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Electricity Act, 1998
Loi de 1998 sur l’électricité

ONTARIO REGULATION 124/99

Amended to O. Reg. 292/03

TRANSFER TAX ON MUNICIPAL ELECTRICITY PROPERTY

Historical version for the period July 18, 2003 to January 26, 2005.

This Regulation is made in English only.

Prescribed Percentage

1. The percentage prescribed for the purposes of subsection 94 (1) of the Act is 33 per cent. O. Reg. 124/99, s. 1.

Deemed Transfers

2. (1) Each of the transactions or series of transactions described in this section shall be deemed, for the purpose of section 94 of the Act, to be a transfer to a person of an interest in real or personal property that has been used in connection with generating, transmitting, distributing or retailing electricity. O. Reg. 124/99, s. 2 (1).

(2) A transaction or series of transactions shall be deemed to constitute a transfer described in subsection (1),

(a) if, as a result of the transaction or series of transactions, a municipal corporation or a municipal electricity utility ceases to own the interest in property described in subsection (1) and another person acquires a similar interest in the property; and

(b) if it is reasonable to conclude that one of the primary purposes of the transaction or the series of transactions is to avoid the application of subsection 94 (1) of the Act. O. Reg. 124/99, s. 2 (2).

(3) When a corporation ceases to be a subsidiary of a municipal electricity utility, the corporation’s interest in property described in subsection (1) shall be deemed to have been transferred from the corporation to another person immediately before the corporation ceases to be such a subsidiary. The deemed transfer of the interest in property from the corporation shall be deemed to constitute a transfer described in subsection (1). O. Reg. 124/99, s. 2 (3).

(4) If a municipal corporation or a municipal electricity utility transfers an interest in property described in subsection (1) to a partnership, a portion of the interest in property that is transferred shall be deemed to constitute a transfer described in subsection (1). The portion that is deemed to be transferred is calculated using the formula,

A × ( B / C )

where,

“A” is the fair market value of the interest in property described in subsection (1) that the municipal corporation or municipal electricity utility transfers to the partnership;

“B” is the fair market value of that portion of interests in the partnership that are owned by persons other than the municipal corporation or the municipal electricity utility; and

“C” is the fair market value of all ownership interests in the partnership.

O. Reg. 124/99, s. 2 (4).

(5) If a corporation (the “successor corporation”) is formed as a result of the amalgamation or merger of two or more corporations (the “predecessor corporations”), an interest in property described in subsection (1) that is held by a predecessor corporation immediately before the amalgamation or merger shall be deemed to have been transferred to the successor corporation upon the amalgamation or merger. That transfer shall be deemed to constitute a transfer described in subsection (1). O. Reg. 18/00, s. 1.

(6) Subsection (5) does not apply with respect to an amalgamation of two or more municipal corporations or municipal electricity utilities, if the amalgamation is required by an Act or is otherwise required by law. O. Reg. 18/00, s. 1.

(7) If a shareholder of a corporation ceases to own a share of the capital stock of the corporation because the corporation redeems, acquires or cancels the share, the shareholder shall be deemed to have transferred to a person other than a municipal electricity utility an interest in the corporation having a fair market value equal to the fair market value of the share. That transfer shall be deemed to constitute a transfer described in subsection (1). O. Reg. 18/00, s. 1.

(8) If a shareholder of a corporation receives an amount on the reduction of capital in respect of a share of the corporation otherwise than by way of a redemption, acquisition or cancellation of the share, the shareholder shall be deemed to have transferred to a person other than a municipal electricity utility an interest in the corporation having a fair market value equal to the amount received on the reduction of capital. That transfer shall be deemed to constitute a transfer described in subsection (1). O. Reg. 18/00, s. 1.

(9) Subsections (7) and (8) do not apply if the Minister of Finance is satisfied that the redemption, acquisition or cancellation of the share by the corporation or the reduction of capital in respect of the share is not part of a transaction or series of transactions that results in a change in the direct or indirect ownership of the corporation. O. Reg. 18/00, s. 1.

(10) Subsections (5) and (6) do not apply with respect to an amalgamation or merger pursuant to an agreement in writing that the Minister of Finance is satisfied was entered into before January 31, 2000, if the Minister is satisfied that the parties have a binding obligation under the agreement to proceed with the amalgamation or merger. O. Reg. 18/00, s. 1.

(11) Subsections (7) to (9) do not apply with respect to a redemption, acquisition or cancellation of a share or to a reduction of capital in respect of a share pursuant to a written resolution of the directors or shareholders of a corporation if the Minister of Finance is satisfied that the resolution was made before January 31, 2000. O. Reg. 18/00, s. 1.

Excluded Transfers

3. (1) Each of the transfers described in this section is prescribed as a transfer to which subsection 94 (1) of the Act does not apply. O. Reg. 124/99, s. 3 (1).

(2) Subsection (3) applies if,

(a) a municipal corporation or municipal electricity utility (the “first transferor”) transfers an interest in property described in subsection 94 (1) or (2) of the Act (the “first transfer”) to another municipal corporation or municipal electricity utility (the “first transferee”);

(b) the first transferor pays an amount under subsection 94 (1) of the Act in respect of that transfer; and

(c) the first transferee subsequently transfers the interest in the same property (the “second transfer”) to any person. O. Reg. 124/99, s. 3 (2).

(3) Subsection 94 (1) of the Act does not apply to the second transfer described in subsection (2), to the extent that the first transferor has already paid an amount under subsection 94 (1) of the Act in respect of the first transfer. O. Reg. 124/99, s. 3 (3).

(4) Subsection (5) applies if,

(a) a municipal corporation or municipal electricity utility (the “first transferor”) transfers an interest in property described in subsection 94 (1) or (2) of the Act (the “first transfer”) to another municipal corporation or municipal electricity utility (the “first transferee”);

(b) the first transferor pays an amount under subsection 94 (1) of the Act in respect of the first transfer;

(c) the first transferee or a corporation that owns (directly or indirectly) at least 95 per cent of the total issued and outstanding share capital, excluding the directors’ qualifying shares, of the first transferee subsequently transfers an interest in property described in subsection 94 (1) or (2) of the Act (the “second transfer”) to another person; and

(d) the interest transferred in the second transfer derives its value from the property referred to in clause (a). O. Reg. 124/99, s. 3 (4).

(5) Subsection 94 (1) of the Act does not apply to the second transfer described in subsection (4) to the extent that the first transferor has already paid an amount under subsection 94 (1) of the Act in respect of the first transfer. O. Reg. 124/99, s. 3 (5).

(6) Subsection (7) applies if,

(a) a municipal corporation or municipal electricity utility (the “first transferor”) transfers an interest in property described in subsection 94 (1) or (2) of the Act (the “first transfer”) to another municipal corporation or municipal electricity utility (the “first transferee”);

(b) the first transferor pays an amount under subsection 94 (1) of the Act in respect of the first transfer;

(c) the first transferee or a corporation in which the first transferee owns (directly or indirectly) at least 95 per cent of the total issued and outstanding share capital, excluding the directors’ qualifying shares, subsequently transfers an interest in property described in subsection 94 (1) or (2) of the Act (the “second transfer”) to another person; and

(d) the interest transferred in the second transfer derives its value from the property referred to in clause (a). O. Reg. 124/99, s. 3 (6).

(7) Subsection 94 (1) of the Act does not apply to the second transfer described in subsection (6) to the extent that the first transferor has already paid an amount under subsection 94 (1) of the Act in respect of the first transfer. O. Reg. 124/99, s. 3 (7).

(8) Subsection (9) applies if,

(a) a municipal corporation or municipal electricity utility (the “transferor”) transfers an interest in property described in subsection 94 (1) or (2) of the Act to a corporation that is a municipal electricity utility (the “transferee”); and

(b) the transferor owns (directly or indirectly) at least 95 per cent of the total issued and outstanding share capital, excluding the directors’ qualifying shares,

(i) of the transferee, or

(ii) of a corporation that owns (directly or indirectly) at least 95 per cent of the total issued and outstanding share capital of the transferee, excluding the directors’ qualifying shares. O. Reg. 124/99, s. 3 (8).

(9) Subsection 94 (1) of the Act does not apply to the transfer described in subsection (8) from the transferor to the transferee. O. Reg. 124/99, s. 3 (9).

(10) Subsection (11) applies if,

(a) a municipal electricity utility (the “transferor”) transfers an interest in property described in subsection 94 (1) or (2) of the Act to a corporation that is a municipal electricity utility (the “transferee”); and

(b) a corporation owns (directly or indirectly) at least 95 per cent of the total issued and outstanding share capital, excluding the directors’ qualifying shares,

(i) of the transferor and of the transferee, or

(ii) of another corporation that owns (directly or indirectly) at least 95 per cent of the total issued and outstanding share capital, excluding the directors’ qualifying shares, of the transferor and of the transferee. O. Reg. 124/99, s. 3 (10).

(11) Subsection 94 (1) of the Act does not apply to the transfer described in subsection (10) from the transferor to the transferee. O. Reg. 124/99, s. 3 (11).

(12) Subsection (13) applies if a municipal corporation or municipal electricity utility (the “transferor”) transfers an interest in property described in subsection 94 (1) or (2) of the Act and,

(a) before the transfer, the property is not being used or is obsolete; or

(b) the transfer is made in the ordinary course of business of the transferor and it is reasonable to conclude that the primary purpose of the transfer is to replace the transferor’s property. O. Reg. 124/99, s. 3 (12).

(13) Subsection 94 (1) of the Act does not apply to the transfer described in subsection (12) if the aggregate fair market value of all such interests that are transferred by the transferor during a particular taxation year is not greater than 5 per cent of the fair market value of the interests in property described in subsections 94 (1) and (2) of the Act that are owned by the transferor at the end of the preceding taxation year. O. Reg. 124/99, s. 3 (13).

(14) Subsection 94 (1) of the Act does not apply to the transfer of a leasehold interest in property described in subsection 94 (1) of the Act unless, at the time of the transfer,

(a) the lessee automatically acquires title to the leased property at less than its fair market value before or upon the termination of the lease;

(b) the lessee has a conditional or unconditional right to acquire the title to the leased property at less than its fair market value before or upon the termination of the lease;

(c) the term of the lease, including any renewal or extension provided for in the lease or in another agreement entered into as part of the arrangement relating to the lease, is greater than or equal to at least 75 per cent of the anticipated economic life of the leased property; or

(d) the net present value when the lease begins of the lease payments that are required by the lease agreement at that time, including any guarantee of the residual value of the leased property and any penalty payable for a failure to renew the lease or to extend its term, is greater than or equal to 90 per cent of the value of the leased property when the lease begins. O. Reg. 124/99, s. 3 (14); O. Reg. 454/00, s. 1 (1).

(14.1) Clause (14) (d), as remade by Ontario Regulation 454/00, applies with respect to lease agreements entered into after August 3, 2000. O. Reg. 454/00, s. 1 (2).

(15) Subsection 94 (1) of the Act does not apply to the transfer of an interest in property described in subsection 94 (1) or (2) of the Act,

(a) if the transfer does not result in a change in the beneficial ownership of the interest in the property;

(b) if the transfer is made for the purpose of securing a debt or a loan and for no other purpose; or

(c) if the transfer entitles the transferor to an amount described in paragraphs (b) to (f) of the definition of “proceeds of disposition” in section 54 of the Income Tax Act (Canada). O. Reg. 124/99, s. 3 (15).

(16) Subsection (17) applies to a transfer of an interest in property described in subsection 94 (1) or (2) of the Act,

(a) if the transfer is made after November 6, 2000 to a municipal electricity utility that is exempt under subsection 149 (1) of the Income Tax Act (Canada) from the payment of tax under that Act at the time of the transfer; or

(b) if the transfer is made after November 6, 2000 to the Generation Corporation, the Services Corporation or a subsidiary of the Generation Corporation or the Services Corporation (the “Transferee”) and the transferee is exempt under subsection 149 (1) of the Income Tax Act (Canada) from the payment of tax under that Act at the time of the transfer. O. Reg. 524/00, s. 1.

(17) Subsection 94 (1) of the Act does not apply to a transfer described in subsection (16) if an application for approval of the transfer is made to the Ontario Energy Board before November 7, 2000 and if a written agreement to make the transfer is complete before November 7, 2000 and is not materially changed after that date. O. Reg. 524/00, s. 1.

(18) Subsection 94 (1) of the Act does not apply to a transfer of an interest in property made after March 27, 2003 and before March 28, 2005 if,

(a) the transfer is made to a municipal corporation in Ontario that, at the time of the transfer, is exempt under subsection 149 (1) of the Income Tax Act (Canada) from the payment of tax under that Act, and the interest that is transferred is an interest in a corporation, partnership or other entity that derives its value in whole or in part from real or personal property that has been used in connection with generating, transmitting, distributing or retailing electricity;

(b) the transfer is made to a municipal electricity utility that, at the time of the transfer, is exempt under subsection 149 (1) of the Income Tax Act (Canada) from the payment of tax under that Act; or

(c) the transfer is made to Hydro One Inc., Ontario Power Generation Inc. or a subsidiary of Hydro One Inc. or Ontario Power Generation Inc. (“the transferee”), and, at the time of the transfer, the transferee is exempt under subsection 149 (1) of the Income Tax Act (Canada) from the payment of tax under that Act. O. Reg. 292/03, s. 1.

Modifications to the Method of Calculating the Transfer Tax

3.1 (1) This section applies if a municipal corporation or municipal electricity utility proposes to transfer to a person an interest in the shares of a corporation, in a partnership or in another entity and if the interest to be transferred derives its value, in whole or in part, from real or personal property that has been used in connection with generating, transmitting, distributing or retailing electricity. O. Reg. 18/00, s. 2.

(2) The amount payable under subsection 94 (1) of the Act to the Financial Corporation is the amount calculated using the formula,

in which,

“A” is the fair market value of all real or personal property,

(a) that has been used in connection with generating, transmitting, distributing or retailing electricity (other than interests described in subsection 94 (2) of the Act), and

(b) in which the corporation, partnership or other entity has a direct or indirect interest;

“B” is the fair market value of the interest in the shares of the corporation, in the partnership or in the entity that the municipal corporation or municipal electricity utility proposes to transfer to the person;

“C” is the aggregate fair market value of all issued and outstanding shares of the corporation, all ownership interests in the partnership or all ownership interests in the entity; and

“D” is the percentage set out in section 1.

O. Reg. 18/00, s. 2.

(3) For the purposes of subsection (2), fair market value is determined as of the date on which the proposed transfer is to take place. O. Reg. 18/00, s. 2.

(4) This section does not apply with respect to a transfer pursuant to an agreement in writing that the Minister of Finance is satisfied was entered into before January 31, 2000, if the Minister is satisfied that the parties have a binding obligation under the agreement to proceed with the transfer. O. Reg. 18/00, s. 2.

Administration

4. (1) A municipal corporation or municipal electricity utility (the “transferor”) that proposes to transfer an interest in property described in subsection 94 (1) or (2) of the Act shall give the Minister of Finance written notice of the proposed transfer. O. Reg. 124/99, s. 4 (1).

(2) The notice must be received by the Minister at least 60 days before the date of the proposed transfer. O. Reg. 124/99, s. 4 (2).

(3) The notice must include the following information:

1. The name and address of the proposed transferee.

2. A detailed description of the interest that is being transferred.

3. A reasonable estimate of the fair market value of the interest that is being transferred, immediately before the date of the proposed transfer.

4. The estimated amount payable under subsection 94 (1) of the Act in respect of the transfer. O. Reg. 124/99, s. 4 (3).

5. A municipal corporation or municipal electricity utility that proposes to make a transfer to which subsection 94 (1) of the Act applies shall do one of the following before the date of the proposed transfer:

1. Give the Financial Corporation security satisfactory to the Financial Corporation for the payment required by subsection 94 (1) of the Act.

2. Pay the Financial Corporation the amount that the transferor reasonably estimates will be required by subsection 94 (1) of the Act in respect of the transfer. O. Reg. 124/99, s. 5.

6. If the municipal corporation or municipal electricity utility gives the notice required by section 4 and gives the security or makes the payment described in section 5, the Minister of Finance shall give the municipal corporation or municipal electricity utility and the proposed transferee a certificate setting out the details of the proposed transfer and of the security or payment. O. Reg. 124/99, s. 6.

7. (1) Subject to subsection (4), a municipal corporation or municipal electricity utility that transfers an interest in property described in subsection 94 (1) or (2) of the Act shall give the Minister of Finance written notice of the transfer. O. Reg. 124/99, s. 7 (1).

(2) The notice must be received by the Minister within 30 days after the date on which the transfer is made. O. Reg. 124/99, s. 7 (2).

(3) The notice must include the following information and documents:

1. The name and address of the transferee.

2. A detailed description of the interest that was transferred.

3. The fair market value of the interest that was transferred, immediately before the transfer.

4. The estimated amount payable under subsection 94 (1) of the Act in respect of the transfer.

5. The amount, if any, paid to the Financial Corporation under subsection 94 (1) of the Act in respect of the transfer.

6. A copy of the Minister’s certificate, if any, under section 6 for the transfer. O. Reg. 124/99, s. 7 (3).

(4) Notice is not required,

(a) if the municipal corporation or municipal electricity utility gave notice of the proposed transfer to the Minister under section 4 before the date of the transfer;

(b) if the transferee is the same as the person identified as the proposed transferee in the notice of the proposed transfer;

(c) if the fair market value of the interest transferred is less than or equal to the estimated fair market value set out in the notice of the proposed transfer; and

(d) if the amount of the payment made under section 5 or the amount in respect of which security is given under section 5, as the case may be, is greater than or equal to the estimated amount payable set out in the notice of the proposed transfer. O. Reg. 124/99, s. 7 (4).

8. When a municipal corporation or municipal electricity utility makes a transfer to which subsection 94 (1) of the Act applies, the municipal corporation or municipal electricity utility shall pay to the Financial Corporation the amount by which “A” exceeds “B” where,

“A” is the amount payable under subsection 94 (1) of the Act in respect of the transfer, and

“B” is the amount of the payment made under section 5 or the amount in respect of which security is given under section 5, as the case may be.

O. Reg. 124/99, s. 8.