The Boundaries of Corporate Law and Trust Law: An Analysis of Locking v. McCowan

There is an increasing trend among real estate investment trusts (REITs) to employ corporate law duties in formulating the duties of trustees. We contend that this approach represents a fundamental misunderstanding of the trust versus corporate law. To illustrate this point, we examine the case of Locking v. McCowan, a decision that we claim underscores the conceptual uncertainty regarding the extent to which corporate law applies in the income trust context. We argue that the case takes into account the difference between trusts and corporations in certain aspects of the decision, while, in others, it blurs the distinction between the two. In support of our argument, we note that income trusts lack a separate legal personality and are thus fundamentally different from corporations. The law governing each form therefore is not, and ought not be, identical. To apply corporate law to the interpretation of trustees’ duties fails to acknowledge the absence of a distinct legal entity in the trust context, and the historically fundamental fiduciary relationship between trustees and beneficiaries (i.e., unitholders, in this context). We favour greater clarity in the drafting of the declarations of trust (DOTs) to reflect an understanding that corporate law fiduciary duties should not ground trustees’ duties. Simply importing corporate law fiduciary duties into the DOT undermines the certainty on which DOTs, and thus the income trust market, should operate.

Navigating the Quagmire of Oil and Gas Transactions with Income Trusts

This article examines the current trend towards incometrust conversion in the oil and gas industry and the various business and legal implications which arise as a result. Documented is the history ofthe development of the income trust, various methods in which income trusts are managed structures in which they exist, methods ofconversion, and lax treatment. The various implications of income trusts to the oil and gas lawyer are then discussed, with a focus on asset transactions and multi-party deals, as well as the concerns arising for counter parties to a transaction with a trust entity. Finally, evolving issues affecting income trusts are addressed.

USING ECONOMIC ANALYSIS TO PROVIDE LEGAL ADVICE: AN EXAMPLE INVOLVING BUSINESS INCOME TRUSTS

Economic analysis of law has been used for policy analysis and to explain legal doctrine. It can also be used by a lawyer in providing a legal opinion. This paper provides an example of how economic analysis can be used in giving a legal opinion. The example is an opinion on the likelihood that investors would be held personally liable for debts arising in the conduct of businesses carried on through a business income trust. Since there is no direct economic analysis of this question in the existing literature, the paper uses the economic analysis of the limited liability of corporations. It uses this analysis because it focuses on the same policy question of whether investors should be made personally liable for debts incurred in the carrying on of a business. The paper reviews the economic analysis of the limited liability of corporations. It then considers how this analysis may extend to business trusts and to business income trusts.

In government we trust: rise and fall of Canadian business income trust conversions

PurposeThe purpose of this paper is to assess the market impact of announcements that publicly traded limited liability firms would convert to business income trusts, and to test the robustness of the tax motive as the primary determinant of any conversion announcement effects by estimating the market impact of the announcement by the Canadian Federal Government that the corporate income of Canadian income trusts would be taxed at the trust level.Design/methodology/approachEvent‐study methodology (including various tests of robustness) is used to examine the market impacts of the initial conversion announcement and the announcement that the corporate income of Canadian income trusts would be taxed at the trust level. Cross‐sectional regressions are used to identify the determinants of the market effect associated with income trust conversion announcements.FindingsThe paper finds that the market‐ and risk‐adjusted abnormal returns (ARs) are positive and very significant on the announcement dates and not significant on the conversion effective dates. The price discovery process is not as smooth for the Canadian government's announcement after the market close on Halloween day 2006, that it would tax income trusts at the trust level. While the ARs are negative and very significant on the first and second trading days after the announcement, much of the second day ARs are reversed in the subsequent two days. Furthermore, negative and significant ARs precede the government announcement. The market impact of trust conversion announcements is primarily related to the tax savings associated with such conversions and more weakly related to potential agency problems associated with free cash flows.Research limitations/implicationsThe research indicates the importance of any taxation changes associated with changes in organization form on firm value. It also identifies the potential for informational leakage associated with government decisions.Originality/valueThe paper highlights the importance of taxes and tax changes and organization form changes on firm valuation.