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3 November 2023 APFF Financial Strategies and Instruments Roundtable Q. 9, 2023-0976941C6 - Withholding on registered plans -- summary under Article 22

Convention applies to TFSA and RDSP trusts Does 2013-0504641E5- indicating that a reduced (to 15%) rate of withholding on amounts distributed by RESPs constituted as trusts can apply pursuant to Art. XXII of the Canada-U.S. convention- also apply to RDSPs and TFSAs that are trusts? After noting that the Part XIII withholding rules could apply to distributions from a TFSA described in s. 12(1)(z.5), 146.2(9) or 207.061, CRA stated: Since payments from TFSAs and RDSPs to US residents are not dealt with in any other Article of the Convention, they qualify as "other income" for the purposes of Article XXII:1 of the Convention. … Consequently, the reduced rate of 15% provided for in Article XXII:2 of the Convention may be applied to amounts distributed from TFSAs and RDSPs to a U.S. resident where such TFSAs and RDSPs are constituted as trusts and are described in paragraph 212(1)(r.1) or 212(1)(p), as the case may be. ...

Haas Estate v. Canada, 2001 DTC 5001 (FCA) -- summary under Article 13

Canada, 2001 DTC 5001 (FCA)-- summary under Article 13 Summary Under Tax Topics- Treaties- Income Tax Conventions- Article 13 period before 1972 excluded Where a United States resident has disposed of Canadian real property, the calculation of the reduction under Article XIII(9) of the Canada-U.S. Convention begins at the point at which the gain first began to accrue for Canadian income tax purposes which, in the case of properties acquired prior to V-Day, means the starting point for calculating the reduction will be December 31, 1971. ...

The Queen v. St. John Shipbuilding & Dry Dock Co. Ltd., 80 DTC 6272, [1980] CTC 352 (FCA) -- summary under Article 12

., 80 DTC 6272, [1980] CTC 352 (FCA)-- summary under Article 12 Summary Under Tax Topics- Treaties- Income Tax Conventions- Article 12 lump sum for indefinite right to use property not a royalty Thurlow, C.J. stated (p. 6275) that "'royalties'... connotes a payment calculated by reference to the use or to the production or revenue or profits from the use of the rights granted" and that "neither 'rentals' nor 'royalties', in the ordinary connotation... includes a lump sum payment for the use of or for the privilege of using property indefinitely. ... Convention. Words and Phrases royalties rentals ...

Canada v. Dawn’s Place Ltd., [2006] GSTC 137, 2006 FCA 349 -- summary under Article 12

., [2006] GSTC 137, 2006 FCA 349-- summary under Article 12 Summary Under Tax Topics- Treaties- Income Tax Conventions- Article 12 incidental use of copyright in acquiring data did not create a copyright supply International subscribers to the registrant's internet website were granted a "non-exclusive, limited and revocable licence to download and view the content of the website" on their computer. In finding that the subscription fees were not zero-rated consideration, Sharlow J.A. quoted with approval a statement of the OECD Model Tax Convention on Income and Capital that: "Thus, in a transaction that in essence is an acquisition of data or images transmitted electronically, any incidental copying is merely the means by which the data is captured and stored. ...

Western Electric Co. Inc. v. MNR, 69 DTC 5204, [1969] CTC 274 (Ex Ct), briefly aff'd 71 DTC 5068 (SCC) -- summary under Article 12

MNR, 69 DTC 5204, [1969] CTC 274 (Ex Ct), briefly aff'd 71 DTC 5068 (SCC)-- summary under Article 12 Summary Under Tax Topics- Treaties- Income Tax Conventions- Article 12 A U.S. ... Convention, Dumoulin J. indicated that he was in substantial agreement with the Crown's submission that the confidential information that was so supplied was, if not "secret processes", of precisely the same nature: it was valuable, jealously guarded proprietary information. ...

Trieste v. The Queen, 2012 DTC 1125 [at at 3133], 2012 TCC 91, aff'd 2012 FCA 320 -- summary under Treaties

Convention in order to shed light on the meaning of the phrase "habitual abode" in Art. ... She stated (at paras. 25-26): Where there are two official versions of a treaty in two languages, the Vienna Convention on the Law of Treaties (Can. ...

Utah Mines Ltd. v. The Queen, 92 DTC 6194, [1992] 1 CTC 306 (FCA) -- summary under Paragraph 18(1)(m)

Income Tax Convention which provided that in determining the net industrial and commercial profits of a permanent establishment there shall be allowed as deductions all expenses reasonably allocable to the permanent establishment. ... Such a result would not be in accordance with the policy expressed in the preamble to the Convention..." ...

Hale v. The Queen, 90 DTC 6481, [1990] 2 CTC 247 (FCTD), aff'd 92 DTC 6473 (FCA) -- summary under Article 15

The Queen, 90 DTC 6481, [1990] 2 CTC 247 (FCTD), aff'd 92 DTC 6473 (FCA)-- summary under Article 15 Summary Under Tax Topics- Treaties- Income Tax Conventions- Article 15 While resident in Canada, the taxpayer was granted rights under the employee stock option plan of his Canadian employer and further rights (the "share appreciation rights") to be paid amounts based on the appreciation in the shares of his employer over the strike price in lieu of exercising his stock option rights. ... -Canada Convention. The presumption in s. 7(4) of the Act that the employment in issue was exercised in Canada was not incompatible with Article 15. ...

St. Michael Trust Corp. v. Canada, 2010 DTC 5189 [at at 7361], 2010 FCA 309, aff'd sub nom Fundy Settlement v. Canada, 2012 DTC 5063 [at 6881], 2012 SCC 14 -- summary under Article 4

Canada, 2012 DTC 5063 [at 6881], 2012 SCC 14-- summary under Article 4 Summary Under Tax Topics- Treaties- Income Tax Conventions- Article 4 Barbados trusts, which were resident in Barbados under ordinary principles but which were deemed to be resident in Canada under s. 94(1)(b), were not resident in Canada for purposes of the Canada-Barbados Income Tax Convention given that s. 94 did not deem a foreign trust to be a person resident in Canada for all purposes of Part I, but only for the purposes of Part I that were relevant to the determination of its Canadian source income and its foreign accrual property income. ...

Coblentz v. The Queen, 96 DTC 6531, [1996] 3 CTC 295 (FCA.) -- summary under Article 18

.)-- summary under Article 18 Summary Under Tax Topics- Treaties- Income Tax Conventions- Article 18 The taxpayer, while a Canadian resident, received a lump sum payment on the winding-up of a pension fund operated by his former U.S. employer. ... Convention. The purpose of the deduction from gross income under the Code was merely to enable him to have the amount taxed under a different (non-standard) regime. ...

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