News of Note
Income Tax Severed Letters 24 December 2012
Email this ContentThis morning's release of six severed letters from the Income Tax Rulings Directorate is now available for your viewing.
CRA will apply changes to the OECD Transfer Pricing Guidelines retroactively
CRA will apply the revised version of the OECD Transfer Pricing Guidelines to transactions which were completed, and treaties that were concluded, before its release on July 22, 2010 "since the revisions are [only] intended to increase clarity in the application of the arm’s length principle."
CN and Cameco offer 30-year notes
For those of you who are concerned that cross-border intra-group loans with a term of more than 10 years do not comply with the requirement under the transfer pricing rules for arm's length terms, you may be titillated to see that both CN and Cameco have issued 30-year notes: CN to US investors, and Cameco to Canadian investors. These notes have a yield that is approximately 100 or 134 basis points higher, respectively, than the 10-year notes concurrently being offered by CN and Cameco.
Neal Armstrong. Summaries of the offerings of 10- and 30-year notes under Prospectus Supplement for CN and Prospectus Supplement for Cameco under Offerings - Debentures.
CRA will not accommodate "as of" eligible dividend designations
Although an eligible dividend designation by a non-public corporation normally is required to be made at the time of the dividend payment, s. 89(14.1) now gives CRA the discretion to allow the designation to be made up to three years late where this is "just and equitable." Citing a desire to limit its administrative burden and to avoid eviscerating the legislative requirement of contemporaneous designations, CRA has stated that relief essentially will be limited to situations of honest and apparent mistake - for example, where subsidiaries of a public corporation (which were subject to tax at full corporate tax rates) failed to make timely designations. However, CRA will not accommodate taxpayers who purport to declare dividends "as of" a preceding year end, and need CRA to grant an "as of" eligible dividend designation.
Neal Armstrong. Summary of 29 May 2012 CTF Prairie Tax Conference 2012 Round Table Q. 18, 2012-0445661C6 under s. 89(14.1).
Trieste - Federal Court of Appeal confirms interpretation of habitual-abode tie-breaker test
The third "tie breaker" rule under the Canada-US treaty for determining an individual's residence refers to the individual's country of "habitual abode." Dawson JA found no palpable error in Lamarre J's finding that a U.S. citizen who spent only 69 days out of 623 in the US had his habitual abode in Canada. Following a review of the OECD commentaries and the Vienna Convention, Lamarre J in the Tax Court had concluded that the test of habitual abode in a jurisdiction turned on whether the individual "resided there habitually, in the sense that he regularly, customarily or usually lived [there]."
Scott Armstrong. Summary of Trieste v. The Queen, 2012 FCA 320, aff'g 2012 DTC 1125 [at 3133], 2012 TCC 91 under Treaties - Article IV.
Individual LLC members are in effect subject to 25% branch profits tax
Where a US LLC with qualifying US members carries on a branch business through a Canadian permanent establishment, CRA considers that the branch earnings are computed by the LLC, with the LLC paying the reduced rate of branch profits tax available under Art. X(6) of the Treaty (i.e., 5%, or nil if the $500,000 exemption has not been utilized) based on the share of the branch profits that are considered to be derived by its qualifying corporate members. Among other things, this means that the share of its branch profits that are considered to be derived by an individual member is subject to full (25%) branch profits tax - notwithstanding that the individual would not be subject to branch profits tax if he or she carried on the Canadian business directly.
Furthermore, the LLC is considered to have only one $500,000 cumulative exemption that must be shared among its corporate members (and associated companies).
Neal Armstrong. Summary of 23 October 2012 T.I. 2012-0440101E5 under Treaties - Art. 10.
Income Tax Severed Letter 19 December 2012
This morning's release of six severed letters from the Income Tax Rulings Directorate is now available for your viewing.
Canadian-resident shareholders of ASX-listed CGA are offered s. 85(1) rollover treatment on merger under Australian Scheme of Arrangement with B2Gold
Canadian-resident shareholders of CGA, an Australian public mining company, are being offered s. 85 rollover treatment on the acquisition of all the shares of CGA by TSX-listed B2Gold under an Australian "Scheme of Arrangement." (No s. 85.1 rollover is available for dispositions of shares of non-resident companies.) CGA Australian shareholders who don’t want to open up an international brokerage account for B2Gold shares are allowed to elect to instead receive the net proceeds on a subsequent sale of "their" B2Gold shares by a nominee (Haywood Securities), if they otherwise would have received 1000 or fewer B2Gold shares.
Neal Armstrong. Summary of CGA Mining Limited Scheme Booklet under Cross-Border Acquisitions - Outbound.
CRA treats construction services provided in exchange for a development permit as being made for nil consideration for GST/HST purposes
A subdivision developer who pays a development levy of a municipality will be considered to have made an exempt supply for HST/GST purposes of cash in consideration for an exempt municipal service. However, its provision of municipal improvements such as roads generally will be treated as the making of a taxable supply for nil consideration rather than in consideration for the (presumably valuable) permit, so that no GST or HST is payable by the municipality.
Although this result makes policy sense, it is somewhat at odds with the general tax treatment of barter exchanges as occurring at the fair market value of the exchanged property or services (see for example, Bernick).
Neal Armstrong. Summary of 31 July 2012 Interpretation Case No. 103548 under ETA – s. 153(1) and Sched. V, Part VI, s. 20.
NRT Technology - Tax Court dusts off the REOP tests for application in a loss streaming case
The reasonable expectation of profit doctrine has been largely defunct since Stewart and Walls in the context in which it was originally most often applied by CRA (businesses financed as tax shelters and non-hobby farming losses). However, the criteria developed in the pre-Stewart cases for determining the existence of "REOP" (e.g., Tonn) were applied by Campbell Miller J to find that a loss business of a purchased corporation (which presumably was wound-up into the taxpayer, although he doesn't say) was not carried on with a REOP, as explicitly required in the statutory words of s. 111(5)(a) (and, in fact, the business was essentially dormant following the acquisition). Accordingly, the losses could not be utilized.
Neal Armstrong. Summary of NRT Technology Group v. The Queen, 2012 TCC 420 under s. 111(5)(a).