Translation disclaimer
This translation was prepared by Tax Interpretations Inc. The CRA did not issue this document in the language in which it now appears, and is not responsible for any errors in its translation that might impact a reader’s understanding of it or the position(s) taken therein. See also the general Disclaimer below.
Principal Issues: Whether an annuity from Canada that is paid to a resident of Turkey is taxable in Canada and whether a reduction of the Canadian tax rate is available under the Convention with respect of the following three types of annuity: (1) an annuity payment under a contract that is subject to section 12.2; (2) an annuity payment that is included under paragraph 56(1)(d); and (3) a payment pursuant to a contract under paragraph (a) of the definition of "retirement savings plan" in subsection 146.
Position: (1) Reduced Canadian tax rate applicable under paragraph 3 of Article 18 of the Convention. (2) Reduced Canadian tax rate applicable under paragraph 3 of Article 18 of the Convention. (3) Reduced Canadian tax rate applicable under paragraph 2 of Article 18 of the Convention.
Reasons: (1) In our view, an annuity payment that is subject to section 12.2 is not excluded from the definition of the term "annuities" in paragraph 5 of Article 18 of the Convention. The reduced Canadian tax rate in paragraph 3 of Article 18 of the Convention is then applicable. (2) It is our view that an annuity payment that is subject to paragraph 56(1)(d) is not excluded from the definition of the term "annuities" in paragraph 5 of Article 18 of the Convention. The reduced Canadian tax rate in paragraph 3 of Article 18 of the Convention is then applicable. (3) The definition of "annuities" in paragraph 5 of Article 18 of the Convention excludes any annuity the cost of which was deductible for the purposes of taxation in Canada. In our view, that excludes a contract under paragraph (a) of the definition of "retirement savings plan" in subsection 146(1), as the premiums paid under the plan are deductible. An annuity payment under such type of contract is a periodic pension payment for which a reduced Canadian tax rate is available.
XXXXXXXXXX 2015-060995
Marie-Claude Routhier
LL.B., D.D.N., M. Fisc.
March 30, 2017
Dear Ms. XXXXXXXXXX,
Subject: Annuity within the meaning of the Tax Convention between Canada and the Republic of Turkey
This is in response to your email dated September 22, 2015 in which you requested our comments on the application of Article 18 of the Canada-Turkey Income Tax Convention (the "Convention").
In particular, you asked us to consider whether an annuity arising in Canada that is paid to a resident of Turkey is taxable in Canada and, if so, whether a reduction in the Canadian tax rate is provided under the Convention. You requested that we address the application of Article 18 of the Convention to the following three types of annuities:
- an annuity payment under an annuity contract described in section 12.2 of the Income Tax Act (the "Act");
- an annuity payment under an annuity contract described in paragraph 56(1)(d) of the Act; and
- a payment under a contract described in paragraph (a) of the definition "retirement savings plan" under subsection 146(1) of the Act (an "Annuity-Type RRSP").
Unless otherwise indicated, all legislative references are references to the provisions of the Act.
Our comments
This technical interpretation provides general comments about the provisions of the Income Tax Act (the “Act”) and related legislation (where referenced). It does not confirm the income tax treatment of a particular situation involving a specific taxpayer but is intended to assist you in making that determination. The income tax treatment of particular transactions proposed by a specific taxpayer will be confirmed by this Directorate in the context of an advance income tax ruling request submitted in the manner set out in Information Circular 70-6R7, Advance Income Tax Rulings and Technical Interpretations, dated April 22, 2016. We are, however, prepared to offer the following general comments, which may be of assistance.
General comments
Subsection 212(1) provides that every non-resident person shall pay an income tax of 25% on every amount that a person resident in Canada pays or credits to the non-resident person. Paragraph 212(1)(o) includes a payment under an annuity contract to the extent of the amount in respect of the interest of the non-resident person in the contract that, if the non-resident person had been resident in Canada throughout the taxation year in which the payment was made, would be required to be included in computing the income of the non-resident person for the year, and would not be deductible in computing that income.
In the event of double taxation of an amount paid under an annuity contract, the Convention establishes the tax rates that each country may impose in respect of the payment. According to Article 18, paragraph 5 of the Convention, the term "annuities" refers to a stated sum paid periodically at stated times during life or during a specified number of years, under an obligation to make the payments in return for adequate and full consideration other than services rendered. The term "annuities" does not include a payment that is not a periodic payment or any annuity the cost of which was deductible for the purposes of taxation in the Contracting State in which it was acquired.
A payment arising in Canada that qualifies as an annuity under paragraph 5 of Article 18 of the Convention and paid to a resident of Turkey is taxable in Turkey under paragraph 1 of Article 18 of the Convention. According to paragraph 3 of the same Article, an annuity arising in Canada and paid to a resident of Turkey may also be taxed in Canada, but the tax so charged may not exceed 15% of the portion of the payment that is subject to tax in Canada.
It should be noted that the limitation on the Canadian tax rate provided for in paragraph 3 of Article 18 of the Convention does not apply to payments of any kind under an annuity contract the cost of which was deductible, in whole or in part, in computing the income of the person who acquired the contract. Generally speaking, we are of the view that this limitation on the Canadian tax rate will apply in respect of a life annuity contract that complies with the conditions set out in paragraph 5 of Article 18 of the Convention.
If the payment is not an annuity within the meaning of the Convention, it is necessary to determine whether the payment is pension income to the receiving taxpayer. In such a case, the rules laid down in paragraphs 1 and 2 of Article 18 of the Convention apply. The pension arising in Canada and paid to a resident of Turkey will then be taxable in Turkey under paragraph 1, but it will also be taxable in Canada under paragraph 2. In the case of a "periodic pension payment," the Canadian tax may not, however, exceed the lesser of the rates specified in Article 18, subparagraphs 2(a) and (b), of the Convention.
The terms "pension" and "periodic pension payment" are defined in section 5 of the Income Tax Conventions Interpretation Act (the "Interpretation Act"), in respect of payments that arise in Canada. The term "pension" under subparagraphs (a)(ii), (a)(vii) and (a)(viii) includes, among other things, a payment under a:
- a registered retirement savings plan ("RRSP");
- an annuity contract purchased under a plan referred to in subparagraphs (v) and (vi) of the definition, that is, respectively, a deferred profit sharing plan or a plan that is deemed by subsection 147(15) not to be a deferred profit sharing plan,
- an annuity contract where the amount paid by or on behalf of an individual to acquire the contract was deductible under paragraph 60(l) in computing the individual's income for any taxation year (or would have been so deductible if the individual had been resident in Canada)
A "periodic pension payment" is defined as a pension payment other than the payments referred to in paragraphs (a) to (d) of the definition in section 5 of the Interpretation Act.
Payment of pension referred to in section 12.2
Under section 12.2, a taxpayer who holds an interest in a life insurance policy on any anniversary day of the policy shall generally include in computing the taxpayer’s income for the taxation year the amount, if any, by which the accumulating fund on that day in respect of the interest in the policy exceeds the adjusted cost basis to the taxpayer of the interest in the policy on that day.
Under subsection 12.2 (12), the definitions in subsection 138(12) apply to section 12.2. Under the definition of "life insurance policy" in subsection 138(12), annuity contracts are included in life insurance policies for the purposes of section 12.2.
The 25% tax provided for in paragraph 212(1)(o) applies only where a non-resident receives an amount under an annuity contract. This tax is calculated on the value of the payment received by the non-resident to the extent of the amount in respect of the interest of the non-resident person in the contract that, if the non-resident person had been resident in Canada throughout the taxation year in which the payment was made, would be required to be included (in particular, under section 12.2) in computing the income of the non-resident person for the year.
Since there is no deduction available for the cost of any annuity in the case of an annuity referred to in section 12.2, we are of the view that the payment made under this type of contract is not excluded from the definition of "annuities" in Article 18, paragraph 5, of the Convention. The rate reduction provided for in Article 18, paragraph 3, of the Convention therefore could apply.
Payment of an annuity referred to in paragraph 56(1)(d)
Under the terms of paragraph 56(1)(d), any amount received by the taxpayer in the year as an annuity payment must be included in the income of the taxpayer other than an amount,
- that is otherwise required to be included in computing the taxpayer's income for the year;
- with respect to an interest in an annuity contract to which subsection 12.2(1) applies; or
- received out of or under an annuity contract issued or effected as a tax-free savings account.
The capital element of each annuity payment that is included in computing the taxpayer's income for the year under paragraph 56(1)(d) may be deducted in computing the taxpayer's income under paragraph 60(a). If the annuity was paid under a contract, the capital element of each annuity payment is determined in accordance with the provisions of section 300 of the Income Tax Regulations.
While some might argue that the deduction under paragraph 60(a) is a deduction of a portion of the cost of the annuity, the cost is not deductible when the contract is acquired. The deduction under paragraph 60(a) contemplates the exclusion from income of the portion of the particular payment that represents capital. Since the respective portions of the payments that are capital and taxable remain constant throughout the term of the annuity, the deduction takes the form of an estimate.
According to our interpretation of the Convention, this type of deduction would not be covered by any of the exceptions set out in the definition of "annuities" in Article 18, paragraph 5, of the Convention. An annuity payment referred to in paragraph 56(1)(d) would, in our view, be an annuity within the meaning of the Convention and the reduction in the Canadian tax rate provided for in paragraph 3 of Article 18 of the Convention would be applicable in such a case.
RRSP annuity payments
Paragraph (a) of the definition of "retirement savings plan" under subsection 146(1) defines what constitutes an Annuity-Type RRSP. Specifically, such a retirement savings plan is defined as a contract between an individual and a person licensed or otherwise authorized under the laws of Canada or a province to carry on in Canada an annuities business, under which, in consideration for the payment by the individual or the individual’s spouse or common-law partner of any periodic or other amount as consideration under the contract, a retirement income commencing at maturity is to be provided for the individual.
Any amount paid or payable periodically or otherwise under a retirement savings plan as consideration for any contract referred to in paragraph (a) of the definition "retirement savings plan" in subsection 146(1) constitutes a "premium" within the meaning of the same paragraph of the Act. A premium paid by a taxpayer to an RRSP under which the taxpayer is the annuitant is generally deductible in computing a taxpayer's income not exceeding the lesser of the amounts determined under subsection 146(5). Finally, an Annuity-Type RRSP is an RRSP, as defined in subsection 146(1), where it is accepted by the Minister for registration for the purposes of the Act as being in accordance with section 146.
Since premiums paid by a taxpayer to an Annuity-Type RRSP are generally deductible in computing income, we are of the view that, generally speaking, this type of contract will not constitute an annuity within the meaning of paragraph 5 of Article 18 of the Convention, and paragraph 3 of Article 18 will not apply.
In order to determine whether a reduction in the Canadian tax rate is applicable under paragraph 2 of Article 18 of the Convention, it is necessary to determine whether the payment constitutes "pension" income within the meaning of the Convention. We are of the view that a payment made under an Annuity-Type RRSP is pension income, as defined in the Interpretation Act, for the receiving taxpayer. In particular, we have determined that an Annuity-Type RRSP is an RRSP, as defined in subsection 146(1), and that this type of payment is included in the definition of "pension" in subparagraph (a)(ii) of section 5 of the Interpretation Act.
Finally, the payment of an annuity from the maturity of an Annuity-Type RRSP is a "periodic pension payment" since it is not covered by any of the exceptions listed in paragraphs (a) to (d) of the definition of the expression under section 5 of the Interpretation Act. The reduced rate determined under paragraph 2 of Article 18 of the Convention should therefore apply.
We hope that our comments will be of assistance.
Best regards,
Louise J. Roy, CPA, CGA
Manager
for the Director
Financial Industries and Trusts Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch
All rights reserved. Permission is granted to electronically copy and to print in hard copy for internal use only. No part of this information may be reproduced, modified, transmitted or redistributed in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, or stored in a retrieval system for any purpose other than noted above (including sales), without prior written permission of Canada Revenue Agency, Ottawa, Ontario K1A 0L5
© Her Majesty the Queen in Right of Canada, 2017
Tous droits réservés. Il est permis de copier sous forme électronique ou d'imprimer pour un usage interne seulement. Toutefois, il est interdit de reproduire, de modifier, de transmettre ou de redistributer de l'information, sous quelque forme ou par quelque moyen que ce soit, de facon électronique, méchanique, photocopies ou autre, ou par stockage dans des systèmes d'extraction ou pour tout usage autre que ceux susmentionnés (incluant pour fin commerciale), sans l'autorisation écrite préalable de l'Agence du revenu du Canada, Ottawa, Ontario K1A 0L5.
© Sa Majesté la Reine du Chef du Canada, 2017