Income Tax Regulations (C.R.C., c. 945)

6202 (1) For the purposes of paragraph 66(15)(d.1) and subparagraphs 66.1(6)(a)(v), 66.2(5)(a)(v) and 66.4(5)(a)(iii) of the Act, a share of a class of the capital stock of a corporation (in this section referred to as the “issuing corporation”) is a prescribed share if it was issued after December 31, 1982 and

• (a) the issuing corporation, any person related to the issuing corporation or of whom the issuing corporation has effective management or control or any partnership or trust of which the issuing corporation or a person related thereto is a member or beneficiary (each of which is referred to in this section as a “member of the related issuing group”) is or may be required to redeem, acquire or cancel, in whole or in part, the share or to reduce its paid-up capital at any time within five years from the date of its issue,

• (b) a member of the related issuing group provides or may be required to provide any form of guarantee, security or similar indemnity with respect to the share (other than a guarantee, security or similar indemnity with respect to any amount of assistance or benefit from a government, municipality or other public authority in Canada or with respect to eligibility for such assistance or benefit) that could take effect within five years from the date of its issue,

• (c) the share (referred to in this section as the “convertible share”) is convertible under its terms or conditions at any time within five years from the date of its issue directly or indirectly into debt, or into a share (referred to in this section as the “acquired share”) that is, or if issued would be, a prescribed share,

• (d) immediately after the share was issued, the person to whom the share was issued or a person related to the person to whom the share was issued (either alone or together with a related person, a related group of persons of which he is a member or a partnership or trust of which he is a member or beneficiary) controls directly or indirectly, or has an absolute or contingent right to control directly or indirectly or to acquire direct or indirect control of, the issuing corporation and the issuing corporation has the right under the terms and conditions in respect of which the share was issued to redeem, purchase or otherwise acquire the share within five years from the date of its issue,

• (e) at the time the share was issued, the existence of the issuing corporation was, or there was an arrangement (other than an amalgamation within the meaning assigned by subsection 87(1) of the Act) under which the existence of the issuing corporation could be, limited to a period that ends within five years from the date of its issue, or

• (f) the terms or conditions of the share (referred to in this paragraph as the “first share”) or of an agreement in existence at the time of its issue provide that a share (referred to in this section as the “substituted share”) that is, or if issued would be, a prescribed share may be substituted or exchanged for the first share within five years from the date of issue of the first share,

but does not include a share of the capital stock of a corporation

• (g) that was issued after December 31, 1982 pursuant to an agreement or offering in writing made on or before December 31, 1982 or in accordance with a prospectus, registration statement or similar document that was filed with and, where required by law, accepted for filing by, a public authority in Canada pursuant to and in accordance with the laws of Canada or of any province on or before December 31, 1982,

• (h) that would be a prescribed share solely by virtue of one or more of the terms or conditions of an agreement if such terms or conditions are not effective or exercisable until the death, disability or bankruptcy of the person to whom the share is issued,

• (i) that is

  • (i) convertible under its terms into one or more shares of a class of the capital stock of the corporation for no consideration other than the share or shares,

  • (ii) described in paragraph (a) solely because

    • (A) it is to be cancelled on the conversion within five years from the date of its issue,

    • (B) its paid-up capital is to be reduced on the conversion within five years from the date of its issue, or

    • (C) both clauses (A) and (B) apply, and

  • (iii) not described in paragraph (c), or

• (j) that

  • (i) may have a share substituted or exchanged for it pursuant to its terms or the terms or conditions of an agreement in existence at the time of its issue and no consideration is to be received or receivable for it in respect of the substitution or exchange other than the share substituted or exchanged for it,

  • (ii) is described in paragraph (a) solely because it is to be redeemed, acquired or cancelled on the substitution or exchange within five years from the date of its issue, and

  • (iii) is not a share to which paragraph (f) applies,

and for the purposes of this section,

• (k) where a person has an interest in a trust, whether directly or indirectly, through an interest in any other trust or in any other manner whatever, the person shall be deemed to be a beneficiary of the trust;

• (l) in determing whether an acquired share would be a prescribed share if issued,

  • (i) the references in paragraphs (a), (b), (d) and (e) to “date of its issue” shall be read as “date of the issue of the convertible share”,

  • (ii) the reference in paragraph (f) to “issue of the first share” shall be read as “issue of the convertible share”, and

  • (iii) this section shall be read without reference to paragraph (g) and to the words “after December 31, 1982”;

• (m) in determining whether a substituted share would be a prescribed share if issued,

  • (i) the references in paragraphs (a) to (e) to “date of its issue” shall be read as “date of the issue of the first share”, and

  • (ii) this section shall be read without reference to paragraph (g) and to the words “after December 31, 1982”;

• (m.1) an excluded obligation in relation to a share of a class of the capital stock of the issuing corporation and an obligation that would be an excluded obligation in relation to the share if the share had been issued after June 17, 1987, shall be deemed not to be a guarantee, security or similar indemnity with respect to the share for the purposes of paragraph (b);

• (n) a guarantee, security or similar indemnity referred to in paragraph (b) shall, for greater certainty, not be considered to take effect within five years from the date of issue of a share if the effect of the guarantee, security or indemnity is to provide that a member of the related issuing group will be able to redeem, acquire or cancel the share at a time that is not within five years from the date of issue of the share; and

• (o) where an expense is incurred partly in consideration for shares (referred to in this section as “first corporation shares”) of the capital stock of one corporation and partly in consideration for an interest in, or right to, shares (referred to in this paragraph as “second corporation shares”) of the capital stock of another corporation, in determining whether the second corporation shares are prescribed shares, the references in paragraphs (a), (d) and (e) to “date of its issue” shall be read as “date of the issue of the first corporation shares”.

(2) For the purposes of paragraph 66(15)(d.1) of the Act, subsection (1) does not apply in respect of a share of the capital stock of an issuing corporation that is a new share.

6202.1 (1) For the purposes of the definition flow-through share in subsection 66(15) of the Act, a new share of the capital stock of a corporation is a prescribed share if, at the time it is issued,

• (a) under the terms or conditions of the share or any agreement in respect of the share or its issue,

  • (i) the amount of the dividends that may be declared or paid on the share (in this section referred to as the “dividend entitlement”) may reasonably be considered to be, by way of a formula or otherwise,

    • (A) fixed,

    • (B) limited to a maximum, or

    • (C) established to be not less than a minimum (including any amount determined on a cumulative basis), where with respect to the dividends that may be declared or paid on the share there is a preference over any other dividends that may be declared or paid on any other share of the capital stock of the corporation,

  • (ii) the amount that the holder of the share is entitled to receive in respect of the share on the dissolution, liquidation or winding-up of the corporation, on a reduction of the paid-up capital of the share or on the redemption, acquisition or cancellation of the share by the corporation or by specified persons in relation to the corporation (in this section referred to as the “liquidation entitlement”) may reasonably be considered to be, by way of a formula or otherwise, fixed, limited to a maximum or established to be not less than a minimum,

  • (iii) the share is convertible or exchangeable into another security issued by the corporation unless

    • (A) it is convertible or exchangeable only into

      • (I) another share of the corporation that, if issued, would not be a prescribed share,

      • (II) a right (including a right conferred by a warrant) that

        1 if it were issued, would not be a prescribed right, and

        2 if it were exercised, would allow the person exercising it to acquire only a share of the corporation that, if the share were issued, would not be a prescribed share, or

      • (III) both a share described in subclause (I) and a right described in subclause (II), and

    • (B) all the consideration receivable by the holder on the conversion or exchange of the share is the share described in subclause (A)(I) or the right described in subclause (A)(II), or both, as the case may be, or

  • (iv) the corporation has, either absolutely or contingently, an obligation to reduce, or any person or partnership has, either absolutely or contingently, an obligation to cause the corporation to reduce, the paid-up capital in respect of the share (other than pursuant to a conversion or exchange of the share, where the right to so convert or exchange does not cause the share to be a prescribed share under subparagraph (iii));

• (b) any person or partnership has, either absolutely or contingently, an obligation (other than an excluded obligation in relation to the share)

  • (i) to provide assistance,

  • (ii) to make a loan or payment,

  • (iii) to transfer property, or

  • (iv) otherwise to confer a benefit by any means whatever, including the payment of a dividend,

  either immediately or in the future, that may reasonably be considered to be, directly or indirectly, a repayment or return by the corporation or a specified person in relation to the corporation of all or part of the consideration for which the share was issued or for which a partnership interest was issued in a partnership that acquires the share;

• (c) any person or partnership has, either absolutely or contingently, an obligation (other than an excluded obligation in relation to the share) to effect any undertaking, either immediately or in the future, with respect to the share or the agreement under which the share is issued (including any guarantee, security, indemnity, covenant or agreement and including the lending of funds to or the placing of amounts on deposit with, or on behalf of, the holder of the share or, where the holder is a partnership, the members thereof or specified persons in relation to the holder or the members of the partnership, as the case may be) that may reasonably be considered to have been given to ensure, directly or indirectly, that

  • (i) any loss that the holder of the share and, where the holder is a partnership, the members thereof or specified persons in relation to the holder or the members of the partnership, as the case may be, may sustain by reason of the holding, ownership or disposition of the share or any other property is limited in any respect, or

  • (ii) the holder of the share and, where the holder is a partnership, the members thereof or specified persons in relation to the holder or the members of the partnership, as the case may be, will derive earnings by reason of the holding, ownership or disposition of the share or any other property;

• (d) the corporation or a specified person in relation to the corporation may reasonably be expected

  • (i) to acquire or cancel the share in whole or in part otherwise than on a conversion or exchange of the share that meets the conditions set out in clauses (a)(iii)(A) and (B),

  • (ii) to reduce the paid-up capital of the corporation in respect of the share otherwise than on a conversion or exchange of the share that meets the conditions set out in clauses (a)(iii)(A) and (B), or

  • (iii) to make a payment, transfer or other provision, (otherwise than pursuant to an excluded obligation in relation to the share), directly or indirectly, by way of a dividend, loan, purchase of shares, financial assistance to any purchaser of the share or, where the purchaser is a partnership, the members thereof or in any other manner whatever, that may reasonably be considered to be a repayment or return of all or part of the consideration for which the share was issued or for which a partnership interest was issued in a partnership that acquires the share,

  within 5 years after the date the share is issued, otherwise than as a consequence of an amalgamation of a subsidiary wholly-owned corporation, a winding-up of a subsidiary wholly-owned corporation to which subsection 88(1) of the Act applies or the payment of a dividend by a subsidiary wholly-owned corporation to its parent;

• (e) any person or partnership can reasonably be expected to effect, within 5 years after the date the share is issued, any undertaking which, if it were in effect at the time the share was issued, would result in the share being a prescribed share by reason of paragraph (c); or

• (f) it may reasonably be expected that, within five years after the date the share is issued,

  • (i) any of the terms or conditions of the share or any existing agreement relating to the share or its issue will thereafter be modified, or

  • (ii) any new agreement relating to the share or its issue will be entered into,

  in such a manner that the share would be a prescribed share if it had been issued at the time of the modification or at the time when the new agreement is entered into.

(1.1) For the purpose of the definition flow-through share in subsection 66(15) of the Act, a new right to acquire a share of the capital stock of a corporation is a prescribed right if, at the time the right is issued,

• (a) the amount that the holder of the right is entitled to receive in respect of the right on the dissolution, liquidation or winding-up of the corporation or on the redemption, acquisition or cancellation of the right by the corporation or by specified persons in relation to the corporation (referred to in this section as the “liquidation entitlement” of the right) can reasonably be considered to be, by way of a formula or otherwise, fixed, limited to a maximum or established to be not less than a minimum;

• (b) the right is convertible or exchangeable into another security issued by the corporation unless

  • (i) the right is convertible or exchangeable only into

    • (A) a share of the corporation that, if issued, would not be a prescribed share,

    • (B) another right (including a right conferred by a warrant) that

      • (I) if it were issued, would not be a prescribed right, and

      • (II) if it were exercised, would allow the person exercising it to acquire only a share of the corporation that, if the share were issued, would not be a prescribed share, or

    • (C) both a share described in clause (A) and a right described in clause (B), and

  • (ii) all the consideration receivable by the holder on the conversion or exchange of the right is the share described in clause (A) or the right described in clause (B), or both, as the case may be;

• (c) any person or partnership has, either absolutely or contingently, an obligation (other than an excluded obligation in relation to the right)

  • (i) to provide assistance,

  • (ii) to make a loan or payment,

  • (iii) to transfer property, or

  • (iv) to otherwise confer a benefit by any means whatever, including the payment of a dividend,

  either immediately or in the future, that can reasonably be considered to be, directly or indirectly, a repayment or return by the corporation or a specified person in relation to the corporation of all or part of the consideration for which the right was issued or for which a partnership interest was issued in a partnership that acquires the right;

• (d) any person or partnership has, either absolutely or contingently, an obligation (other than an excluded obligation in relation to the right) to effect any undertaking, either immediately or in the future, with respect to the right or the agreement under which the right is issued (including any guarantee, security, indemnity, covenant or agreement and including the lending of funds to or the placing of amounts on deposit with, or on behalf of, the holder of the right or where the holder is a partnership, the members of the partnership or specified persons in relation to the holder or the members of the partnership, as the case may be) that can reasonably be considered to have been given to ensure, directly or indirectly, that

  • (i) any loss that the holder of the right and, where the holder is a partnership, the members of the partnership or specified persons in relation to the holder or the members of the partnership, as the case may be, may sustain because of the holding, ownership or disposition of the right or any other property is limited in any respect, or

  • (ii) the holder of the right and, where the holder is a partnership, the members of the partnership or specified persons in relation to the holder or the members of the partnership, as the case may be, will derive earnings, because of the holding, ownership or disposition of the right or any other property;

• (e) the corporation or a specified person in relation to the corporation can reasonably be expected

  • (i) to acquire or cancel the right in whole or in part otherwise than on a conversion or exchange of the right that meets the conditions set out in subparagraphs (b)(i) and (ii), or

  • (ii) to make a payment, transfer or other provision (otherwise than pursuant to an excluded obligation in relation to the right), directly or indirectly, by way of a dividend, loan, purchase of rights, financial assistance to any purchaser of the right or, where the purchaser is a partnership, the members of the partnership or in any other manner whatever, that can reasonably be considered to be a repayment or return of all or part of the consideration for which the right was issued or for which a partnership interest was issued in a partnership that acquires the right,

  within five years after the date the right is issued, otherwise than as a consequence of an amalgamation of a subsidiary wholly-owned corporation, a winding-up of a subsidiary wholly-owned corporation to which subsection 88(1) of the Act applies or the payment of a dividend by a subsidiary wholly-owned corporation to its parent;

• (f) any person or partnership can reasonably be expected to effect, within five years after the day the right is issued, any undertaking which, if it were in effect at the time the right was issued, would result in the right being a prescribed right because of paragraph (d);

• (g) it can reasonably be expected that, within five years after the date the right is issued,

  • (i) any of the terms or conditions of the right or any existing agreement relating to the right or its issue will be modified in such a manner that the right would be a prescribed right if it had been issued at the time of the modification, or

  • (ii) any new agreement relating to the right or its issue will be entered into in such a manner that the right would be a prescribed right if it had been issued at the time the new agreement is entered into; or

• (h) it can reasonably be expected that the right, if exercised, would allow the person exercising the right to acquire a share in a corporation that, if that share were issued, would be a prescribed share within five years after the day the right was issued.

(2) For the purposes of the definition flow-through share in subsection 66(15) of the Act, a new share of the capital stock of a corporation is a prescribed share if

• (a) the consideration for which the share is to be issued is to be determined more than 60 days after entering into the agreement pursuant to which the share is to be issued;

• (b) the corporation or a specified person in relation to the corporation, directly or indirectly,

  • (i) provided assistance,

  • (ii) made or arranged for a loan or payment,

  • (iii) transferred property, or

  • (iv) otherwise conferred a benefit by any means whatever, including the payment of a dividend,

  for the purpose of assisting any person or partnership in acquiring the share or any person or partnership in acquiring an interest in a partnership acquiring the share (otherwise than by reason of an excluded obligation in relation to the share); or

• (c) the holder of the share or, where the holder is a partnership, a member thereof, has a right under any agreement or arrangement entered into under circumstances where it is reasonable to consider that the agreement or arrangement was contemplated at or before the time when the agreement to issue the share was entered into,

  • (i) to dispose of the share, and

  • (ii) through a transaction or event or a series of transactions or events contemplated by the agreement or arrangement, to acquire a share (referred to in this paragraph as the “acquired share”) of the capital stock of another corporation that would be a prescribed share under subsection (1) if the acquired share were issued at the time the share was issued, other than a share that would not be a prescribed share if subsection (1) were read without reference to subparagraphs (a)(iv) and (d)(i) and (ii) thereof where the acquired share is a share

    • (A) of a mutual fund corporation, or

    • (B) of a corporation that becomes a mutual fund corporation within 90 days after the acquisition of the acquired share.

(2.1) For the purpose of the definition flow-through share in subsection 66(15) of the Act, a new right is a prescribed right if

• (a) the consideration for which the new right is to be issued is to be determined more than 60 days after entering into the agreement pursuant to which the new right is to be issued;

• (b) the corporation or a specified person in relation to the corporation, directly or indirectly, for the purpose of assisting any person or partnership to acquire the new right or any person or partnership to acquire an interest in a partnership acquiring the new right (otherwise than because of an excluded obligation in relation to the new right),

  • (i) provided assistance,

  • (ii) made or arranged for a loan or payment,

  • (iii) transferred property, or

  • (iv) otherwise conferred a benefit by any means whatever, including the payment of a dividend; or

• (c) the holder of the new right or, where the holder is a partnership, a member of the partnership, has a right under any agreement or arrangement entered into under circumstances where it is reasonable to consider that the agreement or arrangement was contemplated at or before the time the agreement to issue the new right was entered into,

  • (i) to dispose of the new right, and

  • (ii) through a transaction or event or a series of transactions or events contemplated by the agreement or arrangement, to acquire

    • (A) a share (referred to in this paragraph as the “acquired share”) of the capital stock of another corporation that would be a prescribed share under subsection (1) if the acquired share were issued at the time the new right was issued, other than a share that would not be a prescribed share if subsection (1) were read without reference to subparagraphs (1)(a)(iv) and (1)(d)(i) and (ii) where the acquired share is a share

      • (I) of a mutual fund corporation, or

      • (II) of a corporation that becomes a mutual fund corporation within 90 days after the acquisition of the acquired share, or

    • (B) a right (referred to in this paragraph as the “acquired right”) to acquire a share of the capital stock of another corporation that would, if it were issued at the time the new right was issued, be a prescribed right, other than a right that would not be a prescribed right if subsection (1.1) were read without reference to subparagraph (1.1)(e)(i) where the acquired right is a right to acquire a share of the capital stock

      • (I) of a mutual fund corporation, or

      • (II) of a corporation that becomes a mutual fund corporation within 90 days after the acquisition of the acquired right.

(3) For the purposes of subsections (1) and (1.1),

• (a) the dividend entitlement of a share of the capital stock of a corporation is deemed not to be fixed, limited to a maximum or established to be not less than a minimum where all dividends on the share are determined solely by reference to a multiple or fraction of the dividend entitlement of another share of the capital stock of the corporation, or of another corporation that controls the corporation, where the dividend entitlement of that other share is not described in subparagraph (1)(a)(i); and

• (b) the liquidation entitlement of a share of the capital stock of a corporation, or of a right to acquire a share of the capital stock of the corporation, as the case may be, is deemed not to be fixed, limited to a maximum or established to be not less than a minimum where

  • (i) all the liquidation entitlement is determinable solely by reference to

    • (A) the liquidation entitlement of another share of the capital stock of the corporation (or a share of the capital stock of another corporation that controls the corporation), or

    • (B) the liquidation entitlement of a right to acquire the capital stock of the corporation (or another corporation that controls the corporation),

  • (ii) the liquidation entitlement described in clause (i)(A), if any, is not described in subparagraph (1)(a)(ii), and

  • (iii) the liquidation entitlement described in clause (i)(B), if any, is not described in paragraph (1.1)(a).

(4) For the purposes of paragraphs (1)(c) and (e) and (1.1)(d) and (f), an agreement entered into between the first holder of a share or right and another person or partnership for the sale of the share or right to that other person or partnership for its fair market value at the time the share or right is acquired by the other person or partnership (determined without regard to the agreement) is deemed not to be an undertaking with respect to the share or right, as the case may be.

(5) For the purposes of section 6202 and this section,

excluded obligation

excluded obligation, in relation to a share or new right issued by a corporation, means

• (a) an obligation of the corporation

  • (i) with respect to eligibility for, or the amount of, any assistance under the Canadian Exploration and Development Incentive Program Act, the Canadian Exploration Incentive Program Act, the Ontario Mineral Exploration Program Act, R.S.O., c. O.27, or The Mineral Exploration Incentive Program Act, S.M. 1991-92, c. 45, or

  • (ii) with respect to the making of an election respecting such assistance and the flowing out of such assistance to the holder of the share or the new right in accordance with any of those Acts,

• (b) an obligation of the corporation, in respect of the share or the new right, to distribute an amount that represents a payment out of assistance to which the corporation is entitled

  • (i) as a consequence of the corporation making expenditures funded by consideration received for shares or new rights issued by the corporation in respect of which the corporation purports to renounce an amount under subsection 66(12.6) of the Act, and

  • (ii) under section 25.1 of the Income Tax Act, R.S.B.C., 1996, c. 215, or

• (c) an obligation of any person or partnership to effect an undertaking to indemnify a holder of the share or the new right or, where the holder is a partnership, a member of the partnership, for an amount not exceeding the amount of any tax payable under the Act or the laws of a province by the holder or the member of the partnership, as the case may be, as a consequence of

  • (i) the failure of the corporation to renounce an amount to the holder in respect of the share or the new right, or

  • (ii) a reduction, under subsection 66(12.73) of the Act, of an amount purported to be renounced to the holder in respect of the share or the new right; (obligation exclue)

new right

new right means a right that is issued after December 20, 2002 to acquire a share of the capital stock of a corporation, other than a right that is issued at a particular time before 2003

• (a) pursuant to an agreement in writing made on or before December 20, 2002,

• (b) as part of a distribution of rights to the public made in accordance with the terms of a prospectus, preliminary prospectus, registration statement, offering memorandum or notice, required by law to be filed before distribution of the rights begins, filed on or before December 20, 2002 with a public authority in Canada in accordance with the securities legislation of the province in which the rights are distributed, or

• (c) to a partnership interests in which were issued as part of a distribution to the public made in accordance with the terms of a prospectus, preliminary prospectus, registration statement, offering memorandum or notice, required by law to be filed before distribution of the interests begins, filed on or before December 20, 2002 with a public authority in Canada in accordance with the securities legislation of the province in which the interests are distributed, where all interests in the partnership issued at or before the particular time were issued

  • (i) as part of the distribution, or

  • (ii) before the beginning of the distribution; (nouveau droit)

new share

new share means a share of the capital stock of a corporation issued after June 17, 1987, other than a share issued at a particular time before 1989

• (a) pursuant to an agreement in writing entered into before June 18, 1987,

• (b) as part of a distribution of shares to the public made in accordance with the terms of a prospectus, preliminary prospectus, registration statement, offering memorandum or notice, required by law to be filed before distribution of the shares begins, filed before June 18, 1987 with a public authority in Canada in accordance with the securities legislation of the province in which the shares were distributed, or

• (c) to a partnership in which interests were issued as part of a distribution to the public made in accordance with the terms of a prospectus, preliminary prospectus, registration statement, offering memorandum or notice, required by law to be filed before distribution of the interests begins, filed before June 18, 1987 with a public authority in Canada in accordance with the securities legislation of the province in which the interests were distributed, where all interests in the partnership issued at or before the particular time were issued as part of the distribution or prior to the beginning of the distribution; (action nouvelle)

specified person

specified person, in relation to any particular person, means another person with whom the particular person does not deal at arm’s length or any partnership or trust of which the particular person or the other person is a member or beneficiary, respectively. (personne apparentée)