Regulation 100

Subsection 100(1)

Employer

See Also

Dare Human Resources Corporation v. Ontario (Revenue), 2019 ONCA 549

placement agencies were the workers’ employer

The appellants were placement agencies who supplied temporary workers to the Public Service of Canada and federal agencies. When these clients put out a call for temporary workers, the appellants identified appropriately qualified and willing candidates from their inventory, and negotiated an hourly rate of pay for the placement that exceeded what they paid to the workers.

The appellants’ primary function during the assignment was to provide the payroll on the basis of time sheets signed off by the client, whereas the client managed and directed the workers. However, both could be involved in dealing with performance or discipline issues.

In dismissing the appeal from the decision of Hackland J that the appellants were liable for Ontario employer health tax (a payroll tax imposed on employers who pay remuneration to their employees) on the basis that they were the employers of the workers (who were acknowledged not to be independent contractors), the Court stated (at para. 15) that Hackland J had appropriately taken into account “that the appellants are the only parties with contractual relationships with the workers and that the contractual documentation with the Government of Canada makes it clear that it was the government’s intention that the workers be the employees of the placement agencies,” and also stated (at para. 21):

The appeal judge acknowledged, as is typical in a tripartite arrangement, that the appellants and the Government of Canada each appeared to possess some of the traditional attributes of an employer. He explicitly referenced recruitment, payroll administration, discipline issues, testing, and security clearances. While some factors may have pointed to the Government of Canada as the employer, after an analysis of all of the factors, the trial judge determined that the appellants were the employers. The appeal judge did not … fail to consider any relevant factor.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 153 - Subsection 153(1) - Paragraph 153(1)(a) payor of remuneration was the employer 178

Des Groseillers v. Agence du revenu du Québec, 2019 QCCQ 1430

Opco paid directors’ fees of Pubco parent as agent

All the shares of an operating corporation (“ATBM”) were held by a publicly-listed holding company (“BMTC”). ATBM paid the attendance fees of the outside directors of BMTC and included those amounts in what it reported for Quebec (“FDRCMO”) payroll taxation purposes. BMTC had not opened any source deduction or payroll account for taxation purposes.

In confirming the ARQ assessments of BMTC to add those amounts instead to its payroll, Bourgeois, JCQ stated (at paras. 120-121, TaxInterpretations translation):

[I]t appears incontestable that ATBM had the mandate to pay the source deductions for the account of BMTC. …

[P]ermitting the consolidation, within a single corporation, of tax charges related to remuneration of employees or directors of different corporations would risk … the inducing of an erosion of FDRCMO assessments which usually would be separately assumed by the corporations.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 7 - Subsection 7(1) - Paragraph 7(1)(b) no s. 7(1)(b) application to option cash-out amount assignments 494
Tax Topics - Income Tax Act - Section 7 - Subsection 7(3) - Paragraph 7(3)(a) no s. 69(1)(b) application to s. 7(1)(b) dispositions 381

Administrative Policy

20 February 2008 External T.I. 2007-0232621E5 F - Pourboires versés électroniquement

“employer” can include agent that handles the payment of tips

Regarding a situation where one corporation is the employer of waiters and a related corporation handles the electronic payment of the tips to those employees, CRA stated:

In the light of the facts submitted, the responsibility for paying the tips of each employee into their bank account by electronic transfer suggests that the tips were under the control of one of the two corporations. Thus, the employer or the person paying the tips on its behalf has an obligation to make the appropriate deductions at source.

Remuneration

See Also

Coopers & Lybrand Limitéé v. MNR, 94 D.T.C 1626 (TCC)

The appellant took possession on November 4, 1981 of the business of a debtor and, with the banks' authorization, paid the net amount of the employees' back wages pursuant to the usual payroll procedures of the debtor (including the preparation of payroll slips showing the deduction of source deductions). Before receiving the payments, the employees were required to assign all rights to their wages to the appellant.

Tremblay TCJ. found that the assignment did not change the nature of the claim that was paid (i.e., wages) and that even if the nature of the claim changed as a result of the assignment, the amounts received by the employees were "in respect of" salary or wages.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 153 - Subsection 153(1.3) 165

Administrative Policy

24 September 2015 External T.I. 2013-0495611E5 - Withholding on incentive payments to non-residents

no withholding on payment to non-resident employee of 3rd party

A Canadian resident manufacturing corporation ("Canco") pays the non-resident employees ("Dealer Employees"), of non-resident dealers selling its products outside Canada, incentive payments ("Incentive Payments") for each warranty registered on Canco's products. Are the Incentive Payments subject to withholding or to a reporting obligation? After referring to the commission branch of the "remuneration" definition, CRA stated:

Whether Canco and the Dealer Employees have an employer/employee relationship, as developed through Canadian common law, is a question of fact. Provided no such relationship exists, the Incentive Payment would not meet this definition and Regulations 102 and 103 should not apply to require Canco to deduct or withhold any amount from the Incentive Payments… .

Notwithstanding that no withholding tax is required… where there is no employer/employee relationship…Canco would still be required to file an information return (T4A…)… .

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 212 - Subsection 212(1) - Paragraph 212(1)(d) - Subparagraph 212(1)(d)(iii) no withholding on payments based on sales warranties sold by dealers 126
Tax Topics - Income Tax Regulations - Regulation 200 - Subsection 200(1) T4A reporting of payments to non-resident employee of 3rd party 84

13 June 2003 TI

Where a lawyer, who is a member of a professional partnership, is a director of a corporation, the director's fees paid to him will not be subject to source deductions if it is the partnership that has earned those amounts.

7 December 2009 External T.I. 2009-0344691E5 F - Versement d'un droit salarial

withholding on salary catch-up payment in the usual manner

Teachers accrue a salary entitlement over the school year but are paid on an even instalment basis over the full 12 months that include their months not teaching. However, when a teacher goes on maternity leave, she receives a catch-up payment to bring her pay up to the total accrued entitlement to that point. CRA stated that such catch-up payment “represents payment of salary or wages that must be deducted at source in the usual manner.”

8 October 1996 T.I. 962701 (C.T.O. "Loss of Employment, Mental Distress, Damages")

Reimbursements of the legal fees incurred in a wrongful dismissal action are not "remuneration".

18 June 1993 T.I. (Tax Window, No. 32, p. 10, ¶2603)

A plan under which sick leave benefits to which an employee is entitled under the terms of an employment contract or collective agreement are paid to her through an employee benefit trust will be considered to give rise to salary or wages and, therefore, will be subject to the usual deductions for UIC and CPP.

4 February 1993 Memorandum (Tax Window, No. 29, p.18, ¶2425)

Payments made by an employer to an employee profit sharing plan are subject to source deductions.

Ladd, "Verification and Collection Issues", 83 C.R., p. 771

Although RC's position is that "payment" is to be read in a broader context than a mere exchange of cash, RC recognizes that it would be unreasonable to insist upon deductions from non-cash benefits when there is not an accompanying cash payment. Therefore, RC will waive withholding where there is no accompanying cash payment or when deducting would cause undue hardship.

Subsection 100(4)

Administrative Policy

21 July 1992 Memorandum 921453 (January - February 1993 Access Letter, p. 34, ¶C144-197)

An establishment of an employer would have many of the same characteristics as that of a permanent establishment, as defined in Regulation 400(2).

14 May 1991 T.I. (Tax Window, No. 3, p. 10, ¶1237)

Where a U.S. corporation sends its employees to a Canadian subsidiary for work assignments, and the employees report for work at the Canadian subsidiary but remain employees of the U.S. corporation, Regulation 100(4) will deem the employees to report for work at an establishment of the U.S. corporation outside Canada.

Locations of other summaries Wordcount
Tax Topics - Treaties - Income Tax Conventions - Article 5 64

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