CRA considers mortgage company as TCP

Non-residents are taxable in Canada in respect of capital gains realized on TCP (subject to an exemption that may be available in a tax treaty). In 2012-0453021C6, the CRA was asked whether shares of a private company (Mortgage Co) would be taxable Canadian property (TCP) if the value of Mortgage Co’s shares was derived from “non-defaulted arm’s length mortgages secured by real property in Canada”. Citing the rule in s. 248(4), the CRA said the shares would not be TCP. S. 248(4) provides that an interest in real property does not include an interest “as security only” derived by virtue of a mortgage. The CRA was careful to say, however, that if a particular mortgage confers an interest in real property other than a security interest, the CRA could conceivably reach a different conclusion. The CRA did not expand on this latter point.