
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“Payments to individuals on behalf of companies may still be ABIL.”
In the case of Brand (2005 DTC 1249), the taxpayer had lent money to his son and daughter-in-law that was to be used by their respective active companies. The facts agreed by both the CRA and the taxpayer were:
It was the taxpayer’s intention that the funds he had advanced were to be forwarded to the two active companies.
It is assumed that all the requirements to claim an allowable business investment loss (“ABIL”) were met. The only issue to be determined was whether the fact that the funds were paid to the son and daughter-in-law, instead of directly to their companies, would prevent the taxpayer from claiming an ABIL. It was the Minister’s position that the loans were made to the individuals and not to the companies so the ABIL claim was unavailable.
The Tax Court judge made an analysis of payments considered to be held in trust. He made it clear from his analysis that there can be a trust situation without written documentation. The son and daughter-in-law confirmed that the two companies planned to repay the borrowed funds. The Court determined that, when the son and daughter-in-law received funds from the taxpayer, they received the funds “in trust” for the companies. Accordingly, the judge determined that the taxpayer was entitled to claim an ABIL for the full amount of the loans, less repayments of about $6,000.
This is an interesting case because even though the funds did not go directly to the companies, the lender could still claim an ABIL. The Court was convinced that the funds were meant for the companies because the document that the son and daughter-in-law signed detailed how they would repay the taxpayer. Where funds have not been advanced directly to a company, there should be documentation evidencing the fact that the funds were to be passed on to the company if you want to claim an ABIL.
TAX TIP OF THE WEEK is provided as a free service to clients and friends of the Tax Specialist Group member firms. The Tax Specialist Group is a national affiliation of firms who specialize in providing tax consulting services to other professionals, businesses and high net worth individuals on Canadian and international tax matters and tax disputes.
The material provided in Tax Tip of the Week is believed to be accurate and reliable as of the date it is written. Tax laws are complex and are subject to frequent change. Professional advice should always be sought before implementing any tax planning arrangements. Neither the Tax Specialist Group nor any member firm can accept any liability for the tax consequences that may result from acting based on the contents hereof.
TAX TIP is provided as a free service to clients and friends of Cadesky Tax.
The material provided in Tax Tip is believed to be accurate and reliable as of the date of posting. Tax laws are complex and are subject to frequent change. Professional advice should always be sought before implementing any tax planning arrangements. Cadesky Tax cannot accept any liability for the tax consequences that may result from acting based on the contents hereof.