Unlimited liability corporation


An unlimited liability corporation 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.
Unlimited liability corporations have been abolished in Canadian corporate law in most Canadian jurisdictions, but they still exist in three provinces: Alberta, Nova Scotia, and British Columbia.

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:
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. 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 was amended by inserting a new Article IV:
As a ULC is generally considered for US tax purposes to be considered "fiscally transparent" under this provision, this will mean that payments from a Canadian ULC to its US parent will be subject to a 25% withholding tax under Part XIII of the Income Tax Act. However, technical guidance issued by the Canada Revenue Agency has indicated that certain strategies are available to mitigate the impact of such changes.

Applicable law by jurisdiction

Description
FrameworkBased very closely on modern US corporations statutesClosely modelled on the United Kingdom Companies Acts
Location of head officeIn the provinceIn the provinceIn the province
Nature of liabilityUnlimited 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.
Residency requirements for directors¼ of all directors must be Canadian residents--
Directors' duty of careStatutorily bound to exercise “the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances”As for AlbertaDetermined under the common law
Power to manage corporationDirectors can manage “or supervise the management” of the business and affairs of the corporation Directors must manage or supervise the management of the business and affairs of the companyShareholders have power to manage the corporation
Amalgamation of corporationsBoth short-form, and long-form are availableForeign corporations may not amalgamate with BC ULCsNo Court approval is required if all shareholders approve the amalgamation
Reductions in stated capital2/3 shareholder approval is neededBy court order or special resolution2/3 shareholder approval is required
Declaration of dividendsThe board may declare dividends if it has reasonable grounds to believe that a corporate solvency test is satisfiedAs for AlbertaDividends must be declared and paid out of the profits of the company
Purchase of own sharesA corporation may hold shares in itself and allow subsidiaries to hold its shares for a maximum of 30 days 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
ContinuanceOnly 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 corporationForeign corporations can continue into Nova Scotia as a ULC, with approval of all shareholders. Nova Scotia ULCs can export to foreign jurisdictions upon 2/3 shareholder approval.
Conversion between limited and unlimited liability statusNo restrictionsNo restrictionsNo restrictions