October 13, 2017
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In Canada, an income tax is levied by both the federal and provincial/territorial governments, and a variety of other taxes, including federal and provincial value-added and sales taxes, are also imposed.
This chapter focuses on income tax and discusses some of the principal income tax considerations that apply to non-residents of Canada who wish to invest or carry on business in the country. Although a wide variety of business structures are available to non-residents, the following discussion mainly addresses the income tax considerations that apply to Canadian subsidiaries and branch operations. Since Canadian income tax rules are complex and subject to change, the information here is not intended to be comprehensive.
- General tax rules
- General application of Canadian tax to non-residents
- Canadian taxation of a Canadian resident subsidiary
- Canadian taxation of a branch operation
1. General tax rules
a. Residence in Canada
The application of Canadian income tax is based on a taxpayer’s residence. Although residence is generally a question of fact, there are a few specific rules. For example, a corporation is deemed to be resident in Canada for purposes of the Income Tax Act (ITA) if it was incorporated in Canada any time after April 26, 1965.
A corporation incorporated outside of Canada can also be resident in Canada if its “central management and control” is located in Canada. In the absence of evidence to the contrary, the location of a corporation’s central management and control — that is, the location of its highest level of corporate control — is generally understood to be the place where the corporation’s board of directors meet. However, the courts and tax administrations examine the facts in detail to determine the location where the true management and control are exercised.
b. Sources of income
Canadian resident corporations are taxable on their worldwide income from every source, including business income, property income and gains arising on the disposition of capital property (i.e., capital gains).
Income is usually classified as business income if a certain degree of commercial activity is present. Property income is derived from more passive activities such as the collection of interest, dividends, rents and royalties.
Presently, only 50 per cent of a capital gain is taxable, so the classification of property as capital or otherwise for tax purposes is important. Property is generally considered to be capital property if it is held as an investment and not as a trading asset. For example, the building in which a business has its offices would normally be considered capital property, as would equipment or machinery that is used by the business in the course of earning income. However, property that is acquired for the purpose of generating a profit on resale will generally be considered inventory rather than capital property.
c. Canadian-controlled private corporations
A Canadian-controlled private corporation (CCPC) receives preferential tax treatment, including reduced tax rates on a specified amount of its active business income. Special planning is required if a non-resident wishes to carry on business in Canada through a CCPC. To qualify as a CCPC, a private corporation must not be controlled directly or indirectly by non-residents, public corporations or any combination of the two.
A “private corporation” is essentially a corporation that:
- Is resident in Canada
- Is not a public corporation
- Is not controlled by one or more public corporations (subject to certain limited exceptions)
Control of a CCPC includes not only holding a sufficient number of shares to elect a majority of the directors, but also the ability to control the corporation in fact. In determining whether there is control by a non-resident or a public corporation, all shares held by non-residents and public corporations are aggregated. Therefore, even if 51 per cent of the voting shares of a corporation were widely spread among a very large number of non-resident persons or public corporations, the corporation would not be considered a CCPC.
Where 50 per cent of the voting shares of a private corporation are held by a Canadian resident and 50 per cent of the voting shares are held by a non-resident, it may be possible for the corporation to qualify as a CCPC — provided that no other facts give the non-resident control.
d. Withholding tax on passive income of non-residents
The ITA imposes withholding tax at a rate of 25 per cent on the gross amount of certain payments made by a resident of Canada to a non-resident, including management fees, dividends, rents and royalties. This rate may be reduced pursuant to an applicable tax treaty.
Withholding tax is not imposed on arm’s-length interest payments unless the interest is “participating debt interest” — being, in general, interest determined by reference to revenue, profit, cash flow, commodity price or other similar criteria. Furthermore, under the Canada-U.S. Income Tax Convention (1980), commonly referred to as the Canada-U.S. Tax Treaty, interest paid to a resident of the United States may be exempt from Canadian withholding tax even if the recipient does not deal at arm’s length with the payer.
The 25 per cent withholding tax on dividends may also be reduced under an applicable tax treaty. For example, Article X(2) of the Canada-U.S. Tax Treaty provides for a withholding tax rate of five per cent on dividends paid or credited by a Canadian corporation to a corporation resident in the U.S. if the U.S. resident holds 10 per cent or more of the Canadian corporation’s voting shares. Otherwise, under the Canada-U.S. Tax Treaty, the withholding tax rate applicable to dividends is generally reduced to 15 per cent. It is important to note that a person claiming benefits under the Canada-U.S. Tax Treaty must satisfy the “limitation on benefits” provisions of the treaty.
In addition, Canada has eliminated the withholding tax on computer software and certain other intellectual property royalty payments under the Canada-U.S. Tax Treaty.
e. Tax treaties
In addition to reducing or eliminating withholding tax, most tax treaties with Canada generally provide that the business profits earned by non-residents from carrying on business in Canada are not subject to tax under the ITA except to the extent that such profits are attributable to a permanent establishment of the non-resident in Canada. Permanent establishments are discussed further in this section under “Canadian taxation of a branch operation.”
f. Transfer pricing in non-arm’s-length transactions
The ITA normally imposes tax on transactions between related parties based on the price and terms that would have applied between unrelated parties.
The ITA adopts the “arm’s-length” principle in its transfer pricing rules to counteract the potential for abuse. The transfer pricing rules relate to all types of non-arm’s-length inter-company transactions involving property, services, intangibles and any cost-contribution arrangements, such as research and development cost-sharing or management-fee cost allocations.
Canadian taxpayers are taxed on their transactions with non-arm’s-length non-residents on the basis of terms similar to those that would have applied had the parties been dealing at arm’s length. Canadian taxpayers that transact with non-arm’s-length non-residents are also required to prepare and retain certain documentation under the ITA. Failure to do so may result in significant penalties if the terms of their transactions are ultimately held not to be arm’s-length terms. These rules apply to related persons and to parties who, as a matter of fact, do not deal with each other at arm’s length.
g. General filing and reporting requirements
In general, every corporation that is taxable in Canada must file a Canadian income tax return within six months of the corporation’s taxation year-end — regardless of whether the corporation has realized a profit or whether its income is exempt from Canadian tax pursuant to the terms of a tax treaty. The ITA sets out penalties for failing to file or for providing incorrect or incomplete information on a return.
Currently, the filing of consolidated Canadian income tax returns by related corporations is not permitted. Each corporation must file its own return and may not utilize any losses of related corporations to offset the income, although certain deductions may be transferred among members of qualifying corporate groups in limited circumstances.
Corporations making specified payments, including wages and other remuneration, must submit periodic information returns detailing such payments and must remit withholding tax on such payments. Canadian resident corporations and foreign corporations carrying on business in Canada are also subject to reporting requirements in respect of transactions with non-arm’s-length non-residents.
h. General anti-avoidance rule
The ITA includes a general anti-avoidance rule (GAAR), which is a broadly worded provision that can result in the re-characterization of transactions for Canadian tax purposes in order to deny a “tax benefit” resulting from an avoidance transaction.
The ITA broadly defines a “tax benefit” as a reduction, avoidance or deferral of tax or other amount payable, or an increase in a refund of tax or other amounts. An avoidance transaction is a transaction or series of transactions that gives rise to a tax benefit that may reasonably constitute a misuse or abuse of any provision of the ITA, the Income Tax Regulations, the Income Tax Application Rules, a tax treaty or any other enactment relevant to computing tax.
When a misuse or abuse occurs that results in a tax benefit, the Canada Revenue Agency (CRA) is allowed to determine the tax consequences to the taxpayer, in a manner that is reasonable in the circumstances, in order to deny the tax benefit.
i. Payroll tax
Employers, including non-resident employers, are required to register with the CRA. They are also generally required to withhold and remit to the receiver general for Canada withholding tax from salaries, wages and other remuneration paid to employees (whether resident or non-resident) for employment services performed in Canada. Employers must also generally pay and remit other amounts, such as Canada Pension Plan contributions and Employment Insurance Act contributions.
These obligations can arise in respect of a non-resident employer that has staff temporarily in Canada, including where the non-resident employer has no permanent establishment in Canada. Where a payee is both a non-resident individual and is exempt from Canadian tax pursuant to a treaty between Canada and the payee’s country of residence, the payee may be able to obtain a waiver from income tax withholding from the CRA. Relief from the obligation to make Canada Pension Plan contributions may be available if social security coverage continues in the individual’s country of residence.
New relieving rules, which came into effect in 2016, can relieve a qualifying non-resident employer that has qualifying non-resident employees temporarily working in Canada from payroll withholding requirements. In general, both the employer and the employee must be resident in a country with which Canada has a tax treaty, and the employee must work in Canada for less than 45 days in the calendar year or be present in Canada for less than 90 days in any 12-month period.
Additional withholding in respect of tax may be required for services or work performed in Québec.
j. Regulation 105 withholding
The ITA requires all persons to withhold and remit to the CRA 15 per cent of any fees, commissions or other amounts paid to non-residents for services rendered in Canada (other than salary or wages paid to an officer or employee, or a former officer or employee, which are subject to a payroll tax as described above).
This requirement applies even when the non-resident does not have a permanent establishment in Canada or is entitled to an exemption under a treaty for Canadian tax on income from performing services in Canada. The amount withheld and remitted is not determinative of the tax liability of the non-resident, but is applied on account of the tax liability (if any).
If the person performing the services is eligible for an exemption from Canadian income tax on its Canadian business income under a treaty, the person may recover the tax withheld — commonly referred to as the “Regulation 105 amount” — by filing a Canadian tax return. There is also a process whereby the non-resident can obtain a waiver of the requirement of the payer to withhold the Regulation 105 amount in certain circumstances, but the waiver must be applied for in respect of each contract and prior to any payment.
k. Scientific research and experimental development
The ITA provides generous incentives for expenditures incurred for scientific research and experimental development (SR&ED) related to business carried on in Canada by the taxpayer. Through a system of tax deductions and credits to taxpayers, in conjunction with similar tax incentives provided under various provincial laws, Canada has an attractive tax environment in which to engage in SR&ED. These incentives are significantly enhanced for taxpayers that are CCPCs.
2. General application of Canadian tax to non-residents
Canada imposes income tax under the ITA on a taxpayer’s income for each taxation year. While residents of Canada are taxed on their worldwide income, with a few exceptions, non-residents are only subject to Canadian income tax on their Canadian source income.
Non-residents who were employed or carried on business in Canada during the year or disposed of “taxable Canadian property” are liable to pay income tax on their taxable income earned in Canada, which will consist of their income from those three sources.
Non-residents are also subject to withholding tax on passive income such as dividends, rent and royalties from Canadian sources (withholding tax is discussed earlier under “Withholding tax on passive income of non-residents”). A non-resident of Canada who resides in a country that has a tax treaty with Canada may benefit from exemptions or reduced rates of tax in Canada under that treaty.
a. Carrying on business in Canada
- Income tax
In many cases, it will be obvious whether a business is being carried on in Canada. However, there are situations where the location of the business is not as clear for tax purposes. Determining whether a non-resident is carrying on business in Canada for income tax purposes requires an analysis of all of the facts, including establishing the place where contracts are concluded and profit-generating operations are based.
In addition, a non-resident will be deemed to be carrying on business in Canada for purposes of the ITA if the non-resident does any of the following:
- Produces, grows, mines, creates, manufactures, improves, packs, preserves or constructs, in whole or in part, anything in Canada, regardless of whether the non-resident sells it or exports it from Canada without selling it
- Solicits orders or offers anything for sale in Canada through an agent or servant
- Disposes of timber resource property, Canadian real property (other than capital property) or, in certain circumstances, Canadian resource property
If a non-resident individual carries on business in Canada in a taxation year, they may be required to file an annual Canadian income tax return. Generally, a non-resident individual is only required to file a return if tax is payable under the ITA, or if they dispose of certain taxable Canadian property.
By way of contrast, a non-resident corporation that carries on business in Canada in a taxation year must file a return for the year, regardless of whether it has realized a profit in Canada or if its income is exempt from Canadian tax under an applicable income tax treaty. If such an exemption is available, it is claimed when filing the Canadian tax return.
Where a non-resident carries on business in Canada, both Canadian federal and provincial (or territorial) income tax may be imposed.
In addition to income tax, a variety of indirect taxes could be applied to business operations in Canada, as discussed below.
- Value-added taxes (VATs)
The Goods and Services Tax (GST) and Harmonized Sales Tax (HST) apply to most supplies of property and services made in Canada, and the GST applies to most importations of goods into Canada. The GST applies at a rate of five per cent and the HST at a rate of 13 to 15 per cent, depending on the province in which the supplies are made or deemed to be made.
The GST/HST is intended to be a VAT and, therefore, is not generally borne by businesses. GST/HST paid by a business is generally recoverable if the business is registered for GST/HST purposes and makes GST/HST-taxable supplies. Certain supplies are exempt from GST/HST, including certain supplies of financial services, residential real property, health care and educational services. Businesses that make exempt supplies may not be permitted to fully recover GST/HST paid or payable on property and services acquired for related purposes and, therefore, will bear the burden of the tax as a cost of their business activities.
A non-resident that carries on business in Canada may be required to register for GST/HST purposes and be liable to collect and remit the GST/HST. A non-resident that is required to register, but that does not have a permanent establishment in Canada, is required to post a recoverable security with the CRA on registering for GST/HST purposes.
In addition to the GST, the province of Québec imposes a VAT in the form of the Québec sales tax (QST) at a rate of 9.975 per cent. The QST is administered by a separate tax authority under legislation distinct from the GST/HST, such that a separate registration is required. The tax base, exemptions and recoverability are similar to that of the GST/HST.
- Provincial sales taxes
Most supplies of goods, including most computer software, are subject to provincial sales tax (PST), while real property and most other intangible personal property are not. PST also applies to a limited range of taxable services that vary from province to province. Each province also provides for different tax exemptions, though all provinces have a general exemption for goods purchased for resale purposes.
British Columbia, Saskatchewan and Manitoba each impose their own form of PST similar to state sales and use taxes in the U.S. British Columbia imposes its PST at a rate of seven per cent, Manitoba at a rate of eight per cent, and Saskatchewan at a rate of six per cent — though the rates can vary for certain supplies. There must be a degree of connection to a province in order for a seller to be obliged to register to charge and collect the PST for that province. The required degree of connection depends on the provincial rules.
- Books and records
Persons carrying on business in Canada must maintain books and records regarding their Canadian operations at a Canadian place of business — or otherwise make them available for audit by the CRA. Recent court decisions have confirmed the CRA’s ability to make wide requests for documents and information in the context of an audit. Failure to comply with such a request may result in the documents and information being inadmissible in the defence of an assessment for tax.
b. Taxable Canadian property
A non-resident is generally taxed in Canada on any capital gain from the disposition of “taxable Canadian property.”
For this purpose, “taxable Canadian property” includes:
- Real property or resource property located in Canada.
- Eligible capital property or inventory that was used in carrying on a business in Canada (with some limited exceptions).
- A share of the capital stock of a corporation (other than a mutual fund corporation) that is not listed on a designated stock exchange, or an interest in a partnership or trust (other than a mutual fund trust or an income interest in a trust resident in Canada) at a particular time if, at any time during the previous 60-month period, more than 50 per cent of the fair market value of the share or interest was derived directly or indirectly from certain Canadian properties (e.g., real property situated in Canada, Canadian resource properties, timber resource properties, or options or interests in such properties).
- A share of the capital stock of a corporation listed on a designated stock exchange, a share of a mutual fund corporation or a unit of a mutual fund trust at a particular time if both of the following conditions applied at any time during the previous 60-month period:
- The taxpayer — including people not dealing at arm’s length with the taxpayer — owned 25 per cent or more of the issued shares or units of any class of the capital stock of the corporation, or more than 25 per cent of the issued units of the trust
- More than 50 per cent of the value of the shares or units was derived directly or indirectly from certain Canadian properties (— e.g., real property situated in Canada, Canadian resource properties, timber resource properties, or options or interests in such properties.)
- Options or interests in the properties described in (i) to (iv).
A non-resident that disposes of taxable Canadian property is generally subject to notification and withholding tax requirements. Subject to certain exceptions, the ITA requires a non-resident who disposes of taxable Canadian property to notify the CRA of the disposition not later than 10 days after it occurred. A non-resident vendor will also be required to remit to the CRA an amount on account of its tax payable or provide appropriate security.
Once the non-resident has given the required notice and paid the required amount, the CRA will issue a certificate of compliance — commonly known as a “Section 116 certificate” — to the non-resident vendor. If a Section 116 certificate is not obtained, the purchaser must remit to the CRA 25 per cent of the gross purchase price within 30 days of the end of the month in which the disposition occurs. The purchaser also has the right to withhold this amount from the purchase price or otherwise recover the amount from the non-resident vendor.
It is usually advantageous for the non-resident to obtain a Section 116 certificate from the CRA, since a certificate will be issued based on a payment of an amount calculated with reference to the gain arising from the disposition. Without the Section 116 certificate, the tax withheld by the purchaser is based on the gross selling price of the property. These withholding obligations and notification requirements apply even if a loss arises on the disposition. However, they generally do not apply to certain dispositions of taxable Canadian property that would otherwise be exempt from Canadian tax under Canada’s tax treaties.
3. Canadian taxation of a Canadian resident subsidiary
a. Income tax liability
A subsidiary that has been incorporated anywhere in Canada is considered to be resident in Canada for income tax purposes. It is subject to federal and provincial/territorial taxation in Canada on its worldwide income in the manner indicated previously in the discussion on Canada’s general tax rules.
Canada’s corporate tax rates have been gradually reduced in recent years and are now relatively low. Combined federal and provincial/territorial rates on general business income of a corporation are currently between 25 and 31 per cent, and range between 26 and 27 per cent for the most populous provinces of Alberta, British Columbia, Ontario and Québec.
b. Business and property income
The ITA provides that a taxpayer’s income from a business or property is the profit from that source for the taxation year. “Profit” is to be computed initially using applicable general commercial and accounting norms, but is subject to many specific adjustments under the ITA.
c. Capital gains and losses
Capital gains receive preferential treatment under the ITA since only 50 per cent of a capital gain — also referred to as a “taxable capital gain” — is included in income. A capital gain is the amount by which the proceeds of a disposition of a capital property exceed its adjusted cost base and reasonable costs of disposition.
Fifty per cent of a capital loss — also referred to as an “allowable capital loss” — is deductible but generally only against taxable capital gains. The amount by which taxable capital gains exceed allowable capital losses incurred in a taxation year is included in the corporation’s income and is subject to tax at the regular rates. Where allowable capital losses exceed taxable capital gains, the excess, or net capital loss, may be carried back three years and carried forward indefinitely, but may only be used to offset taxable capital gains of those other years.
d. Deductibility of expenses
In general, in order to be deductible, expenses must be incurred in the year for the purpose of gaining or producing income from business or property. Generally, only current expenses are deductible in computing taxable income. Capital expenditures are not generally deductible, although an amount representing depreciation may be deducted pursuant to the capital cost allowance (CCA) regime, which is discussed in more detail later in this section.
The accounting and tax treatment of expenses are not always the same:
- Meals and entertainment expenses
Generally, only 50 per cent of food and entertainment expenses may be deducted under the ITA, even if they were incurred solely for bona fide business purposes.
Generally, interest is deductible only to the extent that it is paid or payable on a debt incurred for the purpose of earning income from business or property. A number of restric¬tions may apply. For example, the “thin capitalization” rules restrict the interest deduction that a corporation resident in Canada can deduct on a debt owing to a “specified non-resident.”
For taxation years beginning after 2012, the permissible amount of debt to specified non-residents is one and a half times the equity. In general, interest on debt in excess of this limit is non-deductible and deemed to be a dividend from which the Canadian payer must withhold tax (see “Withholding tax on passive income of non-residents”).
Specific rules apply for the purpose of calculating both the amount of debt and equity affected by these restrictions. Canada also has specific withholding tax rules on certain back-to-back loan arrangements involving non-residents.
- Loss carry-overs
Losses realized from business or property are fully deductible in the year that they are incurred. To the extent that all or any portion of these losses remain unused and were incurred in or after 2006, they may be carried back three years and forward 20 years. For losses arising before 2006, the carry-forward period is shorter, ranging from seven to 10 years depending on the circumstances. Capital losses may only be deducted against capital gains and may be carried back three years and forward indefinitely.
The ITA restricts the ability of a corporation to use loss carry-overs after control of the corporation has been acquired. In general terms, losses from property do not survive an acquisition of control, while business losses incurred before the acquisition of control may only be used to offset income after the acquisition of control from the same or a similar business.
e. Capital cost allowance (CCA)
The ITA explicitly disallows the deduction of capital expenditures with limited exceptions. For example, instead of claiming a deduction for depreciation, the ITA permits the deduction of CCA. For this purpose, the Income Tax Regulations (the Regulations) require the grouping of depreciable assets into various classes.
A deduction for CCA may be claimed annually based on the total undepreciated capital cost (UCC) of each asset class at the rate prescribed by the Regulations. CCA is generally computed on a declining-balance basis and, in most cases, only half of the amount that is normally deductible can be claimed in the first year that an asset is acquired.
In addition, CCA may only be claimed on an asset when the asset is “available for use” for the purpose of earning income, as that term is defined in the ITA. Detailed rules specify when a particular property becomes “available for use.” CCA is a discretionary deduction, thus the taxpayer is not required to claim it in a particular year.
When a depreciable property is sold, the proceeds of disposition are deducted from the UCC of the class. If that deduction results in a negative balance for the class, the negative balance may be included in income as a recapture of CCA. A resulting positive balance may be deducted from income as a terminal loss if no assets remain in the class. The disposition of depreciable property may also give rise to a capital gain.
f. Repatriation of funds: Dividends
The ITA generally imposes a 25 per cent withholding tax on dividends paid by a Canadian subsidiary to its non-resident shareholder. This rate may be reduced by a treaty. For example, under the Canada-U.S. Tax Treaty, the rate of withholding tax on a dividend paid by a wholly owned subsidiary may be reduced to five per cent. The Canadian subsidiary is required to deduct or withhold this tax from the dividend.
g. Repatriation of funds: Paid-up capital
A Canadian subsidiary of a non-resident shareholder may distribute paid-up capital without Canadian withholding tax, even if the subsidiary has undistributed earnings and profits. A number of corporate law and tax requirements must be satisfied in connection with a return of capital.
h. Management, rental and royalty payments
The ITA generally imposes a 25 per cent withholding tax on the payment of management fees, rent and royalties, which is subject to reduction under Canada’s tax treaties. Under many of Canada’s tax treaties, management fees charged by a non-resident parent to a Canadian subsidiary are not subject to Canadian withholding tax if the non-resident does not have a permanent establishment in Canada.
i. Inter-corporate loans
- Loans from non-resident parent to Canadian subsidiary
The “thin capitalization” rules in the ITA may disallow a deduction for interest payable by a Canadian subsidiary on debts owing to a “specified non-resident person” if such debts exceed certain limits.
Subject to an applicable tax treaty, a Canadian subsidiary must withhold tax on interest paid to non-arm’s-length parties or on participating debt interest. A notable exception is available for U.S. residents under the Canada-U.S. Tax Treaty, which eliminates withholding tax on interest paid by a Canadian subsidiary to a U.S. parent, provided that the U.S. parent qualifies for the benefits of that treaty and the interest is not participating debt interest.
- Loans from Canadian subsidiary to non-resident parent
If a Canadian subsidiary lends money to its non-resident parent and the loan is not repaid within one year (from the end of the subsidiary’s taxation year during which the loan was made), the entire principal amount of the loan will be deemed to be a dividend paid to the parent, and withholding tax will be payable on the amount of the deemed dividend.
Even if the full principal amount of the loan is repaid within the time required, if an appropriate interest rate was not charged, a deemed taxable benefit may arise — which would result in a deemed dividend and Canadian withholding tax.
4. Canadian taxation of a branch operation
A non-resident corporation that carries on business in Canada must pay Canadian income tax on income earned in Canada. Generally, however, Canada’s tax treaties provide that a corporation’s business profits will only be subject to Canadian income tax to the extent that they are attributable to a Canadian permanent establishment.
a. Permanent establishment
Whether a Canadian permanent establishment exists depends on the facts. Generally, a permanent establishment is a fixed place of business through which the business of the non-resident is wholly or partly carried on. Tax treaties generally provide that a permanent establishment includes a place of management, a branch, an office, a factory or a workshop. Under many of Canada’s tax treaties, a building site or construction or installation project also constitutes a permanent establishment, but generally only if it lasts more than 12 months. As such, depending on the nature of its activities, a branch operation in Canada will often have a permanent establishment in Canada.
A permanent establishment can arise in many other circumstances as well. For example, the CRA considers computer equipment — such as a server that connects to the Internet — to be tangible property having a physical location. Such equipment may therefore constitute a non-resident person’s place of business if it is at the disposal of the person (in other words, if it is owned or leased and used by the person). On the other hand, the mere use of a computer or server owned by a third party will not generally constitute a fixed place of business of the non-resident if the computer or server is not at the non-resident’s disposal.
Agents and employees in Canada may themselves constitute permanent establishments in some circumstances — namely in cases where such a person has, and habitually exercises, authority to conclude contracts in the name of the non-resident. Care is required here, but in the appropriate circumstances a non-resident corporation will not be considered to have a permanent establishment in Canada by reason of having sales representatives in Canada — provided the representatives do not have or habitually exercise authority to conclude contracts in the name of the non-resident.
Under the Canada-U.S. Tax Treaty, if a U.S. enterprise is providing services in Canada and is not otherwise found to have a permanent establishment in Canada, it will nevertheless be deemed to be providing the services in Canada through a permanent establishment if:
- The services are provided by an individual who is present in Canada for an aggregate of 183 days or more in any 12-month period and more than 50 per cent of the gross active business revenue of the enterprise is derived from such services.
- The services are provided in Canada for an aggregate of 183 days or more in any 12-month period with respect to the same or a connected project for customers who are either resident in Canada or who maintain a permanent establishment in Canada.
b. Branch tax
In addition to Canadian federal and provincial income tax, a non-resident corporation carrying on business in Canada through a Canadian branch operation is subject to a branch tax. Under Part XIV of the ITA, the branch tax is 25 per cent of after-tax income that is not reinvested in Canada. Where the rate of withholding tax on dividends is reduced by a tax treaty, as is usually the case, the rate of the branch tax is often reduced to the same rate.
The ITA generally provides that branch tax is levied on the after-tax Canadian earnings of the business carried on in Canada, less any amounts that are reinvested in the Canadian business. A tax treaty may modify the method of calculating the earnings for branch tax purposes. In addition, a tax treaty may exempt the first $500,000 of a non-resident corporation’s income from branch tax.
The branch tax is intended to approximate the Canadian withholding tax that would have been payable on dividends paid by a Canadian-resident subsidiary to its non-resident parent. In the absence of this branch tax, a Canadian branch could be more tax-efficient than a Canadian subsidiary.
A branch is not a legal entity, and the financial and tax accounting for branches may be more complex than for a Canadian subsidiary. For example, the determination of the branch’s proportionate share of the corporation’s overall general and administrative expenses can raise difficult questions. Non-resident corporations wishing to carry on business in Canada through a branch face the potentially serious practical problem of preparing financial statements for the branch in a manner that will be acceptable to both the CRA and the tax authorities of its country of residence.
On June 26, 2012, the competent authorities of the U.S. and Canada entered into an agreement regarding the application of Article VII of the Canada-U.S. Tax Treaty. That agreement provides that the competent authorities will interpret Article VII in a manner entirely consistent with the fully authorized Organisation for Economic Co-operation and Development approach. A description of the ramifications of this agreement and, more particularly, the taxation benefits to U.S. corporations carrying on business through a permanent establishment, is beyond the scope of this publication. However, this agreement should be taken into consideration when deciding whether to carry on business operations in Canada through a branch rather than a Canadian subsidiary.
c. Books and records
When a corporation carries on business through a Canadian branch, all of its books and accounting records with respect to its Canadian operations must be kept at its Canadian place of business, or other designated place. They must also be made available for audit by the CRA.
d. Taxation of non-resident employees of a branch
The taxation of employees of a branch depends on whether the employees are, or become, Canadian residents. Residency is generally determined based on the extent of the residential connections with Canada. However, an individual may also be deemed to be a resident of Canada, for example, by sojourning in Canada for 183 days or more in the year.
Where an individual is a resident of Canada and continues to be a resident in another country — in other words, if the individual is a dual resident — Canada’s tax treaties contain tiebreaker rules for determining where the individual will be considered a resident for tax purposes. Where an individual is a dual resident, the tiebreaker rule in a particular tax treaty may result in that individual being regarded as non-resident in Canada.
Generally, a treaty tiebreaker rule provides that an individual is resident in the jurisdiction in which they have a permanent home available to them. If the individual has a home in both or neither places, then the next consideration is the individual’s centre of vital interests — that is, the state in which their personal and economic ties are closer. If these considerations are not determinative, certain treaties will then consider the individual’s habitual abode, followed by their citizenship. Failing this, the respective tax authorities must be called upon to settle the matter.
Employees who move to Canada and become Canadian residents are taxable on their worldwide income. On the other hand, employees who are non-residents of Canada are taxed only on their Canadian source income, which would include remuneration received for employment duties they physically exercise in Canada. However, in some situations, a tax treaty may deny Canada the right to tax such remuneration. For example, under the Canada-U.S. Tax Treaty, Canada will generally not tax a U.S. resident employee of a U.S. employer on their employment income for a particular calendar year if either of the following conditions are met:
- The remuneration does not exceed $10,000 in respect of employment in Canada during the particular calendar year.
- The employee is present in Canada for periods that do not exceed 183 days in that year, and the remuneration is not borne by a Canadian branch.
Canada’s other tax treaties generally apply rules similar to those of the Canada-U.S. Tax Treaty, with the exception of the $10,000 safe-harbour rule. As a result, Canada’s tax treaties will often deny Canada the right to tax non-resident employees temporarily working in Canada — provided they are in Canada for less than 184 days and their remuneration is not borne by a Canadian branch.
This exemption does not preclude the obligation of the employer, whether resident or non-resident, to withhold income tax from a U.S. resident’s remuneration for the services performed in Canada — unless a waiver is obtained from the CRA, or relief is provided by the new payroll exemption for qualifying non-resident employers and employees that became effective in 2016. Other payroll source deductions may also apply subject to certain exceptions.
Non-resident corporations with a permanent establishment in Canada are deemed to be resident in Canada for GST/HST purposes, and therefore may be required to register for and collect GST/HST on all taxable supplies of property and services made through the permanent establishment. Special rules may require self-assessment for GST/HST on intangible property and services sourced from outside of Canada.
f. Unlimited liability companies
In some circumstances, it may be advantageous to incorporate a Canadian subsidiary as an unlimited liability company (ULC). These special corporate vehicles are available under the laws of the provinces of Alberta, British Columbia and Nova Scotia.
A ULC may be considered to be a flow-through or fiscally transparent entity for U.S. tax purposes. However, for Canadian purposes, a ULC is not fiscally transparent and is taxed as a Canadian corporation. As well, certain benefits under the Canada-U.S. Tax Treaty are not available to ULCs. For general information on ULCs, see the “Business structures” chapter.
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