International Tax Planning: The Preacquisition Surplus Election: More Than Meets the Eye?

Regulation 5901(2)(b) permits a corporation resident in Canada (CRIC) to make an election in respect of a dividend paid by a foreign affiliate of the CRIC such that the dividend will be treated as a reduction to the adjusted cost base of the foreign affiliate shares on which it is paid, rather than as a distribution from the foreign affiliate's surplus pools. Making this "preacquisition surplus election" is often perceived as a straightforward, and administratively simple, way for the CRIC to ensure that the dividend does not result in the unwanted, and potentially adverse, distribution of the foreign affiliate's surplus pools. However, as this article points out, it is important that a CRIC undertake a detailed analysis before deciding to make the election, in order to avoid potential exposure to unintended consequences. This article provides an overview of the legislative history of the election and its underlying policy rationale, and describes the limitations of and restrictions on its use. The authors present some conceptual guidelines (along with examples of their application) for identifying certain circumstances in which the making of the election may be particularly favourable or unfavourable. They also compare and contrast this election with the "qualifying return of capital" (QROC) election under subsection 90(3), which may be available in some circumstances as an alternative mechanism for achieving a similar result.