Cases
Société Générale Valeurs Mobilières Inc. v. Canada, 2017 FCA 3
At issue was whether Art. XXII(2) of the Canada-Brazil Treaty contemplated that a Canadian foreign tax credit should be allowed only on the basis of the Canadian taxes otherwise applicable to the Brazilian source income in question as reduced by applicable Canadian expenses. Art. XXII(2) provided:
The deduction shall not, however, exceed that part of the income tax as computed before the deduction is given, which is appropriate to the income which may be taxed in Brazil.
Paris J. in the Tax Court had stated (at paras. 91, 93):
…The amount of Canadian income tax referred to in the second sentence of Article XXII(2) of the Treaty as being “appropriate to the income which may be taxed in Brazil” is the actual Canadian income tax attributable the income taxed in Brazil, which is computed on the net income arising from Brazil.
…The proper test for determining which amounts of the Canadian resident taxpayer should be included or deducted from the gross interest arising from sources in Brazil is that found in subsection 4(1) of the Income Tax Act.
In upholding this decision, Woods JA stated (at para 12):
…[T]he judge’s interpretation is more consistent with the language of the relevant provision. In particular, the judge is correct that the ordinary meaning of the text takes into account not only the gross income which may be taxed by Brazil, but also the actual Canadian tax as computed under the Income Tax Act, which is based on net income.
See Also
Marin v. The Queen, 2022 TCC 49
France started imposing income tax on rental income as it was earned rather than the tax being payable one year in arrears, as previously. However, the taxpayer (a Canadian resident with a French rental property), like others, was granted transitional relief so that in 2019 she received a tax credit from the French government equal to the French tax otherwise payable by her on her 2018 income – so that in 2019 she only had to pay the current tax on her 2019 rental income.
She nonetheless argued in Tax Court that she should be entitled to a foreign tax credit (“FTC”) for French income tax on the rental income for her 2018 taxation year (which clearly was subject to Canadian income tax) on the grounds that she was continuing throughout to pay French income tax on an annual basis.
In finding that no relief was available under Art. 23 of the Treaty, Lafleur J stated, after summarizing Art. 23 (paras. 36, 40, TaxInterpretations):
The text of this provision is clear: double taxation is to be avoided where the same income is taxed in both contracting states. The Tax Convention refers to income, regardless of when the tax is to be paid to or collected by the tax authorities. …
Thus, since Mr. Marin did not pay tax to the French state on 2018 income, he cannot invoke the Tax Treaty to relieve Canadian taxation of 2018 income, given the absence of double taxation of his 2018 income.
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(7) - Non-Business-Income Tax | taxes for which FTC accorded must be imposed on the income which generates the Canadian taxes from which the credit is claimed | 451 |
Tax Topics - Treaties - Income Tax Conventions - Article 6 | may-be-taxed language does not confer an exclusive right to tax | 195 |
Tax Topics - Income Tax Act - Section 126 - Subsection 126(1) | FTC domestic and Treaty provisions are applied re the particular year in which the subject income was earned | 193 |
G E Financial Investments v.The Commissioners for Her Majesty's Revenue & Customs, [2021] UKFTT 0210 (Tax Chamber), ultimately aff'd [2024] EWCA Civ 797
A US company (“GEFI Inc.”) and UK company (“GEFI”) in the GE group formed a Delaware LP (the “LP”) with GEFI Inc. as the 1% general partner and GEFI as the 99% limited partner, LP made five intercompany loans and also received some loans from its partners as capital contributions.
After finding that US taxes payable by GEFI (by virtue of it being deemed to be a US resident under the Code as a result of its stock being stapled with that of GEFI Inc.) were not imposable in accordance with the UK-US Treaty given that GEFI, through its participation in the LP, did not have a permanent establishment in the US, Brooks J went on to indicate, in obiter, that if such taxes had instead been imposed in accordance with Art. 5, then the UK would have been required to accord a foreign tax credit to GEFI in accordance with Art. 24 of the Treaty (similar to Art. 24 of the Canada-UK Treaty).
Locations of other summaries | Wordcount | |
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Tax Topics - Treaties - Income Tax Conventions - Article 4 | a deemed US resident was not a US treaty resident | 374 |
Tax Topics - Treaties - Income Tax Conventions - Article 5 | somewhat isolated (albeit in large amounts) loan activity in US did not represent a business under UK concepts and therefore did not entail a US PE under the UK-US Treaty | 508 |
Zong v. The Queen, 2019 TCC 270 (Informal Procedure)
A resident of both Canada and the UK who was employed full-time in the UK for several years was not entitled to claim a foreign tax credit under s. 126(1) for mandatory contributions that he made in 2016 to the UK’s national insurance scheme, on the basis that such contributions were not foreign income “taxes”. Bocock J also found that the taxpayer was not entitled to relief against double taxation under the Canada-UK Income Tax Convention, stating (at para 14):
… Because the amount has not yet been subject to tax in the UK (because it has been deducted from income before calculating income tax) there is no requirement under the Convention or section 126 of the Act to provide relief in Canada. When Mr. Zong ultimately receives his pension in the UK, it may be subject to UK income tax and he may be eligible for relief in Canada through the FTC at such time, but not now. …
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(7) - Non-Business-Income Tax | mandatory contributions to the UK’s national insurance scheme did not qualify for FTC purposes | 208 |
Burton v Commissioner of Taxation, [2019] FCAFC 141
An Australian-resident individual was taxed at the 15% long-term U.S. capital gains rate on his gains on the disposal of U.S. oil and gas drilling rights. For Australian purposes a 50% discount was applied to the capital gain before imposing tax at a rate of around 45% on it. The Australian foreign tax credit (FITO) provision provided a credit for foreign income tax “if you paid it in respect of an amount that is all or part of an amount included in your assessable income for the year.” The Commissioner successfully took the position that as only half of the U.S. gain had been included in the individual’s income, he was entitled to the FITO for only half of the U.S. tax.
Art. 22(2) of the Australia-U.S. Convention provided:
… United States tax paid under the law of the United States and in accordance with this Convention … in respect of income derived from sources in the United States by …a resident of Australia shall be allowed as a credit against Australian tax payable in respect of the income. … Subject to these general principles, the credit shall be in accordance with the provisions and subject to the limitations of the law of Australia as that law may be in force from time to time.
In concurring with Steward J that the Commissioner’s approach accorded with Art. 22(2), Jackson J stated (at paras. 166, 168-169):
The general principle expressed in the first sentence of Art 22(2) is that if a person who is an Australian resident for the purposes of Australian taxation law pays United States tax in respect of income (including a gain) derived from sources in the United States, the Australian government must allow a credit against Australian tax payable in respect of that income. …
The requirement that the amount of income be the same in the case of each of the United States tax paid and the Australian tax payable emerges from the syntax of Art 22(2). But it does not follow that this amount of income must be all the income derived from a given source in the United States that is also subject to taxation in Australia. The term that is used to indicate a connection between the relevant amount of income, whatever that may be, and each of the United States tax and the Australian tax is 'in respect of'. That is indeterminate. No doubt, in each case the connection cannot be a distant, arbitrary or illogical one. But to the extent that it is necessary to identify the connection more precisely, that must be done in accordance with the provisions of the law of Australia. That is what the third sentence of Art 22(2) requires.
In considering the present case, it does not stretch the language of the article to read 'Australian tax payable in respect of the income' as referring to capital gains tax payable in Australia on assessable income being an amount equal to only 50% of the gain. So reading 'the income' as referring to 50% of the gain derived in the United States is consistent with the general principle in the first sentence of Art 22(2) (acknowledging there will also be differences, such as treatment of capital losses, in the way the laws of different countries calculate the gain).
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 91 - Subsection 91(4) | credit “in respect of” income only included the taxable ½ of capital gain | 212 |
Burton v Commissioner of Taxation, [2018] FCA 1857, aff'd [2019] FCAFC 141
An Australian-resident individual was taxed at the 15% long-term U.S. capital gains rate on his gains on the disposal of U.S. oil and gas drilling rights. For Australian purposes a 50% discount was applied to the capital gain before imposing tax at a rate of around 45% on it. The Australian foreign tax credit (FITO) provision provided a credit for foreign income tax “if you paid it in respect of an amount that is all or part of an amount included in your assessable income for the year.” The Commissioner successfully took the position that as only half of the U.S. gain had been included in the individual’s income, he was entitled to the FITO for only half of the U.S. tax.
Art. 22(2) of the Australia-U.S. Convention provided:
… United States tax paid under the law of the United States and in accordance with this Convention … in respect of income derived from sources in the United States by …a resident of Australia shall be allowed as a credit against Australian tax payable in respect of the income. … Subject to these general principles, the credit shall be in accordance with the provisions and subject to the limitations of the law of Australia as that law may be in force from time to time.
In rejecting a submission that Art. 22(2) required Australia to grant an undiscounted FITO, McKerracher J stated (at paras. 126-127):
Under Australian law, the only income forming part of the assessable income is 50% of the capital gain on which tax is paid in the US. Where Art 22(2) refers to Australian tax payable in respect of income, the income is only 50% of the capital gain.
Secondly, the word ‘all’ does not appear before the words ‘United States tax paid’ in the first line of Art 22(2). The Article does not suggest that a credit is allowed against Australian tax payable for the whole amount of the US tax paid. … It does not prescribe how much is to be allowed as a credit. The credit is subject to the provisions and limitations of Australian law.
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(1) | a foreign tax credit was reduced by ½ when only ½ of a capital gain was brought into income | 223 |
Satyam Computer Services Limited v Commissioner of Taxation, [2018] FCAFC 172
In Tech Mahindra, computer services provided by employees of the taxpayer located in India to Australian companies were found to be royalties under the Australia-India Treaty, and Australia was found to have the right to tax those payments under Art. 12(2) of the Treaty.
At issue here was whether this meant that the payments had an Australian source by virtue of Article 23(1) of the Treaty, so that they were taxable as Australian source income under s. 6-5(3)(a) of the Income Tax Assessment Act 1997 (which provided that the assessable income of a foreign resident included “the ordinary income you derived directly or indirectly from all Australian sources during the income year”) and Art. 23(1), which provided:
Income, profits or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, Articles 10 to 20 and Article 22 may be taxed in the other Contracting State, shall for the purposes of the law of that other State relating to its tax be deemed to be income from sources in that other State.
In finding that Art. 23(1) had such effect, the Court stated (at para. 15):
The effect of Article 23 … is that the payments in question are deemed to have an Australian source for the purposes of s 6-5(3)(a).
And at para. 26:
The applicant also placed store on the generalised principle that tax treaties are, and can only be, exclusively relieving: that is, they are only ever “shields not swords” and not the grant of a standalone taxing power and independent imposition of taxation. The Commissioner did not cavil with the proposition that tax treaties do not grant a standalone taxing power or the independent imposition of taxation (see Chevron Australia Holdings Pty Ltd v Commissioner of Taxation (No 4) (2015) 102 ATR 13; [2015] FCA 1092 and the cases cited at [50]–[52]) or that the allocation of the tax rights they effect is permissive. They do not oblige the contracting states to tax: Federal Commissioner of Taxation v Lamesa Holdings BV (1997) 77 FCR 597 (“Lamesa”) at 600-601; GE Capital at [36]. However none of these generalisations establish the proposition that Article 23 does not operate according to its terms.
Locations of other summaries | Wordcount | |
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Tax Topics - Treaties - Income Tax Conventions | wording of Treaty sourcing rule had the effect of expanding scope of domestic provision | 271 |
Commissioner of Inland Revenue v. Lin, [2018] NZCA 38
As a result of having a 30% interest between 2005 and 2009 in four companies which were resident in China, the taxpayer had the active business income of those companies of $4.6 million attributed to her in New Zealand under the New Zealand controlled foreign companies (CFC) regime. The New Zealand income tax payable by her on that income was reduced by the Chinese tax actually paid by those companies, but not by approximately $0.6 million of tax that the Chinese companies were spared from paying due to tax concessions granted to them under Chinese domestic law. Art. 23 of the China- New Zealand Double Taxation Agreement (the “DTA”) provided in relevant part:
2. In the case of New Zealand, double taxation shall be avoided as follows:
(a) … Chinese tax paid under the laws of the People’s Republic of China and consistently with this Agreement, whether directly or by deduction, in respect of income derived by a resident of New Zealand from sources in the People’s Republic of China (excluding, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against New Zealand tax payable in respect of that income; …
3. For the purposes of paragraph 2 (a), tax payable in the People’s Republic of China by a resident of New Zealand shall be deemed to include any amount which would have been payable as Chinese tax for any year but for an exemption from, or reduction of tax granted for that year or any part thereof under any of the following provisions of Chinese law … .
In finding that Art. 23 did not require the Commissioner to grant a foreign tax credit for the spared Chinese tax, Harrison J stated (at paras. 29-30, 33):
The phrase “in respect of” is amorphous and can lead to linguistic uncertainty and confusion. …
We are satisfied that the phrase “in respect of” is used synonymously with “on” in all three places in art 23(2)(a). Its meaning should be consistent throughout. Contrary to the Judge’s view, we are satisfied that art 23(2)(a) requires the tax to have been paid by a New Zealand resident on income derived by him or her in China, not by a third party CFC; that is the essential precondition to a credit in New Zealand. …
In our judgment art 23(2)(a) relieves solely against juridical double taxation. Mr Clews’s argument [for the taxpayer] requires us to disregard the legal nature of the relationship between Ms Lin and the Chinese CFCs to focus instead on the substantive source of “the income derived”. The fact that the ultimate source is income attributed to Ms Lin from the Chinese CFCs does not justify treating the two income streams, earned separately by the CFCs and Ms Lin, as one for revenue purposes, and ignoring the plain foundation of art 23(2)(a) on the source of “the income derived by a resident of New Zealand”, Ms Lin.
Arsove v. The Queen, 2016 TCC 283 (Informal Procedure)
A Canadian-resident individual and U.S. citizen was subject to US. income tax of 15% on a distribution to her out of her IRA. However, she filed her U.S. income tax return on the specious basis that the U.S. tax on the distribution was eliminated by a U.S. foreign tax credit based on Art. XXIV, para. 6 of the Canada-U.S. Treaty, and the IRS accepted the return.
Before concluding that that, as no U.S. tax was “ultimately imposed” on the taxpayer, no Canadian foreign tax credit was available, Lamarre ACJ stated (at para. 14), having regard to Art. XXIV of the Canada-U.S. Treaty:
[W]hen a U.S. citizen who is also resident in Canada earns pension income the source of which is in the United States, under the treaty the United States is allowed to tax the first 15% of that income, and the excess is taxable in Canada. This is why, to avoid double taxation, a taxpayer is allowed, in computing the Canadian tax, to claim a foreign tax credit for the 15% tax paid in the United States, and that taxpayer is entitled to a foreign tax credit against his U.S. tax for the tax paid in Canada over and above 15%.
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(1) | no credit for U.S. taxes which should have been imposed but were not | 391 |
Société générale valeurs mobilières inc. v. The Queen, 2016 TCC 131, aff'd 2017 FCA 3
The Crown brought a motion under Rule 58(1) for determination of questions of law respecting the application of Art. XXII(2) of the Canada-Brazil Treaty to the assumed situation of a Canadian resident taxpayer (who earns income from other sources that is taxable in Canada) earning bond interest arising in Brazil which is taxed in Brazil under Art. XI of the Treaty and with the taxpayer being deemed by Art. XXII(3) to have paid Brazilian tax equal to 20% of the gross bond interest arising in Brazil. The Crown position was that the maximum foreign tax credit available to the taxpayer under Art. XXII(2) was equal to the actual Canadian tax payable on the bond income arising in Brazil, which in its view must take into account applicable expenses incurred by the taxpayer to earn the income. The taxpayer’s position was that such maximum credit equalled the Canadian tax rate multiplied by the gross amount of the interest. Art. XXII(2) provided:
The deduction shall not, however, exceed that part of the income tax as computed before the deduction is given, which is appropriate to the income which may be taxed in Brazil.
In accepting the Crown’s interpretation, Paris J stated (at paras. 29, 51, 62):
[T]he English word “appropriate”, the French word “correspondant”, and the Portuguese word “correspondante” [in the three versions of Art. XXII(2)] share the common meaning of “correlation between two things”. …
IPL2 stands for the proposition that...gross income from a source in a particular location must be reduced by any deduction that may reasonably be regarded as applicable to that source. Tax is then computed on this net amount... . While the Treaty does not explicitly set out that Canadian tax be computed in this manner for the purposes of Article XXII(2), it is implicit in the phrase “income tax as computed before the deduction is given” which appears in Article XXII(2).
[T]he tax sparing provision was intended to avoid neutralizing any tax incentive offered by Brazil on interest income, a result that was achieved by means of Canada’s agreement to forego any Canadian tax on Brazilian interest income earned by a Canadian resident to which Article XXII(3) applies. It seems unlikely that the tax sparing provision was intended…to operate to shelter not only Brazilian interest income from Canadian tax, but income from other sources unrelated to Brazil as well. …
After noting (at paras. 69-70) that:
Article 23B of the 1977 OECD Model....uses the phrase “that part of the income tax… which is attributable…to the income…which may be taxed in that other state.”
I agree...that “attributable” as used in that phrase is equivalent to “appropriate”... . The French version of Article 23B of the 1977 OECD Model translates “appropriate” as “correspondant”, the same word that is used in the French version of Article XXII(2) of the Treaty.
he stated (at para. 72):
At paragraph 63 of the Commentaries [on the 1977 OECD Model], the limitation on the deduction [in Art. 23B] is stated to be “normally computed as the tax on net income, i.e. on the income from [the State of source] less allowable deductions.”
Paris J went on to state (at para. 88):
The applicable test for determining which expenses are relevant to income from a source in a particular place is found in subsection 4(1) of the Income Tax Act… .
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 4 - Subsection 4(1) - Paragraph 4(1)(a) | foreign source interest reduced by related expenses | 412 |
Tax Topics - Treaties - Income Tax Conventions | OECD commentaries applied to Brazil (not an OECD member) | 231 |
Anson v. HMRC, [2015] UKSC 44
The taxpayer, who was resident in the UK, paid US income taxes on his share of the profits of an LLC of which he was a member, and also paid UK income taxes on income remitted to the UK including such share of the LLC's profits. He would have been entitled to relief under Art. 23 of the UK-US Double Tax Convention from UK tax on such profits if the UK tax was "computed by reference to the same profits or income by reference to which the United States tax [was] computed."
The First-tier Tribunal ("FTT") found that the combined effect of the Delaware LLC Act and the LLC agreement made between the members was that under the law of Delaware, the members automatically became entitled to their share of the profits generated by the business carried on by the LLC as they arose: prior to, and independently of, any subsequent distribution (para.119), so that Mr Anson was taxed on the same income in both countries, and was entitled to double taxation relief under Art. 23.
This finding was reversed by the Upper Tribunal, whose decision was affirmed by the Court of Appeal, but was restored by the Supreme Court.
The Upper Tribunal construed the FTT's finding, that the profits "belonged" to the members as they arose, as a legally erroneous finding that the profits vested in the members as their property. However, Lord Reed found that when the FTT described the profits as belonging to the members it was referring to a personal right rather than a proprietary right (such as that of the members of a Scottish partnership).
Therefore, contrary to the Commissioners' submissions that the profits generated by the LLC belonged to it and income to Mr Anson arose only as and when profits were distributed, the FTT found that the members of the LLC had an interest in the profits of the LLC as they arose. Accordingly, Mr Anson was entitled to the share of the profits allocated to him, rather than receiving a transfer of profits previously vested (in some sense) in the LLC.
Thus, the "income arising" in the US, being his share of the profits, was income liable to tax under UK law, to the extent that it was remitted to the UK, so that his liability to UK tax was computed by reference to the same income as was taxed in the US, and he was entitled to relief under Art. 23(2)(a) (para. 121)..
Before so concluding, Lord Reed stated (at para. 114):
The words "the same" are ordinary English words. ...]A] degree of pragmatism in their application may be necessary...for example where differences between UK and foreign accounting and tax rules prevent a precise matching of the income by reference to which tax is computed in the two jurisdictions.
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Corporation | profits of LLC earned directly by members | 42 |
Tax Topics - Treaties - Income Tax Conventions - Article 3 | scheme in Treaty article for allocating income between jurisdictions amounted to a definition of "source" | 88 |
Tax Topics - Treaties - Income Tax Conventions - Article 4 | pragmatic approach to determining "same" - also appearing in IV,7(b) of Cda-US Treaty | 142 |
HMRC v. Anson, [2013] EWCA Civ 63, rev'd supra
The taxpayer, who was resident in the UK, paid US income taxes on his share of the profits of an LLC of which he was a member, and also paid UK income taxes on income remitted to the UK including such share of the LLC's profits. He would have been entitled to relief under Art. 23 of the UK-US Double Tax Convention from UK tax on such profits if the UK tax was "computed by reference to the same profits or income by reference to which the United States tax [was] computed."
In finding that this requirement was not satisfied, given that the distribution of the profits to the taxpayer (so as to attract UK tax) was distinct from the earning of the profits by the LLC in the first place (resulting in the US tax), i.e., the LLC was fiscally transparent for US but not UK purposes, Lady Justice Arden stated (at para. 57):
If profit is earned by an entity, and the source of the profit to the taxpayer as a member of that entity is a contract as between him and other members, then in the usual case it follows that the source of his income must be a different source of income from that of the entity itself. The fact that there is a contract generally suggests that there is a disposition of a right to the profits from one person to another. That result can be avoided if the member had a proprietary right to the profits as they arose. This would as I see it generally be the case where income accrues to a trust under which an income beneficiary has an interest in possession, or to a unit trust or collective investment scheme, if the investors have a beneficial interest in the assets that are subject to the unit trust or scheme.
In the case of the LLC, there was "nothing to suggest that it did not have unqualified ownership of its assets or that its members had any interest in those assets" (para. 77). She further stated (at para. 64):
It would be unusual but not impossible for an entity with a separate legal personality, such as a company, to be tax transparent for English law purposes. One example would be the Scottish partnership where the partnership is a separate legal entity and holds the assets of the business, but the partners have an (indirect) interest in the assets and carry on business in common: this has been held by this court to be tax transparent....
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Corporation | LLC not fiscally transparent | 438 |
FLSmidth Ltd. v. The Queen, 2012 DTC 1052 [at at 2745], 2012 TCC 3, aff'd 2013 DTC 5118 [at 6147], 2013 FCA 160
In order to finance the acquisition of U.S. companies, the taxpayer set up a "tower structure," a chain of subsidiaries which had different tax treatment in Canada and the U.S.. For U.S. tax purposes, the income the taxpayer received under this structure was interest income arising in the U.S.; for Canadian tax purposes, it realized its income in the form of dividends received by a subsidiary partnership from a subsidiary Nova Scotia unlimited liability company (which, in turn, received dividends from a subsidiary US limited liability company.) Both the dividends paid by the LLC (which came out of its exempt surplus) and the dividends paid by the Nova Scotia ULC and allocated to the taxpayer by the subsidiary partnership (which were eligible for the intercorporate dividend deduction when allocated to the taxpayer) were exempt from Canadian tax.
Paris J. found that the taxpayer could not claim the U.S. tax as a deduction from income under s. 20(12) of the ITA because the tax could be reasonably regarded as having been paid in respect of income from the share of the capital stock of a foreign affiliate (the US LLC). This approach was consistent with Art. XXIV, para. 2(a) of the Canada-US Convention, as the US income taxes were paid on US source income that was not taxed in Canada, so that relief under that paragraph was not available (para. 81). Canada's obligations under Article XXIV did not extend beyond relief from double-taxation, of which there was none here (para. 80).
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 16 - Subsection 16(1) | regard to economic substance | 138 |
Tax Topics - Income Tax Act - Section 20 - Subsection 20(12) | 303 | |
Tax Topics - Income Tax Act - Section 68 | 138 | |
Tax Topics - Statutory Interpretation - Interpretation Bulletins, etc. | 42 |
Meyer v. The Queen, 2004 DTC 2393, 2004 TCC 199 (Informal Procedure)
The taxpayer, who was a U.S. citizen resident in Canada, did not claim treaty benefits when filing his U.S. return, with the result that his U.S.-source pension income was subject to U.S. income tax at graduated rates rather than the treaty-reduced rate of 15%.
Hershfield J., after finding that the overpayment by the taxpayer did not qualify as a tax, indicated (at p. 2398) that paragraph 2 of Article XXIV of the Canada-U.S. Convention did not refer, like paragraph 1 of that Article, to a credit only being provided where the "appropriate amount of income tax" was paid or accrued to the source jurisdiction because "the Canadian drafters of the Treaty would be allowed to rely on jurisprudence or opinions that would confirm that an amount paid gratuitously without basis under the laws of the foreign jurisdiction would not be a 'tax'".
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(7) - Non-Business-Income Tax | amount paid in error not a tax | 131 |
Tax Topics - Treaties - Income Tax Conventions - Article 26 | 85 |
Canada- Israel Development Ltd. v. MNR, 85 DTC 718, [1985] 2 CTC 2460 (TCC)
The taxpayer, a Canadian resident corporation, owned all the shares of an Israeli corporation (“CAN-IS”) that received a dividend from another Israeli corporation (“ICL”) that was not a foreign affiliate of CAN-IS. The dividend constituted foreign accrual property income of the taxpayer.
Under Art. 23(1) of the Canada-Israel Treaty, Canada was required to give credit for Israeli tax payable by a resident of Canada on income arising in Israel and, under Art. 23(2)(b), Israeli tax payable was deemed to include Israeli tax on dividends and interest that would have been payable but for a specified exemption or reduction in tax under Israeli law (which exempted the dividend in question). The taxpayer claimed credit for the Israeli tax spared under Art. 23(2)(b).
Section 2 of the Protocol to the Treaty provided:
Nothing in this Convention shall be construed as preventing Canada from imposing tax on amounts included in the income of a resident of Canada according to section 91 of the Canadian Income Tax Act...
Tremblay TCJ rejected the Crown’s submission that the Treaty did not require Canada to give relief for the Israeli tax because the tax was levied on the Israeli corporation (CAN-IS) and not on the Canadian parent corporation. On the basis that tax treaties were to be given a “liberal” interpretation, he concluded that, under the FAPI rules, taxes paid by a controlled foreign affiliate of a Canadian parent corporation were to be treated as paid by the parent.
However, s. 2 of the Protocol indicated that the Treaty did not prevent Canada from imposing tax on residents of Canada under the FAPI rules and that the Treaty did not require Canada to give relief for foreign tax if those rules applied. Accordingly, the taxpayer was not entitled to a deduction under ITA s. 91(4) by virtue of the prohibition in s. 2.
Administrative Policy
11 April 2023 Internal T.I. 2023-0964101I7 - Tax issues for cross-border employees
A portion of the employment duties of a cross-border employee (with a hybrid work arrangement) is exercised from Canada in the year but the individual makes contributions under the U.S. Federal Insurance Contributions Act (the “FICA contributions”). In finding that the FICA contributions made in respect of the duties exercised in Canada would not be eligible for a foreign tax credit, the Directorate referenced the rule in Art. XXI:2(a) of the Canada-U.S. Treaty requiring that the tax be paid on income “arising” in the U.S. and stated:
Employment income is generally considered sourced (“arisen”) in the country where the cross-border employee performs the duties of employment giving rise to such income. Where such duties are performed partly when the cross-border employee is physically present in Canada and partly when the employee is physically present in the U.S., in determining the amount of employment income that “arose” in the U.S. in a given year, an apportionment of the total employment income of the year received from an employer based on the ratio of total working days of the year performing the duties of employment for that employer while physically present in the U.S. is generally reasonable.
Only the FICA contributions made on employment income relating to the duties of employment performed by the cross-border employee while physically present in the U.S. would qualify for a foreign tax credit.
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(1) | employment income does not arise in the U.S. for Treaty purposes to the extent the duties are performed in a Canadian home office | 140 |
Tax Topics - Treaties - Income Tax Conventions - Article 8 | contributions to 401(k) plan not deductible to the extent the duties of employment were performed from a Canadian home office | 151 |
3 February 2022 Internal T.I. 2021-0922301I7 - Art. XIII(7) Canada -US Treaty and Trusts
A Canadian-resident trust (the “Trust”) will realize a capital gain on a deemed disposition (the “Deemed Disposition”) pursuant to s. 104(4)(b) of the “U.S. Real Property” on its 21st anniversary date.
The Directorate noted that it considered that it was within the IRS’s jurisdiction and not its jurisdiction to determine whether the Trust is eligible to elect pursuant to Art. XIII(7) the Canada-U.S. Treaty to have a notional sale and repurchase of the U.S. real property occur for U.S. purposes in the same year as that of the Deemed Disposition (so as to permit the Trust to have U.S.-source income in that year, as required under s. 126(1).)
Regarding whether the Trust could benefit from relief from double taxation pursuant to Art. XXIV(2)(a), it noted that Art. XXIV(2)(a) is expressly “subject to the provisions of the law of Canada regarding the deduction from tax payable in Canada of tax paid in a territory outside Canada,” and stated:
[T]his means that a Canadian resident is subject to the limitations on claiming a foreign tax credit found in the Canadian legislation, and more specifically in section 126, including a timing restriction on when a foreign tax credit may be claimed (see … 2015-0601781E5 … .)
[W]here the election under Art. XIII(7) is not available … and the year of the Deemed Disposition … does not occur in the same year [as] … for U.S. income tax purposes … the Trust may not obtain a foreign tax credit in Canada for the U.S. taxes paid in a year subsequent to the year of the Deemed Disposition (assuming the Trust has insufficient income from other sources in the U.S. in the year the U.S. Property is considered by U.S. income tax laws to have been disposed) … .
Locations of other summaries | Wordcount | |
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Tax Topics - Treaties - Income Tax Conventions - Article 13 | CRA lacks jurisdiction to determine whether a trust can elect under Art. XIII(7) of the U.S. Treaty to avoid double taxation of a s. 104(4)(b) gain | 196 |
9 July 2021 Internal T.I. 2021-0893981I7 - CERB received by non-residents
After noting that payments (“CERB Payments”) made pursuant to the Canada Emergency Response Benefit Act (the “CERB Act”) to a non-resident individual were required by ss. 56(1)(r)(iv.1) and 115(1)(a)(iii.22) to be included in computing the taxable income earned in Canada of the non-resident, CRA indicated that the “Other Income” Article of an applicable Treaty will generally apply to the payments and that, similarly to federal employment insurance compensation, it is CRA’s view that the CERB Payments constitute income arising in Canada, so that Canada generally has the right to tax CERB Payments without restriction.
CRA further noted:
Pursuant to the Elimination from Double Taxation Article of the relevant Treaty, the Non-Resident’s country of residence as determined under the Residence Article of the relevant Treaty will be required to provide relief from double taxation either in the form of a credit or of a deduction for the Canadian income taxes paid or accrued in respect of CERB Payments in accordance with the “Other Income” Article of the relevant Treaty.
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 120 - Subsection 120(1) | CERB payments subject to the additional federal tax under s. 120(1) | 117 |
Tax Topics - Treaties - Income Tax Conventions - Article 15 | Other Income Art. accords Canada full right to tax CERB payments | 225 |
26 November 2020 STEP Roundtable Q. 4, 2020-0838001C6 - Foreign Tax Credit
A Canadian-resident individual (the “Taxpayer”), wholly owns a U.K.-resident corporation which, in turn, wholly-owns an Australia-resident holding Australian real property. A capital gain realized by the individual on a sale of the UK corporation is subject to Australian, but not U.K., income tax. Can the individual treat the gain as being from an Australian source for Canadian foreign tax credit purposes? CRA stated:
As the facts provide that the value of the UK corporation’s shares is wholly derived from real property in Australia, pursuant to paragraph 4 of Article 13 of the [Canada-Australia] Treaty, the gain realized by the Taxpayer on the disposition of the shares of the UK corporation may be taxed in Australia.
Paragraph 2 of Article 22 (Source of Income) of the Treaty provides that for the purposes of Article 23 (Elimination of Double Taxation) and the law of Canada, profits, income or gains of a resident of Canada which are taxed in Australia in accordance with Article 13 of the Treaty shall be deemed to be income from sources in Australia. This paragraph would therefore apply to deem the capital gain realized by the Taxpayer on the disposition of the shares of the UK corporation to be income from sources in Australia for purposes of Article 23 and the Act.
In general terms, pursuant to subparagraph 2(a) of Article 23 of the Treaty, Canada shall provide a foreign tax credit for taxes payable in Australia on profits, income or gains from sources in Australia, subject to the existing provisions of the law of Canada. Therefore … the Taxpayer would be eligible to claim a foreign tax credit … [whose] amount … would be determined based on the computational rules of section 126 ... .
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(1) | UK source of gain re-sourced to Australia for s. 126 purposes under Australia-Canada Treaty sourcing rule | 114 |
3 December 2019 CTF Roundtable Q. 2, 2019-0824381C6 - Foreign taxes paid
Art. XXIV(2)(a)(i) of the Canada-US Treaty provides that “income tax paid or accrued to the United States on profits, income or gains arising in the United States” are deductible from Canadian taxes on those items. Art. XXIV(2)(a)(ii) provides that individuals can also claim most social security taxes paid, without the word “accrued”. Article 21(1)(a) of the Canada - UK Treaty refers to tax payable in the UK. Where taxes are accrued but not paid in this context, may a foreign tax credit be claimed for taxes payable, even if they have not yet been paid?
CRA indicated that Art. 21 of the Canada-UK Treaty addresses the elimination of double-taxation. Para. 1(a) thereof expressly provides that the relief is “[s]ubject to the existing provisions of the law of Canada regarding the deduction from tax payable in Canada of tax paid in a territory outside Canada and to any subsequent modification of those provisions”.
Many Canadian treaties have a similar clause and, 2015-0601781E5 commented on this “subject to Canadian law” clause in Art. XXIV of the Canada-US Treaty – and took the view that this meant that a Canadian resident was subject to the “paid” requirement of s. 126.
CRA views the same interpretation as applicable to Art. 21(1)(a) of the Canada-UK Treaty. Therefore, the amount of the foreign tax needs to be paid in order to be eligible for the foreign tax credit.
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(1) | taxpayers can translate under s. 126 foreign taxes at the exchange rate applied to the related income | 186 |
Tax Topics - Income Tax Act - Section 261 - Subsection 261(2) - Paragraph 261(2)(b) | translation of foreign taxes at same FX rate as that used for related income is acceptable | 86 |
13 April 2017 External T.I. 2015-0601781E5 - U.S. tax paid in respect of an LLC's income
A Canadian-resident individual who is a member of a U.S. LLC pays tax in the U.S. on his or her share of profit of the LLC for a particular taxation year but, unless Anson applies, does not have U.S. source income in that taxation year for s. 126(1) purposes. Is the member’s income from the LLC considered to arise as it is earned by the LLC rather than only once it is distributed by the LLC to its members? Can Art. XXIV, para. 2 of the Canada-U.S. Treaty be relied upon to claim a foreign tax credit taxes paid to the U.S. on for the member’s share of of the LLC’s income for the year when there is a distribution in respect of that income from the LLC regardless of whether the distribution takes place in the same taxation year when the income was earned by the LLC?
Notwithstanding Anson, CRA considered that where a Canadian-resident member’s share of LLC income is subject to U.S. tax but the income is not distributed, no Canadian foreign tax credit will be available in the year the income is earned – nor in a subsequent year given that s. 126(1) does not permit the carryforward of the foreign tax.
CRA also considered that this result is consistent with Canada’s Treaty obligations. In particular, after noting that the OECD Commentary on Art. 23B of the Model Convention “expressly contemplates that states may impose timing restrictions on claiming foreign tax credits,” and that where this is so “these countries…would be expected to seek other ways…to relieve the double taxation which might otherwise arise in [such] cases,” CRA stated:
In the case of Canada, such “other ways … to relieve the double taxation” include deductions allowed under subsections 20(11) and 20(12) of the Act. As such, in our view, the limits imposed by subsection 126(1) of the Act on claiming a foreign tax credit are in accordance with the OECD guidelines and do not affect the general principle of Article XXIV of the Treaty.
CRA responded:
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(1) | Post-Anson, no credit for U.S. taxes paid by a Canadian member on undistributed LLC income | 205 |
3 February 2016 External T.I. 2014-0548111E5 - U.S. tax paid in respect of an LLC's income
Mr. A, Canadian resident and citizen subject to a Canadian marginal rate of tax of 50%, was a member of an LLC carrying on a U.S. active business and which was treated as a partnership for Code purposes. LLC (which was not a controlled foreign affiliate of Mr. A) made a pro rata distribution of all its property in 2014 on a liquidation and dissolution (“L&D”), including a distribution of $2500 to Mr. A, thereby giving rise to a $2,000 capital gain on his LLC shares. After noting that "if Mr. A’s capital gain on the disposition of his LLC shares is a US source capital gain under… S5-F2-C1, subsection 126(1) could apply to allow Mr. A a foreign tax credit of up to $400 in 2014," CRA indicated that the “source” rule in Art. XXIV, 3(b) of the Canada-U.S. Treaty would not preclude the taxable capital gain from being US-source income for purposes of s. 126(1), stating:
[T]he provisions of an income tax treaty are generally not to be applied so as to result in more burdensome Canadian income tax being imposed on a taxpayer resident in Canada than the tax that would otherwise be imposed on the taxpayer under the Act (determined without reference to the treaty).
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 88 - Subsection 88(3) - Paragraph 88(3)(d) | no deemed dividend | 133 |
Tax Topics - Income Tax Act - Section 126 - Subsection 126(7) - Non-Business-Income Tax | LLC tax paid by Cdn member not re business | 169 |
Tax Topics - Income Tax Act - Section 20 - Subsection 20(11) | only income was taxable capital gains | 136 |
Tax Topics - Income Tax Act - Section 20 - Subsection 20(12) | s. 20(14) deduction for US operating-income taxes imposed on Cdn LLC member even where his only Cdn income from LLC is taxable capital gain | 439 |
Tax Topics - Income Tax Act - Section 126 - Subsection 126(1) | FTC for US operating-income taxes imposed on Cdn LLC member even where his only Cdn income from LLC is taxable capital gain | 331 |
[U.K] Revenue and Customs Brief 15 (2015): HMRC response to the Supreme Court decision in George Anson v HMRC (2015) UKSC 44 25 September 2015
…[T]he [Anson] decision is specific to the facts found in the case. This means that where US LLCs have been treated as companies within a group structure HMRC will continue to treat the US LLCs as companies, and where a US LLC has itself been treated as carrying on a trade or business, HMRC will continue to treat the US LLC as carrying on a trade or business.
HMRC also proposes to continue its existing approach to determining whether a US LLC should be regarded as issuing share capital. Individuals claiming double tax relief and relying on the Anson v HMRC decision will be considered on a case by case basis.
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Corporation | Anson specific to its facts | 116 |
23 July 2014 Internal T.I. 2014-0525231I7 - Foreign tax credit
Canco paid Japanese income tax on the capital gain reported on the distribution by it of its shares of a Japanese subsidiary ("Forco") to its non-resident parent as a dividend-in-kind, and claimed a foreign tax credit against the Canadian income tax payable on the taxable portion of the s. 40(3) gain realized as a result of a dividend distribution from Forco earlier in the year. After concluding that Canco would not be entitled to a FTC on the basis inter alia that "a taxable capital gain resulting from a deemed disposition of property is considered to be Canadian-source income, which therefore cannot be included in the foreign non-business income for purposes of claiming a FTC," the Directorate went on to state:
Article 21 [of the Canada-Japan Treaty] deems gains of a resident of Canada, which are taxed in Japan under the Convention, to arise from a source in Japan and requires Canada to provide a credit in respect of such Japanese tax against any Canadian tax payable on such gains. However, Article 21 does not apply… to re-source the deemed gain to Japan because the deemed gain was not taxed in Japan. Moreover, the amount of the subsequent gain on the disposition of Forco shares which was taxed in Japan was nil for the purposes of the Act. Therefore, Article 21…has no bearing… .
See summary under s. 126(1).
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(1) | s. 40(3) gain had Cdn source/foreign tax not a "tax" if no refund sought | 426 |
Tax Topics - Income Tax Act - Section 126 - Subsection 126(7) - Non-Business-Income Tax | foreign tax not a "tax" if no refund sought | 210 |
16 June 2014 Internal T.I. 2014-0525961I7 - ON Tax and Brazilian Tax Sparing
Was tax deemed to have been paid (a "tax spared amounts") under Art. 22, para. 3 of the Canada-Brazil Treaty eligible for a foreign tax credit (an "ON FTC") under s. 34(1) of the Taxation Act, 2007 (Ontario) ("the TA")? The Directorate noted that as the tax spared amounts are not deemed to have been paid to Brazil by the Treaty for purposes of s. 126, they cannot be claimed thereunder, and that as Art. 22, para. 2 applies independently of s. 126, a taxpayer can claim a federal FTC in respect of tax spared amounts under that paragraph of the Tax Treaty, stating:
As section 126 of the Act does not apply to such a Federal FTC claim, none of the provisions of section 126 of the Act, including subsections 126(4.1) and (4.2) can be applied to deny such a Federal FTC claim.
Locations of other summaries | Wordcount | |
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Tax Topics - Other Legislation/Constitution - Ontario - Taxation Act 2007 - Section 34 - Subsection 34(1) | Brazilian tax-sparing rules operate independently of s. 126 so that they do not generate an Ontario FTC | 231 |
13 January 2014 External T.I. 2013-0512581E5 - Sale of shares of Brazilian corporation
The capital gain realized by a resident of Canada ("Canco") on disposing of shares of a Brazilian company was taxed by Brazil in accordance with Art. 13 of the Canada-Brazil Treaty. Art. 22, para. 2 provides:
[W]here a resident of Canada derives income which, in accordance with the provisions of this Convention, may be taxed in Brazil, Canada shall allow as a deduction from the tax on the income of that person, an amount equal to the income tax paid in Brazil, including business-income tax and non-business-income tax. The deduction shall not, however, exceed that part of the income tax as computed before the deduction is given, which is appropriate to the income which may be taxed in Brazil.
CRA stated:
"[I]ncome" in paragraph 2… includes taxable capital gains. Therefore…Canco can claim a deduction from tax for any income or profits tax paid to the government of Brazil in respect of the Capital Gain. This deduction from tax would be computed independent of the provisions of section 126 of the Act; however ... the deduction from tax will be limited to the amount of Canadian income tax otherwise payable on that Capital Gain.
10 June 2013 STEP CRA Roundtable, 2013-0480301C6 - 2013 STEP CRA Roundtable Question 4
A U.S. citizen is required to pay U.S. tax on dividends and capital gains at a 20% rate (increased from the previous 15% rate). Does this mean that such citizen if also resident in Canada is only entitled to a deduction under s. 20(11) with respect to the additional 5% tax?
CRA stated that Art. XXIV, para. 5 of the Canada-U.S. Treaty is "a complete code in respect of the deductions and credits available to U.S. citizens resident in Canada for the purposes of eliminating double taxation on dividends, interest, and royalties," and that the deductions thereunder "are available in place of deductions under subsections 20(11) and 20(12), and are typically more advantageous to the taxpayer."
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 20 - Subsection 20(11) | Art. XXIV(5) rules in US Treaty supplant s. 20(11) and (12) rules | 117 |
5 November 2012 Internal T.I. 2012-0462151I7 - Foreign Tax Credits
Canco held portfolio investments in shares of U.S. companies in connection with funding its insurance liabilities. The shares were mark-to-market properties to it, and it realized a loss on income account from a deemed dispostion of the shares under s. 142.5(2) immediately before the end of its taxation year. After noting that the income of Canco from the shares was from a business carried on by it entirely in Canada, so that in the absence of Treaty the withholding taxes applicable to the dividends on the shares would not be eligible for a foreign tax credit by virtue of the mid-amble to s. 126(1)(b)(i), CRA went on to find that by virtue of Art. XXIV, para. 2 and 3 of the Canada-U.S. Income Tax Convention,
a portion of the income from Cancos Canadian XX business must be re-sourced to the U.S. for the purposes of section 126 of the Act. In our view, that portion would be all the income pertaining to the Investments (i.e. the distributions less related expenses and the net mark-to-market loss).
CRA went on to find that, given that gains or losses on the shares were not subject to Canadian income tax by virtue of the Convention, they were deemed by s. 126(6)(c) to be a separate source for purposes of s. 126. Accordingly:
any mark-to-market gains or losses from the deemed dispositions of the Investments would be from a source that produces only tax-exempt income and would not be included in the qualifying income or qualifying losses of Canco by virtue of subparagraph 126(9)(a)(iii) of the Act. Therefore, Canco would compute its...qualifying income and qualifying losses, and its foreign non-business tax credit, without taking into consideration the...net mark-to-market loss on the Investments.
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(6) - Paragraph 126(6)(c) | 303 |
6 July 2012 Internal T.I. 2012-0453461I7 F - rental losses Canada-France Treaty
Respecting a French rental property (the "Immovable") of the Canadian-resident individual taxpayer, CRA stated:
[B]y virtue of Article XXIII of the Convention, Canada will grant a credit for the tax paid in France on the rental income generated by those immovables in order to avoid double taxation. In particular, section 126 would allow the taxpayer to deduct in computing Canadian federal tax an amount in respect of the tax paid in France on the rental income generated by the Immovable.
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 3 - Paragraph 3(a) - Business Source/Reasonable Expectation of Profit | no requirement to establish reasonable expectation of profit re deducting loss from French rental property if no personal element | 105 |
11 May 2012 External T.I. 2011-0428791E5 - Foreign Tax Credit
Respecting a question as to the availability of a foreign tax credit for state franchise tax paid by a Canadian taxpayer (Canco), CRA (after indicating that the tax potentially would qualify for a credit), CRA went on to indicate that Article XXIV of the Canada-US Convention would not provided relief where the foreign tax credit was not available and the franchise tax was imposed notwithstanding the absence by Canco of a permanent establishment in the state (presumably given that the income in question would not be deemed to arise in the US under Art. XXIV, para. 3).
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(7) - Business-Income Tax | 106 |
15 March 2004 External T.I. 2003-0022651E5 - Canada-Mexico Income Tax Convention - Assets Tax
The Mexican assets tax (levied annually at the rate of 1.8% on all business property, commencing after four years of business operations) was not a "tax payable in Mexico on profits, income or gains arising in Mexico" for purposes of Article 22(1) of the Canada-Mexico Convention.
20 February 2003 External T.I. 2002-014360
A s. 20(12) deduction may not be taken by a U.S. citizen resident in Canada on the withholding from U.S. source property income that is in excess of a rate of 10% and less than a 15% rate.
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(1) | 164 |
20 February 2003 External T.I. 2002-0143605 - Deductions-US Citizens resident in Canada
Respecting a U.S. citizen who was resident in Canada and received U.S.-source interest income, the correspondent queried whether the amount of U.S. tax paid on the interest between 10% and 15% would be ineligible for a deduction under s. 20(12). CRA stated that Art. XXIV, para. 5:
requires Canada to give a deduction roughly equivalent to that in subsection 20(11). In particular, paragraph 5(a) of Article XXIV modifies the deduction by requiring that the deduction not be reduced by any credit or deduction for Canadian taxes allowed in computing the U.S. tax on such items. That is, the deduction is based on the taxpayer's gross U.S. tax liability rather than his or her final tax liability. …
Paragraph 5(b) provides that Canada shall allow a deduction from Canadian tax (i.e., a foreign tax credit) on items of income governed by paragraph 5. The foreign tax credit need not exceed the amount of tax that would have been paid to the United States if the resident of Canada were not a citizen of the United States. As a result, the foreign tax credit provided is limited to the lesser of the tax allowed by the Tax Convention and the tax levied by the United States on non-citizens. …
Since paragraph 5 of Article XXIV does not contemplate Canada providing tax relief other than that discussed above, it is our view that a subsection 20(12) deduction cannot be taken where paragraph 5 of Article XXIV applies.
19 October 1998 Memo 8M18146
Re-sourcing to Canada of U.S. employment income of U.S. citizen resident in Canada under Art. XXIV, para. 3 of Canada-U.S. Convention
With respect to the sourcing of an income item, paragraph 3 of Article XXIV of the Convention provides that, for the purposes of that Article, income, profits or gains of a resident of Canada that may be taxed in the U.S. in accordance with the Convention are deemed to arise in the U.S. and those which may not be taxed in the U.S. in accordance with the Convention are deemed to arise in Canada. This sourcing rule applies without regard to the savings clause in paragraph 2 of Article XXIX of the Convention. Therefore, income, profits or gains of a Canadian resident who is a U.S. citizen that would not have been taxed in the U.S. if the resident of Canada were not a U.S. citizen are deemed to arise in Canada (i.e., U.S. source income resourced to Canada). An example of such income is employment income earned by a resident of Canada where the employment was exercised in the U.S. but either the amount of the remuneration did not exceed $10,000 in Canadian currency or the person was present in the U.S. for less than 183 days in a calendar year and the remuneration was not borne by an employer resident in Canada or a permanent establishment of the employer in Canada.
Summary of paras. 4-5
Paragraphs 4 and 5 of Article XXIV of the Convention also require that the U.S. grant a foreign tax credit in respect of certain U.S. source income that is not resourced to Canada pursuant to the sourcing rule described above. In general this income consists of U.S. source pension income, U.S. source income that would not be subject to tax under the Code without regard to the Convention if paid to a resident of Canada who was not a U.S. citizen and U.S. source interest, dividends and royalties to which paragraph 5 of Article XXIV of the Convention applies. Paragraph 6 of Article XXIV provides the U.S. with the authority to resource a certain amount of such U.S. source income to Canada, for the purpose of granting under the Code the credit required by the Convention in respect of Canadian taxes paid on such U.S. source income. The amount of such U.S. source income resourced to Canada would be the amount of such income that would generate an amount of regular U.S. tax equal to the amount of the required credit for Canadian taxes paid on such income. Assume for example that on $100 of U.S. source pension income paragraph 4(b) of Article XXIV requires that the U.S. grant a foreign credit of $25 and the U.S. tax rate is 40%. The amount of such income resourced to Canada would be $62.50.
No FTC for U.S. AMT that relates to (re-sourced) Canadian source income
In the case of income sourced to the U.S. which by virtue of the provisions of the Convention has been resourced to Canada, the U.S. would treat such income for its foreign tax credit purposes as income sourced outside the U.S. and would provide a foreign tax credit for such income. Because of the resourcing rule in the Convention, the taxpayer would have no income arising in the U.S. for purposes of Article XXIV of the Convention and Canada would not be obliged to provide a tax credit for any U.S. tax paid on such income pursuant to paragraph 4(a) of Article XXIV of the Convention. Therefore, the Convention removes the obligation of a Canadian resident to pay U.S. income tax in excess of the amount that would have been paid under the Convention. As discussed above, if as a result of choosing to opt out of the Convention a person pays more regular U.S. tax than he or she would have paid following the provisions of the Convention, it is our position that the excess is a voluntary payment which is not an income or profits tax for the purposes of the Act and is not eligible for a tax credit to reduce Canadian tax. However, if as a result of following the provisions of the Convention AMT arises because of the application of the AMTFTC 90% limitation rule [limiting the foreign tax credit for U.S. alternative minimum tax purposes to 90% of the tentative minimum tax before such credit], such AMT is not a voluntary tax because it is imposed in spite of the Convention. For the purposes of the Act, the AMT is an income or profits tax and the U.S. source income (whether or not resourced for the purposes of the Convention to Canada) is foreign source income. Therefore, the portion of the AMT attributable to such U.S. source income is a non-business-income tax and is creditable for Canadian tax purposes.
3 March 1997 Internal T.I. 9641327 - SUBSECTION 20(11) AND TAX TREATIES
Discussion of the interaction of s. 20(11) and paragraph 5 of Article XXIV of the U.S. Convention.
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 20 - Subsection 20(11) | 20 |
1995 Alberta CICA Round Table, Q. 13 (C.T.O. "U.S. Alternative Minimum Tax")
Discussion of double taxation situation where a U.S. citizen who is resident in Canada and earning only Canadian-source income is subject to U.S. alternative minimum tax.
7 November 1994 External T.I. 9400965 - U.S. REAL PROPERTY INTEREST & FTC (5638-2)
Canco elects under Code s. 897(i) to be treated as a U.S. domestic corporation. Consequently, its shares become "United States real property interests" so that a Canadian-resident shareholder (Mr. A) is subject to U.S. tax on the gains arising on the disposition of his Canco shares under a Plan of Arrangement. (Such disposition also is subject to Canadian capital gains tax). CRA stated:
By virtue of paragraphs 1 and 3 of Article XIII of the Canada-U.S. Income Tax Convention …, the U.S. has the right to tax Mr. A's gains on the disposition of his Canco's shares, as described … above. Furthermore, paragraph 3(a) of Article XXIV … provides that gains of a resident of Canada which may be taxed in the U.S. in accordance with the Convention shall be deemed to arise in the United States for the purposes of Article XXIV and paragraph 2(a) of Article XXIV provides that, subject to the provisions of the Act, Canada must permit a foreign tax credit in respect of income tax paid to the United States on gains arising in the United States. As a result … Mr. A would qualify to claim a foreign tax credit under subsection 126(1) … in respect of [such] U.S. tax liability… .
Halifax Round Table, February 1994, Q. 5
As paragraph 1 of Article 24 of the Canada-U.S. Convention is subject to paragraphs 4, 5 and 6, and these paragraphs are not subject to U.S. domestic tax law, the credit to be allowed by the U.S. under the Convention on the Canadian-source investment income earned by a U.S. citizen resident in Canada should not be affected by the 90% limitation on the U.S. foreign tax credit for AMT purposes.
Articles
Nathan Boidman, "How Will Revised Sourcing Rules Affect Sales of U.S.-Made Goods Abroad?", Tax Notes International, 10 February 2020, p. 655
Allocation of income on sale of U.S.-produced goods all to the U.S. for U.S. FTC purposes under revised Code s. 863 (p. 655)
[There is] a (conceptually) irrational revision of the IRC section 863 sourcing rule for inventory sales … made by the 2017 Tax Cuts and Jobs Act [teh TCJA]) … .
[T]he sourcing rules in section 863 have been changed in a fashion which eliminates the pre-existing related FTCs [foreign tax credits]. …
Under prior section 863 and related regulations, for purposes of deterining FTCs the gross revenue of a US person from the production in the United States and sale outside the United States would be allocatedbetween the United States and the other country using one of three rules. …
Revised section 863 allocates all gross revenue from production and sales to the place of production. That rule is unequivocal where the producer/seller is a U.S person and all production takes place in the United States.
Double tax if also tax under ITA ss. 115(1)(a)(ii) and 253 (p. 657)
[I]f the sale to the distributor is concluded in Canada or it is concluded outside but further to an offer to sell that was made in Canada, then the U.S seller does carry on business in Canada and will be liable or Canadian federal income tax on the portion of the overall profit from producing and selling that is considered to arise in Canada. That would trigger the double taxation resulting from the new denial of U.S. FTCs in accordanced with the new section 863 sourcing rule.
Whether Code s. 863 overrides Art. XXIV(1) of the Treaty (pp. 658-9)
It is those taxes [imposed by Canada under s. 115(1)(a)(ii) and in accordance with Art. VII of the Canada-U.S. Treaty] that the United States should allow FTCs for under section 901 notwithstanding the TCJA amendment to section 863. That is because Article XXIV(1) – taking into account the sourcing rule in Article XX1V(3) – seems to be straightforward in providing those credits.
However ... does the TCJA amendment override, this and deny the credit, either because of the later in time rule of section 7852(d)(1) (regarding conflicts between the code and a treaty provision) or the language in the 1984 Treasury Technical Explanation ... “The direct and deemed paid credits allowed by paragraph 1 are subject to the limitations of the Code as they may be amended from time to time without changing the general principle of paragraph 1. Thus as is generally the case under US income tax conventions, provision such as code sections 901(c), 904 ... apply for purposes of computing allowable credit under paragraph 1. In addition, the United States is not required to maintain the overall limitation currently provided by US law”?
… [R]egarding the later-in-time rule and the oft stated view that it requires clear Congressional intent for a treaty to be overridden, consider the comments referenced above … [which] indicate a clear absence of any congressional expression of that intent … .
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 115 - Subsection 115(1) - Paragraph 115(1)(a) - Subparagraph 115(1)(a)(ii) | 191 | |
Tax Topics - Treaties - Income Tax Conventions - Article 7 | 387 |
Brian J. Arnold, "The Relationship between Controlled Foreign Corporation Rules and Tax Sparing Provisions in Tax Treaties: A New Zealand Case", Bulletin for International Taxation July 2018, p. 430
Lin decision accorded with literal wording of Relief from Double Taxation Article (p. 8)
[T]he situation appears to be as follows:
- the provisions of tax treaties based on the OECD or United Nations Models do not prevent the application of CFC rules;
- the elimination of double taxation provisions of tax treaties do not require countries that impose tax on their residents on income of a CFC pursuant to CFC rules to provide relief for taxes paid by the CFC on that income; and
- the tax sparing provisions of tax treaties do not require countries that impose tax on their residents on income of a CFC pursuant to CFC rules to provide relief for taxes spared to the CFC on that income.
On the basis of a literal interpretation of article 23 of the China-New Zealand Income Tax Treaty (1986), the decision of the New Zealand Court of Appeal in the Lin case is correct. The Canadian Tax Court came to the same conclusion in the Canada-Israel Development case over 30 years ago….
Quaere whether New Zealand was precluded by Treaty from imposing its CFC rules (p. 438)
It is strange that the taxpayer did not raise, and as a result, the Court of Appeal was not required to confront, the most difficult issue, namely, whether the China-New Zealand Income Tax Treaty (1986) prevents the application of New Zealand's CFC rules. As this article has shown, there is a strong argument - based on a broad purposive interpretation of tax treaty, the unusually broad scope of New Zealand's CFC rules, the OECD Commentary as it read at the time the treaty was signed, and the absence of any specific provision in the treaty allowing New Zealand to apply its CFC rules - that the treaty should have been interpreted to prevent New Zealand from applying its CFC rules and imposing tax on the taxpayer with respect to the income of the Chinese CFCs. The Lin case is significantly different from the Canadian case in this regard because the Canada-Israel Income and Capital Tax Treaty (1975) contained an explicit provision to the effect that nothing in the treaty prevents Canada from applying its CFC rules. Moreover, the Canadian CFC rules apply only to passive income and certain limited types of active business income of CFCs, whereas the New Zealand CFC rules at issue in the Lin, case applied to all the income of CFCs controlled by New Zealand residents.
Manjit Singh, Andrew Spiro, "The Canadian Treatment of Foreign Taxes", 2014 Conference Report, (Canadian Tax Foundation), 22:1-37
Re-sourcing of capital gains and derivative gains (p.7)
A common scenario in which a treaty re-sourcing rule may apply is where a Canadian resident realizes a capital gain from a disposition of foreign-company shares that is taxable in the company's state of residence under a treaty….
Re-sourcing under Canada - U.S. Income Tax Convention (the "U.S. Treaty") may also be relevant in the context of payments by Canadian residents under derivative instruments (which would generally be sourced to Canada under Canadian principles) where such payments are subject to U.S. withholding under the recently enacted "dividend equivalent payment" rules in section 871(m) of the Internal Revenue Code (the "Code"). [fn 48: … OECD Commentary… states that the state of residence should grant a credit in situations where a payment is characterized differently for purposes of an applicable treaty under source state and residence state law. …]
Creditability where domestic Treaty override (p.9)
Where the source state's domestic law expressly provides for taxation in contravention of a treaty, the treaty crediting mechanism would likely not apply (assuming the relevant treaty rule follows the OECD Model, which provides for a credit in respect of tax imposed "in accordance with the treaty"). One could argue that the domestic law credit under section 126 should apply in these circumstances, as a payment of tax in excess of the amount permitted under a treaty should not fail to qualify as a "tax" under general principles where the source state's domestic law imposes the tax under a treaty override. [fn 49: …[S]ee Abraham Leitner and Jon Northup, "The US Inversion Rules and Their Impact on Cross-Border Offerings," 2013 Conference Report… 21: 1-35.] The CRA appears to have accepted this premise in the context of U.S. alternative minimum tax imposed in contravention of the U.S. Treaty, to the extent such tax relates to foreign source income. [fn 50: … 2003-0019751E5… .] Arguably, this analysis could also be applied where foreign tax is imposed in contravention of a treaty under a domestic anti-treaty shopping rule.
Kevyn Nightingale, "The Net Investment Income Tax: How it applies to U.S. Citizens Abroad", International Tax, No. 73, December 2013, p. 9.
What is the NIIT? (p.9)
To help fund "Obamacare", the United States instituted a new tax: the Net Investment Income Tax ("NIIT"). [Note 1: Affordable Care Act. PL 111-152 § 1402, 03/30/2010.]
…The tax is calculated as 3.8% of a U.S. person's net investment income [Note 4: IRC § 1411(a)(1)] to the extent the person's modified adjusted gross income is above the following thresholds [not reproduced]....
Summary of conclusions re NIIT being a social security tax (p.14)
For a U.S. individual living in Canada, the individual should not be subject to the NIIT, provided it is a Social Security tax. The NIIT should be a social security tax for the following reasons:
- the NIIT supplements existing social security taxes;
- it is designed to fund an expanded Medicare;
- Americans abroad are exempt from the individual mandate and the NIIT is designed to fund subsidies for that mandate;
- it is described as a Medicare tax in the legislation'
- its location in the Internal Revenue Code is consistent with that status;
- the tax mechanism dovetails with the increased ordinary Medicare taxes on earned income; and
- the absence of an FTC [U.S. foreign tax credit] mechanism is consistent with the NIIT being a social security tax and not an income tax.
This position is not without risk because:...SSTAs [the U.S.-Canada Social Security Totalization Agreement] do not explicitly cover the tax;...an individual who is not covered by CPP (by reason of not earning income from employment or self-employment) may be excluded from the Canadian SSTA; and...funds are not earmarked directly for Medicare.
US FTC under Treaty for NIIT if it is an income tax (pp.12-13)
For a U.S. citizen resident in Canada, the Canada-U.S. Income Tax Convention (the "Treaty") allows a FTC for Canadian tax in computing United States tax:…
The fact that the tax arises in a separate section of the Internal Revenue Code is not relevant to this determination:…[Note 34: Treaty Article II(1); … .Note 35: Treaty Article II(3)]… .
Of course the words "subject to the limitations of the law of the United States" could be interpreted to mean that for taxes like the NIIT there is no FTC, because there is no provision for one in the domestic law. The Internal Revenue Service ("IRS") makes a comment in the preamble to the final regulations that where such words are included, a treaty-based FTC would not be allowed.
No Cdn. FTC for NIIT on non-US-source income if it is an income tax (p. 13)
Where the income is non-U.S.-source, Canada will tax the income without regard to U.S. taxation. Canada has no domestic mechanism to provide an FTC in respect of the NIIT in these circumstances because:
- Qualifying incomes must have a source in one or more countries other than Canada. [Note 37: …subsection 126(7) "non-business income tax".
- Canada calculates FTCs separately on a country-by-country basis. Income earned in one foreign country (e.g., a non-U.S. country) that is taxed by another foreign country (U.S.) gives rise to no FTC.
- The NIIT would also not be a creditable tax because it is payable solely by virtue of U.S. citizenship (noting that the tax does not apply to NRAs [non-resident aliens]). [Note 38: ITA subsection 126(7) "non-business income tax" – paragraph (d).]
Under the Treaty, Canada is not obliged to offer a tax credit. The credit required under the Treaty is limited to the amount which would apply if the individual were not a U.S. citizen. [Note 39: Treaty Article XXIV(4)(a).]
No evident intent to override the Treaty (p. 13)
Unlike Canada and most other countries, in the United States a treaty does not automatically supersede domestic law.… .
The IRS, by noting in the preamble to the regulations that (a) a treaty credit may be allowed and (b) residency determined under a treaty will be respected, implicitly acknowledges that this new tax is not intended to be a treaty override.
It is suggested that in light of the working of the Treaty, especially Article II(1), which anticipates the enactment of additional taxes, an FTC should be allowed, notwithstanding the Treasury's comments.
Also no Cdn. FTC for NIIT on US-source income if it is an income tax (p. 13)
…Canada is not required to provide an FTC for U.S. tax in excess of what is properly allowed under the Treaty. Where the Treaty limits the U.S. tax to an amount lower than the ordinary U.S. statutory rate, that Treaty limit forms an upper bound on the creditable tax. [Note 49: Meyer, 2004 DTC 2393 (T.C.C. – Informal Procedure)] Furthermore, where a U.S. citizen is taxable but an NRA would not be on the same type of income, Canada is not required to provide an FTC. [Note 50: Treaty Article XXIV(4)(a)] As noted above, a U.S. NRA is exempt from NIIT. Consequently, Canada would not offer an FTC in respect of this tax.
Where the statutory U.S. calculation results in higher tax than what the Treaty allows, the United States is required under the Treaty to offer a special FTC to reduce its own tax to the Treaty level. [Note 51: Treaty Article XXIV(4)(b)] Provided the Canadian tax is sufficient, this credit should offset the NIIT. Given the fact that Canadian effective tax rates for high-income earners are typically much higher than U.S. rates, this should be the case almost universally.
Filing in light of risk of NIIT being applicable (p. 14)
It is quite possible, of course, that the IRS would view either approach to be incorrect (that the tax is covered by the SSTA or that there is no treaty-based FTC available in a specific jurisdiction). …
For an SSTA exemption, safe tax practice would suggest that filing form 8275 (Disclosure Statement) is a good idea. For a treaty position, it might still be advisable to file the form….
Tremblay, "Foreign Tax Credit Planning", 1993 Corporate Management Tax Conference Report, c. 3.
Locations of other summaries | Wordcount | |
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Tax Topics - Income Tax Act - Section 126 - Subsection 126(2) | 0 |