Unlimited liability corporation
Template:Short description An unlimited liability corporation (ULC) within Canadian corporate law is a Canadian corporation designation, wherein shareholders are liable up to unlimited amounts for any liability, act or default of the corporation. By comparison, in most corporations, shareholders are not usually liable due to a limited liability model. ULCs can be used by American corporations for tax planning, as ULCs are treated as corporations for Canadian tax purposes but as flow-through entities for American tax purposes.
By 1997, unlimited liability corporations had been abolished in Canadian corporate law in all Canadian jurisdictions except for the province of Nova Scotia, where ULCs remain available.[1] However, due to their increased use in American companies' tax planning since then, ULCs were permitted in Alberta and British Columbia starting in the mid-2000s.[2][3]
Usefulness in foreign direct investments by US corporations
ULCs have commonly been used by US companies investing in Canada on a greenfield basis or through corporate acquisitions of Canadian entities or assets, especially if those Canadian assets or operations are expected to generate business losses. This became especially significant after the 1997 introduction of the entity classification rules in the US Internal Revenue Code which provided that:
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[(b)(8)(ii)(A)] The following entities will not be treated as corporations under paragraph (b)(8)(i) of this section: (1) With regard to Canada, a Nova Scotia Unlimited Liability Company (or any other company or corporation all of whose owners have unlimited liability pursuant to federal or provincial law)....[4]
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In essence, the ULC can act as a “flow-through” or “disregarded” entity for US tax purposes as the US tax rules “look through” the ULC to its shareholder(s). In contrast, the ULC is treated as a corporation, and is subject to tax at the corporate level, for Canadian tax purposes.
Nova Scotia had been the last of the Canadian jurisdictions to allow the incorporation of such corporations at that time. Since then, Alberta allowed such formations in 2005, followed by British Columbia in 2007, to take advantage of this niche provided by US tax law.
Changes to Canada–US tax treaty, 2010
Effective January 1, 2010, the Canada–US tax treaty—formally, the Canada–United States Convention with Respect to Taxes on Income and on Capital, signed September 26, 1980[5]—was amended by inserting a new Article IV(7):
As a ULC is generally considered for US tax purposes to be considered "fiscally transparent" under this provision, this will mean that payments (such as interest, royalties and dividends) from a Canadian ULC to its US parent will be subject to a 25% withholding tax under Part XIII of the Income Tax Act (Canada).[6] However, technical guidance issued by the Canada Revenue Agency has indicated that certain strategies are available to mitigate the impact of such changes.[7]
Applicable law by jurisdiction
| Description | File:Flag of Alberta.svg Alberta | File:Flag of British Columbia.svg British Columbia | File:Flag of Nova Scotia.svg Nova Scotia |
|---|---|---|---|
| Framework | Based very closely on modern US corporations statutes | Closely modelled on the United Kingdom Companies Acts | |
| Location of head office | In the province | In the province | In the province |
| Nature of liability | Unlimited for obligations arising from actions and proceedings commenced by or against the ULC before its dissolution or within 2 years thereafter. | Unlimited for obligations arising from actions and proceedings commenced by or against the ULC before its dissolution or within 1 year thereafter. | Shareholders are liable for all debts and liabilities upon winding up. This liability is unlimited for past or present shareholders (but for past shareholders it is extinguished one year after he ceases to be a shareholder). |
| Residency requirements for directors | ¼ of all directors must be Canadian residents | None | None |
| Directors' duty of care | Statutorily bound to exercise “the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances” | As for Alberta | Determined under the common law |
| Power to manage corporation | Directors can manage “or supervise the management” of the business and affairs of the corporation (with authority to delegate that power to shareholders through a USA corporation or LLC) | Directors must manage or supervise the management of the business and affairs of the company | Shareholders have power to manage the corporation (and the authority to delegate that power to directors) |
| Amalgamation of corporations | Both short-form (parent and subsidiary amalgamation with only board approval required), and long-form (2/3 shareholder approval) are available | Foreign corporations may not amalgamate with BC ULCs | No Court approval is required if all shareholders approve the amalgamation[8] |
| Reductions in stated capital | 2/3 shareholder approval is needed | By court order or special resolution | 2/3 shareholder approval is required[9] |
| Declaration of dividends | The board may declare dividends if it has reasonable grounds to believe that a corporate solvency test is satisfied | As for Alberta | Dividends must be declared and paid out of the profits of the company |
| Purchase of own shares | A corporation may hold shares in itself and allow subsidiaries to hold its shares for a maximum of 30 days (without cancellation) | Purchased shares must be cancelled, but none may be purchased if it may make the corporation insolvent. Subsidiaries are allowed to purchase its parent's shares. | Other than redeemable shares, any acquisition by a corporation of its own shares must have requisite shareholder approval |
| Continuance | Only Alberta and Nova Scotia ULCs, and other corporations prescribed by regulation, may migrate to BC, and a foreign ULC may not migrate into BC as a limited liability corporation | Foreign corporations can continue into Nova Scotia as a ULC, with approval of all shareholders. [10] Nova Scotia ULCs can export to foreign jurisdictions upon 2/3 shareholder approval.[11] | |
| Conversion between limited and unlimited liability status | No restrictions | No restrictions | No restrictions (but subject to shareholder approval)[12] |
See also
- List of acts of the Parliament of Canada
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References
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- ↑ Template:CodeFedReg
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- ↑ Section 134 (10A)(b)
- ↑ Section 57(4)
- ↑ Section 133(1A)
- ↑ Section 133(5)
- ↑ Sections 19(1)(b), 19(3), and 68)
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