Taxation of Corporate Finance and Financial Structures June 5, 2012

Foreign Exchange Tax Treatment: Planning For International Transactions in Volatile Currency Markets
Taxation of Corporate Finance and Financial Structures June 5, 2012 Steve Suarez

Overview Characterization of F/X gains and losses
Recognition (timing) of F/X gains and losses Calculation of F/X gains and losses Functional Currency Rules Special Circumstances

Characterization of F/X Gains and Losses
Capital or income characterization under the Income Tax Act (Canada) ("ITA") Income treatment: 100% inclusion/deduction rate Capital treatment: 50% inclusion rate; losses vs capital gains only Characterization of F/X gains and losses important to determine relevant inclusion/deduction rate To determine characterization of F/X gains and losses, look at the character of: underlying asset; underlying liability; or underlying transaction

A. Assets F/X gains or losses on sale of capital property are capital gains or losses F/X gains or losses on sale of property in the course of carrying on a business are on income account (e.g., inventory) Same income treatment applies to isolated transactions (i.e., "adventure in the nature of trade")

B. Liabilities Characterization of F/X gains or losses depends on characterization of underlying liability F/X gains and losses on borrowed money depends on use of borrowed funds If debt relates to purchases made in the course of business operations (i.e. accounts payable), F/X gains or losses on the debt will be on income account Same treatment applies to "adventures in the nature of the trade" If debt relates to acquisition of capital asset, F/X gains or losses on the debt will be on capital account

B. Liabilities (cont'd) Exception if borrowed money forms part of "fixed working capital" or "permanent" capital of taxpayer F/X gain or loss on capital account regardless of use of borrowed funds Exception: s weak currency debt Whether borrowed funds are part of a taxpayer's fixed working capital or permanent capital depends on all circumstances: Can draws and repayments be linked to day-to-day income-earning activities? (may indicate income treatment) Would the taxpayer be undercapitalized absent borrowed funds? (may indicate capital treatment) Term of borrowing? Strong presumption that a long-term loan is part of permanent capital even if proceeds used to acquire current assets

C. Derivatives and Hedging Transactions
F/X gains or losses from a derivative transaction are generally on income account, unless derivative is used for hedging purposes Exception for "speculators" under CRA's administrative positions = choice, but consistency required If a derivative transaction is used for hedging purposes, characterization of F/X gains or losses depends on character of underlying property or liability to which the hedge relates F/X gain or loss on a derivative used to hedge F/X risk on a current asset (i.e. accounts receivable or inventory) is normally on income account F/X gain or loss on a derivative used to hedge F/X risk on capital property is on capital account

C. Derivatives and Hedging Transactions (Cont'd)
Sometimes unclear whether a transaction constitutes a hedge for income tax purposes Courts have indicated that for a transaction to constitute a hedge, there must be: an intent for the transaction to operation as a hedge of a particular item; and a substantial correlation in amount between the transaction and that item. If primary purpose of a transaction is not to hedge F/X risk on a property or liability, transaction will probably not constitute a hedge for income tax purposes even if transaction has the effect of offsetting F/X gains or losses on that property or liability CRA is of the view that whether an activity constitutes hedging depends on "sufficient inter-connection" or "integration" with underlying transaction

Saskferco Products v. The Queen1
Hedge F/X Gain Bank F/X Loss US $ Revenue US $ loan Saskferco US Plant US $ Capital/FX Loss on loan FX Income on Revenues Canada US Cdn $ depreciates; taxpayer offsets F/X loss on debt repayment vs. F/S revenue gain, by translating US $ revenue at Cdn $ F/X rate at date of borrowing DTC 1183; aff'd, 2008 DTC 6698

A class of similar properties may be treated as one property for hedging purposes Also not essential that the hedge provides a complete offset of F/X fluctuations For example, CRA stated that forward contracts of a taxpayer were properly considered hedges of taxpayer's accounts receivable even if: forward contracts were not each linked to particular receivables; and forward contracts may not have provided 100% protection from exposure to foreign currency fluctuations In this situation, it was clear that the purpose of entering into the forward contracts was to hedge a significant portion of the taxpayer's foreign currency fluctuations on the receivables

CRA Documents I7, April 15, 2010 and I7, April 21, 2010, set out CRA administrative policies on hedges in order to create a hedge, a forward contract must be linked in some way to a transaction (purchase, sale, debt repayment) you can't hedge a property or a liability, or a balance sheet item the party to the forward should directly possess the underlying item that relates to the transaction being hedged (not a related party) without sufficient linkage to a capital transaction, a hedging instrument will be on income account you can't hedge a balance sheet exposure the use of hedge accounting does not govern tax treatment

II. Recognition (Timing) of F/X Gains and Losses
The time at which an F/X gain or loss is recognized and calculated for income tax purposes depends on whether the F/X gain or loss is on income or capital account

A. Gains and Losses on Income Account
General principle is that a taxpayer must compute business income so as to provide "an accurate picture of the taxpayer's profit for a given year" Any method may be chosen as long as it is not inconsistent with the ITA, case law principles and well-established business principles Determination of profit for income tax purposes is a question of law Accounting rules cannot be substituted for, and do not determine, the legal interpretation of profit

A. Gains and Losses on Income Account (Cont'd)
ITA is silent on when F/X gains and losses on income account are recognized Courts have not required taxpayers to follow one particular method of recognition, but only to choose a method that provides an "accurate picture" of profit F/X gains or losses on income account in respect of assets or liabilities may be recognized either: on an accrual basis (year-end mark to market); or on a settlement basis (when finally settled) Taxpayers must be consistent from year to year in the method chosen Consistency between accounting and tax reporting will usually be considered by CRA but is not required in every case

A. Gains and Losses on Income Account (Cont'd)
F/X gains and losses on a derivative that hedges a current asset or liability are generally recognized in the same manner as the gains and losses on the asset or liability hedged For example, if a taxpayer uses the accrual method to recognize an F/X gain or loss on accounts receivable at year-end, an F/X gain or loss on a hedge related to those accounts receivable should also be recognized at year-end

B. Gains and Losses on Capital Account
F/X gains and losses on capital account are recognized only: at the time of disposition of underlying capital property; and at the time of settlement of underlying capital liability Not necessary to convert foreign currency to Canadian dollars to recognize an F/X gain or loss For example, a disposition of property valued in foreign currency may given rise to an F/X gain or loss even if the proceeds of disposition of the property are reinvested in an asset in the same or another foreign currency With respect to debt on capital account, the recognition of an F/X gain or loss does not depend on whether the borrower actually converts an amount of Canadian dollars into foreign currency to repay the debt

B. Gains and Losses on Capital Account (Cont'd)
Difficulties in determining if there is a disposition of an asset or settlement of a liability Changes in terms of a share or debt may or may not result in a disposition of that share or settlement of that debt Significance or magnitude of changes will generally determine if there is a disposition of a share or settlement of a debt

CRA takes the position that no disposition arises if foreign currency term deposits, GICs, and other similar deposits on capital account are moved from one form of deposit to another as long as: funds continue to be viewed as on deposit; and funds are not converted into another currency or used to purchase a negotiable instrument or other asset CRA also takes the position that F/X gains and losses on negotiable investments are realized when those investments mature or are otherwise disposed of Whether or not the funds are used to purchase similar securities not relevant

With respect to debt on capital account, an F/X gain or loss is generally recognized at the time of settlement CRA considers that an F/X gain or loss is also recognized when: a foreign currency deposit is converted at maturity into another foreign currency a debt is assumed by another party as partial consideration for assets purchased a foreign-currency denominated debt is converted into common shares

Special rule in ITA dealing with F/X losses on acquisitions of control Generally applies to acquisitions of control after March 7, 2008 Applies only to foreign currency debt (and not other liabilities such as derivatives) the repayment of which would have generated a capital gain/loss Requires any inherent F/X loss on debt to be realized by a corporation debtor on acquisition of control Corporation debtor can also elect to realize any accrued F/X gain on debt on an acquisition of control

Gains and Losses on Capital Account (Cont'd)
Revised s.39(2), Aug. 19, 2011 amendments now applies only to foreign currency debts: all F/X gains and losses on dispositions of capital property now subsumed within s.39(1) as a result, F/X gains and losses of an issuer on the redemption of shares will no longer result in the recognition of capital gains or losses (e.g., MacMillan Bloedel Ltd., 99 DTC 5454 (FCA)) some concern whether revised s.39(2) encompasses F/X hedge contracts or swaps on capital account: see CBA-CICA Joint Committee on Taxation submission of October 19, 2011

III Calculation of F/X Gains and Losses
General rule is that amounts must be computed in Canadian dollars (subject to application of functional currency rules) Exchange rate to be used in the noon rate quoted by the Bank of Canada or "such other rate as is acceptable to the Minister" CRA has sanctioned the use of alternate exchange rates in appropriate circumstances For example, the CRA takes the position that an alternate rate could be acceptable if a taxpayer has many transactions in a specified period of time and wants to use an average exchange rate for that period

III. Calculation of F/X Gains and Losses (Cont'd)
F/X gain or loss usually recognized at same time, and has same character, as any inherent gain or loss on the underlying property or liability Thus, many F/X gains or losses are generally subsumed within calculation of overall gain or loss on the property When a gain or loss is partly attributable to gain or loss in value of property (expressed in foreign currency) and partly attributable to an F/X fluctuation, it is not necessary to partition the gain or loss between the two as Canadian tax liability is generally (but not always) unaffected

General calculation rule: an F/X gain or loss is computed as the difference between: the amount paid or received on the disposition or settlement of liability multiplied by exchange rate as of the disposition date or settlement date; and the original cost or amount of the asset or liability multiplied by exchange rate as of the acquisition date or creation date Same approach for determining F/X gains and losses on related hedge transactions

Main exception to generally calculation rule: F/X gains or losses on current account (i.e., accounts receivable, accounts payable, inventory, etc.) when taxpayer uses accrual method Those F/X gains and losses are computed as the difference between: the amount accrued multiplied by exchange rate as of tax year-end (or when the asset or liability is disposed of or settled, the amount received or paid on disposition or settlement multiplied by exchange rate on disposition date or settlement date); and the amount accrued multiplied by exchange rate on date the asset was acquired or the liability arose (or the date of the most recent year-end accrual if the amount remains outstanding over a tax year-end)

Example 1 Cost of property: US $100 Proceeds of disposition: US $90 F/X rate on acquisition date: US $1 = C $1 F/X rate on disposition date: US $1 = C $1 Loss of C $10 (not attributable to F/X) computed as follows: (US $90 x C $1) – (US $100 x C $1) = (C $10)

Example 2 Cost of property: US $100 Proceeds of disposition: US $100 F/X rate on acquisition date: US $1 = C $1 F/X rate on disposition date: US $1 = C $1.20 Gain of C$20 (attributable to F/X) computed as follows: (US $100 x C $1.20) – (US $100 x C $1) = (C $20)

Example 3 Cost of property: US $100 Proceeds of disposition: US $90 F/X rate on acquisition date: US $1 = C $1 F/X rate on disposition date: US $1 = C $1.20 Gain of C $8 computed as follows: (US $90 x C $1.20) – (US $100 x C $1) = (C $8)

Example 4 On January 1, 2009, Canco issues a US$100 denominated debt On the same date, Canco enters into a currency swap transaction (the "hedge") under which it agrees to deliver C $130 in exchange for US $100 on maturity date of debt The debt matures on January 1, 2010 F/X rate on issuance date: US $1 = C $ 1.30 F/X rate on maturity date: US $1 = C $1.40

Example 4 (cont'd) F/X loss on the debt is offset by a corresponding F/X gain on the hedge F/X loss of C $10 on debt (liability) computed as follows: (U.S. $100 x C$1.40 – (US $100 x C$1.30) = C $10 C$ amount at settlement (C $140) – C$ amount at inception (C $130) F/X gain of C $10 on the hedge computed as follows: (US $100 x C $1.40 – (C $130) = C $10 C$ amount received (C $140) – C$ delivered (C $130) Economically, no aggregate gain or loss arises

Example 4 (cont'd) Assuming F/X rate on January 1, 2010 (maturity date) is US $ 1 = C $ 1.20 Again, economically, no aggregate gain or loss arises F/X loss on the hedge is offset by a corresponding F/X gain on the debt F/X gain of C $10 on debt (liability) computed as follows: (US $100 x C $1.20 – (US $100 x C $1.30) = (C $10) C$ amount on settlement (C $120) – C$ amount at inception (C $130) F/X loss of C $10 on the hedge computed as follows: (US $100 x C $1.20 – (C $130) = (C $10) C$ amount received (C $120) – C$ delivered (C $130)

IV. Functional Currency Rules
General rule is that Canadian tax results (i.e., income, taxable income and tax payable) must be computed in C$ If a foreign currency amount is relevant in determining Canadian tax results, it must be converted to C$ The conversion is made using the relevant currency exchange rate quoted by the Bank of Canada at noon on the date on which the foreign currency amount arose However, Canadian-resident corporations can elect to use a foreign currency in some circumstances

IV. Functional Currency Rules (Cont'd)
Conditions for foreign functional currency reporting: the corporation is resident in Canada throughout the particular year; the corporation elected in prescribed form and filed the election at least 6 months before the end of the particular year; in its first taxation year for which it makes the election, the corporation has a "qualifying currency" that is the primary currency in which the corporation maintains its books for financial reporting purposes: A "qualifying currency" means US$, € Euro, ₤ Pound sterling, AUD$ or other "prescribed currency" the corporation has not filed another functional currency election; and a revocation of the election by the corporation does not apply to the year.

The election is available for taxation years beginning on or after December 14, 2007 A corporation's elected functional currency continues to be the corporation's functional currency in all taxation years subsequent to the corporation's first functional currency reporting year, subject to the filing of a revocation

Main consequences of the election: Canadian tax results for a year are determined using the elected functional currency References to amounts expressed in C$ in the ITA are read as references to amounts expressed in the corporation's elected functional currency However, regardless of election, any taxes payable by the electing corporation must be paid in C$ Amount of tax payable must be converted to C$ using the relevant exchange rate for the day on which these amounts are due (i.e., rate quoted by the Bank of Canada at noon on that day or other rate acceptable to CRA)

Revocation of election by electing corporation possible Notice of revocation must be filed in prescribed form Revocation will apply to every taxation year that begins on or after the day that is 6 months after the day on which the revocation is filed Revocation cannot be made in the taxpayer's first functional currency year Where a revocation is filed and becomes effective, a corporation reverts back to Canadian currency tax reporting There are exceptions that may place the corporation back in the functional currency regime upon a winding-up of the taxpayer into its parent corporation or upon its amalgamation with another corporation

V. Special Circumstances
CRA takes the position that F/X losses in respect of capital property may be deferred or denied under the stop-loss rules in the ITA Stop-loss rules generally apply to losses realized on a disposition of capital property between related, affiliated or otherwise connected parties More particularly, specific stop-loss rules apply to: Loss from disposition of related-party debt Loss from settlement of debt where new debt is issued Loss from disposition of shares of a controlled corporation Loss from the disposition of certain foreign affiliate shares or partnership interests Loss on the repurchase or redemption of shares of affiliated corporation, etc.

Examples where F/X losses could be denied using the stop-loss rules: Disposition of related-party debt Applies where transferor, transferee and debtor are related to each other A F/X loss accrued on such a debt may be deemed by the CRA to be nil in the hands of the transferor Debt-for-debt exchange Applies where the debtor settles a debt at a loss and in consideration for the settlement, the debtor settles new debt to repay older debt This rule applies to a debt that is a "commercial obligation", which is generally defined as a debt obligation the interest on which is deductible in computing income A F/X loss on a debt that would otherwise have been realized on settlement may be denied by the CRA

Certain rollover rules in the ITA could be used to defer the recognition of F/X accrued gains on a transfer of a foreign-currency-denominated asset CRA has generally recognized that no F/X gain (or loss) will be realized where a particular rollover provision applies Thus, an accrued F/X gain (or loss) on a foreign-currency-denominated asset could be deferred using a tax-free rollover: see for example CRA document R3, April 15, 2011 Rollover provisions in the ITA include: Section 51: rollover of a convertible instrument held on capital account in exchange for shares of the issuer Section 85(1): rollover of property transferred by a person to a corporation for consideration that includes shares of the corporation Section 85(2): rollover of property from a corporation to a partnership Section 86: rollover on a share exchange made in the course of a reorganization of capital

VI. Special Circumstances
CRA document I7 – Non-resident Shareholder's Loan (Dec. 6, 2010) Example illustrating the importance of mitigating F/X risks to optimize cash flows and resulting tax attributes How does a non-resident compute its refund of withholding tax where a loan is made in a foreign currency and there has been a fluctuation in the value of the currency vis-à-vis the Canadian dollar between the time the loan was made and the time the loan is repaid?

Facts Canco loans its NR shareholder, Foreignco, US $1M when the C$ equivalent of the loan at that time is $1.2M The amount of the loan is deemed to be a dividend paid by Canco; thus, it is subject to Canadian withholding tax at a 25% rate (i.e., 25% x C $1.2M = C $300,000) Canco remits the amount of withholding tax to the Receiver General on behalf of Foreignco

Facts (Cont'd) Foreignco eventually repays the entire loan in US$ to Canco when C$ equivalent of the loan is $1.1M Thus due to C$ appreciation, the C$ value of the receivable relative to US$ has declined Foreignco files an application to have the withholding tax (i.e., $300,000) previously remitted by Canco refunded

Based on subsection 227(6.1), CRA stated that the amount of the refund was $275,000 not $300,000 Subsection 227(6.1) provides that a refund of withholding tax in respect of a non-resident shareholder loan is the lesser of: The amount of withholding tax paid to the Receiver General in respect of the loan (i.e., $300,000); and The amount of withholding tax that would be payable to the Receiver General at the time the loan was repaid (i.e., 25% x $1.1M = $275,000) Amount of refund is therefore less than the amount remitted due to foreign exchange fluctuations between the time the loan was made and the time the loan was repaid From a policy perspective, conclusion appears correct since Canco will have an F/X loss of C $100,000 upon repayment

Questions? Thank You!

Bibliography Leading Articles
Robert A. Kopstein and Janette Y. Pantry, “Foreign Exchange Issues,” 2003 British Columbia Tax Conference (Vancouver: Canadian Tax Foundation, 2003), 3:1-88 Eric Bretsen and Heather Kerr, "Tax Planning for Foreign Currency“, 2009 Tax Conference (Toronto: Canadian Tax Conference, 2010), 35:1-44 James W. Murdoch and Mark A. Babour, "Foreign Exchange", 2010 Ontario Tax Conference (Toronto, Canadian Tax Foundation, 2010), 12:1-19 Hugh G. Chasmar, "Foreign Exchange Gains and Losses: Recent Developments", 2006 Tax Conference (Toronto: Canadian Tax Foundation, 2007), 12:1-22

Bibliography (Cont'd) Leading Cases
Salada Foods Ltd. v. R., [1974] C.T.C. 201 (F.C.T.D.) Shell Canada v. R., [1999] 4 C.T.C. 313 (S.C.C.) Gifford v. R., [2004] 2 C.T.C. 1 (S.C.C.) Columbia Records of Canada Ltd., v. M.N.R., [1971] C.T.C. 839 (F.C.T.D.) Saskferco Products ULC v. R., 2008 FCA 297 (F.C.A.) Echo Bay Mines Ltd. v. Canada, [1992] 2 C.T.C. 182 (F.C.T.D.) Imperial Oil Ltd. v. R., [2007] 1 C.T.C. 41 (S.C.C.) Gaynor v. M.N.R., [1991] 1 C.T.C. 470 (F.C.A.) Ethicon Sutures Ltd. v. R., [1985] 2 C.T.C. 6 (F.C.T.D.)

Bibliography (Cont'd) Important CRA Views of Interest
CRA document (Sept 18, 1995) Interpretation Bulletin IT-95R, "Foreign Exchange Gains and Losses" (Dec. 16, 1980) Interpretation Bulletin IT-346R, "Commodity Futures and Certain Commodities" (Nov. 20, 1978) CRA ruling R3 (2008) Income Tax Technical News No. 38 (Sept. 22, 2008) CRA document E5 (Mar. 9, 2007) CRA document (Apr. 16, 2003), as amended by CRA document (June 27, 2003 CRA document E5 (Oct. 22, 2007) CRA document (June 27, 2001) CRA document M4 (Aug. 8, 2007) CRA document I7 (Oct. 12, 2010) CRA document I7 (Apr. 21, 2010) CRA document I7 (Apr. 15, 2010)

Taxation of Corporate Finance and Financial Structures June 5, 2012

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Taxation of Corporate Finance and Financial Structures June 5, 2012

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