Farm-Ins/Farm-Outs
A farm-out arrangement is one in which
one party (a farmor) has an interest
in a resource property and agrees
to grant an interest in that resource
property to another party (a farmee),
in exchange for the farmee’s either
funding or performing exploration and
development work on the farmor’s
property. The farmee’s undertaking is
typically referred to as a farm-in and the
farmor’s commitment is referred to as a
farm-out. There is no standard form of
farm-out agreement. Instead, the terms
of each farm-out agreement are unique
to the particular circumstances.
The taxation of farm-out arrangements
is, in practice, heavily dependent on
certain administrative concessions
by the CRA. In the absence of these
concessions, a farm-out arrangement
involving a transfer to the farmee of
beneficial ownership of all or part of a
farmor’s working interest in a resource
property might result in a taxable
disposition by the farmor.
Because there is little case law that
has considered the taxation of farm-out
arrangements, taxpayers will typically
try to fall within the CRA’s administrative
policies concerning these arrangements.
In particular, it is the CRA’s assessing
practice that a farm-out results in the
farmor having a disposition but not
receiving any proceeds of disposition.
Instead, the farmee is considered to
incur resource expenses in order
to earn an interest in the property.
After the farmee has completed its
spending commitment, the farmor
and the farmee will have an agreed
ownership interest in the working
interest. The CRA, however, limits this
administrative position to unproven
resource properties, which the CRA
considers to be resource properties to
which proven reserves have not been
attributed. Furthermore, in contrast
to its position relating to farm-outs
in the oil and gas industry, the CRA
has not developed a position in the
mining industry permitting the farmor
to give up and the farmee to acquire
depreciable property on a tax-exempt
basis. The CRA’s administrative position
in the mining industry extends only to
intangible rights.
In the mining industry, the most
common form of farm-out arrangement
is one in which the farmor is a
prospector or grubstaker with an
interest in mining claims and the
farmee is a major mining corporation.
Usually, the farmee agrees to incur
a fixed dollar amount of exploration
work over a specified period of time.
Provided that the farmee incurs the
expenses in accordance with the
agreement, the farmee will typically
be entitled to receive a transfer of
the mining claims and the farmor will
be entitled to a net smelter return
(NSR) or a net profit interest (NPI)
in the property.
A second form of arrangement in the
mining industry is one in which the
farmee agrees to incur a fixed dollar
amount of exploration work on the
farmor’s mining claims over a specified
period of time in order to earn an
interest in the property. Thereafter, the
parties share the requisite expenses
to explore and develop the property in
proportion to their interests.
A number of years ago, the CRA gave
a favourable ruling on an arrangement
pursuant to which the farmee incurred
the expenses necessary to bring a
known ore body into production in
return for an interest in the resulting
mine. This is commercially not a typical
arrangement and may not now fit
within the administrative requirement
that farm-ins must relate to unproven
properties.
Allocation of Partnership Expenses
• Corporation A contributes a mineral resource property to the arrangement.
• Corporation B contributes the funds necessary for exploration.
• Corporations A, B, and C agree to fund the development of any
discovered reserves.
From a business perspective, it is appropriate to allocate the development
expenses arising from the contribution of the property to Corporation A; to
allocate to Corporation B all the exploration expenses; and to allocate the
cost of development, including CCA, to each of Corporations A, B, and C in
their respective portions. This result can be accomplished through the use of
partnership allocations but not through the use of a corporation. (Flow-through
shares may be used in some circumstances to accomplish some of the
objectives.)
EXAMPLE 5
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Structuring Mining Investments
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