Principal Issues: Whether fee paid under franchise agreement which allows franchisee to procure products and equipment directly from third-party vendors (instead of the franchisor) is subject to tax under paragraph 212(1)(d).
Position: To the extent the fee represents consideration for items described within subparagraphs 212(1)(d)(i),(ii) and (iv), and does not represent consideration for copyright in subparagraph 212(1)(d)(vi) the fee will, subject to the U.S Treaty, be subject to withholding.
Reasons: Although fee is stated to be in exchange for right to directly procure products and equipment, a closer look at the franchise agreement suggests that the fee is consideration for the various rights granted to the franchisee under the agreement. Due to the structure of the fee, it is not a rent, royalty or similar payment, but portions of the fee allocable as payments described within the meaning of subparagraphs 212(1)(d)(i), (ii) and (iv) will be taxable under Part XII at treaty-reduced rates. Portions of the payment allocable to the right to use computer software and to certain copyright, as well as portions allocable to training services to be provided by the franchisor to the franchisee will be exempt under the U.S. Treaty.