Section 115

Table of Contents

Section 115
Subsection 115(1) - Non-resident’s taxable income in Canada
Paragraph 115(1)(a)
Subparagraph 115(1)(a)(i)
Cases(1)
See Also(6)
Administrative Policy(17)
Articles(2)
Subparagraph 115(1)(a)(ii)
Cases(1)
See Also(13)
Administrative Policy(13)
Articles(3)
Subparagraph 115(1)(a)(iii.1)
Administrative Policy(1)
Subparagraph 115(1)(a)(iii.2)
Administrative Policy(1)
Paragraph 115(1)(d)
Paragraph 115(1)(e)
See Also(1)
Administrative Policy(1)
Paragraph 115(1)(f)
See Also(2)
Subparagraph 115(1)(b)(ii)
See Also(1)
Subsection 115(2) - Idem [Non-resident’s taxable income in Canada]
Paragraph 115(2)(c)
Cases(1)
Administrative Policy(2)
Paragraph 115(2)(e)
Subparagraph 115(2)(e)(i)
Cases(2)
Administrative Policy(1)
Subparagraph 115(2)(b)(ii)
Administrative Policy(1)
Subsection 115(2.1)
Administrative Policy(1)
Subsection 115(3)
Administrative Policy(1)
Subsection 115(4) - Non-resident’s income from Canadian resource property
Administrative Policy(2)

Subsection 115(1) - Non-resident’s taxable income in Canada

Paragraph 115(1)(a)

Subparagraph 115(1)(a)(i)

Cases

Hurd v. The Queen, 81 DTC 5140, [1981] CTC 209 (FCA)

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See Also

Blank v. Commissioner of Taxation, [2015] FCAFC 154, aff'd [2016] HCA 42

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Tax Topics - Income Tax Act - Section 6 - Subsection 6(1) - Paragraph 6(1)(a) phantom profit participation unit amounts not income until paid by employer rather than when due 700
Tax Topics - General Concepts - Payment & Receipt payments under phantom units not received when they vested 308

Mullen v. The Queen, 2012 DTC 1154 [at 3358], 2012 TCC 139 (Informal Procedure)

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Price v. Canada, 2013 DTC 5024 [at 5615], 2012 FCA 332, aff'g 2011 DTC 1334 [at 1879], 2011 TCC 449

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Sutcliffe v. The Queen, 2006 DTC 2076, 2005 TCC 812

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Austin v. The Queen, 2003 DTC 2181, 2004 TCC 6

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Varnam v. Deeble, [1985] BTC 150 (C.A.)

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Administrative Policy

21 February 2018 External T.I. 2017-0702061E5 - RCA contributions and taxable inc earned in Canada

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Tax Topics - Income Tax Act - Section 8 - Subsection 8(1) - Paragraph 8(1)(m.2) no deduction permitted where plan provided only for a lump sum payment or where it was excluded from SDA treatment by para. (j) (re athletes) 195
Tax Topics - Income Tax Act - Section 6 - Subsection 6(1) - Paragraph 6(1)(a) - Subparagraph 6(1)(a)(ii) s. 6(1)(a)(i) exclusion applied first before s. 4 allocation of income between Canada and U.S. 144

16 June 2014 External T.I. 2013-0515431E5 - International traffic and airline enterprise

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Tax Topics - Income Tax Act - Section 115 - Subsection 115(4) non-resident's provision of crew and aircraft to Canadian airline 140
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - International Traffic non-resident's provision of crew and aircraft to Canadian airline 103
Tax Topics - Income Tax Act - Section 81 - Subsection 81(1) - Paragraph 81(1)(c) non-resident's provision of crew and aircraft to Canadian airline 103
Tax Topics - Income Tax Regulations - Regulation 102 - Subsection 102(1) Reg. 102 withholding or waiver notwithstanding Treaty exemption 162
Tax Topics - Treaties - Income Tax Conventions - Article 15 U.K company's provision of crew to Canadian airline/Reg. 102 withholding or waiver notwithstanding Treaty exemption 285

S5-F2-C1 - Foreign Tax Credit

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10 December 2012 External T.I. 2011-0429721E5 F - OETC - Employee stock options benefits

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Tax Topics - Income Tax Act - Section 122.3 - Subsection 122.3(1) - Paragraph 122.3(1)(d) s. 7(1)(a) benefit apportioned based on Canadian and overseas duties performed - generally in year options issued 150

25 September 2012 B.C. Canadian Tax Foundation Roundtable, 2012-0459411C6 - Allocation of cross-border employee stock options

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6 July 2012 Internal T.I. 2012-0440741I7 - stock option benefit derived by US resident

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Tax Topics - Income Tax Act - Section 153 - Subsection 153(1) - Paragraph 153(1)(a) employer reimburser of stock option benefit amount subject to withholding obligation 340
Tax Topics - Treaties - Income Tax Conventions - Article 15 U.S. subs qualifies as payer of (therefore exempt) stock option benefit/domestic v. Treaty method 394

7 May 2009 External T.I. 2008-0276181E5 - Stock Option Benefits

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4 December 2003 External T.I. 2001-01177 -

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19 January 2001 External T.I. 2000-005840 -

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28 May 1996 TI 9601625

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1996 Ruling 962639

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2 December 1993 T.I. 933330 (C.T.O. "Non-Resident Exercise Stock Option (4093-U5-100-15)"

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Tax Topics - Treaties - Income Tax Conventions - Article 15 214

13 June 1991 T.I. (Tax Window, No. 4, p. 28, ¶1299)

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12 September 1990 T.I. (Tax Window, Prelim. No. 1, p. 18, ¶1015)

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81 C.R. - Q.56

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IT-420R3 "Non-Residents - Income Earned in Canada"

IT-168R3 "Athletes and Players Employed by Football, Hockey and Similar Clubs" under "Non-Residents"

Articles

Tobias, "Taxing Benefits Realized by Former Canadian Residents", Taxation of Executive Compensation and Retirement, March 1994, p. 889

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 7 - Subsection 7(4) 69

Finley, "Non-Resident Directors' Fees May Be Subject to Withholding in Canada", Taxation of Executive Compensation and Retirement, October 1990, p. 348

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Locations of other summaries Wordcount
Tax Topics - Income Tax Regulations - Regulation 101 65

Subparagraph 115(1)(a)(ii)

Cases

Inter-Leasing, Inc. v. Ontario (Revenue), 2014 ONCA 575

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 245 - Subsection 245(4) underlying rationale for exempting property income was no broader than the text 383

See Also

Commissioner of Taxation v Resource Capital Fund IV LP Commissioner of Taxation v Resource Capital Fund IV LP, [2019] FCAFC 51

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Tax Topics - Income Tax Act - Section 152 - Subsection 152(1) assessment must bring to the attention of the assessed person that it has been assessed to tax 244
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Taxable Canadian Property - Paragraph (d) mine assets included processing operations 412

Resource Capital Fund IV LP v Commissioner of Taxation, [2018] FCA 41 (Federal Court of Australia), rev'd on various grounds [2019] FCAFC 51

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Words and Phrases
directly or indirectly derived
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Tax Topics - Income Tax Act - Section 9 - Capital Gain vs. Profit - Shares private equity fund LP with 5-year holding objective realized share gain on income account 167
Tax Topics - Treaties - Income Tax Conventions - Article 3 each U.S.-resident partner of a Caymans PE LP carried on a U.S. “enterprise” 222
Tax Topics 386
Tax Topics - Treaties - Income Tax Conventions - Article 13 exclusion in Art. 13 of Aust.-U.S. Treaty for real property dispositions extended to shares of Australian holding company holding mining leases through grandchild
Tax Topics - General Concepts - Stare Decisis lower court not bound by a point of law that was assumed rather than examined by a higher court 272
Tax Topics - Income Tax Act - Section 152 - Subsection 152(1) assessment of partnership was assessment of partners 83
Tax Topics - Treaties - Income Tax Conventions - Article 6 Art. 6 extends common law meaning of real property 180
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Taxable Canadian Property - Paragraph (d) shares of lithium mining and processing company were derived principally from the processing rather than mining operation and, thus, were not taxable Australian real property 500
Tax Topics - Income Tax Act - Section 218.3 - Subsection 218.3(1) - Canadian Property Mutual Fund Investment shares of Australian mining company were primarily attributable to the processing rather than mining operations 140
Tax Topics - General Concepts - Fair Market Value - Other processing assets of mining company were more valuable than its mining assets 234

Maya Forestales S.A. c. La Reine, 2005 DTC 514, 2005 TCC 66, aff'd 2008 DTC 6100, 2006 FCA 35

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Commissioner of Inland Revenue v. Kwong Myle Services Ltd. (2004), 7 ITLR 239 (HK CFA)

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Twentieth Century Fox Film Corp. v. The Queen, 85 DTC 5513, [1985] 2 CTC 328 (FCTD)

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Locations of other summaries Wordcount
Tax Topics - Income Tax Regulations - Regulation 802 170
Tax Topics - Income Tax Regulations - Regulation 805 film revenues were reasonably attributable to a Canadian distributorship business notwithstanding they were also attributable to U.S. movie production 187

Yates v. GCA International Ltd., [1991] BTC 107 (Ch. D.)

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CIR v. Hang Seng Bank Ltd., [1990] BTC 482 (PC)

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Tax Topics - Statutory Interpretation - Interpretation Act - Subsection 45(2) 47

Furness Withy & Co. Ltd. v. MNR, 66 DTC 5358 (Ex Ct), aff'd 68 DTC 5033, [1968] CTC 35, [1968] S.C.R. 221

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United Geophysical Co. of Canada v. MNR, 61 DTC 1099 (Ex Ct)

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Tax Topics - General Concepts - Agency company's business not carried on as agent for shareholder 148
Tax Topics - Income Tax Act - Section 212 - Subsection 212(1) - Paragraph 212(1)(d) "rent" can be for personalty 100

Commissioner for Inland Revenue v. Nell (1961), 3 S.A. 774 (A.D.)

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International Harvester Co. of Canada, Ltd. v. Provincial Tax Commission, [1949] A.C. 36 (PC)

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Tax Topics - Income Tax Regulations - Regulation 402 - Subsection 402(3) 119

Federal Commissioner of Taxation v. United Aircraft Corp. (1943), 7 A.T.D. 318 (HC)

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Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Property 39

Watson v. Commissioner of Taxation (W.A.) (1930), 1 A.T.D. 61 (HC)

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Administrative Policy

7 June 2017 CPTS Roundtable, 2017-0695131C6

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Tax Topics - Income Tax Act - Section 13 - Subsection 13(21) - Proceeds of Disposition Q.1 - Daishowa extends beyond reforestation and reclamation obligations only on a case-by-case basis 199
Tax Topics - Income Tax Act - Section 66 - Subsection 66(15) - Canadian Resource Property - Paragraph (d) Q.2 - a Canadian resource royalty interest requires a right to “take production” 129
Tax Topics - Treaties - Income Tax Conventions - Article 13 Q.3 - Canada-U.K. Treaty does not exempt shares deriving their value from Canadian oil and gas licences – even where the Canadian business is carried on “in” them 185
Tax Topics - Income Tax Regulations - Regulation 1101 - Subsection 1101(1) Q.5 - normal course dispositions of oil and gas properties generally are not of a separate business 123
Tax Topics - Income Tax Act - Section 4 - Subsection 4(1) Q.5 - application of Scales test to determining whether there is a separate business 205
Tax Topics - Income Tax Regulations - Schedules - Schedule II - Class 26 Q.7 - refinery catalysts are Class 26 property 81
Tax Topics - Income Tax Regulations - Schedules - Schedule II - Class 49 Q.8 - taxpayers generally have the documentary evidence on hand to allocate costs between pipelines and pipeline appendages 111

19 June 2015 External T.I. 2013-0475751E5 - Withholding Tax on Royalty Payments

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5 February 2014 External T.I. 2012-0466671E5 - Non-resident source withholdings

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S5-F2-C1 - Foreign Tax Credit

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11 January 2001 Internal T.I. 2000-0001017 - Sourcing of income & foreign tax credit

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2005 Ruling 2004-0094821R3 - Carrying on Business in Canada

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2004 Ruling 2004-008266 -

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19 April 2000 External T.I. 1999-001100 -

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1999 Ruling 992060

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Tax Topics - Income Tax Act - Section 2 - Subsection 2(3) - Paragraph 2(3)(b) 38

1997 Ruling 970492

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Tax Topics - Income Tax Act - Section 2 - Subsection 2(3) - Paragraph 2(3)(b) 52

1 December 1992 Memorandum (Tax Window, No. 27, p. 11, ¶2352; October 1993 Access Letter, p. 475)

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Tax Topics - Treaties - Income Tax Conventions - Article 5 30

8 July 1992 T.I. 921814 (March 1993 Access Letter, p. 87, ¶C248-129)

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IT-420R2 "Non-Residents - Income Earned in Canada", para. 10

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Articles

Jinyan Li, "Rethinking Canada's Source Rules In The Age Of Electronic Commerce: Part I", 1999 Canadian Tax Journal, Vol. 47, No. 5, p. 1077.

Constantine Kyres, "Carrying on Business in Canada", 1995 Canadian Tax Journal, Vol. 45, No. 5, p. 1629.

Broadhurst, "Financing by Non-Residents", 1992 Corporate Management Tax Conference Report, pp. 9:10 -9:18

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Subparagraph 115(1)(a)(iii.1)

Administrative Policy

23 January 2015 External T.I. 2013-0509771E5 - Oil & gas payments made to U.S. resident

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Tax Topics - Income Tax Act - Section 66.4 - Subsection 66.4(5) - F FMV addition and subtraction where drilling rights are granted for royalty 137
Tax Topics - Income Tax Regulations - Regulation 805 application to resource royalties 235
Tax Topics - Treaties - Income Tax Conventions - Article 12 non-application of Art. 12 of US Treaty to resource royalties 132
Tax Topics - Treaties - Income Tax Conventions - Article 6 negative CCDE gain from grant of oil and gas royalty not exempt under US Treaty 166

Subparagraph 115(1)(a)(iii.2)

Administrative Policy

27 February 1991 T.I. (Tax Window, No. 1, p. 10, ¶1167)

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Paragraph 115(1)(d)

Paragraph 115(1)(e)

See Also

Matlas, S.A. v. The Queen, 94 DTC 1591 (TCC)

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Administrative Policy

10 March 1995 Memorandum 950145 (C.T.O."115(1)(e) (HAA 6815-4)")

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Paragraph 115(1)(f)

See Also

Delancy v. The Queen, 2004 DTC 2907, 2004 TCC 465 (Informal Procedure)

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Matlas, S.A. v. The Queen, 94 DTC 1591 (TCC)

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Subparagraph 115(1)(b)(ii)

See Also

Pampered Chef, Canada Corp. v. CBSA, [2008] ETC 4514 (CITT)

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Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Customs Act - 2.1 95

Subsection 115(2) - Idem [Non-resident’s taxable income in Canada]

Paragraph 115(2)(c)

Cases

Jarlan v. The Queen, 84 DTC 6452, [1984] CTC 375 (FCTD)

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Administrative Policy

26 September 2014 External T.I. 2014-0531441E5 - Unfunded LTD plan payment to non-resident employee

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Tax Topics - Income Tax Act - Section 153 - Subsection 153(1) - Paragraph 153(1)(a) employee long-term disability payments: remuneration under ITA; pension under Cda-U.S. Convention 206
Tax Topics - Treaties - Income Tax Conventions - Article 18 employee long-term disability payments: remuneration under ITA; pension under Cda-U.S. Convention 251

31 October 1995 Memorandum 950748 (C.T.O. "Employees at Canadian Embassy in Saudi Arabia (8019-6)")

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Paragraph 115(2)(e)

Subparagraph 115(2)(e)(i)

Cases

Hale v. The Queen, 90 DTC 6481 (FCTD), aff'd 92 DTC 6473 (FCA)

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Hurd v. The Queen, 81 DTC 5140, [1981] CTC 209 (FCA)

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Administrative Policy

20 March 2015 External T.I. 2014-0534301E5 - Canadian Withholding Tax on Retiring Allowance

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Tax Topics - Income Tax Act - Section 212 - Subsection 212(1) - Paragraph 212(1)(j.1) retiring allowance paid to non-resident for loss of non-resident employment 145
Tax Topics - Treaties - Income Tax Conventions - Article 15 retiring allowance paid to French individual for loss of non-resident employment 71
Tax Topics - Treaties - Income Tax Conventions - Article 22 retiring allowance paid to French individual for loss of non-resident employment 71

Subparagraph 115(2)(b)(ii)

Administrative Policy

14 December 1995 T.I. 952925 (C.T.O. "International Shipping - Gain from Disposition of Goodwill")

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Subsection 115(2.1)

Administrative Policy

27 July 2016 External T.I. 2015-0603271E5 - Subsection 216.1(1) and permanent establishment

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Tax Topics - Income Tax Act - Section 216.1 - Subsection 216.1(1) late filing under s. 216.1 not accommodated 208
Tax Topics - Treaties - Income Tax Conventions - Article 16 Art. 16 of US Treaty permits gross withholding taxation even if PE 166

Subsection 115(3)

Administrative Policy

7 September 2016 External T.I. 2014-0559751E5 - Subsection 115(3)

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Tax Topics - Treaties - Income Tax Conventions - Article 15 comparison of Treaty and domestic method for pilot income on annual basis 107

Subsection 115(4) - Non-resident’s income from Canadian resource property

Administrative Policy

16 June 2014 External T.I. 2013-0515431E5 - International traffic and airline enterprise

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 115 - Subsection 115(1) - Paragraph 115(1)(a) - Subparagraph 115(1)(a)(i) application of Sutcliffe/Price allocation approach were s. 115(3) not applicable 140
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - International Traffic non-resident's provision of crew and aircraft to Canadian airline 103
Tax Topics - Income Tax Act - Section 81 - Subsection 81(1) - Paragraph 81(1)(c) non-resident's provision of crew and aircraft to Canadian airline 103
Tax Topics - Income Tax Regulations - Regulation 102 - Subsection 102(1) Reg. 102 withholding or waiver notwithstanding Treaty exemption 162
Tax Topics - Treaties - Income Tax Conventions - Article 15 U.K company's provision of crew to Canadian airline/Reg. 102 withholding or waiver notwithstanding Treaty exemption 285

93 CPTJ - Q.10

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