On July 11 2013 the Department of Finance issued a long-awaited news release and backgrounder announcing changes to the grandfathering rules for character conversion transactions.
The 2013 Federal Budget eliminated the tax benefits associated with 'character conversion transactions' – forward sale and purchase agreements used by many mutual funds and other investment funds to convert the return on a portfolio of investments from fully taxable ordinary income into capital gains. Only 50% of capital gains must be included in income for tax purposes. Grandfathering was available for a derivative forward agreement entered into before March 21 2013. However, many investment funds used a series of 30-day or 90-day forward agreements to implement their character conversion strategies. A series of derivative forward agreements was not grandfathered under the original budget proposal. However, a series of agreements had a transition period of 180 days before tax benefits would be eliminated.
To provide additional transition time for short-term forwards, the Department of Finance is now proposing to extend grandfathering to include a continuous series of short-term forward agreements first entered into before March 21 2013. Grandfathering for long-term forward agreements will end on March 21 2018. All grandfathered forward agreements will be subject to growth limits, as described below.
For a derivative forward agreement – that is, a forward sale or purchase agreement (or series of agreements) with a duration exceeding 180 days that was entered into before March 21 2013, the terms of which provide for final settlement of the agreement before 2015 (or that is part of a series of agreements that concludes before 2015) – the Department of Finance proposes to extend grandfathering until the end of 2014 for investment funds that stay within the specified growth limits. In addition, the grandfathering rules will be amended to clarify that agreements entered into before March 21 2013 will be considered when determining whether a series of agreements has a term of more than 180 days. However, it is proposed that this change will apply prospectively, so that an investment fund that exceeded the growth limits before July 11 2013 will have a 180-day transition period. The Department of Finance provided the following example: if a taxpayer entered into a 180-day derivative forward agreement on April 1 2013 as a continuation of a series of derivative forward agreements that were entered into before March 21 2013, and the new derivative forward agreement exceeded the growth limits described below, the taxpayer would still be entitled to 180 days of grandfathering after April 1 2013.
For a grandfathered derivative forward agreement that was scheduled to settle finally after 2014, grandfathering will now end on March 21 2018, and will be subject to the growth limits described below.
To qualify for grandfathering, the notional amount of the derivative forward agreement after March 20 2013 cannot exceed the total of:
- the notional amount of the forward immediately before March 21 2013;
- any net increase in the notional amount of the forward after March 20 2013 resulting from a net increase in the value of the reference assets (ie, excluding new investments in the forward);
- any forward settlement amounts after March 20 2013 that are reinvested in either the forward or a replacement forward;
- any cash on hand immediately before March 21 2013 that can reasonably be considered to have been committed to the forward before March 21 2013;
- if the forward was entered into and an over-allotment option in respect of an offering of securities was granted before March 21 2013, the amounts invested in the forward using proceeds from the exercise of the over-allotment option after March 20 2013; and
- any other increases in the notional amount of the forward occurring after March 20 2013 and before July 11 2013 that do not exceed 5% of the notional amount of the forward immediately before March 20 2013.
The Department of Finance also confirmed that it will allow for increases in the size of a forward as a result of the merger of two investment funds, provided that the surviving forward's notional amount does not exceed the combined notional amounts of the two predecessor forwards (presumably subject to the growth limits described above) and its term does not exceed the term of either predecessor agreement.
Draft legislation implementing these proposed changes is not yet available.
For further information on this topic please contact Laura M White or Stephanie Wong at Borden Ladner Gervais LLP by telephone (+1 416 367 6000), fax (+1 416 367 6749) or email (email@example.com or firstname.lastname@example.org).
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