Canada: Carrying On Business In Canada – A Guide For Investors From The United States

This manual describes the general options available to a U.S. investor, particularly a U.S. corporation, looking to establish or acquire a business in Canada. The discussion includes the tax consequences under the federal Income Tax Act ("ITA"), the Canada/U.S. Tax Treaty ("Treaty"), and other federal and provincial taxation statutes. Immigration and corporate law issues are also addressed. Particular reference is made to tax consequences in the Province of British Columbia. U.S. legal and tax consequences are not addressed.

INTRODUCTION

The purpose of this manual is to highlight some key concepts to be considered. The discussion is quite general in nature and should not be interpreted as legal or tax advice to any particular prospective investor.

FEDERAL SYSTEM

Canada is a federal system of government, similar to the United States. Governmental powers are shared between the federal government and the governments of Canada's ten provinces. In addition, the provincial governments have delegated some regulatory responsibility to municipal governments. As a result, businesses may be subject to regulation by any or all of the federal, provincial and municipal governments.

CORPORATE ISSUES

Registration Procedures

Corporations may be incorporated under the laws of Canada or the laws of any particular province. In order for a corporation to carry on a business in a province in which it is not incorporated, it must obtain provincial registration ("extra-provincial registration", which is discussed below) in that province. A federally incorporated corporation is entitled to carry on business in every province in Canada.

A corporation can usually be incorporated within a few days. Neither federal nor British Columbia corporate laws require corporations to maintain a minimum capitalization amount.

Qualifications of Directors

Directors of Canadian corporations generally need not be shareholders of the corporation. Most jurisdictions require, however, that at least twenty-five percent of the directors be Canadian residents. British Columbia is an exception, having no residency requirements. A director must also be an individual who is at least 18 years of age. Some provinces have additional requirements.

TAXATION OF EMPLOYEES IN CANADA AND WITHHOLDING REQUIREMENTS

Employees of a Canadian subsidiary corporation or branch who are residents of the U.S. are exempt from paying income tax in Canada where either:

• their salary while performing the work in Canada does not exceed $10,000 (Cdn.) in any one year; or
• they are present in Canada for a period or periods not exceeding in aggregate 183 days in any 12 month period, and their salary is paid by, or on behalf of, an employer who is not resident in Canada and not claimed as a deduction against the taxable income of a permanent establishment or a fixed base which the employer has in Canada.

If an employee is subject to income tax in Canada, his or her employer is generally required to withhold amounts for Canadian Income Tax, provincial Medical Service Plan contributions, and Canadian Pension Plan and Employment Insurance contributions (unless the employer is already making such payments in the U.S.).

VISITING, WORKING IN AND IMMIGRATING TO CANADA

Introduction

Generally, all persons who are not Canadian citizens or permanent residents of Canada must apply for and obtain a visa before seeking to visit or immigrate to Canada. However, there are exceptions to this general rule.

Temporary Visits to Canada

U.S. citizens do not require visitors' visas to enter Canada. However, U.S. citizens who seek entry to Canada to attend school or engage in employment will still need to obtain student or employment authorizations. To qualify for an employment authorization, the Canadian employer must establish that qualified Canadian citizens or permanent residents will not be adversely affected by the admission of the U.S. citizen to the Canadian labour market and the employer cannot fill the job with a suitable Canadian or permanent resident.

Employment authorizations are generally not required for representatives of U.S. businesses who come to Canada to purchase or sell goods or services, or for employees of U.S. corporations or other organizations who come to Canada to consult with other employees or members of that corporation or organization or to inspect a Canadian branch office or headquarters on behalf of that corporation or organization.

Temporary Visits to Canada under NAFTA

Under the North American Free Trade Agreement ("NAFTA"), Canada is required to grant temporary entry to the following four categories of U.S. business persons without the usual prior approval procedures.

Business Visitors. U.S. citizens for a short period for prescribed business purposes, such as meetings, conferences, order-taking or after-sales service.

Treaty Traders and Investors. U.S. citizens who seek to carry on substantial trade between the U.S. and Canada or seek to establish or provide key technical services to the operation of an investment to which a substantial amount of capital has been committed. This category generally applies to executives, managers, or persons possessing essential skills.

Intra-Company Transferees. Executives, managers or persons with specialized knowledge being transferred between related companies in Canada and the U.S.

Professionals. U.S. citizens engaged in qualifying professions. Generally, the minimum credentials to qualify are a bachelor's degree and/or licensing in the professional's field.

To qualify for temporary entry at the border, the U.S. immigrant must usually show proof of his or her U.S. citizenship, provide documentation describing the purpose of entry, and provide documentation demonstrating that the U.S. immigrant meets the criteria of the particular category under NAFTA.

NAFTA does not waive, streamline or in any manner affect the procedures and requirements to qualify for permanent residence in Canada.

Immigrating to Canada

There are generally three types of applicants for permanent residence in Canada.

Family-sponsored Immigrants. Persons with close relatives in Canada, such as a spouse, parent or dependent child, are permitted to establish permanent residence in Canada if their close relative sponsors the application by signing an undertaking with the Canadian government promising to be financially responsible for the immigrant for a specified period of time.

Business Immigrants. Business immigrants are people who can apply to immigrate to Canada based upon their intention to invest in a business in Canada, or to establish their own businesses in Canada. There are three categories of business immigrants:

Skilled Worker Immigrants. Successful applicants in this category are generally those people who have the skills to fill job vacancies in Canada for which there are no qualified Canadian applicants. The selection criteria takes into account Canada's labour market needs as well as an immigrant's age, education, occupation, work experience and knowledge of French or English.

ALTERNATIVE BUSINESS STRUCTURES

Alternatives

Although a Canadian corporation is the most common, business operations in Canada may be carried on through a variety of legal entities, including the following:

• Registration of a foreign corporation without establishing a branch office or other "permanent establishment" in Canada
• Canadian branch office;
• Canadian subsidiary corporation;
• Unlimited Liability Corporation;
• Non-resident partnership; or
• Non-resident trust.

These are discussed below.

Registration of Foreign Corporation

Introduction. In limited circumstances it may be possible for a U.S. investor to carry on business activities in Canada without a Canadian "permanent establishment". The Treaty provides that the business profits of a U.S. corporation carrying on business activities in Canada will only be subject to Canadian income tax on such activities if the U.S. corporation carries on business in Canada through a "permanent establishment".

If activities can be carried on in Canada without a permanent establishment, no Canadian income tax will be payable. Where a Canadian permanent establishment exists, the U.S. corporation will be liable for Canadian income tax on its taxable income attributable to the permanent establishment for a combined federal and provincial tax rate of approximately 27%.

Permanent Establishment. A permanent establishment is a fixed place of business through which a business is wholly or partly carried on, including:

• a place of management;
• a branch;
• an office;
• a factory;
• a workshop; or
• a mine, an oil or gas well, or any other place of extraction of natural resources.

A permanent establishment will also exist where a U.S. corporation carries on business in Canada through an agent who has the authority to conclude contracts in the name of the U.S. corporation, except where the agent is an independent broker or agent acting in the ordinary course of business.

Registration. In order to carry on business in Canada without a permanent establishment, a U.S. corporation will need to register as an "extra-provincial corporation" in all the provinces in which it intends to do business. In completing the registration process, the U.S. corporation will be required to designate an attorney resident in the province who can accept service of legal documents on behalf of the U.S. corporation, and a "head office" of the corporation in the province through which business may or may not be conducted. Extra-provincial registration will not, in and of itself, amount to a permanent establishment for income tax purposes.

Branch versus Subsidiary

Introduction. Where Canadian business activities will be carried out by a U.S. corporation through a permanent establishment situated in Canada, the corporation could establish a branch office in Canada or incorporate a separate Canadian subsidiary corporation.

Canadian Subsidiary. Where a U.S. corporation incorporates a subsidiary in Canada and the subsidiary carries on business in British Columbia, the subsidiary's taxable income will, generally speaking, be subject to a combined Canadian federal and provincial corporate income tax rate of approximately 27%. Different provinces have marginally different rates of corporate income tax.

The subsidiary will also be subject to a second tier of tax, a withholding tax, if and when it pays out aftertax profits in the form of dividends to its U.S. parent corporation. Provided generally that the U.S. parent owns at least 10% of the voting stock of the subsidiary, the withholding tax is 5% of the dividends. In all other cases, the withholding tax is 15% of the dividends.

Canadian Branch Office. Where a U.S. corporation carries on business in British Columbia through a branch office, the branch's taxable income will generally be subject to the same combined federal and provincial corporate income tax rates outlined above with respect to subsidiaries.

The Canadian branch will also be subject to a second tier of tax, commonly called a "branch tax". The purpose of the branch tax is to equalize the Canadian tax consequences to a U.S. corporation of carrying on business in Canada through a branch or through a subsidiary. The branch tax is 5% of after-tax income.

While branch tax succeeds in doing away with most of the tax differences resulting from carrying on business as a branch or as a subsidiary, there remain variations which may make one business structure more favourable than the other.

For example, certain organizations, including banks and corporations engaged in communications, mining and transportation in Canada, are exempt from branch tax. In addition, an investment allowance provides the opportunity to defer branch tax to the extent that profits are reinvested in Canadian business assets and other qualifying assets. As a result, cash can flow more easily between the Canadian branch and its U.S. head office than between a Canadian subsidiary and its U.S. parent, provided that a sufficient investment allowance is maintained.

Finally, branch tax is levied only against the branch's "earnings". For this purpose, earnings means the amount by which the business profits of the branch exceed its business losses, taxes, reinvested profits and a threshold of $500,000. This threshold essentially exempts from branch tax the first $500,000 of income derived from the branch. The threshold is cumulative and must be shared among "associated companies" that conduct the same or a similar business in Canada.

Choosing between a Subsidiary and a Branch. The principal tax and commercial advantages and disadvantages of carrying on business through a branch or a subsidiary can be summarized as follows:

Advantages of a Branch

• Losses incurred by the branch may (depending on U.S. tax rules) be deductible by the U.S. corporation for U.S. tax purposes;
• The financing of a branch is not subject to any special rules, such as the "thin capitalization rules" discussed below, which are applicable to subsidiaries;
• The movement of cash and certain other assets between the branch and its U.S. head office may be free from Canadian tax because of the $500,000 exemption discussed above, or where the branch has made sufficient investments in Canadian property to offset branch tax on its earnings with the investment allowance described above;
• A branch may repatriate its profits after payment of income tax and branch tax without further tax costs. Additional monies may be repatriated indirectly by way of reasonable management and administrative expenses and allocations of reasonable head office expenses to the Canadian branch; and
• As only the taxable portion of a capital gain less the related tax is subject to branch tax, 50% of all capital gains recognized by a branch essentially escape branch tax.

Disadvantages of a Branch

• The U.S. corporation may encounter some procedural or administrative delays in setting up a Canadian bank account, obtaining business licenses and complying with other governmental restrictions and requirements;
• Once earned, the after-tax profits attributable to a branch (which are not reinvested) are subject to branch tax. Thus, unlike dividends, the payment of branch tax cannot be delayed and must be paid each year;
• A branch must retain two sets of books, one for U.S. tax and accounting purposes and one for Canadian tax and accounting purposes;
• A corporate reorganization abroad may constitute a deemed disposition of Canadian assets and thereby give rise to Canadian tax consequences;
• The U.S. corporation's books and records relating to its non-Canadian operations may become open to inspection and audit by Canadian tax authorities; and
• All of the U.S. corporation's assets are potentially exposed to any liabilities arising from its branch operation in Canada.

Advantages of a Subsidiary

• Dividends and interest payable by a Canadian subsidiary to its U.S. parent corporation are subject to Canadian withholding tax, as described above. However, payment of this withholding tax, unlike the branch tax, can be postponed indefinitely by postponing the payment of dividends;
• The use of a subsidiary is usually more convenient for administrative and governmental compliance and registration purposes;
• The liability of the U.S. parent corporation will be limited to its investment in the subsidiary;
• The use of a subsidiary allows greater flexibility on the sale of a Canadian business in that either assets or shares can be sold;
• A subsidiary offers the advantage of a clear separation and stronger "Canadian presence", which may assist in marketing, accumulation of goodwill, and generally in the carrying on of business in Canada; and
• A subsidiary can utilize Canadian corporate reorganization rules which permit corporate reorganizations without immediate tax consequences.

Disadvantages of a Subsidiary

• A specified portion of the directors must usually be resident Canadians, although, as indicated above, there are no director residency requirements for British Columbia corporations;
• Thin capitalization rules provide that the deductibility in Canada of interest expense of a subsidiary will be denied to the extent the debt-to-equity ratio exceeds 2:1, as discussed further below; and
• There are obvious extra expenses associated with a separate corporation such as expenses associated with incorporation and preparing annual reports, corporate proceedings, and separate annual financial statements and income tax returns.

Summary

It may be preferable from a strict Canadian income tax perspective to initially carry on business through a Canadian branch office of the U.S. corporation rather than through a Canadian subsidiary, at least in the start-up phase where losses may be incurred and until the $500,000 threshold exemption is utilized. The business can then generally be transferred to a Canadian corporation on a tax-deferred basis where appropriate.

However, there are non-tax reasons related to limited liability, financing and other factors noted above which often make the use of a Canadian subsidiary the preferred choice.

"S" or Limited Liability Corporation

Canada Revenue Agency presently treats "S" and Limited Liability Corporations incorporated under U.S. state legislation just as any other U.S. resident corporation for Canadian tax purposes.

Unlimited Liability Company

The Provinces of British Columbia, Alberta, and Nova Scotia presently allow for the incorporation of an Unlimited Liability Company ("ULC") as the Canadian subsidiary of a U.S. corporation. A ULC may be used as an alternative to a branch, as it may confer many of the same benefits of having a branch office, while still providing certain advantages of maintaining corporate status in Canada.

Essentially, a ULC is treated for most Canadian purposes as a regular corporation (with certain special name requirements) except that the shareholders of the company are jointly and severally liable with the ULC for specific liabilities. In British Columbia and Nova Scotia, that additional liability is limited to any debts or liabilities upon dissolution or liquidation of the company, whereas in Alberta the shareholders are accountable for all liabilities of virtually any kind incurred by the ULC. Furthermore, Alberta requires 25% of the directors to be Canadian residents, and Nova Scotia has slightly higher annual renewal fees than both Alberta and British Columbia.

However, carrying on a business in Canada through a ULC can in appropriate circumstances provide significant tax advantages to U.S. shareholders. This is because a ULC can qualify as a disregarded entity under U.S. "check-the-box" entity classification rules. Some of the major benefits include permitting losses incurred by the Canadian subsidiary to flow through to the U.S. parent corporation for U.S. tax purposes, and allowing the U.S. shareholder to claim foreign tax credits for certain amounts paid as Canadian tax by the ULC.

Recent amendments to the Treaty have created additional planning complications and limitations for U.S. corporation utilizing ULCs in Canada. However, with appropriate planning most of these limitations can be overcome.

Non-Resident Partnership

In Canada, a partnership is not recognized as a legal entity which is separate from the persons who are the "partners" in the partnership. As a result, a U.S. partnership carrying on business in Canada is effectively considered a Canadian branch of a U.S. business and is subject to the same tax as a Canadian branch of a U.S. corporation.

Non-Resident Trust

A U.S. investor may also carry on business in Canada through an offshore trust under which the investor is a beneficiary. The trust could be established in the U.S. or in another jurisdiction. Where a trust carries on business in Canada, it is subject to the highest individual marginal rates of Canadian income tax. There is, however, no second tier of tax such as branch tax. There are also no "thin capitalization" restrictions, as discussed below.

REPATRIATION OF PROFITS

From Canadian Branch

A Canadian branch's "earnings" will be subject to branch tax as discussed above. There is no further tax payable on profits repatriated to the U.S. However, profits subject to tax and branch tax in Canada may be reduced by reasonable allocations of expenses between the branch and the U.S. head office.

From Canadian Subsidiary

Alternatives. A Canadian subsidiary will generally repatriate its profits by paying dividends, by making interest payments or by paying management fees. Profits may also be repatriated by making loans to the U.S. parent corporation or by paying royalties.

Dividends. A withholding tax will be levied on dividends, as described above. The tax is 5% of the dividends, provided generally that the U.S. parent owns at least 10% of the voting stock of the Canadian subsidiary, and 15% in all other cases.

Management Fees. In the case of management fees, no withholding tax will be levied if the U.S. parent corporation providing the management fees does not have a permanent establishment in Canada. Management fees not meeting these tests are generally subject to a 25% withholding tax. Management fees will be deductible from the Canadian subsidiary's income only to the extent they are reasonable in the circumstances. Reasonableness may be evaluated by the Canadian tax authorities with reference to the nature and amount of the benefits derived in respect of the management services performed by the U.S. parent corporation.

Interest. In the case of interest payments made by a Canadian subsidiary to its U.S. parent corporation in respect of a loan made by the parent to the subsidiary, no withholding tax will be levied, provided the amount of interest under the loan is not determined by reference to sales, profits, cash flow and the like.

Royalties. In the case of royalty payments made by a Canadian subsidiary to its U.S. parent corporation, a withholding tax of 10% will generally apply. Certain types of royalty payments are exempt from withholding tax such as computer software royalties, patent royalties and copyright royalties (other than film and television royalties).

Loan to U.S. Parent Corporation. In the case of a loan which a Canadian subsidiary grants to its U.S. parent corporation which is not repaid by the end of the year following the year in which the loan is made, the tax consequences to the parent are the same as if the subsidiary had declared and paid a dividend to the parent in the amount of the loan. Accordingly, withholding tax as described above in the case of dividends will apply.

FINANCING OF CANADIAN OPERATIONS

Canadian Branch

As the financing of a Canadian branch generally presents no particular difficulties, the discussion below is limited to the financing of a Canadian subsidiary corporation.

Debt Financing of Canadian Subsidiary

Alternatives. Debt financing of a Canadian subsidiary corporation can be secured through a loan from a Canadian lender, an offshore lender, or the U.S. parent corporation.

Withholding Tax. No withholding tax will generally be levied on interest payments made by a Canadian subsidiary corporation to its U.S. parent corporation or other U.S. resident lender. Similarly, no withholding tax will generally be levied on interest payments made by a Canadian subsidiary corporation to an unrelated lender in another foreign country. Withholding tax (at rates up to 25%) may apply to interest paid to related lenders resident in other countries.

The Thin Capitalization Rule. Where a Canadian subsidiary corporation has outstanding debts owing to certain related non-Canadian residents which exceed two times the amount of the subsidiary's equity, any interest payments on the excess debt cannot be deducted by the subsidiary for tax purposes.

Equity Financing of Canadian Subsidiary

Introduction. Canadian corporate and tax laws provide virtually complete discretion in structuring an equity financing. Essentially, any type of shares in the capital of a Canadian corporation, with any types of rights attached, can be issued. Of course, the sale or issuance of stock will be subject to laws governing the issuance of securities.

Repatriation of Capital. Under Canadian tax laws, it is not necessary to first return retained earnings in the form of taxable dividends before you are able to return capital. It may therefore be useful to finance a Canadian subsidiary corporation by way of a subscription for preferred shares, having paid-up capital and a redemption or retraction price equal to the aggregate subscription price. A small amount of capital can be invested in common shares so that all future increases in value of the Canadian subsidiary accrue to such shares. In this way the majority of the original capital can be returned to the U.S. parent corporation on a tax-free basis simply by repurchasing or redeeming the preferred shares.

Withholding Tax. Withholding tax as described above will apply to dividends paid by a Canadian subsidiary to its U.S. parent corporation.

Other Financing Considerations

Assistance Programs. New businesses incorporated in Canada may take advantage of numerous governmental assistance programs, which may involve financial assistance or managerial and technical advice. Many provinces also provide tax incentives in order to encourage economic growth and employment opportunities in particular industries and areas.

Statutory Restrictions. A corporation carrying on business in Canada should also be aware that there are special corporate law prohibitions regarding certain forms of financing. For example, the Canada Business Corporations Act prohibits a company from providing financial assistance for the purpose of acquiring the company's own shares. A company's financing requirements, however, can generally be structured to avoid these prohibitions or to take advantage of certain statutory exceptions.

TRANSFER PRICING

The amount paid by a Canadian branch or subsidiary corporation to a non-resident for goods and services cannot exceed a reasonable amount, determined as if the parties had been dealing at arm's length. Similarly, amounts charged by Canadian taxpayers to related non-residents for goods and services may not exceed a reasonable amount in the circumstances. Such transactions are scrutinized by the Canadian tax authorities.

OTHER TAXES

Goods and Services Tax and Harmonized Sales Tax

The federal Goods and Services tax ("GST") is a form of value-added tax levied at the rate of 5% on the supply of most goods and services in Canada or imported into Canada. In the Provinces of British Columbia, New Brunswick, Newfoundland, Nova Scotia, and Ontario, the "Harmonized Sales Tax" ("HST") combines the GST and provincial sales tax (outlined below), resulting in one tax for almost all purchases. The HST rates vary between 12% and 15% in the participating provinces.

Designed to be paid by the ultimate consumer or purchaser, GST/HST is paid and collected throughout the production and distribution chain of goods and services. Businesses and vendors generally receive a refund of GST/HST paid in the form of input tax credits, provided they register and regularly file tax returns with the federal government.

Property Transfer Taxes

Provincial taxes on the transfer of real property or interests in real property are levied in the Provinces of British Columbia, Manitoba, Ontario, Quebec, Nova Scotia and New Brunswick. The British Columbia Property Transfer Tax, for example, is 1% of the first $200,000 of the purchase price of the transferred property or interest, and 2% of the balance of the purchase price. In some cases this tax can be avoided or deferred through the use of a nominee or 'bare trust' relationship.

Sales Taxes

In the provinces that have a sales tax and have not combined it with the GST to form the HST (namely Saskatchewan, Manitoba, Quebec, and Prince Edward Island), provincial sales taxes are levied at rates ranging from 5% to 10% of the purchase price or importation value of tangible personal property and specified services acquired or imported.

Customs Duties

Importers of goods into Canada from the U.S. may be required to pay Customs duties under Canada's U.S. tariff rate scales, calculated on the value of the goods being imported. The GST/HST will also generally be payable on the duty-paid value.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.