Introduction
Rationale for proposed amendments
What is a stapled security?
Tax consequences to issuers of stapled securities

Transitional rules for issued and outstanding stapled securities
Avoiding the rules


Introduction

On July 25 2012 the Department of Finance released draft legislation to amend the Income Tax Act to eliminate the tax advantages of stapled security transactions.(1) The draft amendments are generally consistent with the proposals announced by the Department of Finance on July 20 2011 and are effective as of July 21 2011. Their principal thrust is to deny the deduction of amounts paid by the issuer of a stapled security in a variety of circumstances.

The term 'stapled securities' refers to different securities that commercially are required to trade or be transferred together, and cannot be traded or transferred independently.

Rationale for proposed amendments

The Department of Finance proposed these amendments to address transactions which it believes circumvent the policy objectives of the specified investment flow-through trust (SIFT) rules (for further details please see "Department of Finance eliminates tax advantages of stapled security transactions"). The SIFT rules, which were announced in 2006 and fully implemented as of January 1 2011, were introduced to equalise the tax treatment of income trusts and corporations by subjecting income trusts and their unitholders to entity level and distribution tax at rates similar to corporate and dividend rates.

The proposed amendments target two general types of recent transaction structure that used publicly traded stapled securities to replicate some of the pre-SIFT economics of income trusts. The first type involved restructuring former income trusts into corporate form to avoid the SIFT rules. In these restructured vehicles, unitholders received stapled securities consisting of a common share and a high-yield debt obligation of a new corporation in exchange for their existing trust units. Entity-level taxation was minimised by paying deductible interest on the debt to holders of the stapled securities. The proposed amendments eliminate the tax advantage of this type of structure by denying the issuer's interest deduction.

The second type of transaction involved real estate investment trusts (REITs). REITS are exempt from the SIFT rules if they satisfy certain tests related to the character of their income and the type of property that they own. In order to meet these tests and avoid SIFT tax, some REITs restructured by moving non-qualifying REIT assets
and businesses to a taxable corporation or other taxable entity. The shares or units of the other entity and the REIT's units were then stapled together and traded under a single trading symbol.

Under these structures, the REIT typically leased real property to the other entity. The resulting lease payments were deductible by the lessee, and "good" revenue for the REIT under the REIT tests. The proposed amendments eliminate the tax advantage of this type of structure by denying the tax deduction for any otherwise deductible amount – not just lease payments – that is paid or payable by the corporation or other entity to the REIT or its subsidiary. There is no relieving provision for amounts paid to the REIT on arm's-length commercial terms.

What is a stapled security?

In general, a stapled security consists of two or more separate securities that, as a commercial matter, trade together.

The new rules will define a particular security of an entity (ie, a corporation, trust or partnership) to be a stapled security if:

  • both the particular security and another security (termed the 'reference security') are required to be transferred together or concurrently, or are listed or traded on a stock exchange or other public market under a single trading symbol;
  • the particular security or the reference security is listed or traded on a stock exchange or other public market; and
  • one of the following criteria is met:
    • the particular security and the reference security are both issued by a single corporation, SIFT partnership or SIFT trust;
    • the particular security and the reference security are issued by separate entities, one of which is a subsidiary of the other, and either the parent or the subsidiary is a corporation, SIFT partnership or SIFT trust; or
    • the particular security and the reference security are issued by separate entities, one of which is a REIT or a subsidiary of a REIT.

For these purposes:

  • a 'security' of an entity is a liability of that entity, a share (or right to control the voting rights of a share) of a corporation, an income or capital interest in a trust or an interest in a partnership (but not, according to the explanatory notes released with the draft proposals, a right to, or a right to acquire, any of the foregoing, such as a simple right to acquire equity in a convertible debenture);
  • a receipt or similar instrument representing all or some of a particular security will effectively be treated as the particular security; and
  • an entity will be deemed a subsidiary of another entity if the other entity directly or indirectly holds securities of the first entity representing more than 10% of the first entity's equity value.

Tax consequences to issuers of stapled securities

Subject to certain transitional relief, the proposed amendments prohibit an entity from deducting certain kinds of otherwise deductible expense:

  • any interest paid or payable on a liability of the entity that is a stapled security, unless each reference security in respect of the stapled security is a liability; and
  • any amount paid to a REIT or a subsidiary of the REIT (including indirectly through a back-to-back arrangement) if securities of the entity (or the entity's subsidiary or parent) are stapled to the REIT's securities.

These deduction denial rules are consistent with the Department of Finance's statement that the new rules are not intended to affect stapling arrangements that involve only shares issued by publicly traded corporations, the distributions on which are treated as dividends for tax purposes, or stapled securities that consist only of debt.

The proposed rules apply even where the denied expense is on arm's-length terms. Furthermore, the recipient of the payment is not entitled to a corresponding income reduction, and consequently the proposed rules result in double tax.

Transitional rules for issued and outstanding stapled securities

The new rules apply to payments made on or after July 21 2011, subject to limited transitional relief for existing stapled security structures that were in place on that date.

Specifically, the draft legislation will provide a transition period for an entity, during which the stapled securities rules will not apply if:

  • the entity had one or more stapled securities outstanding on both October 31 2006 (the announcement date of the SIFT rules) and July 19 2011 – in this case the entity's transition period will end at the latest on July 1 2016 and may end earlier;
  • the entity had one or more stapled securities outstanding on July 19 2011 but none on October 31 2006 – in this case the entity's transition period ended at the latest on July 20 2012, and may have ended earlier; and
  • in any other case, if the entity was a subsidiary of another entity on July 20 2011 and the other entity has a transition period – in this case the subsidiary's transition period will end at the latest when the other entity's transition period ends, and may end earlier if it ceases to be a subsidiary of the other entity.

An entity's transition period is subject to earlier immediate termination on the date that:

  • a stapled security of the entity is materially altered; or
  • any security of the entity becomes a stapled security other than by way of:
    • a transaction under an agreement in writing entered into before July 20 2011 which all parties are legally obliged to complete; or
    • the issuance of the security in satisfaction of an amount payable by the entity before July 20 2011 on another of its securities, if the other security was a stapled security on July 20 2011 and the issuance was made under a term or condition of the other security in effect on July 20 2011. (This exception is intended to accommodate distributions after July 20 2011 of stapled securities under a distribution reinvestment plan, as long as the distribution under the plan was declared before July 20 2011.)

Avoiding the rules

The stapled securities rules will cease to apply to an issuer when it permanently and irrevocably 'unstaples' its stapled securities.

In this regard, a special anti-avoidance rule will apply to any issuer that temporarily unstaples its securities and subsequently restaples them or substitutes other stapled securities. In this case, a look-back rule will effectively disregard the original unstapling if it is not carried out permanently and irrevocably, and will require the entity to add back into income all relevant amounts deducted during the temporary unstapled period, plus a notional interest charge related to reduced taxes during the period. The income inclusion will also apply where the entity or another entity issues a different security for the originally stapled security and the other security becomes a
stapled security in a later year.

For further information on this topic please contact Richard J Bennett at Borden Ladner Gervais LLP's Vancouver office by telephone (+1 604 687 5744), fax (+1 604 687 1415) or email (rbennett@blg.com). Alternatively, contact Stephen J Fyfe or Stephanie Wong at Borden Ladner Gervais LLP's Toronto office by telephone (+1 416 367 6000), fax (+1 416 367 6749) or email (sfyfe@blg.com or swong@blg.com).

Endnotes

(1) The press release, draft legislation and accompanying explanatory notes can be viewed on the Department of Finance's website (at www.fin.gc.ca/n12/12-082-eng.asp).

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.