Mr. Chair, thank you for this opportunity to provide the views of members of the Investment Funds Institute of Canada at this hearing. We are the voice of Canada's investment fund industry. By connecting savers to Canada's economy, our industry contributes significantly to Canadian economic growth and job creation.
In my remarks today, I will be focusing on the amendments to the loss restriction event, LRE, rules in Bill C-43.
First, I would like to thank the government and the minister for the amendments. We believe that these amendments will address many of the concerns faced by our members. As originally enacted through the Economic Action Plan 2013 Act, No. 2, a trust would be subject to an LRE if an issuance or redemption of trust resulted in an investor or a group of investors holding more than 50% of the units of the trust. The trust would have a deemed year end, resulting in potential distributions to investors, be required to file a tax return and provide tax reporting to investors, and any previous loss carry-forwards and accrued losses on its investment portfolio that could not be applied in the deemed year end, including against accrued gains, would be lost.
The principle intent of the legislation was to ensure the majority investor could not buy into a fund that had suffered extensive losses and take advantage of these losses to offset future gains within the fund. While the department's intent to protect the Canadian treasury against lost revenue due to aggressive tax planning was completely appropriate, the scope of the legislation was too broad and had unintended consequences.
The original legislation did not take into account important distinctions in events that result in LRE that are simply situational in origin, and have no aggressive tax planning intent. Some examples include changes in majority ownership that frequently occur when an investment fund is in a start-up or wind down phase. During these periods, a single investor may easily end up holding 50% or more of a fund because of the small number of other investors and capital. Fund-on-fund situations where a bottom fund has a small number of investors, primarily widely held top funds, are also problematic.
The application of the LRE rules is also unfair to minority investors where the result is that the trust loses previous loss carry-forwards and accrued losses. Minority investors are entitled to benefit from their share of the losses and have no control over changes to majority ownership.
The amendments in Bill C-43 address many of the significant issues that I've just outlined. However, as IFIC noted in our submission dated October 31 to the department, there is still one more important issue that needs to be addressed.
Bill C-43 defines the conditions to be met in investment trusts in order that what would otherwise be an LRE is disregarded. A key component is the definition of “portfolio investment fund”, which contains elements drawn from the specified investment flow-through trust rules, or the SIFT rules. These rules were enacted for a totally different tax policy reason, to shut down income funds. The definition of “portfolio investment entity” includes a condition that will require trusts to ensure that they do not hold more than 10% of the equity value of an issuer. This is not a concentration test applied to prospectus-qualified funds that are subject to National Instrument 81-102. The test will require investment managers to make portfolio investment decisions that they wouldn't otherwise make. Also, the definition of “portfolio investment fund” effectively means that funds that invest in portfolio securities, Canadian and foreign real estate, or resource issuers, cannot qualify.
It is our hope that we can work with the government to find a solution based on the investment restrictions in National Instrument 81-102.
Mr. Chair, that concludes my opening statement. Once again, we appreciate this invitation and would be pleased to answer any of your committee's questions.