News of Note
CRA will not apply s. 247(2) to a CFA earning FAPI if the transaction has been vetted under foreign OECD-based transfer pricing rules
Email this ContentCRA considers that the s. 247(2) rules apply to transfer pricing between a controlled foreign affiliate and non-resident non-arm’s length persons where such transactions affect the computation of the CFA’s foreign accrual property income. However, CRA generally will not apply s. 247 to such a transaction where
- the pricing is reviewed by the tax authority of the country in which the foreign affiliate is resident;
- the pricing is determined to be in accordance with the transfer pricing legislation or guidelines of that country; and
- that legislation (and guidelines) adopt the arm’s-length principle.
Neal Armstrong. Summary of 26 April 2017 IFA Roundtable, Q.2 under s. 247(2).
CRA considers that s. 247(2) generally applies to boost the imputed cross-border interest arising under s. 17
CRA indicated that even though a cross-border loan from Canco to a CFA was subject to s. 17 (so that interest income was imputed at 1%), the total imputed interest inclusion would be 3%, if that were the s. 247(2) arm’s length rate. However, if the loan was of the type described in s. 17(8), but did not (in CRA’s view) technically come within the s. 247(7) safe harbour because it was outstanding for less than a year, CRA would consider that loan to be shielded from the application of s. 247(2).
Neal Armstrong. Summary of 26 April 2017 IFA Roundtable, Q.1 under s. 247(7).
2017 IFA Roundtable is uploaded
The questions posed at yesterday's IFA Roundtable and summaries of the oral answers provided by Dave Beaulne and Lori Carruthers are now available.
CRA indicates that income that is paid to a minor beneficiary in contravention of the trust deed is non-deductible under s. 104(6)
A family trust paid income to the minor children in breach of a prohibition in the trust deed against making distributions to designated persons. Obviously, the trust was still entitled to a s. 104(6) deduction given that s. 104(24) deems an amount to be payable to a beneficiary for s. 104(6) deduction purposes if it was paid to the beneficiary.
Wrong - at least according to CRA, who view s. 104(24) more as a timing rule, so that if the amount cannot be legally payable, actually paying it will not bring it within the s. 104(6) rule. Accordingly, there was no s. 104(6) deduction to the trust, and CRA considered the distributions to be includible in the children’s income under s. 105(1) rather than s. 104(13).
Neal Armstrong. Summaries of 1 November 2016 Internal T.I. 2016-0663971I7 under s. 104(24), s. 105(1) and General Concepts - Illegality.
Income Tax Severed Letters 26 April 2017
This morning's release of five severed letters from the Income Tax Rulings Directorate is now available for your viewing.
Canada’s MLI reservations and notifications should be available this summer
Stephanie Smith of the Department of Finance tentatively estimated that Canada will sign the MLI in the summer of 2017, at which time it would list its preliminary notifications and reservations. Entry into force might occur on December 1, 2018, in which case entry into effect for withholding tax purposes would occur effective January 1, 2019, and entry into effect for other taxes relating to calendar years would occur for 2020 and subsequent years.
The MLI arbitration clause in significant part bears the imprint of the arbitration provisions in the Canada-U.S. Treaty.
There will be significant work to come up with bilateral Technical Explanations and the like between MLI counterparties.
Neal Armstrong. IFA 2017 Annual Conference - Stephanie Smith on MLI.
Six further full-text translations of Technical Interpretations are available
Full-text translations of the two French technical interpretations that were released last week and of four French technical interpretations released between April 22, 2015 and April 8, 2015, are listed and briefly described in the table below.
These (and the other translations covering the last two years of CRA releases) are subject to the usual (3 working weeks per month) paywall. Next week is the “open” week for May.
Biles Estate – Federal Court accepts that an alleged settlement agreement had an implied condition that the subject property’s legal ownership be confirmed
Phelan J accepted a CRA submission that an alleged settlement agreement with the taxpayer was subject to an implied condition that the ownership of the property in question be confirmed to be consistent with the proposed reassessment. This was not established. Phelan J stated:
[A]bsent an agreement as to the chain of title not only were the parties not in agreement about the Proposal, but the Proposal could not be legally implemented. A reassessment cannot be made contrary to law.
Neal Armstrong. Summary of Biles Estate v. Canada (National Revenue), 2017 FC 371 under s. 152(4.2).
Samarkand – Court of Appeal of England and Wales indicates uncertainty on whether a partnership exists when its only partners are preliminary partners
Arden LJ followed Eclipse in finding that a film tax shelter partnership was not carrying on a trade given that the film it acquired was immediately leased out for a stream of licensing payments which matched its debt servicing commitments - so that in essence its business was “the payment of a lump sum in return for a series of fixed payments over 15 years.” As a “non-trading partnerships,” the targeted trade loss relief was not achieved.
Respecting a finding made below that the partnership did not exist before the the taxpayers became members, she stated:
Section 1 of the Partnership Act 1890 defines partnership as "the relation which subsists between persons carrying on a business in common with a view of profit". The question which arises is whether that test is satisfied where two or more persons carry on a business in common with a view of profit, not for themselves, but for future new partners who will for all practical purposes replace them.
…[I]n view of its potential wider significance I would be reluctant to express a view upon [this issue] unless it were necessary to do so.
Neal Armstrong. Summaries of Samarkand Film Partnership No. 3 & Ors v Revenue and Customs, [2017] EWCA Civ 77 under s. 96, s. 248(1) - business and s. 96(1)(a).
Chevron Australia – Full Court of Federal Court of Australia finds that a cross-border loan made on arm’s length terms would have benefited from a parent guarantee or other security
The U.S. subsidiary (“CFC”) of an Australian company (“CAHPL”) in the Chevron multinational group borrowed in the U.S. commercial paper market at a borrowing cost of about 1.2% with the benefit of a guarantee from their ultimate U.S. parent, and on-lent U.S.$2.45 billion of such funds under an unsecured Australian-dollar credit facility to CAHPL at about a 9% interest rate. CAHPL deducted such interest in computing its income for Australian purposes, and received tax-free dividends from CFC of most of CFC’s profits (based on the 7.8% spread). The Australian Commissioners initially denied much of CAHPL’s interest deductions under a somewhat primitive Australian domestic pricing rule, and then later issued replacement assessments for three of the tax years based on a subsequent enactment which retroactively established an ability to assess where there was transfer pricing contrary to the Associated Enterprises Article of the relevant Treaty (here, Art. 9 of the Australia-U.S. Convention).
CAHPL’s appeal was dismissed. In his concurring reasons, Allsop CJ stated respecting the assimilated Art. 9 rule:
[W]ere CAHPL seeking to borrow for five years on an unsecured basis with no financial or operational covenants from an independent lender, in order to act rationally and commercially and conformably with the interests of the Chevron group to obtain external funding at the lowest possible cost consistently with any relevant operational considerations, it would do so with Chevron providing a parent company guarantee, if such were available.
In the light of the evidence as to Chevron’s policy concerning external funding and its willingness to provide a guarantee to achieve that end the above is the natural and commercially rational comparative analysis when one removes the controlled conditions operating between CAHPL and CFC and replaces them with the condition of mutual independence.
In the circumstances there would have been a borrowing cost conformable with Chevron’s AA rating, which, on the evidence, would have been significantly below 9%.
Neal Armstrong. Summaries of Chevron Australia Holdings Pty Ltd v Commissioner of Taxation [2017] FCAFC 62 under s. 247(2) and Treaties, Art. 9.