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Venture Capital Tax Credit Regulations

made under subsection 37B(18) of the

Income Tax Act

R.S.N.S. 1989, c. 217

O.I.C. 2020-310 (effective April 1, 2019), N.S. Reg. 173/2020



Table of Contents


Please note: this table of contents is provided for convenience of reference and does not form part of the regulations.
Click here to go to the text of the regulations.

 

Citation

Definitions

Criteria for qualifying venture capital funds

Criteria for eligible investments

Criteria for eligible investors

Required use of equity capital raised

Criteria for qualifying small businesses

Control of qualifying small business prohibited

Non-arm’s length investment prohibited

Prohibited purposes for qualifying small business investment

Action to be taken if qualifying small business investment becomes prohibited

Changes in eligibility of qualifying small business

Prohibited investment recovery

Application for a certificate of registration

Application for approval of raise of equity capital

Letter of approval for raise of equity capital

Application for tax-credit certificates

Issuing tax-credit certificates

Annual maximum venture capital tax credit

Revocation of certificate of registration

Surrender of certificate of registration

Recovery of tax credits

Liability

Repayment waived or prorated

Debt due to the Crown

Notice

Annual return

Records

Public record


 


Citation

1        These regulations may be cited as the Venture Capital Tax Credit Regulations.


Definitions

2        (1)    In these regulations,

 

“Act” means the Income Tax Act;

 

“active business” means any business carried on by a corporation other than the following:

 

                              (i)      a business with a principal purpose of deriving income, including dividends, interest and rents, from property and that does not employ more than 5 full-time employees throughout the year,

 

                              (ii)     a personal services business as defined in the Income Tax Act (Canada);

 

“affiliate” of a person means any of the following:

 

                              (i)      a corporation of which the person owns, directly or indirectly, shares carrying 10% or more of the voting rights for the election of the directors of the corporation,

 

                              (ii)     a business partner of the person,

 

                              (iii)    a participant in a joint venture with the person,

 

                              (iv)    a trust or estate

 

                                        (A)   in which the person has, in the opinion of the Minister of Finance and Treasury Board for the Province, a substantial beneficial interest, or

 

                                        (B)   for which the person serves as trustee or in a similar capacity,

 

                              (v)     a spouse, parent, grandparent, child, grandchild, brother or sister of the person,

 

                              (vi)    if residing at the same residence as the person, a parent, grandparent, child, grandchild, brother or sister of the person’s spouse;

 

“associated corporation” means an associated corporation within the meaning of Section 256 of the Income Tax Act (Canada), except that the relevant time for determining the association is the date on which the qualifying venture capital fund applies for an authorized raise of equity capital rather than the taxation year of the corporation;

 

“authorized officer”, in respect of a limited partnership, includes an authorized officer of the general partner;

 

“authorized raise of equity capital” means a raise of equity capital by a qualifying venture capital fund that has been approved by the Minister of Finance and Treasury Board for the Province under subsection 37B(8) of the Act;

 

“equity capital” means the consideration in money received by a qualifying venture capital fund for its issued common shares or limited partnership units;

 

“full-time contractor” includes a contractor or consultant for a corporation whose only client is the corporation or who provides services to the corporation in excess of 20 hours per week;

 

“head office” of a qualifying venture capital fund or a qualifying small business means

 

                              (i)      the place listed with the Registry of Joint Stock Companies as its registered office, or

 

                              (ii)     if a law office is listed as the registered office, the place where the majority of its employees report to work;

 

“holding period” means the period prescribed in subsection 4(2) during which an eligible investment must be held by an eligible investor;

 

“individual” does not include a trust;

 

“major shareholder”, in relation to a corporation, means a person whose shares in the corporation, together with any shares owned by the person’s affiliates, carry in the aggregate 10% or more of any voting rights attached to the shares in the corporation;

 

“qualifying small business” means a corporation that meets all of the criteria in subsection 7(1);

 

“qualifying small business investment” means an investment in a qualifying small business that is

 

                              (i)      made in exchange for newly issued common shares, newly issued preferred shares or a newly issued convertible debenture,

 

                              (ii)     fully paid for in cash by the qualifying venture capital fund,

 

                              (iii)    in compliance with the Securities Act, and

 

                              (iv)    not used by the qualifying small business for any of the purposes outlined in Section 10.

 

          (2)    A reference in these regulations to the Minister of Finance and Treasury Board for the Province includes a person designated by the Minister of Finance and Treasury Board for the Province as referred to in subsection 37B(2) of the Act.


Criteria for qualifying venture capital funds

3        A corporation or limited partnership must meet all of the following criteria in order to be considered a qualifying venture capital fund:

 

                   (a)      its head office is located in the Province;

 

                   (b)     it is in compliance with the Securities Act;

 

                   (c)      it has equity capital of at least $25 000;

 

                   (d)     if the applicant is a corporation, it

 

                              (i)      is incorporated under the laws of Canada or a province of Canada and is registered to carry on business in the Province, and

 

                              (ii)     has an authorized share structure consisting of at least 1 class of common voting shares;

 

                   (e)      if the applicant is a limited partnership, it is registered under the Limited Partnerships Act.


Criteria for eligible investments

4        (1)    An investment must meet all of the following criteria in order to be considered an eligible investment:

 

                   (a)      it is an investment in a qualifying venture capital fund, issued as part of an authorized raise of equity capital between the dates set out in subsection 37B(15) of the Act;

 

                   (b)     it is fully paid for in cash by an eligible investor;

 

                   (c)      if the qualifying venture capital fund is a corporation, it is made in exchange for newly issued common voting shares;

 

                   (d)     if the qualifying venture capital fund is a limited partnership, it is made in exchange for limited partnership units or to fulfil a capital commitment that was made in exchange for limited partnership units;

 

                   (e)      it is not a replacement investment;

 

                   (f)      it is not eligible for another tax credit or deduction allowed under the Income Tax Act (Canada) other than a deduction in respect of a registered retirement savings plan;

 

                   (g)     it is not an investment that, in the opinion of the Minister of Finance and Treasury Board for the Province, is or will be issued as a result of a transaction, event or series of transactions or events the main purpose of which is to claim the tax credit under Section 37B of the Act.

 

          (2)    The holding period for an eligible investment is 4 years from the date the eligible investment was made and was fully paid for in cash.

 

          (3)    The maximum annual eligible investment is $500 000.

 

          (4)    In clause (1)(e), “replacement investment” means either

 

                   (a)      a share of a qualifying venture capital fund purchased as a replacement for another share that was previously disposed of by the investor; or

 

                   (b)     a limited partnership unit of a qualifying venture capital fund purchased as a replacement for another limited partnership unit that was previously disposed of by the investor.

 

          (5)    A qualifying venture capital fund must issue a share certificate or a receipt to each eligible investor who makes an eligible investment during an authorized raise of equity capital.


Criteria for eligible investors

5        (1)    An investor must meet all of the following criteria to be considered an eligible investor:

 

                   (a)      if the investor is an individual,

 

                              (i)      the investor is at least 19 years of age and a resident of the Province, and

 

                              (ii)     the investor makes the investment directly or through a registered retirement savings plan under which the annuitant is the individual or the spouse or common-law partner of the individual;

 

                   (b)     if the investor is a corporation,

 

                              (i)      it is incorporated under the laws of Canada or a province of Canada and is registered to carry on business in the Province,

 

                              (ii)     it is a taxable Canadian corporation, and

 

                              (iii)    its head office is located in the Province;

 

                   (c)      if the qualifying venture capital fund is a limited partnership, the investor is not a general partner of the qualifying venture capital fund.

 

          (2)    An eligible investor must not make or hold an investment in a qualifying venture capital fund if the eligible investor, either alone or in conjunction with 1 or more of the following persons, will own, directly or indirectly, shares or limited partnership units carrying 20% or more of the votes for the election of the directors or general partners of the qualifying venture capital fund or will, in any manner, control the qualifying venture capital fund:

 

                   (a)      affiliates or associated corporations of the eligible investor;

 

                   (b)     shareholders of the eligible investor or their affiliates or associated corporations;

 

                   (c)      directors of the eligible investor or their affiliates;

 

                   (d)     officers of the eligible investor or their affiliates.


Required use of equity capital raised

6        (1)    A qualifying venture capital fund must use the funds raised through an authorized raise of equity capital to make qualifying small business investments.

 

          (2)    For the purpose of subsection (1), a qualifying venture capital fund must make qualifying small business investments in an amount equal to at least

 

                   (a)      40% of the eligible investments made in the qualifying venture capital fund in any given tax year by the end of the following tax year; and

 

                   (b)     80% of the eligible investments made in the qualifying venture capital fund in any given tax year by the end of its second following tax year.

 

          (3)    Despite subsection (2), a qualifying venture capital fund may incur annual expenses of no more than 20% of the total eligible investments received.


Criteria for qualifying small businesses

7        (1)    A corporation that meets all of the following criteria is a qualifying small business:

 

                   (a)      it is incorporated under the laws of Canada or a province of Canada and is registered to carry on business in one of the Atlantic Provinces;

 

                   (b)     it was incorporated within the 10-year period preceding the qualifying investment by the qualifying venture capital fund;

 

                   (c)      it is a taxable Canadian corporation;

 

                   (d)     its head office is located in Atlantic Canada;

 

                   (e)      it has authorized capital consisting of at least 1 class of common voting shares;

 

                   (f)      it pays at least 50% of its remuneration to employees or full-time contractors who are residents of Atlantic Canada and who report to or deal with a permanent establishment of the corporation in Atlantic Canada;

 

                   (g)     it has fewer than 100 employees, including employees of associated corporations;

 

                   (h)     it has assets of less than $15 000 000, including assets of associated corporations;

 

                   (i)      its principal business is an active business that does not include any of the following:

 

                              (i)      construction,

 

                              (ii)     developing, leasing or selling real property,

 

                              (iii)    hotel ownership or management,

 

                              (iv)    retail, including food and beverage services,

 

                              (v)     oil or gas exploration, development and production,

 

                              (vi)    film,

 

                              (vii)   digital animation,

 

                              (viii)  digital media,

 

                              (ix)    membership-based recreational activities,

 

                              (x)     financial services,

 

                              (xi)    insurance services;

 

                   (j)      it is not a business incorporated for a self-regulated professional practice;

 

                   (k)     it is not a business for which, in the opinion of the Minister of Finance and Treasury Board for the Province, public financial support would be contrary to public policy;

 

                   (l)      it has not been issued a tax credit certificate under any of the following Sections of the Act:

 

                              (i)      Section 47, respecting film industry tax credits,

 

                              (ii)     Section 47A, respecting digital media tax credits,

 

                              (iii)    Section 47B, respecting digital animation tax credits,

 

                              (iv)    Section 49A, respecting capital investment tax credits;

 

                   (m)    it has not been approved for or received a payroll rebate or an innovation rebate from Nova Scotia Business Inc.

 

          (2)    Despite subsection (1), clauses (1)(b), (1)(g) and (1)(h) do not apply to a subsequent qualifying small business investment made in the same qualifying small business by a qualifying venture capital fund.


Control of qualifying small business prohibited

8        (1)    A qualifying venture capital fund must not make or hold an investment in a qualifying small business if it and any other qualifying venture capital fund or funds, either alone or in conjunction with 1 or more of the following, will own, directly or indirectly, shares carrying 50% or more of the votes for the election of directors of the qualifying small business or will, in any manner, have any direct or indirect influence that, if exercised, would result in control in fact of the qualifying small business:

 

                   (a)      their affiliates;

 

                   (b)     their shareholders or their affiliates;

 

                   (c)      their directors or their affiliates;

 

                   (d)     their officers or their affiliates;

 

                   (e)      their partners or their affiliates.

 

          (2)    Despite subsection (1), if the Minister of Finance and Treasury Board for the Province is of the opinion that a qualifying small business in which a qualifying venture capital fund has made a qualifying investment is in financial difficulty, the Minister of Finance and Treasury Board for the Province may permit that fund to temporarily control the qualifying small business under circumstances and on terms and conditions that the Minister of Finance and Treasury Board for the Province may determine.


Non-arm’s length investment prohibited

9        (1)    A qualifying venture capital fund must not make or hold an investment in a qualifying small business if any of the shares of the qualifying venture capital fund are held by a major shareholder who is, or was at any time during the 2 years immediately preceding the investment, any of the following:

 

                   (a)      a major shareholder of the qualifying small business;

 

                   (b)     an affiliate of a major shareholder of the qualifying small business;

 

                   (c)      the qualifying small business or an affiliate of the qualifying small business.

 

          (2)    A qualifying venture capital fund must not make or hold a qualifying small business investment if the qualifying small business or an affiliate, director, officer, shareholder or associated corporation of the qualifying small business provides or has provided, directly or indirectly, as part of any transaction or series of transactions, a loan, guarantee or any other financial assistance to any of the following:

 

                   (a)      the qualifying venture capital fund;

 

                   (b)     an affiliate of the qualifying venture capital fund;

 

                   (c)      a director, officer, shareholder or partner of the qualifying venture capital fund;

 

                   (d)     another person, for the purpose of that person making an investment in the qualifying venture capital fund.


Prohibited purposes for qualifying small business investment

10      (1)    An investment is not a qualifying small business investment if all or a portion of the funds invested by a qualifying venture capital fund in a qualifying small business are used or intended to be used directly or indirectly by the qualifying small business for any of the following purposes:

 

                   (a)      lending;

 

                   (b)     acquiring securities;

 

                   (c)      investment outside of Atlantic Canada;

 

                   (d)     purchasing land, other than land that is required for the active business the qualifying small business is primarily engaged in;

 

                   (e)      funding all or part of the purchase of services or assets at a price that is greater than the fair market value of the services or assets;

 

                   (f)      paying dividends;

 

                   (g)     purchasing goods or services from

 

                              (i)      the qualifying venture capital fund,

 

                              (ii)     a director, officer, shareholder or partner of the qualifying venture capital fund, or

 

                              (iii)    an affiliate of a director, officer, shareholder or partner of the qualifying venture capital fund;

 

                   (h)     redeeming or purchasing previously issued shares of the qualifying small business or an associated corporation;

 

                   (i)      retiring any part of a liability of a shareholder of the qualifying small business or an associated corporation;

 

                   (j)      repaying a debt to any of the following:

 

                              (i)      a director, officer or shareholder of the qualifying small business,

 

                              (ii)     an affiliate of a director, officer or shareholder of the qualifying small business.

 

          (2)    Clause 1(g) does not apply to goods or services that are sold at fair market value to the qualifying small business in the ordinary course of the seller’s business as a seller of such goods or services.

 

          (3)    Subsection (1) does not prohibit a qualifying venture capital fund from making or holding an investment in a qualifying small business if the Minister of Finance and Treasury Board for the Province is satisfied that the funds invested by the qualifying venture capital fund were raised other than through an authorized raise of equity capital.


Action to be taken if qualifying small business investment becomes prohibited

11      (1)    If a qualifying small business investment made by a qualifying venture capital fund becomes prohibited under Sections 8 to 10, the qualifying venture capital fund must, within 12 months after the investment became prohibited,

 

                   (a)      dispose of the investment in the qualifying small business; or

 

                   (b)     pay to the Minister of Finance and Treasury Board for the Province an amount of money calculated in accordance with Section 13.

 

          (2)    Subsection (1) does not apply if, within the 12 months referred to in subsection (1), the circumstances that caused the investment to be prohibited are changed to the extent that it is no longer prohibited.

 

          (3)    If the Minister of Finance and Treasury Board for the Province is satisfied that non-compliance with a provision of Sections 8 to 10 by the qualifying venture capital fund occurred even though its officers and directors exercised the degree of care, diligence and skill required to ensure compliance with Sections 8 to 10, the Minister of Finance and Treasury Board for the Province may, with or without conditions, relieve the qualifying venture capital fund from the consequences of non-compliance for a period the Minister of Finance and Treasury Board for the Province considers appropriate.


Changes in eligibility of qualifying small business

12      (1)    If a qualifying small business in which a qualifying venture capital fund has invested ceases to conform to subsection 7(1), with the exception of clauses 7(1)(b), 7(1)(g) and 7(1)(h), the qualifying venture capital fund must, within 12 months after the qualifying small business ceases to conform,

 

                   (a)      dispose of the investment in the qualifying small business; or

 

                   (b)     pay to the Minister of Finance and Treasury Board for the Province an amount of money calculated in accordance with Section 13.

 

          (2)    Subsection (1) does not apply if, within the 12 months referred to in subsection (1), the circumstances that caused the non-conformance are changed so that the qualifying small business again conforms with subsection 7(1), with the exception of clauses 7(1)(b), 7(1)(g) and 7(1)(h).

 

          (3)    The Minister of Finance and Treasury Board for the Province may relieve a qualifying venture capital fund from the consequences of non-conformance or extend the period referred to in subsection (1) for an additional period not exceeding 6 months, if the Minister of Finance and Treasury Board for the Province is satisfied that

 

                   (a)      the qualifying small business’[s] non-conformance was not imminent at the time the qualifying venture capital fund made the investment; and

 

                   (b)     the qualifying small business did not use any of the investment proceeds it received for any of the prohibited purposes set out in Section 10 before ceasing to conform.


Prohibited investment recovery

13      The amount that a qualifying venture capital fund is required to pay to the Minister of Finance and Treasury Board for the Province under clause 11(1)(b) or 12(1)(b) is the amount determined by the following formula:

 

(A ÷ B) × 15% × C

 

in which

 

                   A =    the amount of equity capital that was eligible for the tax credit

 

                   B =    the total amount of equity capital

 

                   C =    amount of investments that are prohibited under clause 11(1)(b) or non-conforming under clause 12(1)(b).


Application for a certificate of registration

14      (1)    A corporation or limited partnership’s application for a certificate of registration under subsection 37B(4) of the Act must be in a form acceptable to the Minister of Finance and Treasury Board for the Province and include all of the following:

 

                   (a)      a statement signed by an authorized officer of the qualifying venture capital fund stating that the information contained in the application is true and correct;

 

                   (b)     its financial statements for the preceding tax year, together with a review engagement report or auditor’s report signed by a person who is licensed as a public accountant under the Chartered Professional Accountants Act;

 

                   (c)      its income tax return for the preceding tax year;

 

                   (d)     a certified copy of

 

                              (i)      the corporation’s articles of incorporation, if the applicant is a corporation, or

 

                              (ii)     the partnership agreement, if the applicant is a limited partnership;

 

                   (e)      an up-to-date notarized

 

                              (i)      shareholder register that describes all share transactions since the date of incorporation, if the applicant is a corporation, or

 

                              (ii)     record of limited partners that describes all limited partnership unit transactions since the formation of the limited partnership, if the applicant is a limited partnership;

 

                   (f)      any additional information that the Minister of Finance and Treasury Board for the Province requires to ensure the requirements of the Act and these regulations are met.


Application for approval of raise of equity capital

15      (1)    A qualifying venture capital fund’s application for approval of the raising of equity capital under subsection 37B(8) of the Act must be in a form acceptable to the Minister of Finance and Treasury Board for the Province and include all of the following:

 

                   (a)      a copy of the qualifying venture capital fund’s certificate of registration;

 

                   (b)     a statement signed by an authorized officer of the qualifying venture capital fund stating that the information contained in the application is true and correct;

 

                   (c)      an investment plan describing what the equity capital raised will be used for and the timing for using it;

 

                   (d)     an up-to-date notarized

 

                              (i)      shareholder register that describes all share transactions since the date of incorporation, if the applicant is a corporation, or

 

                              (ii)     record of limited partners that describes all limited partnership unit transactions since the formation of the limited partnership, if the applicant is a limited partnership;

 

                   (e)      a listing of all eligible investors and the amount they will be investing;

 

                   (f)      a statement signed by an authorized officer of the qualifying small business in which the qualifying venture capital fund confirms that the qualifying small business meets the requirements set out in Section 7 and that it will not use the investment proceeds for a prohibited purpose set out in subsection 10(1);

 

                   (g)     any additional information that the Minister of Finance and Treasury Board for the Province requires to ensure the requirements of the Act and these regulations are met.

 

          (2)    In order for a raise of equity capital to be an authorized raise of equity capital, it must be in compliance with the Securities Act.


Letter of approval for raise of equity capital

16      (1)    Once the Minister of Finance and Treasury Board for the Province has approved the raising of equity capital by a qualifying venture capital fund under subsection 37B(8) of the Act, the Minister of Finance and Treasury Board for the Province must issue a letter of approval to the qualifying venture capital fund containing

 

                   (a)      the amount of funds that may be raised;

 

                   (b)     the dates encompassing the time period during which the funds may be raised; and

 

                   (c)      any other conditions that the Minister of Finance and Treasury Board for the Province deems necessary.

 

          (2)    The qualifying venture capital fund may raise the amount of funds, as stated in the letter of approval, through an authorized raise of equity capital between the dates and subject to the conditions stated in the letter of approval.

 

          (3)    At the written request of a qualifying venture capital fund, the Minister of Finance and Treasury Board for the Province may

 

                   (a)      increase the amount of funds that may be raised, provided the funds will only be used for the purposes described in the investment plan that was submitted with the application; or

 

                   (b)     extend the time period during which the funds may be raised.


Application for tax-credit certificates

17      (1)    An application by a qualifying venture capital fund for tax-credit certificates under subsection 37B(9) of the Act must be made no later than 6 months after the expiration date of the authorized raise of equity capital.

 

          (2)    An application for tax-credit certificates under subsection 37B(9) of the Act must be in a form acceptable to the Minister of Finance and Treasury Board for the Province and include all of the following:

 

                   (a)      a statement signed by an authorized officer stating that the information contained in the application is true and correct;

 

                   (b)     an up-to-date notarized

 

                              (i)      shareholder register that describes all share transactions since the date of incorporation, if the applicant is a corporation, or

 

                              (ii)     record of limited partners that describes all limited partnership unit transactions since the formation of the limited partnership, if the applicant is a limited partnership;

 

                   (c)      a report, in a form required by the Minister of Finance and Treasury Board for the Province, that describes all eligible investments made during the authorized raise of equity capital and includes all of the following information regarding each eligible investor:

 

                              (i)      name or company name,

 

                              (ii)     social insurance number or business number,

 

                              (iii)    address,

 

                              (iv)    investor type,

 

                              (v)     number of common shares purchased and their associated terms,

 

                              (vi)    tax year end, if the eligible investor is a corporation,

 

                              (vii)   the amount invested;

 

                   (d)     statements signed by each eligible investor acknowledging all of the following:

 

                              (i)      that they made an eligible investment in the qualifying venture capital fund during the authorized raise of equity capital,

 

                              (ii)     that the eligible investment will be held for the required holding period;

 

                   (e)      a statement signed by an authorized officer that states all of the following:

 

                              (i)      the required holding period for the eligible investments,

 

                              (ii)     that the funds raised during the authorized raise of equity capital will be used as follows:

 

                                        (A)   in accordance with these regulations,

 

                                        (B)   for making qualifying small business investments,

 

                                        (C)   according to the timing requirements set out in subsection 6(2);

 

                   (f)      any additional information that the Minister of Finance and Treasury Board for the Province requires to ensure the requirements of the Act and these regulations are met.


Issuing tax-credit certificates

18      (1)    The Minister of Finance and Treasury Board for the Province must issue a tax-credit certificate to each eligible investor in respect of a taxation year for the amount of the venture capital tax credit if all of the following conditions are met:

 

                   (a)      if the eligible investor is an individual, the eligible investment was made in the taxation year or 60 days after the end of the taxation year;

 

                   (b)     if the eligible investor is a corporation, the eligible investment was made in the taxation year;

 

                   (c)      all requirements of these regulations have been met.

 

          (2)    In addition to the circumstances in subsection 37B(14) of the Act, the Minister of Finance and Treasury Board for the Province may not issue a tax-credit certificate unless the Minister of Finance and Treasury Board for the Province is satisfied of all of the following:

 

                   (a)      the qualifying venture capital fund and its eligible investors are complying with Section 37B of the Act and these regulations;

 

                   (b)     the qualifying venture capital fund or its directors, officers, shareholders or general partner are not conducting the corporation’s business or affairs in a manner that is contrary to the spirit and intent of the Act or these regulations;

 

                   (c)      the eligible investment does not constitute a type of security that entitles the holder, in respect of the acquisition of the investment, to claim or receive any of the following:

 

                              (i)      a tax credit under the Act or the Income Tax Act (Canada), other than under Section 37B of the Act, against income tax payable,

 

                              (ii)     a deduction from income under the Act or the Income Tax Act (Canada), other than under subsection 146(5) of the Income Tax Act (Canada),

 

                              (iii)    any other financial assistance from any government, municipality or public authority;

 

                   (d)     no tax credit has previously been allowed for the eligible investment under the Act or the Income Tax Act (Canada);

 

                   (e)      all other conditions imposed on the qualifying venture capital fund under subsection 37B(8) of the Act have been met.

 

          (3)    If a qualifying venture capital fund’s certificate of registration is revoked or suspended by the Minister of Finance and Treasury Board for the Province any time after an authorized raise of equity capital has occurred and the tax-credit certificates have not yet been issued, the Minister of Finance and Treasury Board for the Province may not issue tax-credit certificates in respect of the authorized raise of equity capital.

 

          (4)    If a qualifying venture capital fund’s approval for an authorized raise of equity capital is cancelled by the Minister of Finance and Treasury Board for the Province any time after an authorized raise of equity capital has occurred and the tax-credit certificates have not yet been issued, the Minister of Finance and Treasury Board for the Province may not issue tax-credit certificates in respect of the authorized raise of equity capital.


Annual maximum venture capital tax credit

19      The annual maximum venture capital tax credit is $3 000 000 per fiscal year of the Province as defined in the Finance Act.


Revocation of certificate of registration

20      (1)    A qualifying venture capital fund’s certificate of registration is automatically revoked if the qualifying venture capital fund has misrepresented information to the Minister of Finance and Treasury Board for the Province either knowingly or negligently.

 

          (2)    The Minister of Finance and Treasury Board for the Province may revoke a qualifying venture capital fund’s certificate of registration at any time after the certificate is issued in any of the following circumstances:

 

                   (a)      the qualifying venture capital fund’s head office relocates out of Atlantic Canada within 4 years after the date its authorized raise of equity capital expires;

 

                   (b)     in the opinion of the Minister of Finance and Treasury Board for the Province, the qualifying venture capital fund has not complied with the Act or these regulations, or the spirit and intent of the Act or these regulations;

 

                   (c)      in the opinion of the Minister of Finance and Treasury Board for the Province, the qualifying venture capital fund is no longer conforming to the investment plan submitted with their application for approval;

 

                   (d)     the qualifying venture capital fund has not used the funds raised through the authorized raise of equity capital within the timeframe set out in subsection 6(2).

 

          (3)    Instead of revoking a qualifying venture capital fund’s certificate of registration under subsection (2), the Minister of Finance and Treasury Board for the Province may impose a penalty on the qualifying venture capital fund.

 

          (4)    If a qualifying venture capital fund’s certificate of registration was revoked under subsections (1) or (2), the Minister of Finance and Treasury Board for the Province

 

                   (a)      may impose a penalty on the qualifying venture capital fund; and

 

                   (b)     upon application by the qualifying venture capital fund, reinstate the qualifying venture capital fund’s certificate of registration.

 

          (5)    The Minister of Finance and Treasury Board for the Province may, in their discretion, determine the amount of the penalty to be imposed under subsection (3) or (4), to a maximum amount that is equal to the aggregate of all amounts shown on the tax-credit certificates that were issued to the qualifying venture capital fund’s eligible investors in respect of all of its authorized raises of equity capital.


Surrender of certificate of registration

21      At the request of a qualifying venture capital fund, the Minister of Finance and Treasury Board for the Province may accept the surrender of its certificate of registration if the qualifying venture capital fund pays to the Minister of Finance and Treasury Board for the Province the aggregate of all amounts shown on the tax-credit certificates that were issued to the qualifying venture capital fund’s eligible investors in respect of all of its authorized raises of equity capital within 4 years of the expiration date of its last authorized raise of equity capital.


Recovery of tax credits

22      (1)    The following are the circumstances under which an eligible investor who has made a deduction under clause 37B(18)(i) of the Act is required to pay the amount of the deduction to the Minister of Finance and Treasury Board for the Province:

 

                   (a)      if the eligible investor is not entitled to the deduction under the Act or these regulations;

 

                   (b)     if the eligible investor disposes of, is deemed to have disposed of or receives a return of capital in relation to an eligible investment before the holding period expires unless the disposition arose as a result of

 

                              (i)      the eligible investor’s death,

 

                              (ii)     a transfer to a registered retirement savings plan or a registered retirement income fund under the Income Tax Act (Canada),

 

                              (iii)    the qualifying venture capital fund that issued the share or limited partnership unit ceasing to conduct business as a result of, in the opinion of the Minister of Finance and Treasury Board for the Province, the financial failure of the qualifying venture capital fund, or

 

                              (iv)    the exchange of a share of 1 series in a class of shares for a share of a different series in the same class of shares, if each series of shares in the class meets the eligibility requirements of the Act.

 

          (2)    If an eligible investor disposes of, or is deemed to have disposed of, an eligible investment before the holding period expires because the qualifying venture capital fund is wound-up or dissolved for reasons other than as provided in subclause (1)(b)(iii), the amount repaid to the Minister of Finance and Treasury Board for the Province must be the amount determined by the following formula:

 

TTC × ((48 - MH) ÷ 48)

 

in which

 

                   TTC =          the total venture capital tax credit received for the eligible investment

 

                   MH =           the number of months the eligible investment has been held.

 

          (3)    An eligible investor is not liable under clause (1)(b) if

 

                   (a)      the qualifying venture capital fund withholds and remits the amount of the venture capital tax credit to the Minister of Finance and Treasury Board for the Province in accordance with subsection 23(2), and it is a repurchase, redemption or repayment of the eligible investment or a return of capital by the qualifying venture capital fund; or

 

                   (b)     the qualifying venture capital fund has surrendered its certificate of registration and paid the amount set out in Section 21.


Liability

23      (1)    A qualifying venture capital fund is jointly and severally liable under clause 37B(18)(j) of the Act to pay to the Minister of Finance and Treasury Board for the Province the following amounts in the following circumstances:

 

                   (a)      if its eligible investors are required to pay an amount under Section 22, any amount an eligible investor is required to repay to the Minister of Finance and Treasury Board for the Province under that Section;

 

                   (b)     if the qualifying venture capital fund’s certificate of registration is revoked any time after an authorized raise of equity capital has occurred and the tax credit certificates have been issued, an amount equal to the aggregate of all amounts of tax credits issued for all authorized raises of equity capital.

 

          (2)    If a qualifying venture capital fund repurchases, redeems or repays an eligible investment or makes a return of capital in a transaction not permitted under the Act or these regulations, the qualifying venture capital fund must withhold the amount of the venture capital tax credit from the amount to be paid to the eligible investor and, no later than 30 days after the transaction, remit it along with details of the transaction to the Minister of Finance and Treasury Board for the Province.

 

          (3)    Any of the following who permits or acquiesces to a transaction or event or a series of transactions or events that the person knew or ought to have known at that time would cause the certificate of registration to be revoked is jointly and severally liable for the amounts specified in clause (1)(b):

 

                   (a)      a director, officer or general partner of the qualifying venture capital fund;

 

                   (b)     a member of a group that controls the qualifying venture capital fund;

 

                   (c)      a shareholder or holder of limited partnership units who controls the qualifying venture capital fund.


Repayment waived or prorated

24      Despite Sections 22 and 23, upon application, the Minister of Finance and Treasury Board for the Province may waive or prorate the repayment of any amount due from an eligible investor or qualifying venture capital fund under those Sections.


Debt due to the Crown

25      Any amount required to be paid to the Minister of Finance and Treasury Board for the Province under Section 37B of the Act or these regulations is a debt due to the Crown in right of the Province and may be recovered in a court.


Notice

26      A qualifying venture capital fund must notify the Minister of Finance and Treasury Board for the Province within 30 days if

 

                   (a)      it moves its head office out of Atlantic Canada;

 

                   (b)     it changes its taxation year end;

 

                   (c)      it discovers that it has failed to comply with any Section of these regulations;

 

                   (d)     a qualifying small business in which the qualifying venture capital fund has made a qualifying small business investment ceases to meet the criteria set out in subsection 7(1), with the exception of clauses 7(1)(b), 7(1)(g) and 7(1)(h);

 

                   (e)      it directly or indirectly acquires, redeems or cancels any of its own shares or limited partnership units; or

 

                   (f)      it proposes to wind up or dissolve.


Annual return

27      (1)    A qualifying venture capital fund that raises equity capital must prepare and file an annual return with the Minister of Finance and Treasury Board for the Province in the form approved by the Minister of Finance and Treasury Board for the Province that includes any information required to ensure the requirements of the Act and these regulations are met.

 

          (2)    An annual return required by subsection (1) must be filed no later than 90 days after the date of the qualifying venture capital fund’s taxation year end.

 

          (3)    An annual return required by subsection (1) must be filed each year for each of the 4 years immediately after the last expiration date of an authorized equity capital raise by the qualifying venture capital fund.


Records

28      A qualifying venture capital fund must do all of the following to enable the Minister of Finance and Treasury Board for the Province to ensure that the qualifying venture capital fund is in compliance with Section 37B of the Act and these regulations:

 

                   (a)      keep records in the form required by the Minister of Finance and Treasury Board for the Province and containing any information that the Minister of Finance and Treasury Board for the Province considers necessary;

 

                   (b)     keep the records required by clause (a) at its head office or another place approved by the Minister of Finance and Treasury Board for the Province;

 

                   (c)      provide the Minister of Finance and Treasury Board for the Province with any information and records that the Minister of Finance and Treasury Board for the Province requires;

 

                   (d)     permit any person designated by the Minister of Finance and Treasury Board for the Province to enter its premises during normal business hours to examine its records.


Public record

29      The Minister of Finance and Treasury Board for the Province must maintain a record of all of the following and make it available to the public, in the form of a document, report or website, for each authorized equity capital raise of all qualifying venture capital funds:

 

                   (a)      fund name and registration date;

 

                   (b)     date equity capital raise was approved;

 

                   (c)      total potential tax credits approved;

 

                   (d)     actual tax credits issued;

 

                   (e)      number and type of eligible investors.


 

 


Legislative History
Reference Tables

Venture Capital Tax Credit Regulations

N.S. Reg. 173/2020

Income Tax Act

Note:  The information in these tables does not form part of the regulations and is compiled by the Office of the Registrar of Regulations for reference only.

Source Law

The current consolidation of the Venture Capital Tax Credit Regulations made under the Income Tax Act includes all of the following regulations:

N.S.
Regulation

In force
date*

How in force

Royal Gazette
Part II Issue

173/2020

Apr 1, 2019

date specified

Dec 4, 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The following regulations are not yet in force and are not included in the current consolidation:

N.S.
Regulation

In force
date*

How in force

Royal Gazette
Part II Issue

 

 

 

 

 

 

 

 

 

 

 

 

*See subsection 3(6) of the Regulations Act for rules about in force dates of regulations.

Amendments by Provision

ad. = added
am. = amended

fc. = fee change
ra. = reassigned

rep. = repealed
rs. = repealed and substituted

Provision affected

How affected

..........................................................

 

 

 

 

 

 

 

 

 

Note that changes to headings are not included in the above table.

Editorial Notes and Corrections

 

Note

Effective
date

 

 

 

 

 

 

 

 

 

Repealed and Superseded

N.S.
Regulation

Title

In force
date

Repealed
date

 

 

 

 

Note:  Only regulations that are specifically repealed and replaced appear in this table.  It may not reflect the entire history of regulations on this subject matter.