Income Tax Act

Version of section 7 from 2009-03-12 to 2010-12-14:

Marginal note:Agreement to issue securities to employees
  •  (1) Subject to subsections (1.1) and (8), where a particular qualifying person has agreed to sell or issue securities of the particular qualifying person (or of a qualifying person with which it does not deal at arm’s length) to an employee of the particular qualifying person (or of a qualifying person with which the particular qualifying person does not deal at arm’s length),

    • (a) if the employee has acquired securities under the agreement, a benefit equal to the amount, if any, by which

      • (i) the value of the securities at the time the employee acquired them

      exceeds the total of

      • (ii) the amount paid or to be paid to the particular qualifying person by the employee for the securities, and

      • (iii) the amount, if any, paid by the employee to acquire the right to acquire the securities

      is deemed to have been received, in the taxation year in which the employee acquired the securities, by the employee because of the employee’s employment;

    • (b) if the employee has transferred or otherwise disposed of rights under the agreement in respect of some or all of the securities to a person with whom the employee was dealing at arm’s length, a benefit equal to the amount, if any, by which

      • (i) the value of the consideration for the disposition

      exceeds

      • (ii) the amount, if any, paid by the employee to acquire those rights

      shall be deemed to have been received, in the taxation year in which the employee made the disposition, by the employee because of the employee’s employment;

    • (c) if rights of the employee under the agreement have, by one or more transactions between persons not dealing at arm’s length, become vested in a person who has acquired securities under the agreement, a benefit equal to the amount, if any, by which

      • (i) the value of the securities at the time the person acquired them

      exceeds the total of

      • (ii) the amount paid or to be paid to the particular qualifying person by the person for the securities, and

      • (iii) the amount, if any, paid by the employee to acquire the right to acquire the securities,

      is deemed to have been received, in the taxation year in which the person acquired the securities, by the employee because of the employee’s employment, unless at the time the person acquired the securities the employee was deceased, in which case such a benefit is deemed to have been received by the person in that year as income from the duties of an employment performed by the person in that year in the country in which the employee primarily performed the duties of the employee’s employment;

    • (d) if rights of the employee under the agreement have, by one or more transactions between persons not dealing at arm’s length, become vested in a particular person who has transferred or otherwise disposed of rights under the agreement to another person with whom the particular person was dealing at arm’s length, a benefit equal to the amount, if any, by which

      • (i) the value of the consideration for the disposition

      exceeds

      • (ii) the amount, if any, paid by the employee to acquire those rights

      shall be deemed to have been received, in the taxation year in which the particular person made the disposition, by the employee because of the employee’s employment, unless at the time the other person acquired the rights the employee was deceased, in which case such a benefit shall be deemed to have been received by the particular person in that year as income from the duties of an employment performed by the particular person in that year in the country in which the employee primarily performed the duties of the employee’s employment; and

    • (e) if the employee has died and immediately before death owned a right to acquire securities under the agreement, a benefit equal to the amount, if any, by which

      • (i) the value of the right immediately after the death

      exceeds

      • (ii) the amount, if any, paid by the employee to acquire the right

      shall be deemed to have been received, in the taxation year in which the employee died, by the employee because of the employee’s employment, and paragraphs 7(1)(b), 7(1)(c) and 7(1)(d) do not apply.

  • Marginal note:Employee stock options

    (1.1) Where after March 31, 1977 a Canadian-controlled private corporation (in this subsection referred to as “the corporation”) has agreed to sell or issue a share of the capital stock of the corporation or of a Canadian-controlled private corporation with which it does not deal at arm’s length to an employee of the corporation or of a Canadian-controlled private corporation with which it does not deal at arm’s length and at the time immediately after the agreement was made the employee was dealing at arm’s length with

    • (a) the corporation,

    • (b) the Canadian-controlled private corporation, the share of the capital stock of which has been agreed to be sold by the corporation, and

    • (c) the Canadian-controlled private corporation that is the employer of the employee,

    in applying paragraph (1)(a) in respect of the employee’s acquisition of the share, the reference in that paragraph to “the taxation year in which the employee acquired the securities” shall be read as a reference to “the taxation year in which the employee disposed of or exchanged the securities”.

  • Marginal note:Non-arm’s length relationship with trusts

    (1.11) For the purposes of this section, a mutual fund trust is deemed not to deal at arm’s length with a corporation only if the trust controls the corporation.

  • Marginal note:Order of disposition of securities

    (1.3) For the purposes of this subsection, subsections (1.1) and (8), subdivision c, paragraph 110(1)(d.01), subparagraph 110(1)(d.1)(ii) and subsections 110(2.1) and 147(10.4), and subject to subsection (1.31) and paragraph (14)(c), a taxpayer is deemed to dispose of securities that are identical properties in the order in which the taxpayer acquired them and, for this purpose,

    • (a) where a taxpayer acquires a particular security (other than under circumstances to which subsection (1.1) or (8) or 147(10.1) applies) at a time when the taxpayer also acquires or holds one or more other securities that are identical to the particular security and are, or were, acquired under circumstances to which any of subsections (1.1), (8) or 147(10.1) applied, the taxpayer is deemed to have acquired the particular security at the time immediately preceding the earliest of the times at which the taxpayer acquired those other securities; and

    • (b) where a taxpayer acquires, at the same time, two or more identical securities under circumstances to which either subsection (1.1) or (8) applied, the taxpayer is deemed to have acquired the securities in the order in which the agreements under which the taxpayer acquired the rights to acquire the securities were made.

  • Marginal note:Disposition of newly-acquired security

    (1.31) Where a taxpayer acquires, at a particular time, a particular security under an agreement referred to in subsection (1) and, on a day that is no later than 30 days after the day that includes the particular time, the taxpayer disposes of a security that is identical to the particular security, the particular security is deemed to be the security that is so disposed of if

    • (a) no other securities that are identical to the particular security are acquired, or disposed of, by the taxpayer after the particular time and before the disposition;

    • (b) the taxpayer identifies the particular security as the security so disposed of in the taxpayer’s return of income under this Part for the year in which the disposition occurs; and

    • (c) the taxpayer has not so identified the particular security, in accordance with this subsection, in connection with the disposition of any other security.

  • Marginal note:Exchange of options

    (1.4) Where

    • (a) a taxpayer disposes of rights under an agreement referred to in subsection (1) to acquire securities of a particular qualifying person that made the agreement or of a qualifying person with which it does not deal at arm’s length (which rights and securities are referred to in this subsection as the “exchanged option” and the “old securities”, respectively),

    • (b) the taxpayer receives no consideration for the disposition of the exchanged option other than rights under an agreement with a person (in this subsection referred to as the “designated person”) that is

      • (i) the particular person,

      • (ii) a qualifying person with which the particular person does not deal at arm’s length immediately after the disposition,

      • (iii) a corporation formed on the amalgamation or merger of the particular person and one or more other corporations,

      • (iv) a mutual fund trust to which the particular person has transferred property in circumstances to which subsection 132.2(1) applied,

      • (v) a qualifying person with which the corporation referred to in subparagraph (iii) does not deal at arm’s length immediately after the disposition, or

      • (vi) if the disposition is before 2013 and the old securities were equity in a SIFT wind-up entity that was at the time of the disposition a mutual fund trust, a SIFT wind-up corporation in respect of the SIFT wind-up entity

      to acquire securities of the designated person or a qualifying person with which the designated person does not deal at arm’s length (which rights and securities are referred to in this subsection as the “new option” and the “new securities”, respectively), and

    • (c) the amount, if any, by which

      • (i) the total value of the new securities immediately after the disposition

      exceeds

      • (ii) the total amount payable by the taxpayer to acquire the new securities under the new option

      does not exceed the amount, if any, by which

      • (iii) the total value of the old securities immediately before the disposition

      exceeds

      • (iv) the amount payable by the taxpayer to acquire the old securities under the exchanged option,

    for the purposes of this section,

    • (d) the taxpayer is deemed (other than for the purposes of subparagraph (9)(d)(ii)) not to have disposed of the exchanged option and not to have acquired the new option,

    • (e) the new option is deemed to be the same option as, and a continuation of, the exchanged option, and

    • (f) if the designated person is not the particular person, the designated person is deemed to be the same person as, and a continuation of, the particular person.

  • Marginal note:Rules where securities exchanged

    (1.5) For the purposes of this section and paragraphs 110(1)(d) to (d.1), where

    • (a) a taxpayer disposes of or exchanges securities of a particular qualifying person that were acquired by the taxpayer under circumstances to which either subsection (1.1) or (8) applied (in this subsection referred to as the “exchanged securities”),

    • (b) the taxpayer receives no consideration for the disposition or exchange of the exchanged securities other than securities (in this subsection referred to as the “new securities”) of

      • (i) the particular qualifying person,

      • (ii) a qualifying person with which the particular qualifying person does not deal at arm’s length immediately after the disposition or exchange,

      • (iii) a corporation formed on the amalgamation or merger of the particular qualifying person and one or more other corporations,

      • (iv) a mutual fund trust to which the particular qualifying person has transferred property in circumstances to which subsection 132.2(1) applied, or

      • (v) a qualifying person with which the corporation referred to in subparagraph (iii) does not deal at arm’s length immediately after the disposition or exchange, and

    • (c) the total value of the new securities immediately after the disposition or exchange does not exceed the total value of the old securities immediately before the disposition or exchange,

    the following rules apply:

    • (d) the taxpayer is deemed not to have disposed of or exchanged the exchanged securities and not to have acquired the new securities,

    • (e) the new securities are deemed to be the same securities as, and a continuation of, the exchanged securities, except for the purpose of determining if the new securities are identical to any other securities,

    • (f) the qualifying person that issued the new securities is deemed to be the same person as, and a continuation of, the qualifying person that issued the exchanged securities, and

    • (g) where the exchanged securities were issued under an agreement, the new securities are deemed to have been issued under that agreement.

  • Marginal note:Emigrant

    (1.6) For the purposes of this section and paragraph 110(1)(d.1), a taxpayer is deemed not to have disposed of a share acquired under circumstances to which subsection (1.1) applied solely because of subsection 128.1(4).

  • Marginal note:Rights ceasing to be exercisable

    (1.7) For the purposes of paragraphs (1)(b) and 110(1)(d), where a taxpayer receives at a particular time one or more particular amounts in respect of rights of the taxpayer to acquire securities under an agreement referred to in subsection (1) ceasing to be exercisable in accordance with the terms of the agreement, and the cessation would not, if this Act were read without reference to this subsection, constitute a transfer or disposition of those rights by the taxpayer,

    • (a) the taxpayer is deemed to have disposed of those rights at the particular time to a person with whom the taxpayer was dealing at arm’s length and to have received the particular amounts as consideration for the disposition; and

    • (b) for the purpose of determining the amount, if any, of the benefit that the taxpayer is deemed by paragraph (1)(b) to have received as a consequence of the disposition referred to in paragraph (a), the taxpayer is deemed to have paid an amount to acquire those rights equal to the amount, if any, by which

      • (i) the amount paid by the taxpayer to acquire those rights (determined without reference to this subsection)

      exceeds

      • (ii) the total of all amounts each of which is an amount received by the taxpayer before the particular time in respect of the cessation.

  • Marginal note:Securities held by trustee

    (2) If a security is held by a trustee in trust or otherwise, whether absolutely, conditionally or contingently, for an employee, the employee is deemed, for the purposes of this section and paragraphs 110(1)(d) to (d.1),

    • (a) to have acquired the security at the time the trust began to so hold it; and

    • (b) to have exchanged or disposed of the security at the time the trust exchanged it or disposed of it to any person other than the employee.

  • Marginal note:Special provision

    (3) If a particular qualifying person has agreed to sell or issue securities of the particular person, or of a qualifying person with which it does not deal at arm’s length, to an employee of the particular person or of a qualifying person with which it does not deal at arm’s length,

    • (a) except as provided by this section, the employee is deemed to have neither received nor enjoyed any benefit under or because of the agreement; and

    • (b) the income for a taxation year of any person is deemed to be not less than its income for the year would have been if a benefit had not been conferred on the employee by the sale or issue of the securities.

  • Marginal note:Application of s. (1)

    (4) For greater certainty it is hereby declared that, where a person to whom any provision of subsection 7(1) would otherwise apply has ceased to be an employee before all things have happened that would make that provision applicable, subsection 7(1) shall continue to apply as though the person were still an employee and as though the employment were still in existence.

  • Marginal note:Non-application of this section

    (5) This section does not apply if the benefit conferred by the agreement was not received in respect of, in the course of, or by virtue of, the employment.

  • Marginal note:Sale to trustee for employees

    (6) If a particular qualifying person has entered into an arrangement under which securities of the particular person, or of a qualifying person with which it does not deal at arm’s length, are sold or issued by either person to a trustee to be held by the trustee in trust for sale to an employee of the particular person or of a qualifying person with which it does not deal at arm’s length,

    • (a) for the purposes of this section (other than subsection (2)) and paragraphs 110(1)(d) to (d.1),

      • (i) any particular rights of the employee under the arrangement in respect of those securities are deemed to be rights under a particular agreement with the particular person under which the particular person has agreed to sell or issue securities to the employee,

      • (ii) any securities acquired under the arrangement by the employee or by a person in whom the particular rights have become vested are deemed to be securities acquired under the particular agreement, and

      • (iii) any amounts paid or agreed to be paid to the trustee for any securities acquired under the arrangement by the employee or by a person in whom the particular rights have become vested are deemed to be amounts paid or agreed to be paid to the particular person for securities acquired under the particular agreement; and

    • (b) subsection (2) does not apply in respect of securities held by the trustee under the arrangement.

  • Marginal note:Definitions

    (7) The definitions in this subsection apply in this section and in subsection 47(3), paragraphs 53(1)(j), 110(1)(d) and (d.01) and subsections 110(1.5), (1.6) and (2.1).

    qualifying person

    personne admissible

    qualifying person means a corporation or a mutual fund trust. (personne admissible)

    security

    titre

    security of a qualifying person means

    • (a) if the person is a corporation, a share of the capital stock of the corporation; and

    • (b) if the person is a mutual fund trust, a unit of the trust. (titre)

  • Marginal note:Deferral in respect of non-CCPC employee options

    (8) Where a particular qualifying person (other than a Canadian-controlled private corporation) has agreed to sell or issue securities of the particular qualifying person (or of a qualifying person with which it does not deal at arm’s length) to a taxpayer who is an employee of the particular qualifying person (or of a qualifying person with which the particular qualifying person does not deal at arm’s length), in applying paragraph (1)(a) in respect of the taxpayer’s acquisition of a security under the agreement, the reference in that paragraph to “the taxation year in which the employee acquired the securities” shall be read as a reference to “the taxation year in which the employee disposed of or exchanged the securities” if

    • (a) the acquisition is a qualifying acquisition; and

    • (b) the taxpayer elects, in accordance with subsection (10), to have this subsection apply in respect of the acquisition.

  • Meaning of qualifying acquisition

    (9) For the purpose of subsection (8), a taxpayer’s acquisition of a security under an agreement made by a particular qualifying person is a qualifying acquisition if

    • (a) the acquisition occurs after February 27, 2000;

    • (b) the taxpayer would, if this Act were read without reference to subsection (8), be entitled to deduct an amount under paragraph 110(1)(d) in respect of the acquisition in computing income for the taxation year in which the security is acquired;

    • (c) where the particular qualifying person is a corporation, the taxpayer was not, at the time immediately after the agreement was made, a person who would, if the references in the portion of the definition specified shareholder in subsection 248(1) before paragraph (a) to “in a taxation year” and “at any time in the year” were read as references to “at any time” and “at that time”, respectively, be a specified shareholder of any of

      • (i) the particular qualifying person,

      • (ii) any qualifying person that, at that time, was an employer of the taxpayer and was not dealing at arm’s length with the particular qualifying person, and

      • (iii) the qualifying person of which the taxpayer had, under the agreement, a right to acquire a security; and

    • (d) where the security is a share,

      • (i) it is of a class of shares that, at the time the acquisition occurs, is listed on a designated stock exchange, and

      • (ii) where rights under the agreement were acquired by the taxpayer as a result of one or more dispositions to which subsection (1.4) applied, none of the rights that were the subject of any of the dispositions included a right to acquire a share of a class of shares that, at the time the rights were disposed of, was not listed on any designated stock exchange.

  • Marginal note:Election for the purpose of subsection (8)

    (10) For the purpose of subsection (8), a taxpayer’s election to have that subsection apply in respect of the taxpayer’s acquisition of a particular security under an agreement referred to in subsection (1) is in accordance with this subsection if

    • (a) the election is filed, in the prescribed form and manner at a particular time that is before January 16 of the year following the year in which the acquisition occurs, with a person who would be required to file an information return in respect of the acquisition if subsection (8) were read without reference to paragraph (8)(b);

    • (b) the taxpayer is resident in Canada at the time the acquisition occurs; and

    • (c) the specified value of the particular security does not exceed the amount by which

      exceeds

      • (ii) the total of all amounts each of which is the specified value of another security acquired by the taxpayer at or before the particular time under an agreement referred to in subsection (1), where

        • (A) the taxpayer’s right to acquire that other security first became exercisable in the year that the taxpayer’s right to acquire the particular security first became exercisable, and

        • (B) at or before the particular time, the taxpayer has elected in accordance with this subsection to have subsection (8) apply in respect of the acquisition of that other security.

  • Meaning of specified value

    (11) For the purpose of paragraph (10)(c), the specified value of a particular security acquired by a taxpayer under an agreement referred to in subsection (1) is the amount determined by the formula

    A/B

    where

    A
    is the fair market value, determined at the time the agreement was made, of a security that was the subject of the agreement at the time the agreement was made; and
    B
    is
    • (a) except where paragraph (b) applies, 1, and

    • (b) where the number or type of securities that are the subject of the agreement has been modified in any way after the time the agreement was made, the number of securities (including any fraction of a security) that it is reasonable to consider the taxpayer would, at the time the particular security was acquired, have a right to acquire under the agreement in lieu of one of the securities that was the subject of the agreement at the time the agreement was made.

  • Marginal note:Identical options — order of exercise

    (12) Unless the context otherwise requires, a taxpayer is deemed to exercise identical rights to acquire securities under agreements referred to in subsection (1)

    • (a) where the taxpayer has designated an order, in the order so designated; and

    • (b) in any other case, in the order in which those rights first became exercisable and, in the case of identical rights that first became exercisable at the same time, in the order in which the agreements under which those rights were acquired were made.

  • Marginal note:Revoked election

    (13) For the purposes of this section (other than this subsection), an election filed by a taxpayer to have subsection (8) apply to the taxpayer’s acquisition of a security is deemed never to have been filed if, before January 16 of the year following the year in which the acquisition occurs, the taxpayer files with the person with whom the election was filed a written revocation of the election.

  • Marginal note:Deferral deemed valid

    (14) For the purposes of this section and paragraph 110(1)(d), where a taxpayer files an election to have subsection (8) apply in respect of the taxpayer’s acquisition of a particular security and subsection (8) would not apply to the acquisition if this section were read without reference to this subsection, the following rules apply if the Minister so notifies the taxpayer in writing:

    • (a) the acquisition is deemed, for the purpose of subsection (8), to be a qualifying acquisition;

    • (b) the taxpayer is deemed to have elected, in accordance with subsection (10), at the time of the acquisition, to have subsection (8) apply in respect of the acquisition; and

    • (c) if, at the time the Minister sends the notice, the taxpayer has not disposed of the security, the taxpayer is deemed (other than for the purpose of subsection (1.5)) to have disposed of the security at that time and to have acquired the security immediately after that time other than under an agreement referred to in subsection (1).

  • Marginal note:Withholding

    (15) Where, because of subsection (8), a taxpayer is deemed by paragraph (1)(a) to have received a benefit from employment in a taxation year, the benefit is deemed to be nil for the purpose of subsection 153(1).

  • Marginal note:Prescribed form for deferral

    (16) Where, at any time in a taxation year, a taxpayer holds a security that was acquired under circumstances to which subsection (8) applied, the taxpayer shall file with the Minister, with the taxpayer’s return of income for the year, a prescribed form containing prescribed information relating to the taxpayer’s acquisition and disposition of securities under agreements referred to in subsection (1).

  • NOTE: Application provisions are not included in the consolidated text;
  • see relevant amending Acts. R.S., 1985, c. 1 (5th Supp.), s. 7;
  • 1994, c. 7, Sch. II, s. 4, c. 21, s. 3;
  • 1999, c. 22, s. 3;
  • 2001, c. 17, s. 2;
  • 2007, c. 35, s. 68;
  • 2009, c. 2, s. 3.
Date modified: