Capital gains and surplus stripping


University of British Columbia

Date Issued


Document Type



Master of Laws - LLM




This thesis examines recent legislative developments in tax avoidance law, dealing specifically with surplus stripping and capital gains bailouts. Surplus stripping consists in the avoidance of the second level of tax on corporate source income normally exigible when dividends are paid to shareholders. Surplus, or dividend-stripping, is the taxpayer's response to the double taxation of corporate earnings and has accordingly been practiced in Canada since the 1926 revision of the Income War Tax Act, 1917, first introduced this scheme for the taxation of corporations and their shareholders. As a result of changes to the Income Tax Act in 1977, the scope of surplus stripping operations was greatly limited and subsequent legislation moved to block the few remaining perceived abuses. Capital gains strips or bailouts represent a much less long-standing problem for the fiscal authorities, being established upon the imaginative combination of statutory rules and results, some of which were passed into law as recently as 1977. Capital gains strips import the abolition of capital gains tax at the corporate level and can effectively provide individuals with unlimited deferral of tax upon the realization of appreciated capital property. Thus, capital gains strips, while perhaps not precipitating a serious loss of revenue to the fisc, undermine the principle of equity, a cornerstone of tax reform. Whereas surplus stripping operations have been curtailed (principally by the elimination of the incentive to engage in them) the government has only very recently moved to eradicate capital gains avoidance with complicated and as yet untested legislation. The present study deals with;each of the two types of avoidance activities mentioned in the preceding paragraphs. The first chapter traces the evolution of dividend-stripping in Canada from its beginnings to the time of the enactment of the most recent legislative provisions designed to combat it. These are analysed and commented in the second and third chapters of the thesis. The fourth and fifth chapters present an interjurisdictional comparison, investigating surplus stripping activities and the corresponding efforts of the fiscal authorities to combat them in Great Britain and in the United States respectively. The sixth through to the eighth chapters deal in a similar fashion with capital gains stripping. The new Canadian rules are deployed and critically evaluated. Capital gains stripping practices in the United States and Great Britain respectively are then studied along with the related anti-avoidance legislation.

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