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This translation was prepared by Tax Interpretations Inc. The CRA did not issue this document in the language in which it now appears, and is not responsible for any errors in its translation that might impact a reader’s understanding of it or the position(s) taken therein. See also the general Disclaimer below.
Principal Issues: 1 – Whether payments from registered disability savings plans (RDSP) organized as trusts are eligible for the reduced 15% withholding rate under Article XXII of the Canada-United States Convention. 2 – Whether payments from tax free savings accounts (TFSA) organized as trusts are eligible for the 15% reduced withholding rate under Article XXII of the Canada-United States Convention. 3 – Whether payments from registered retirement savings plans (RRSP) and registered retirement income funds (RRIF) organized as trusts are eligible for the 15% reduced withholding rate under Article XXII of the Canada-United States Convention.
Position: 1 – When registered disability savings plans are established in the form of trusts, the reduced rate of withholding tax of 15% in Article XXII:2 of the Canada-US Convention can apply to amounts of distributions subject to 212(1)(r.1) that are paid to United States residents. 2 – When tax-free savings accounts are established in the form of trusts, the reduced rate of withholding tax of 15% in Article XXII:2 of the Canada-US Convention can apply to amounts of distributions subject to 212(1)(p) that are paid to United States residents. 3 – Amounts paid to United States residents from registered retirement savings plans (RRSPs) and registered retirement income funds (RRIFs) are “pensions” as defined in Article XVIII:3(a) of the Canada-United States Convention. Article XXII of the Canada-United States Convention does not apply to pensions because they are governed by Article XVIII.
Reasons: 1 – Income distributed by a trust resident in Canada is eligible for reduced Part XIII withholding under Article XXII of the Canada-United States Convention when no other article of the convention applies. 2 – Income distributed from a trust resident in Canada is eligible for reduced Part XIII withholding under Article XXII of the Canada-United States Convention when no other article of the convention applies. 3 – Payments from RRSPs and RRIFs are considered pensions under the Canada-United States Convention, so Article XXII does not apply to these payments.
FINANCIAL STRATEGIES AND FINANCIAL INSTRUMENTS ROUNDTABLE, 3 NOVEMBER 2023
2023 APFF CONFERENCE
9. Non-Resident Withholding Tax - Plans Which Are Trusts
Part XIII of the Income Tax Act applies to payments from registered education savings plans ("RESPs") (in accordance with paragraph 212(1)(r)) and registered disability savings plans ("RDSPs") (in accordance with paragraph 212(1)(r.1)) so as to provide for a 25% withholding on the amount paid or credited by a person resident in Canada to a non-resident. However, in Technical Interpretation 2013-0504641E5 (footnote 1), the CRA clarified that where RESPs are set up as trusts, it is possible, under Article XXII of the Canada-United States Income Tax Convention (the "Convention")(footnote 2), to apply the reduced rate of 15% generally applicable to payments from a Canadian trust to a non-resident beneficiary.
Questions to the CRA
(a) Does Technical Interpretation 2013-0504641E5, which applies to RESPs constituted as trusts, also apply to RDSPs and Tax-Free Savings Accounts ("TFSAs") that are trusts?
(b) If so, is it possible to modify the CRA calculator, which does not specify this?
(c) In the case of payments from an RRSP or RRIF, where the Convention does not provide for a reduced rate, as is often the case for RRSP withdrawals, would the CRA apply the same position to RRSPs and RRIFs which are trusts, i.e., apply the reduced rate (15%) to payments from a Canadian inter vivos trust to a non-resident beneficiary?
CRA Response to Question 9(a)
RDSPs are generally governed by section 146.4. Any amount paid from an RDSP that is required to be included in computing a resident's income pursuant to section 146.4 and paragraph 56(1)(q.1), is subject to tax under Part XIII of the Income Tax Act pursuant to paragraph 212(1)(r.1) where that amount is paid or credited to a non-resident.
TFSAs are generally governed by section 146.2 Although TFSA income is generally tax-free, in certain situations amounts distributed to a taxpayer may be taxable. For example, any amount that would be required to be included in computing a taxpayer's income pursuant to paragraph 12(1)(z.5) and subsection 146.2(9) or section 207.061, if the taxpayer had been resident in Canada, is subject to tax under Part XIII of the Income Tax Act, pursuant to paragraph 212(1)(p), when it is paid or credited to a non-resident.
An RDSP, TFSA, RRSP or RRIF established as a trust is resident in Canada for the purposes of the Income Tax Act since the central management and control of the trust is situated in Canada, which is where the trustee resides and where the trustee must perform the obligations and duties imposed on the trustee under the Income Tax Act (footnote 3). These trusts are also resident in Canada for the purposes of Article IV:1 of the Convention since their worldwide income is subject to tax in Canada (footnote 4). Furthermore, in order to answer the questions posed, it was assumed that the beneficiaries of the RDSPs, TFSAs, RRSPs or RRIFs are residents of the United States for the purposes of Article IV of the Convention.
Since payments from RDSPs and TFSAs to US residents are not dealt with in any other Article of the Convention, they qualify as "other income" for the purposes of Article XXII:1 of the Convention.
Article XXII:2 of the Convention establishes a limit on the tax imposed by a Contracting State (i.e., Canada) of 15% of the gross amount of income distributed by a trust resident in a Contracting State (i.e., Canada) to a beneficiary who is a resident of the other Contracting State (i.e., the United States).
Consequently, the reduced rate of 15% provided for in Article XXII:2 of the Convention may be applied to amounts distributed from RDSPs and TFSAs to a U.S. resident where such RDSPs and TFSAs are constituted as trusts and are described in paragraph 212(1)(r.1) or 212(1)(p), as the case may be.
CRA Response to Question 9(b)
To reflect the above response, an update to the Non-Resident Tax Calculator will be considered.
CRA Response to Question 9(c)
RRSPs are generally governed by section 146. Any amounts received from an RRSP that must, pursuant to section 146, be included in computing the income of a taxpayer resident in Canada, are so included pursuant to paragraph 56(1)(h). Amounts that would be included in computing the income of a taxpayer resident in Canada pursuant to section 146 are subject to tax under Part XIII of the Income Tax Act, pursuant to paragraph 212(1)(l), when paid or credited to a non-resident.
RRIFs are generally governed by section 146.3. Any amounts received from a RRIF that are required pursuant to section 146.3 to be included in computing the income of a taxpayer resident in Canada are so included pursuant to paragraph 56(1)(t). Amounts that would be included in computing the income of a taxpayer resident in Canada pursuant to section 146.3, are subject to tax under Part XIII of the Income Tax Act, pursuant to paragraph 212(1)(q), when paid or credited to a non-resident.
Lump-sum or periodic pension payments may be made from an RRSP or RRIF. The CRA considers that lump sum payments made from an RRSP or RRIF constitute "pensions" for the purposes of Article XVIII:3(a) of the Convention because they are payments "under a superannuation, pension or other retirement arrangement" (footnote 5).
However, the Income Tax Conventions Interpretation Act (I.T.C.A.)(footnote 6) defines the term "periodic pension payment" for the purposes of the Conventions. This section establishes certain limits as to what constitutes a "periodic pension payment", excluding, among other things, a payment made from an RRSP before its maturity. Thus, payments from RRSPs and RRIFs should constitute "periodic pension payments" for purposes of the Convention only to the extent that they constitute "periodic pension payments" for purposes of section 5 of the I.T.C.A.
As stated above, Article XXII of the Convention only applies where the items of income of a resident of a Contracting State are not dealt with in the Articles preceding Article XXII of the Convention. Given that RRSP and RRIF amounts paid to U.S. residents constitute "pensions" for purposes of Article XVIII:3(a) of the Convention, Article XXII of the Convention will not apply to payments from RRSPs or RRIFs. Thus, holding RRSPs and RRIFs in trust will not change the fact that income from those plans will be considered "pension" income for purposes of the Convention. In addition, as stated above, the reduced rate of 15% provided for in Article XVIII:2(a) of the Treaty could apply to payments from RRSPs or RRIFs that constitute "periodic pension payments" within the meaning of section 5 of the I.T.C.A.
John Fowler
November 3, 2023
2023-097694
FOOTNOTES
Note to reader: Because of our system requirements, the footnotes contained in the original document are shown below instead:
1 CANADA REVENUE AGENCY, Technical Interpretation 2013-0504641E5, June 3, 2014.
2 Convention Between Canada and the United States of America With Respect to Taxes on Income and on Capital, signed on September 26, 1980, as amended by the Protocols signed on June 14, 1983, March 28, 1984, March 17, 1995, July 29, 1997 and September 21, 2007 ("Convention").
3 CANADA REVENUE AGENCY, Technical Interpretation 2018-0738201I7, March 22, 2018.
4 CANADA REVENUE AGENCY, Technical Interpretation 2003-0025221E5, April 29, 2004.
5 CANADA REVENUE AGENCY, Technical Interpretation 9626675, March 24, 1998. This interpretation is consistent with the 1995 U.S. Technical Explanation to the Convention approved by the Department of Finance (see CANADA, Department of Finance, News Release 95-048, "Protocol to the Canada-U.S. Tax Convention: U.S. Technical Explanation", June 13, 1995)
6 R.S.C. (1985), c. I-4 ("I.T.A.").
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