News of Note
CRA indicates that it will not provide quick and crisp PPT guidance
Email this ContentWhen asked what weight CRA will accord to the examples in paras. 182 and 187 of the Commentary on Art. 29 of the 2017 OECD Model respecting the application of the principal purpose test in the Multilateral Instrument, CRA noted that Commentary bearing on these examples emphasized the importance of the facts and circumstances of each case, and CRA will apply the same case-by-case approach. When asked whether it could issue PPT rulings on an expedited basis, it indicated that it very well may need to consult other areas, which would suggests that the initial rulings instead may take some time.
Neal Armstrong. Summary of 16 May 2018 IFA Roundtable, Q.2 under Treaties – MLI - Art. 7(1).
CRA confirms that a Canadian resident was not subject to Canadian tax on income accruing in a Swiss vested benefits policy
The Swiss pension system has three “pillars,” the second of which consists of pension funds (run by investment foundations) to which both employers and their employees are required to contribute. When a Swiss employee left for Canada, the Swiss legislation required that accumulated funds in the plan be transferred to a vested benefits policy (which would only pay benefits to the taxpayer once retirement age was reached), and upon the taxpayer’s return to Switzerland, the Swiss legislation required that the funds accumulated in the policy be returned to the second pillar pension plan of the taxpayer’s Swiss employer.
CRA considered that, based on its brief description, this policy likely qualified as a “superannuation or pension fund or plan.” Since such a plan is effectively only subject to tax on a cash basis under s. 56(1)(a)(i), the income accruing in the policy was not taxable during the taxpayer’s Canadian residency.
Neal Armstrong. Summary of 12 April 2018 External T.I. 2016-0640651E5 F under s. 248(1) - superannuation or pension fund or plan.
CRA indicates that the Treaty does not fetter the right of the US to impose GILTI tax with reference to Canadian subs’ income
The new rules on tax on “global low-taxed intangible income” or “GILTI” in s. 951A of the Code may result in a U.S. corporation being subject to tax on a current basis on active business income earned by a controlled Canadian subsidiary, even if that subsidiary does not have a permanent establishment in the U.S. CRA does not consider that this is contrary to Art. 29 of the Canada-U.S. Treaty, which confirms the rights of the US to impose tax on its own residents, subject to limited exceptions which are inapplicable here.
Neal Armstrong. Summary of 16 May 2018 IFA Roundtable, Q.1 under Treaties – Income Tax Conventions - Art. 29.
CRA finds that a headlease structure for a student residence avoided triggering the GST/HST self-supply rule
Shortly before the occupancy of a newly constructed apartment complex (expected to be predominantly occupied by students), LP#1 purchases the building from the developer. As this taxable sale occurs before any unit is occupied, and LP#1 acquired the building for the purpose of leasing it to another partnership (LP#2) rather than an individual, LP#1 will qualify as a builder for GST/HST purposes. That “headlease” will not be exempt because more that 10% of the units will be occupied for short-term stays (under one month) during the regular academic year, and with over 90% short-term occupancy in the summer months.
On the other hand, the “self supply” rule (usually triggering GST/HST on the first occupancy of a newly-constructed apartment complex on the complex’s fair market value) will not apply to LP#1 and, indeed, it likely will obtain full input tax credits for the GST/HST paid by it on its purchase of the building from LP#1. This GST/HST on the FMV is effectively deferred until LP#1 sells the building, perhaps decades down the road.
Neal Armstrong. Summaries of 17 May 2017 Interpretation 174462 under ETA s. 191(3) and s. 169(1) and Sched. V, Pt I, s. 5.
CRA confirms the application of the paymaster rules to salaries paid by a partnership
The central paymaster rules in Reg. 402.1 of the Regulations allocate the salaries and wages paid by an employer for services provided to a non-arm’s-length benefiting corporation. Given that Reg. 402.1(5) deems a partnership to be a corporation for the purposes of these rules, the paymaster rules will apply such that the salary or wages earned by an employee of a partnership for the performance of services in a particular province for a benefiting corporation are deemed to be salary or wages paid by non-arm’s length benefiting corporation to an employee of its permanent establishment(s) (if it has them) in the province.
Given that Reg. 402.1(3) provides that the salaries and wages paid by a partnership that are thus deemed to be paid by the benefiting corporation, are deducted from the partnership employer’s salaries and wages paid in the taxation year, such salaries and wages are not included in the salaries and wages that are allocated under Reg. 402(6) to the members of the partnership for their own allocation purposes .
Neal Armstrong. Summary of 2 February 2018 Internal T.I. 2017-0728331I7 under Reg. 402.1(5).
Income Tax Severed Letters 16 May 2018
This morning's release of six severed letters from the Income Tax Rulings Directorate is now available for your viewing.
Filion – Court of Quebec finds that a director is not liable for unremitted source deductions if he had no reason to suspect financial difficulty
The taxpayer, who was a titular director (but not the sole director) and a shareholder, was duped by those managing the company into believing it was in good financial shape. Accordingly, he established a due diligence defence under the Quebec equivalent of S. 227.1(3). After discussion the federal and Quebec jurisprudence, Massol JCQ concluded:
[T]he liability of a director is not engaged until the time that the corporation commences, to the knowledge of the director, a period of financial difficulty such that the corporation cannot meet its obligations or, worse, begins to favour some creditors to the detriment of the fisc.
Neal Armstrong. Summary of Filion v. Agence du revenu du Québec, 2018 QCCQ 2759 under s. 227.1(3).
Pay Audio – Federal Court considers that the denial of remission of tax overpaid due to an honest mistake was not unreasonable
An agent of a partnership (Pay Audio) incorrectly told an ARQ auditor that the place of supply for digital music services supplied by Pay Audio to Telus was in Ontario rather than Alberta, and the ARQ assessed Pay Audio accordingly for uncollected Ontario HST. Pay Audio did not realize that, in fact, the place of such supplies (based on the relevant Telus servers being in Alberta) was in Alberta until about a year later when it had unsuccessfully sought to recover such tax from Telus, at which point the time had expired for objecting from the assessments or applying for refunds under ETA s. 261.
In confirming that the decision of the Remission Committee to deny Pay Audio’s application for a remission of the tax was within the range of what was reasonable, Lafrenière J stated:
"Equity aids the vigilant, not those who sleep on their rights" and the lack of attention and undue delay by Pay Audio in rectifying the error undermines its arguments for equitable relief.
Since Pay Audio had no identified reason for doubting the accuracy of the relevant employee’s misinformation about the location of the Telus servers, the quoted lack of diligence might be referencing the slow response from Telus (although it is hard to find fault here too, given that Pay Audio fully expected Telus to pay).
Neal Armstrong. Summary of Pay Audio Services Limited Partnership v. The Queen, 2018 FC 494 under Financial Administration Act, s. 23(2).
CRA rules on exiting a post-acquisition sandwich structure through using the s. 88(1)(d) bump and a continuance outside Canada
A non-resident partnership and its non-resident co-investors wished to acquire a Canadian public-company target (Target), whose only significant assets were non-resident subsidiaries (Subcos 1 and 2), and then eliminate this sandwich structure through the distribution of the Subcos to them.
Accordingly, they capitalized a Canadian Buyco (Parent), which acquired the shares of Target under a Plan of Arrangement for cash (or, interestingly, in the case of the only shareholder of Target who was a specified shareholder, for a combination of cash and shares of Parent). Parent then amalgamated with Target and the Subco shares were bumped under s. 88(1)(d) – but with the bump amount being reduced by any Subco surpluses described in Reg. 5905(5.4).
So far, this is essentially following the script for a buy, bump and run transaction. However, distributing the bumped Subco shares out of Amalco to the non-residents would have attracted a FIRPTA-style tax in the local tax jurisdictions for the Subcos. This local tax was avoided by continuing Amalco to a jurisdiction of convenience for the non-residents (perhaps, Delaware). The bump minimized the s. 128.1(4) tax on emigration. CRA ruled that the Parent/Amalco paid-up capital, which had been ground under s. 212.3(7)(c), was reinstated under s. 219.1(4) for purposes of computing the s. 219.1 emigration tax.
A further wrinkle in response to the local tax regime was that the amalgamation of Parent and Target was not a conventional amalgamation but one which was specified under the Plan of Arrangement to entail the continued existence of Target. The s. 88(1)(d) bump ruling effectively treated this as a good s. 87(11) amalgamation.
Neal Armstrong. Summaries of 2017 Ruling 2016-0643931R3 under Reg. 5905(5.4), s. 219.1(4) and s. 87(1).
6 further full-text translations of CRA interpretations are available
The table below provides descriptors and links for the Technical Interpretation released last week, a further Technical Interpretation also provided by us last week (which has not yet been released under the severed letter program, hence the absence of a bundle date) and four Technical Interpretations released in October 2013, all as fully translated by us.
The above translated interpretations (and the other full-text translations covering the last 4 1/2 years of CRA releases) are subject to the usual (3 working weeks per month) paywall.