News of Note
CRA still generally accepts backdated GST JV (s. 273) elections
Email this ContentIn P-187 dated October 16, 1997 respecting the GST joint venture election, CRA states that “as a result of the requirement that an effective date be specified, the participants in the joint venture may complete the election form after the fact.” CRA has dealt with this point in more detail, in the context of a co-ownership arrangement that qualifies as a joint venture, stating:
Where in a particular fact situation, there is a valid operator, it can be clearly established that a joint venture exists for purposes of the section 273 election, and the parties were acting as if the election were in place, a back-dated election can be made that dates back to the date of the written co-ownership arrangement.
Neal Armstrong. Summaries of 26 February 2015 CBA Roundtable, Q. 15 under ETA s. 273(4), s. 156(4).
Notwithstanding 6051944, CRA will not revisit its policy on potentially limiting the deductibility of management fees paid by an opco to a management holdco
In the 6051944 Canada Inc. case, Favreau J found that a fee paid by a private company (engaged in a new home construction business) to its two shareholder-management companies, which was significantly higher than for other years when operating profits had been lower, was reasonable for ETA purposes (rather than being "merely a profit distribution mechanism," as alleged by the Crown). In response to a query on whether CRA would revisit its position on the reasonableness of management fees paid by an operating company to a holding company that is owned by an individual who is the ultimate operator/manager, CRA indicated that this was a (GST/HST) informal procedure case that “therefore” had limited precedential value, there were no plans for such a review and the reasonableness of an expense under ITA s. 67 was a question of fact.
There does not appear to a lot of difference in the judicial weight given to informal procedure cases which have been properly argued by counsel, and regular cases. It is difficult to extract any broad principles from the 6051944 case (other than, perhaps, that there is nothing particularly wrong with a management fee that varies with the success of the business), so that CRA instead should have used its other stock response, that the case was decided on its facts.
Neal Armstrong. Summary of 5 January 2016 T.I. 2015-0622991E5 under ITA s. 67.
CRA states that whether the GST registration of an initially unregistered purchaser of a commercial rental property can be backdated is “a question of fact”
If a commercial rental real estate property is transferred to a single-purpose Newco (Company C) which inadvertently is not registered at the time of the transfer, would Company C be entitled to register for GST/HST purposes retroactively back to the transfer date given that it is making supplies by way of lease of commercial property and that it is not a small supplier? CRA stated:
[As] Company C was making taxable supplies in Canada of real property by way of lease, then it would have been required to be register under subsection 240(1)… at the time it first made a taxable supply in Canada otherwise than as a small supplier. It will be a question of fact whether…Company C was required to be registered at the time of the transfer of the real property.
This is better than simply saying “no.”
CRA also noted that if the property was subject to a valid s. 273 joint venture election (whose validity would not depend on Company C being registered), then Company C would be deemed not to be making any taxable supply of the real property - so that it could not be registered. CRA did not comment on the quandary as to whether a company which is purchasing commercial real estate with a view to it being supplied under the s. 273 venture election (so that it will not be making any taxable supplies) is thereby precluding from registering - so that it would be required to be charged non-creditable GST on the purchase.
Neal Armstrong. Summaries of 26 February 2015 CBA Roundtable, Q. 16 under ETA s. 240(1) and s. 171(1).
CRA considers that a joint venture agreement and management agreement can qualify as “an agreement” for GST joint venture election purposes
In order for a registrant to qualify as the “operator” under a GST joint venture election it must inter alia be a participant in the joint venture “under an agreement, evidenced in writing, with” a co-venturer. CRA “may consider…two agreements to constitute a single joint venture agreement” for this purpose. For example, where a joint venture starts off comprising two co-owners, and then in a subsequent year they enter into an agreement with a property manager or other “operator” which deals only with the property management subject matter rather than also repeating all the rights and obligations under the original co-ownership agreement, joint venture elections potentially could be made in the second year with the manager qua operator.
CRA also accepts that an agreement styled as a “co-ownership agreement” can be regarded as a joint venture agreement (i.e., the mere label used is not a touchstone).
Neal Armstrong. Summary of 26 February 2015 CBA Roundtable, Q. 13 under ETA s. 273(1) and Interpretation Act, s. 33(2).
CRA may challenge the eligibility of a joint venture manager (e.g., property manager) to be a GST operator if its only personnel are officers jointly appointed to an affiliated co-owner
CRA accepts that a corporation can qualify as a “participant” in a joint venture (so that that it is eligible for making a GST joint venture election) even if its only role is as the joint venture’s manager (i.e., having “managerial or operational control” of the joint venture) rather than having any ownership interest in the joint venture. When asked whether the corporation can still so qualify if it has delegated the performance of all its management responsibilities, CRA stated:
Where an operator has no staff and contracts out all of its responsibilities to other parties, the officers of the operator are often the same persons as the officers of the other [co-owner] participants… . This would make it doubtful whether the operator actually has managerial or operational control of the joint venture… .
This suggests that CRA could view the overlapping officers as performing their management functions for the affiliated co-owner(s) rather than for the purported manager, so that the purported manager would not be regarded as being an eligible operator.
Neal Armstrong. Summary of 26 February 2015 CBA Roundtable, Q. 12 under ETA s. 273(1).
Nortel Networks – Ontario Court of Appeal finds that interest ceases to accrue following a CCAA filing
Ontario Court of Appeal has found that the “interest stops” rule applies to CCAA proceedings, so that creditors do not have any entitlement to interest which otherwise would have accrued following the CCAA filing date – and rejected the bondholders’ position that “the CCAA filing does not affect the right to accrue interest; it only stays the collection of that interest.” This essentially confirms the CRA position in 2008-0304841I7 that interest ceases to be deductible by the insolvent company from that point on.
Neal Armstrong. Summary of Re Nortel Networks Corporation, 2015 ONCA 681 under s. 20(1)(c).
Chaudhry – Tax Court of Canada indicates that the Justice website version of the ITA essentially is its official version
Bocock J roundly rejected an argument that a reassessment must be assumed to have been made without legislative authority unless the Justice lawyer has tabled an official copy of the ITA obtained from the Clerk of the Senate, as required by ss. 4 and 5 of Publication of Statutes Act. He appears to have instead found that the consolidation of the Act appearing on the Justice website constitutes an official version of the Act of which judicial notice can be taken, except potentially to the extent that a party has submitted that there is something about the consolidation that needs to be corrected pursuant to s. 31(2) of the Legislation Revision and Consolidation Act.
Neal Armstrong. Summary of Chaudhry v. The Queen, 2016 TCC 28, under General Concepts – Evidence.
CRA confirms that a FITL does not increase the s. 88(1)(d) bump
The starting point for computing the s. 88(1)(d) “bump” on the winding-up of a subsidiary into its parent is the excess of the adjusted cost base of its shares over its net tax equity, which is reduced under s. 88(1)(d)(i)(B) by any “obligation of the subsidiary to pay any amount.” CRA has confirmed that a future income tax liability as shown on the balance sheet of the subsidiary is not such an obligation, simply stating that a FITL is not “a legal obligation to pay an amount.”
Neal Armstrong. Summary of 2015-0617771E5 F under s. 88(1)(d)(i).
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Neal Armstrong.
CRA acknowledges that remuneration of an employee resident in Country X from Canadian offshore drilling work generally will be Treaty-exempt (if for under 183 days) where the non-resident employer is resident in Country B, even if that remuneration is deductible respecting a deemed PE of that employer
Art. 15, para. 2 of most Treaties indicates that employment income of a non-resident employee of a non-resident employer from the exercise of employment in Canada for less than 183 days in any 12-month period will be Treaty-exempt provided that the remuneration is not borne by a permanent establishment in Canada of the non-resident employer. In 2009-0319951I7, CRA indicated that it is the country of residence of the employee (“Country X”) rather than of the employer (“Country B”) which determines which country’s treaty should be applied in determining whether the non-resident employer has a PE in Canada for Art. 15 purposes.
CRA has now quite openly acknowledged that in most instances this means that the employer (“B Co”) will not be considered for these purposes to have a Canadian PE, even if under the treaty between its country of residence (Country B) and Canada it is considered to have a Canadian PE because, for example, it is engaged in offshore drilling activity which is deemed to be a Canadian PE. CRA states:
[O]n a purposive reading, one would expect that Canada (i.e. where the PE is located) should be able to tax Mr. X’s remuneration for employment exercised through the PE since BCo is allowed a deduction from the profits taxable in Canada attributable to the PE for the remuneration. However, we doubt that, when applying subparagraph 2(c) of Article 15 of the Canada-State X treaty, it was intended that Canada or State X should look for a definition in a treaty between Canada and a third country [i.e., Country B] to find out if the remuneration can be taxed in Canada.
Neal Armstrong. Summary of 20 July 2015 Memo 2012-0457671I7 under Treaties - Art. 15.