Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.
Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.
Principal Issues: We have been asked by GST Rulings whether an individual occupies an "office" (as defined in subsection 248(1) of the Income Tax Act) where the individual is part of a quasi-judicial administrative board, or tribunal.
Position: We would generally expect that the individual would occupy an office.
Reasons: The nature of the activities suggest that an employee/employer relationship would exist. In marginal cases, the approach set out in the pamphlet "Employee or Self-Employed" could be followed and our CPP/EI Eligibility Division could be consulted.
June 27, 2000
Corporate Reorganizations HEADQUARTERS
Financial Institutions and M. Eisner
Real Property (613) 957-2138
Excise and GST/HST Rulings Directorate
Attention: Susan Mills
2000-001471
Employee versus Independent Contractor
This is in reply to your memorandum of March 16, 2000, in which you asked us about the definition of "office" in subsection 248(1) of the Income Tax Act (the "Act").
You have indicated that a Secretariat administers a dispute resolution panel process. The panel, which is made up of qualified individuals selected from a roster of eligible individuals, is appointed to hear and rule on a specified dispute. The panel and their assistants receive a per diem remuneration when working as part of the panel. The members of the panel are allowed to claim expenses in accordance with Treasury Board Guidelines. An individual may not be selected from the roster each time for a panel.
Under the Excise Tax Act (the "Excise Act"), activities relating to an office or employment do not constitute a commercial activity. Accordingly, such activities are not taxable supplies with the result that the activities are not subject to the goods and services tax.
Subject to certain exclusions, subsection 123(1) of the Excise Act defines "office" to have the meaning assigned by the Act. In relation to the above circumstances, the term "office" is defined in subsection 248(1) of the Act to mean "the position of an individual entitling the individual to a fixed or ascertainable stipend or remuneration and includes a judicial office, ..., and "officer" means a person holding such an office."
You have asked us whether the members of a panel would qualify as an officer holding an "office" for income tax purposes. In addition, you have asked us (i) whether a member of any quasi-judicial administrative board, tribunal or body qualifies as an officer; and (ii) the criteria that would be used to make such a determination.
Based on the broad definition of "office" in subsection 248(1) of the Act, it is our general view that members of the panel would likely be considered to be holding an "office" for income tax purposes. Similarly, we would expect that the members of the quasi-judicial board, tribunal or other body would be holding such a position.
In a case where we need to determine the nature of the relationship between payers and workers, the published criteria set out in the Agency's pamphlet entitled "Employee or Self-Employed," is used. These criteria reflect the decision of the Federal Court of Appeal in Wiebe Door Services Ltd. v. M.N.R. (87 DTC 5025) in which the tests of control, ownership of tools, chance of profit or risk of loss, and integration were established.
The foregoing criteria are usually applied to particular cases by our colleagues in the CPP/EI Eligibility Division since this question has to be resolved when we are asked whether withholding of payroll taxes is required by a payer. Before reaching a final conclusion on your fact situation, you may wish to confer with them.
John Oulton
Manager
Business, Property & Employment Section III
Business and Publications Division
Income Tax Rulings and
Interpretations Directorate
Policy and Legislation Branch
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