Canada: The Fifth Protocol To The Canada-Us Income Tax Convention

By Pamela L. Cross, Elinore J. Richardson and Bruce R. Sinclair, C.A.

On September 21, 2007 the Minister of Finance, Jim Flaherty, and the United States Secretary of the Treasury, Henry M. Paulson, signed the Fifth Protocol (the "Protocol") to the Canada-US Income Tax Convention (the "Treaty"). The amendments and additions to the Treaty contained in the Protocol are significant and will have a major impact on the way in which Canada-US cross-border planning is implemented once the Protocol is ratified and effective.

The Protocol completes the negotiation process that has been nearly a decade in the making. It has been released by both Canada and the US together with diplomatic notes ("Diplomatic Notes"). Both governments must now approve the Protocol and instruments of ratification must be exchanged. Many of the proposed amendments contained in the Protocol will be effective on the date which is the later of the ratification date and January 1, 2008, but other provisions, notably those for dividends and interest described below will have different effective dates.

Principal provisions of interest include:

• The provision of treaty benefits to limited liability companies and other hybrid entities subject, however, to a denial of treaty benefits for amounts received from or through certain hybrid entities including reverse hybrids, with effect no earlier than January 1, 2010;

• No elimination of withholding tax on dividend distributions within corporate groups, but an extension of the 5% substantial holding inter-company rate of withholding to dividends paid to certain partnerships, the members of whom are corporations;

• Elimination of withholding tax on interest on debt between non-related parties and a three-year phase-in for the elimination of withholding tax on interest on related party debt, with effect no earlier than March 1, 2008;

• Introduction of a revised Limitation on Benefits provision which will be applicable for payments from both the US and Canada when effective, subject, however, to a continued overriding abuse of treaty provision;
• Inclusion of a mandatory binding arbitration provision which will apply in cases where the competent authorities have not resolved certain issues within an agreed period;
• Clarification of the treaty tie-breaker in cases of dual resident corporations, retroactive to September 17, 2000;
• Elimination of double tax on pre-emigration/post-immigration gains; Revision of the pension and employee stock option rules to eliminate double taxation; and

• Amendment of the rules defining a permanent establishment to treat provision of certain cross-border services as giving rise to a permanent establishment, with deferred effect.

This Bulletin is not intended to be a comprehensive review of the impact of the provisions of the Protocol. It is expected that both interpretational and administrative issues will arise as the provisions are put in place. BLG will be providing a series of additional releases directed to a further examination of the effect of selected provisions of the Protocol for Canada-US trade and investment as this process continues.

The Protocol can be accessed at: www.fin.gc.ca/treaties/USA_1e.html.

The Diplomatic Notes can be accessed at: www.fin.gc.ca/treaties/US_AnnexAe.html and www.fin.gc.ca/treaties/US_AnnexBe.html.

The benefits of the Treaty are available only to a "resident of a Contracting State", which is defined in Article IV of the Treaty to be a person who is liable to tax in that Contracting State by reason of domicile, residence, citizenship, place of management, place of incorporation or similar criterion. The requirement to be a taxable entity in order to claim the benefits of the Treaty has caused significant tax issues for certain hybrid entities that desire to carry on cross-border activities. Generally, such entities are disregarded or treated as a partnership by one jurisdiction but treated as a corporation by the other jurisdiction. Most notably, a United States limited liability company ("LLC") that is treated as a partnership or disregarded under the US entity classification rules is not considered a resident of the United States by Canada for purposes of the Treaty since it is not currently considered to be a taxable entity in the United States. LLCs are therefore unable to claim the benefits of the Treaty and are generally taxable on all profits from a business carried on in Canada, regardless of whether they conduct such business through a permanent establishment. Further, Canadian sourced payments made to an LLC are ineligible for Treaty reduced rates of withholding tax.

The Protocol addresses the application of the Treaty to LLCs by introducing new paragraph 6 to Article IV. This paragraph will deem an amount to be derived by a resident of a Contracting State when the person derives the income through an entity that is not subject to tax in that jurisdiction and the income is treated in the same manner as if it were earned directly by that person. This rule will, however, not apply when the entity is resident in the other Contracting State.

When a Canadian source amount is earned by an LLC that is not resident in Canada and that is considered to be a partnership or disregarded entity for US tax purposes, that amount will be treated as being derived by a member of the LLC that is a resident of the United States under the Treaty. The LLC need not be considered resident in the United States for Canadian tax purposes but must not be resident in Canada.

This rule will move the determination of Treaty application to the member level and, if the Treaty is found to apply, allow for the LLC to be disregarded for purposes of applying the provisions of the Treaty. To the extent that a Canadian resident person pays an amount to an LLC and can be assured that the members of that LLC are residents of the United States for purposes of the Treaty, that person should be able to rely on the Treaty to withhold Canadian tax at the applicable reduced Treaty rate. Further, in the case of a Canadian corporation paying dividends to an LLC, Article X of the Treaty concerning the payment of dividends will be correspondingly amended to ensure that the further reduced withholding rate of 5 percent may be applied on any portion of the dividend that would be paid to a corporation that would hold 10 percent of the votes of the dividend paying corporation, if intermediary LLCs were ignored.

Paragraph 6 to Article IV will be applicable at the time the Protocol enters into force.

The Protocol introduces paragraph 7 to Article IV. This paragraph will deny Treaty benefits where an amount of income, profit or gain is paid to or derived by a resident of a Contracting State where (a) under the laws of the source Contracting State, the person derives the amount through an entity that is not a resident of the residence Contracting State but is not fiscally transparent in the Contracting State of residence and the resident would be taxed differently by the residence Contracting State if the amount were derived directly or (b) the amount is received from an entity that is a resident of the source Contracting State but is treated as fiscally transparent by the Contracting State of residence and the resident would be taxed differently if the entity were not fiscally transparent. It is anticipated that these rules will have broad application to current cross-border planning involving the use of, for example, partnerships formed by US investors under Canadian law which are treated as foreign corporations for US income tax purposes, to partnerships formed under US law which are treated as fiscally transparent for Canadian tax purposes but are regarded as corporations for US tax purposes and to corporations which are recognized as such for Canadian tax purposes but are fiscally transparent for US tax purposes. A number of such entities have been used in financing and investing structures between the United States and Canada. Taxpayers are advised to consider the implications of paragraph 7 very carefully in regard to current and future cross-border investment structures.

Paragraph 7 to Article IV will apply as of the first day of the third calendar year after the Protocol enters into force which day will be no earlier than January 1, 2010.

It is possible that a corporation formed under US corporate law can be continued under Canadian corporate law but not discontinued under the US corporate law. Such a corporation could be resident in Canada under the current provisions of the Treaty but would remain resident in the United States for purposes of US tax law. In these circumstances the Protocol will see the competent authorities seek agreement on residency and the application of the Treaty. Failing such agreement the benefits of the Treaty would not apply to the corporation. The tax authorities of Canada and the United States identified this issue in 2000 and this provision of the Protocol will apply with respect to continuances effected after September 17, 2000.

Currently, the Treaty allows the source Contracting State to levy a 10 percent withholding tax on interest paid by a resident of that Contracting State to a resident of the other Contracting State in circumstances where that jurisdiction’s domestic law would otherwise levy such a tax at a higher rate. As was announced in the Canadian federal government’s March 19, 2007 Budget, the Protocol will eliminate the withholding tax on interest paid between unrelated parties and will phase out the withholding tax on interest payments between related parties over a three-year period.

The new provisions will apply to amounts paid or credited on or after the first day of the second month that begins after the date on which the Protocol comes into force. However, with respect to interest payments between related persons, the withholding tax will not be eliminated immediately, but will be reduced from 10 percent to 7 percent for interest that is paid or credited during the first calendar year that ends after the Protocol comes into force, reduced to 4 percent for the second calendar year that ends after the Protocol comes into force, and reduced to nil for interest paid or credited thereafter.

The Canadian federal government has proposed in the 2007 Budget that once the exemption from withholding tax on interest paid between unrelated persons is implemented in the Treaty, Canadian domestic legislation would be amended to eliminate withholding tax on interest between all unrelated persons, regardless of the country of residence of the recipient of the payment.

No broad changes to the taxation of dividends under the Treaty, including those hoped for to eliminate withholding on certain dividends within controlled groups, are proposed under the Protocol. There will be no reduction in the rate of withholding taxes from the current rate of 15 percent and the lower rate of 5 percent for dividends paid to 10 percent or greater corporate shareholders.

Provision will be made, however, to permit a "look-through" in the case of fiscally transparent entities to determine eligibility for the 5 percent withholding rate. Currently, the Canada Revenue Agency takes the position that a United States corporation that is a member of a partnership that, in turn, is a shareholder of a Canadian corporation is not considered to own the shares held by the partnership. Provided that the partnership is disregarded for Canadian tax purposes, the Protocol will permit a United States corporate partner to be considered to own its share of the shares owned by the partnership. It is not clear how the partner’s ownership interest in the partnership will be determined.

There will be an extension to the application of the 15 percent withholding rate on distributions from portfolio holdings of US REITs. In addition to the application of the 15 percent rate to individuals owning 10 percent or less of a REIT, the 15 percent rate will apply to any Canadian resident that (a) owns less than 5 percent of a class of publicly-traded REIT shares or (b) owns less than a 10 percent in a "diversified" REIT.

The Diplomatic Notes also state that it is understood that distributions from Canadian income trusts and royalty trusts that are treated as dividends under the taxation laws of Canada will be considered to be dividends for purposes of the reduced withholding tax rate under the Treaty. This is believed to be a reference to the new SIFT rules recently introduced in Canada which are applicable to Canadian income and royalty trusts.

Currently, Article XXIX A of the Treaty limits the availability of the benefits of the Treaty to Canadian residents that are "qualifying persons" with certain limited exceptions. Canada opted, at the time the provision was added, to rely upon the application of Canadian tax law including the General Anti-Avoidance Rule to prevent abuses of the provisions of the Treaty.

The provisions of this Article will now be reciprocal. Some examples of United States residents that will qualify for the access to the provisions of the Treaty are (a) a corporation or trust whose principal class of shares or units is primarily and regularly traded on one or more recognized North American stock exchanges, (b) a corporation having 50 percent or more of the votes and fair market value of its shares owned by five or fewer such public corporations or trusts and (c) a corporation having 50 percent or more of the votes and value of its shares owned by qualifying persons provided that not more than 50 percent of the corporation’s gross income is paid as deductible expenses to persons who are not qualifying persons. A person resident in the United States who is not a qualifying person may access the provisions of the Treaty to the extent that the provisions relate to a substantial business carried on the United States. Finally, the provisions of the Treaty will apply to a corporation resident in the United States in respect of Canadian source dividends, interest and royalties if (a) 90 percent of its shares are owned by (i) qualifying persons or (ii) persons resident in a country with which Canada has a tax treaty and who would be entitled to a rate of withholding that is not more than that available under the Treaty and (iii) not more than 50 percent of the corporation’s gross income is paid as deductible expenses to persons who are not qualifying persons.

In addition to making the changes described above making this Article reciprocal, the tests dealing with share ownership will require that qualifying persons own 50 percent of the shares of each "disproportionate class of share". Such disproportionate shares are shares that are entitled to a disproportionately higher participation in the earnings of the corporation through dividends, redemption entitlement or otherwise. For example, this may mean that certain preferred shares will be disproportionate shares and will have to meet the ownership requirement. The provisions in the limitation of benefits article, however, will not override the right of either Canada or the United States to challenge planning which results in an abuse of the Treaty. It is important to note that this test must be met by each class. Consequently, a small issuance of shares to a non-qualifying person could result in the denial of the benefits of the Treaty to the issuing corporation.

This provision of the Protocol will be effective when the Protocol enters into force.

The Treaty contains a provision for the arbitration of disputes where the taxation authorities (the "competent authorities") of the Contracting States cannot agree on the application of the Treaty. This provision has not been implemented. The Protocol introduces a new mandatory (subject to comments in the following paragraph) arbitration procedure (a "Procedure"). Where the competent authorities have endeavoured but are unable to reach a complete agreement in a case within two years, the case must be submitted to binding arbitration, subject to certain conditions.

The Procedure will apply to cases where the matter involves residence of natural persons, allocation of business profits, transactions between related persons and certain matters related to royalties unless both competent authorities agree that the case is not suitable for arbitration. Other matters will be heard on an ad-hoc basis if both competent authorities agree that the case is suitable for determination by arbitration. It may be that arbitration is best applied to cases that are highly factual in nature, such as transfer pricing, but, as an example, is not suitable if a matter has already been decided by the courts of one of the countries.

A determination under an arbitration will be binding on both countries, unless any "concerned person" rejects it. A concerned person is the presenter of a case to a competent authority for consideration and any other person whose tax liability to either country may be directly affected by a mutual agreement arising from such consideration. Thus proceeding to arbitration does not bind a taxpayer to accept the decision from the arbitration. Instead, a taxpayer may pursue remedies in court. All concerned persons must consent to nondisclosure of information received during the course of the arbitration.

The Diplomatic Notes set out detailed rules relating to the administration of a Procedure. The steps are similar to those introduced in the recent amendments to the US treaties with Germany and Belgium. Each Contracting State will submit a proposed determination to the arbitration board. The arbitration board must accept one of the proposed determinations and is not allowed to give reasons for its decision. This style of arbitration is known as the "last best offer" or "final offer" approach, and is also referred to as "baseball arbitration". Presumably, limiting the board’s choice to one of the two proposals will encourage each country to submit more reasonable proposals to increase the chance its proposal will be chosen. The decision of the board will have no precedential value and is limited to a determination regarding the amount of income, expense or tax reportable to the countries.

A Procedure will be available to cases that are presented to a competent authority after the Protocol enters into force and to cases that are under consideration at the time that the Protocol enters into force. In the latter situation the arbitration proceedings will commence two years after the date of entry into force.

Emigration can lead to potential double taxation where one country imposes a tax on certain pre-emigration gains. For example, when an individual ceases to be resident in Canada, Canada imposes a departure tax in respect of certain assets. However, the destination country may also impose tax on the full gain (including the pre-emigration portion) when the former Canadian resident actually disposes of the assets. The Protocol will permit an individual emigrating from one country to the other to elect, for the purposes of taxation in the destination country, to be taxed as if his or her property has been disposed of and reacquired at fair market value at that time (in effect, to reset the individual’s tax cost of the assets to fair market value). As a result, there should be no tax payable in the destination country on any pre-emigration gain (unless the property would otherwise be taxable in the destination country, such as is the case with certain immovable property located in the destination country). These rules are effective as of September 18, 2000.

The Protocol will make it easier for a requesting country to obtain information from the other country with respect to tax matters. Any information that "may be relevant" (replacing the former standard of "is relevant") can be requested. The country in receipt of the request "shall" use its information gathering measures to obtain the information (prior language simply provided that the recipient country would "endeavour" to obtain the information). A country cannot decline to provide access to the information because it has no domestic interest in the information. Further, the scope of information that may be requested has been broadened. Although, the Protocol recognizes that the recipient country need not take steps that are beyond its normal administrative measures or are otherwise contrary to its domestic law, a requested country may not decline to provide information because it is held by a bank, financial institution, nominee, agent, or fiduciary or because it relates to the ownership interests in a person. This provision appears broad enough to include information held by professional advisors. The Protocol does not expressly protect information subject to solicitor-client privilege.

The Protocol recognizes the fact that many employees now engage in work in both Canada and the US over the course of their careers. The new pension rules will benefit employees who live in one country, but work in the other, employees who move temporarily (for up to 5 years) to the other jurisdiction for work, and US citizens who live and work in Canada, but remain subject to tax in the US by virtue of their nationality. Such employees will be entitled to deduct or exclude their contributions to a retirement pension plan or arrangement in the other country (the Diplomatic Notes provide guidance as to which plans are considered qualifying retirement plans). Further, benefits accruing in the plan shall be exempt from taxation until such time as a distribution is made.

Employees commuting to one country for work, but remaining resident in the other country, will be entitled to deduct or exclude contributions made to a pension plan in the first country. Employees who are transferred to, and become residents of, one country, but who continue to contribute to a retirement plan established in the first country, will be entitled, for up to 5 years, to deduct or exclude contributions to the plan for the purpose of tax in the new country of residence. Of note, the employee must have been participating in the retirement plan prior to the move and must not have been resident in the new country immediately before the transfer. A corresponding deduction or exclusion is available for the employer in respect of contributions to the foreign plan.

These provisions apply the first year after the Protocol enters into force.

Canada and the US have clarified the treatment of employee stock options granted to workers working in one country who may later move and work with the same or a related employer in another country. In most cases, the Protocol will allocate between the two countries the income derived from the exercise or disposal (or the deemed exercise or disposal) of the option based upon the number of days worked in each country between the date of grant and the date of exercise or disposal. The clarifications are described in the Diplomatic Notes.

Where a Canadian resident individual donates property on death to a US charitable organization, the Protocol will allow the personal representative of the individual to elect, for the purpose of the Canadian tax consequences of the donation, that the proceeds of disposition arising on the gift be an amount between the individual’s cost of the property and its fair market value.

The definition of a permanent establishment in Article V of the Treaty will be expanded by the Protocol to cover certain cases where an enterprise of a country provides services in the other country. This seems to be a response to the Federal Court of Appeal decision in Dudney, where a US consultant, who provided services in Canada using his client’s premises, was determined not to have a permanent establishment in Canada.

Generally, the Protocol will provide that services will be deemed to be provided through a permanent establishment where (a) those services are performed by an individual who is present in a country for a period or periods aggregating 183 days or more in any twelve-month period, and (b) during that period or periods, more than 50 percent of the gross business revenues of the enterprise consists of income derived from the services performed by the individual in that country.

There is also a deeming provision that may apply where services are performed in respect of connected projects. The Diplomatic Notes state that projects shall be considered to be connected if they constitute a coherent whole, commercially and geographically. The new deeming rules are made subject to paragraph 3 of Article V, meaning that building sites and construction or installation projects will still only constitute permanent establishments if, and only if, they last more than 12 months. The overall effect of the amendments is that a service provider may have a permanent establishment in a country without having a fixed place of business or an agent in that country.

The amendments to Article V shall have effect as of the third taxable year that ends after the Protocol enters into force but shall not apply to include, in the determination of whether an enterprise is deemed to provide services through a permanent establishment, any days of presence, services rendered or gross business revenues that occur or arise prior to January 1, 2010.

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