News of Note
The significance of making a Reg. 5907(2.1) election has increased with the assimilation of goodwill to depreciable property
Email this ContentReg. 5907(2.1) allows a taxpayer to elect to use accounting rather than tax depreciation for its depreciable or foreign resource properties in computing a foreign affiliate's earnings from an active business. With the proposed assimilation of goodwill and other eligible capital property to the world of depreciable property, the potential benefit (or detriment) from making this non-revocable election has increased.
Because goodwill is amortized for US tax purposes on a straightline basis over 15 years but is generally carried at historical cost for the purposes of financial statements, the benefit of following accounting rules rather than tax rules may be significant if there has been no impairment. At the same time, the opposite could be true if a significant impairment was recognized for accounting purposes in a subsequent year before the purchased goodwill was the subject of an equivalent amount of amortization for tax purposes.
Neal Armstrong. Summary of Albert Baker and David Bunn, "FAs and the Repeal of the ECP Regime", Canadian Tax Highlights, Vol. 24, No. 9, September 2016, p. 4 under Reg. 5907(2.1).
407 ETR – Tax Court of Canada finds that Ontario government charges to the 407 Highway operator for OPP patrol services were for an HST-exempt supply of a “municipal service”
D’Arcy J noted that since “policing services are one of the core services provided by a municipality,” and since the HST exemption in Sched. V, Pt. VI, s. 21 on its face contemplates that an exempt “municipal service” can be supplied by a non-municipal government, it followed that charges of the Ontario government to the private operator of the 407 Highway for OPP patrol services were exempted as a “municipal service,” as they “were of the same nature as services typically provided by municipalities.”
Neal Armstrong. Summary of 407 ETR Concession Co. Ltd. v. The Queen, 2016 TCC 213 under ETA Sched. V, Pt. VI, s. 21.
Dell – Supreme Court of Spain finds that the local premises of a commissionaire were a fixed place of business of the non-resident principal
In civil law, a commissionaire is an entity that sells in its own name for the account of another. Accordingly, the commissionaire is not a dependent agent for Treaty purposes as it does not habitually exercise “authority to conclude contracts in the name of the [non-]resident.”
The Supreme Court of Spain did not agree with this proposition, finding that in order for the local entity to be a dependent agent there need only be a "functional link" between the customers of the commissionaire and the non-resident principal, so that actual legal authority is unnecessary.
More fundamentally, the Supreme Court held that the premises of the local commissionaire (Dell España SA) constituted a fixed place of business, and thus a PE, of the non-resident (Dell Products Ltd., an Irish company) before even turning to the dependent agent paragraph.
The Court referred to the OECD Commentary statement that premises can be at the disposal of a non-resident even if the non-resident does not hold a formal legal right to use those premises, and then stated “disposal also includes…activity on account of the company.” There was no requirement for the non-resident to have any of its own personnel located on the Spanish premises, as the "fixed place" could be found solely due to activities performed by employees of Dell España SA - so that the business activities performed by Dell España SA should be regarded for treaty purposes as the business of the non-resident carried on in Spain at the Dell España SA premises.
Neal Armstrong. Summary of Gary D. Sprague, "Observations on Treaty Interpretation – Spanish Supreme Court Addresses Commissionaires," Tax Management International Journal, 2016, p 55 under Treaties - Article 5.
Income Tax Severed Letters 5 October 2016
This morning's release of five severed letters from the Income Tax Rulings Directorate is now available for your viewing.
CGI Holding LLC – Federal Court finds that a dividend to an LLC that was not “fully and comprehensively taxed” in the U.S. could be denied Treaty benefits by CRA
TD Securities found that an LLC was eligible for Treaty benefits. This case was released beyond the expiry of the two-year limitation period in s. 227(6) for another LLC (CGI) to apply for a refund of Part XIII tax on a substantial dividend previously received by it. (It wanted to reduce the effective rate from 25% to 5%.) CGI instead requested the IRS to engage CRA in competent authority proceedings so as to obtain the refund. In 2014, CRA sent a letter advising the IRS that it had concluded that Treaty relief was not available.
In finding that this decision of CRA was not unreasonable, McDonald J stated:
[T]he CRA…concluded that tax avoidance may have been a factor in the corporate reorganization. Further, the CRA was not satisfied that the dividend was fully and comprehensively taxed in the United States. These factors are addressed in the TD Securities decision. … These conclusions are within the range of possible outcomes of the MAP process.
An alternative CGI ground was that CRA should exercise its discretion under s. 227(10.1) to assess Part XIII tax at the reduced rate beyond the two-year period. McDonald J found that CGI'S s. 227(10.1) application was invalid as it had rushed CRA too much by immediatelely applying for judicial relief:
Here … CGI has not demonstrated a refusal on the part of the Minister to exercise her discretion. ... CGI … filed its Notice of Application for Judicial Review… only a few days after the request for an assessment. In the circumstances, CGI did not provide the Minister with a reasonable period of time to consider the assessment request.
Neal Armstrong. Summaries of CGI Holding LLC v MNR, 2016 FC 1086 under Treaties – Art. 4 and s. 227(10.1).
CRA confirms that there is no T1134 filing obligation where a s. 94 trust holds an interest in a non-resident corp through an LP
If a U.S.-resident trust resident to which s. 94 applies is a member of a U.S. partnership holding a U.S.-resident corporation, who is required to file the T1134? CRA considers that none is, given inter alia that the trust is not deemed to be resident in Canada for s. 233.4(1)(c) purposes.
Neal Armstrong. Summary of 13 July 2016 T.I. 2015-0608671E5 under s. 233.4(1)(c).
Further full-text translations of severed letters are available
The table below links to the two full-text translations of the French Technical Interpretations that were published last week, as well as to the summaries thereof. We are also going back in time so that the table also links to the two remaining translations from the releases on the week of May 11 and April 27, as well as to the translations of the French severed letters released on March 23 and February 24, 2016. The translations are paywalled in the usual (4-days per week) manner.
The links to the translations may not have worked in the equivalent post of last week, but now should work.
Quinco Financial – Tax Court of Canada states that taxpayers can be required to apply GAAR to themselves
On similar facts, Bocock J followed J.K. Read in rejecting a taxpayer argument that as a taxpayer could not apply GAAR to itself without CRA intervention, interest did not start accruing respecting denied capital losses until the CRA GAAR assessment rather than from the balance due-date for the year of the losses’ utilization. He noted that on its plain wording, s. 161(1) “imposes interest ‘at any time after a taxpayer’s balance-due day’ where tax payable exceeds amounts paid on account of tax for the year,” and that “to not impose interest from the balance-due day… renders GAAR ineffective in nullifying the deferral portion of the ‘tax benefit’.” Although he perhaps could have stopped there, he also stated:
[A]ll taxpayers, who are directly subject to GAAR assessments, that is, non-third parties, are required to consider and apply GAAR. Taxpayers who are directly or may be directly subject to the nullification of a tax benefit need not ask the Minister for permission to apply GAAR.
This suggests that taxpayers are required to exercise their own judgment under s. 245(2) as to the tax consequences of avoidance transactions “as is reasonable in the circumstances in order to deny a tax benefit that…would result, directly or indirectly” from the transactions.
Neal Armstrong. Summary of Quinco Financial Inc v. The Queen, 2016 TCC 190 under s. 161(1).
Various Canada-U.S. hybrid structures may still be viable following the proposed Regs under Code s. 385
One of the hybrid structures for the double-dip financing of a U.S. operating subsidiary (“U.S. Opco”) of Canco is for Canco to fund a Lux SARL with MRPS (as to which Luxembourg “has now started again on a limited basis” to issue rulings) or a non-interest-bearing loan (as to which Luxembourg would impute an interest deduction). The MRPS would be targeted to give rise to exempt dividends in Canada - or the loan would be targeted to not be subject to s. 17 interest imputation. The SARL would make an interest-bearing loan to U.S. Opco, the interest on which would be exempt from U.S. withholding under Art. XI of the Canada-U.S. Treaty and would be excluded from FAPI treatment by s. 95(2)(a)(ii).
This and a number of other Canada-U.S. hybrid structures (forward subscription arrangements for a USCo financing of Canco, a tower or repo structure for the financing of U.S. Opco by Canco or a hybrid debt financing by a U.S. lender of a Canadian realty company that has the economics of a share investment) very well may not be hurt by the proposed Regs under Code s. 385 to reclassify debt as equity in various circumstances.
Neal Armstrong. Summaries of Jack Bernstein and Francesco Gucciardo, "Canada-U.S. Hybrid Financing – A Canadian Perspective on the U.S. Debt-Equity Regs,” Tax Notes International, 26 September 2016, p. 1151 under s. 95(2)(a)(ii) and s. 20(1)(c).
A new Starlight fund is acquiring the 4 existing Starlight funds on a rollover basis and making a new unit offering
The existing unitholders of the Starlight Funds Nos. 1 to 4 (all listed LPs) will transfer their units into a new fund (the Starlight No. 5 fund) under Alberta Plans of Arrangement, with eligible Canadian residents able to do so on a s. 97(2) rollover basis. (Combining the multiple funds is attended with significant complexity.) The new Fund will have a multiple unit structure similar to that of the old funds and hold its indirect US apartment buildings under a similar structure. Ontario LPs beneath it will have elected to be corporations for U.S. tax purposes, and the underlying properties (or, to be more precise, the US LLCs holding each property) generally will be held by Maryland corporations which are intended to qualify as US private REITs. Recognition of FAPI is targeted to be avoided through reliance on the more-than-five full time employee exception and the s. 95(2)(a)(i) rule. The Fund is anticipated to have a lifetime of three years, subject to extension. The Fund will enter into FX derivatives, having a term of three years, so that the return of one of the Classes of units will be generated in Canadian dollars (e.g., if the U.S. dollar weakens over the three-year term, this will not adversely affect the return on those units).
Neal Armstrong. Summary of Starlight No. 5 preliminary prospectus under Offerings – REIT and LP Offerings – Foreign Asset Income Funds and LPs.