- 11 - Doug Saunders believes this will permit the Company to avoid the Canadian withholding tax since the transfer of funds to the U.S. should not constitute a dividend for Canadian tax purposes. Whereas, the U.S. tax laws rely more on substance, the Canadian tax laws rely heavily on form. Sometime after June 15, 1993, and before June 28, 1993, Mr. Bond prepared a memorandum to petitioner’s tax file (Mr. Bond’s draft June 1993 file memorandum).8 Mr. Bond’s draft June 1993 file memorandum, which was not finalized until July 9, 1993, stated in pertinent part: During the fiscal year ending June 30, 1993, Canada [ITC] will pay a dividend to ITI [petitioner]. It may be possible to avoid Canadian withholding tax on the dividend if the paid-up capital of Canada can be in- creased prior to the payment of the dividend. In order to increase Canada’s paid-up capital before paying the dividend the transaction will be accomplished according to the following steps: 1. Canada will repay the loan from ITI. 2. ITI will recontribute the cash to Canada. 3. Canada will pay the dividend. 4. ITI will make a new loan to Canada. * * * * * * * CONCLUSIONS 1. The various steps involved in the transaction should be respected for U.S. tax purposes. How- ever, it will be beneficial to spread the steps over time and vary the amounts involved in each step. 8Mr. Saunders did not review Mr. Bond’s draft June 1993 file memorandum prior to the trial in this case.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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