There is an evident international theme to many of the tax measures included in the 2014 Federal Budget presented by the Minister of Finance on February 11, 2014 (the 2014 Budget). The 2014 Budget includes proposals to address back-to-back loans in the context of the restrictions on the deductibility of interest under the thin capitalization rules as well as with respect to the application of non-resident withholding tax to interest payments. There are also proposals to restrict the availability of certain exceptions to the rules that would currently tax income earned by controlled foreign affiliates of Canadian taxpayers. The Department of Finance has taken the opportunity to float for consultation a domestic tax rule intended to curb treaty shopping. Finally, the government indicates in the 2014 Budget that it intends to look more closely at the Canadian government’s role with regard to international tax planning by multinational enterprises. This measure, together with the treaty shopping proposal, are consistent with, if not motivated by, international initiatives associated with the Organisation for Economic Co-operation and Development’s (OECD) and the G-20’s Base Erosion and Profit Shifting (BEPS) initiatives. These measures will result in more attention being paid to foreign companies with Canadian operations as well as Canadian enterprises that have operations outside of Canada.
One of the other potentially significant changes foreshadowed in the 2014 Budget materials is the possibility of a fundamental change in the approach for dealing with eligible capital property such as goodwill.
New Back-to-Back Loan Rule for Thin Capitalization and Non-Resident Withholding Tax Purposes
The 2014 Budget proposes to introduce specific anti-avoidance rules aimed at preventing the use of “back-to-back loans” to circumvent rules in the Income Tax Act (Canada) (the Act) governing the tax treatment of interest payments made by taxpayers to certain non-arm’s length non-resident persons.
Currently, the thin capitalization rules in the Act limit the ability of a Canadian corporation to deduct interest payments on debts owing to “specified non-residents” — generally non-residents holding a significant interest in the corporation. Similar rules apply to trusts and Canadian branches of foreign entities. The rules prevent the corporation or trust from deducting otherwise deductible interest where the ratio of the total debt owing to such non-resident persons to the relevant non-resident’s “equity amount” in the corporation or trust, as defined for purposes of these rules, is greater than 1.5 to 1. Any such non-deductible interest is deemed to be a dividend for withholding tax purposes.
The non-resident withholding tax rules in the Act currently impose withholding tax on interest payments made by a Canadian resident taxpayer to non-arm’s length non-resident persons. In contrast, interest paid to arm’s length non-residents is generally not subject to Canadian withholding tax.
Some taxpayers have engaged in planning to avoid the tax consequences of the thin capitalization and/or withholding tax rules through back-to-back loan arrangements, whereby a third party is interposed between the taxpayer and the ultimate lender. The 2014 Budget proposes to amend the existing anti-avoidance provision in the thin capitalization rules, and to add a specific anti-avoidance provision to the withholding tax rules applicable to interest payments, to prevent this type of planning.
Essentially, these new measures are intended to ensure that the interjection of an intermediary, in and of itself, will not change the thin capitalization or withholding tax consequences that otherwise would arise in its absence.
The new thin capitalization anti-avoidance rules will apply where a corporation or trust has an interest-bearing obligation owing to a person or partnership that is not a specified non-resident (the "intermediary") and, as part of a transaction or series of transactions, one of the following conditions is satisfied: (1) property has been pledged by a specified non-resident of the taxpayer to the intermediary as security in respect the obligation; (2) the intermediary is indebted to a specified non-resident of the taxpayer under a debt for which recourse is limited; or (3) the intermediary receives a loan from a specified non-resident of the taxpayer on the condition that the intermediary make a loan to the taxpayer. If at least one of these conditions is met, debt is deemed to be owing to the specified non-resident for purposes of the thin capitalization rules, thus potentially resulting in the denial of an interest deduction. In addition, a portion of the interest paid or payable on the debt is deemed to be interest paid to the specified non-resident for purposes of the thin capitalization rules (including the related provisions that would deem such non-deductible interest to be a dividend for withholding tax purposes). The new thin capitalization anti-avoidance rules would apply in respect of indebtedness involving partnerships as well.
The existing back-to-back loans provision in the thin capitalization rules applies only to loans made by a specified non-resident of a taxpayer to an intermediary on the condition that a loan is made by the intermediary to the taxpayer. The proposed back-to-back loan rules thus expand the scope of the existing rule to capture other types of lending and other secured arrangements made between the specified non-resident and the intermediary.
It seems that this new rule could cover arm’s length debt issued by any Canadian corporation if the debt is guaranteed by a foreign parent or subsidiary and the guarantee is secured. The rule would also appear to apply to secured co-borrowing arrangements. It is not clear whether results such as these were intended. Informal discussions with Department of Finance officials suggest that the current wording of the draft provision may be broader than was intended and that they are receptive to narrowing the scope of the proposed rule.
It is also worth noting that the current administrative policy of the Canada Revenue Agency (CRA) is not to apply the existing anti-avoidance rule where a loan from a specified non-resident of a taxpayer to a related Canadian intermediary is, itself, subject to the thin capitalization rules. It is hoped that the CRA will maintain this position when determining whether to apply this proposed anti-avoidance rule.
The proposed anti-avoidance rules applicable to withholding tax on interest contain very similar conditions of application to the proposed thin capitalization rules, with two exceptions: (i) the taxpayer must pay or credit an amount of interest to the intermediary in respect of a debt owing to the intermediary and (ii) if the interest were paid directly to the non-resident, the amount of withholding tax applicable to the payment would be greater than that applicable to the payment to the intermediary. Notably, the intermediary in this case could be either arm’s length or non-arm’s length to the taxpayer. Where the proposed rules apply, a portion of the interest payment made to the intermediary is deemed to have been made directly to the non-arm’s length non-resident that dealt with the intermediary for purposes of the withholding tax rule applicable to interest payments. Such portion is generally equal to the proportion that the fair market value of the property pledged by the relevant non-arm’s length non-resident person, the outstanding amount of the debt owing to such person for which recourse is limited or the amount of the loan made by such person to the intermediary on condition, as the case may be, is of the full amount of the debt owing to the intermediary.
The proposed thin capitalization back-to-back loan measures apply to taxation years beginning after 2014, and the withholding tax back-to-back loan measures apply to amounts paid or credited after 2014. Aside from the delayed application of these rules, no other transitional relief is available for debt arrangements already in place.
The foreign affiliate rules contained in the Act contain a number of base erosion rules which deem income of a foreign affiliate that would otherwise be considered to be active business income to be included in foreign accrual property income (FAPI). When FAPI is earned by a controlled foreign affiliate of a Canadian taxpayer, the taxpayer is subject to Canadian income tax on its proportionate share of the FAPI on a current basis whether or not such earnings are distributed by the controlled foreign affiliate to the Canadian taxpayer.
One such base erosion provision deems income of a foreign affiliate from the insurance or reinsurance of risks that are in respect of a person resident in Canada, property situated in Canada or a business carried on in Canada to be income from a business other than an active business. This deeming rule applies unless the foreign affiliate’s gross premium revenue (net of reinsurance ceded) from insuring or reinsuring such Canadian situated risks is less than 10%.
The government indicates it is concerned that some taxpayers have entered into “insurance swap” arrangements that avoid the application of the existing deeming rule. Such arrangements generally involve, among other things, the foreign affiliate having a Canadian risk portfolio reinsured by a third-party reinsurer while the foreign affiliate, in turn, reinsures a foreign risk portfolio of such third-party reinsurer with a similar risk and economic return profile.
The 2014 Budget proposes extending the existing base erosion rule dealing with the insurance or reinsurance of Canadian situated risks to encompass such insurance swap arrangements. This proposal will apply where a foreign affiliate has entered into certain agreements or arrangements with respect to a portfolio of foreign risks (a “foreign policy pool”). Essentially, the result of such agreements or arrangements must be that it would be reasonable to consider that the foreign affiliate’s opportunity for gain or profit from the foreign policy pool and related agreements and arrangements would be determined in whole or in part by reference to the performance of a “tracked policy pool” where at least 10% of the risks included therein are Canadian situated risks. In these circumstances, the income of the foreign affiliate from the insurance of the foreign policy pool and under such agreements or arrangements will be deemed to be FAPI.
This amendment will apply for taxation years of the taxpayer beginning on or after February 11, 2014. The 2014 Budget materials anticipate that this measure will bring in C$275-million in income taxes for the 2015-16 year.
The 2014 Budget materials also note that the government currently is, and intends to continue, challenging existing insurance swap arrangements where appropriate using existing provisions of the Act, including the “general anti-avoidance rule” (GAAR).
Offshore Regulated Banks
FAPI includes income from an “investment business,” which generally means a business whose principal purpose is to derive income from property, including interest, dividends, rents, royalties and similar items. The “investment business” definition contains exceptions for certain businesses if conducted principally with arm’s length persons and if more than five full-time employees or qualifying equivalents are involved. One such exception relates to a foreign affiliate carrying on a locally regulated business such as banking, insurance, or trading or dealing in securities or commodities.
The 2014 Budget states that this regulated financial institution exception to the “investment business” definition was intended to allow income from bona fide financial services earned by a foreign affiliate to be treated as income from an active business rather than an investment business. The government is concerned that this exception has been used by certain taxpayers that have set up foreign affiliates to carry on proprietary investment and trading activities and seek to have such foreign affiliates subject to local financial institution regulation. The income from such regulated foreign affiliate’s investment or trading activities would be treated as income from an active business and not included in FAPI. Certain jurisdictions have created regulatory regimes that would allow such foreign affiliates to be treated as regulated financial institutions.
The 2014 Budget addresses this issue by further restricting the availability of the regulated financial institution exception in the investment business definition. Going forward, the exception will generally only be available where some additional conditions are met. First, the relevant Canadian taxpayer must be a regulated financial institution such as a Schedule I bank, a trust company, a credit union, an insurance corporation or a trader or dealer in securities or commodities resident in Canada whose business activities are subject by law to the supervision of a regulating authority such as the Superintendent of Financial Institutions or a similar authority of a province. Also eligible will be a subsidiary wholly owned corporation of such a regulated financial institution or a corporation of which the regulated financial institution is a subsidiary wholly owned corporation.
Second, more than 50% of the total taxable capital employed in Canada (as determined under the Large Corporations Tax provisions of the Act) of the particular Canadian financial institution and all Canadian resident corporates related to it must be attributable to a regulated financial institution business carried on in Canada. Where the regulated Canadian financial institution is a bank, trust company or insurance corporation, this requirement will be satisfied if the relevant institution has (or is deemed to have) at least C$2‑billion of equity.
This amendment will apply for taxation years of the taxpayer beginning after 2014. The 2014 Budget materials anticipate that this measure will raise C$30-million in income taxes for the 2015-16 year and C$55-million for 2016-17.
After a decade of successive proposals by the government and a significant amount of criticism and controversy, the rules contained in section 94 of the Act to prevent the use of non-resident trusts to avoid tax were finally enacted in 2013. Although one might think that the Department of Finance would be tempted to leave these rules alone for at least a short while, that is not to be. The 2014 Budget proposes the elimination of an exception to the deemed residence rules for trusts whose contributors are individuals who have been resident in Canada for not more than 60 months. The exception for such “immigrant trusts” will generally end for taxation years of a trust that end on or after February 11, 2014. In certain circumstances, slightly more generous phase-in rules apply.
Consultation on Treaty Shopping
On August 12, 2013, following a 2013 Budget announcement, the Department of Finance released a consultation paper on treaty shopping. The Department indicated its intention to implement measures to restrict what it viewed as the inappropriate use of Canada’s tax treaty network. In that paper, the Department posed various questions including whether the approach it takes should be treaty-based or involve a change in the domestic law and whether any rule should be general in nature or set out specific objective conditions. The Department requested submissions that were due on December 13, 2013. A number of submissions came from industry and professional associations, companies, professional firms, and individuals.
In the 2014 Budget, the government has indicated that it prefers to adopt a general domestic rule to address treaty shopping. The new rule is to be added to a Canadian domestic statute, the Income Tax Conventions Interpretation Act, and is to affect benefits claimed under tax treaties.
The 2014 Budget announced that the main elements of the proposed rule will be as follows:
- The rule will apply if one of the main purposes for undertaking the relevant transaction was to obtain a treaty-based benefit (subject to a relieving provision)
- There will be a presumption that one of the main purposes for undertaking a transaction was to obtain a treaty-based benefit if the relevant treaty income was used primarily to pay an amount to a person or persons who would not have been entitled to an equivalent or more favourable benefit if the relevant treaty income had been received directly by such person or persons
- A safe-harbour provision will be included to deal with certain circumstances such as where the relevant treaty income is received as a result of substantial active business activities carried on in the relevant treaty jurisdiction, where the person is not controlled by another person who would not be entitled to equivalent or more favourable treaty benefits, or where the person was a qualifying publicly traded corporation or trust
Where this rule is applicable to a treaty-based benefit, the Minister of National Revenue would also have the discretion to allow such benefit to be provided in whole or in part to the extent it would be reasonable in the circumstances.
In essence, the proposed rule would be a variation of GAAR. However, unlike GAAR, the rule would include a presumption with respect to whether one of the main purposes of the transaction is to obtain a treaty benefit and would not include a requirement that there be a misuse or abuse of a treaty before the rule could be applied. Interestingly, a number of the examples of the application of this treaty shopping rule appear to be taken from treaty shopping cases where the taxpayer’s position prevailed.
It is notable that in a seemingly inconspicuous comment, there is an implication that transitional relief for existing arrangements that would be affected by the implementation of this proposal should not be seen as a foregone conclusion; comments on the need for and desirability of such transitional relief are invited.
In some respect, the pursuit of this proposal and its companion proposal to study the circumstances of multinational enterprises is not surprising in light of the initiative of the OECD and the G-20 to address BEPS according to the prevailing OECD Action Plan released in the summer of 2013 and much discussed since then. The 2014 Budget materials, in fact, indicate that the OECD recommendations on BEPS expected in September 2014 will be relevant in determining the approach Canada will take.
The government has asked interested parties to provide comments on this proposed approach within 60 days. One would expect that many of the comments that will be received in response to this proposed domestic treaty shopping rule will be substantially similar to those that have already been included in a number of the submissions made in response to the consultation paper.
The proposed treaty shopping rule would apply to taxation years that commence after its enactment into Canadian law.
Consultation on Tax Planning By Multinational Enterprises
The Department of Finance is indicating in the 2014 Budget that it is far from finished dealing with international tax issues. The government will be seeking input from interested parties with respect to issues relating to international tax planning by multinational enterprises. The 2014 Budget materials set out five questions on which the government is inviting input relating to the impact of international tax planning and what the government’s role should be with respect to these issues.
The 2014 Budget materials set out that comments should be provided within 120 days from February 11, 2014.
Consultation on Eligible Capital Property
The eligible capital property regime in the Act addresses the deduction for expenses, and the inclusion of receipts, in respect of capital property that is intangible in nature. Examples of eligible capital property include the goodwill of a business, customer lists, trade-marks and franchise rights. Where an expenditure is made to acquire rights in intangible property for the purpose of earning income from a business (and such expense is not otherwise currently deductible or is not deductible as capital cost allowance (CCA), i.e. tax depreciation, rules applicable to the type of property), 75% of the expenditure is added to the taxpayer’s cumulative eligible capital pool, and amounts in the pool are deductible at a rate of 7% per year. Where a taxpayer receives a receipt in respect of eligible capital property, 75% of this amount is applied to first reduce the taxpayer’s cumulative eligible capital pool, and then to recapture cumulative eligible capital amounts previously deducted, and finally results in an income inclusion at the rate of 50%, the rate currently applicable to capital gains, though the amount is characterized as income from a business.
Due to the complexity of the eligible capital property regime, the 2014 Budget announces a public consultation on a proposal to repeal the regime and replace it with amendments to the CCA regime in the Act. The proposal would represent a fundamental change to the longstanding approach to the taxation of eligible capital property. A new class of depreciable property would be created under the CCA rules applicable to property that currently qualifies as eligible capital property. Under the proposal, 100% of expenditures incurred in respect of such property would be included in the CCA class. Currently, only 75% of an eligible capital expenditure is added to a taxpayer’s cumulative eligible capital pool. To compensate for the higher inclusion rate in the proposed rules, the new CCA class would have an annual depreciation rate of 5%, rather than the 7% rate that currently applies to the depreciation of the cumulative eligible capital pool. The combination of these changes would result in depreciation at a slightly slower rate for taxpayers than with the current system but can result in higher deductions over time.
Special rules would be introduced to address goodwill and other expenditures or receipts that are not connected to a specific property of a business but that would qualify as eligible capital expenditures or eligible capital receipts under the current eligible capital property rules. Transitional rules will also be proposed in order to effectively transfer current cumulative eligible capital pools to the new CCA regime. On the date of implementation of the new rules, the balance of a taxpayer’s cumulative eligible capital pool for a business would become the opening balance of the CCA class in respect of the business. The depreciation rate for expenditures incurred before the implementation of the new rules would be 7% for the first 10 years. In addition, the proposed rules would address situations where a receipt is received after the date on which the new rules are implemented but relates to property that was acquired, or expenditures that were made, before such time. The effective date of any new rule will be determined after completion of the public consultation. There will no doubt be public comments from taxpayers and professionals on the potential impact of this change.
Clean Energy Generation Equipment
The Act provides for an accelerated CCA tax depreciation rate for certain energy generation and energy conservation equipment, including wind, small hydro and solar energy generation equipment, fuel from waste generation equipment and cogeneration equipment. Such equipment is either included in Class 43.1 (which qualifies for a 30% CCA rate) or Class 43.2 (which qualifies for a 50% CCA rate). The 2014 Budget proposes to add water-current energy equipment such as tidal energy equipment as qualifying for these accelerated capital cost allowance rates. The 2014 Budget also proposes expanding eligibility for these accelerated CCA rates where equipment that is used to gasify eligible waste fuels is involved. Currently, such property is eligible for such treatment only when it is used in an eligible cogeneration facility or an eligible waste-fuelled thermal energy facility. The eligible uses will be expanded to include other applications such as the sale of the gas produced for domestic or commercial use.
These measures will generally apply to qualifying property acquired on or after February 11, 2014.
MEASURES AFFECTING INDIVIDUALS, TRUSTS AND NON-PROFITS
Graduated Rate Taxation of Trusts and Estates
Currently, while the top marginal tax rate for individuals generally applies to inter vivos trusts, graduated rates apply to testamentary trusts and grandfathered inter vivos trusts (trusts created before June 18, 1971). The government previously indicated that it may eliminate the graduated rates applicable to the taxable income of testamentary trusts and grandfathered inter vivos trusts, and the 2014 Budget implements this measure. Instead of graduated rates, the flat, top marginal rate of personal tax will apply to these types of trusts, subject to certain exceptions. Graduated rates will continue to apply for the first 36 months of an estate that arises on an individual’s death and is a testamentary trust. Once this period expires, the testamentary trust will be subject to the top marginal tax rate. Graduated rates will also continue to apply to trusts that have individuals who are eligible for the federal disability tax credit as their beneficiaries.
The 2014 Budget also proposes to deny certain ancillary benefits that are currently available to testamentary trusts (other than testamentary trusts during the first 36 months of existence) and grandfathered inter vivos trusts, such as an exemption from the income tax instalment rules, an exemption from the requirement to have a calendar year taxation year-end and fiscal periods that end in the calendar year in which the period began, and the ability to make investment tax credits available to beneficiaries.
These measures will apply to the 2016 and subsequent taxation years.
Consultation on Non-Profit Organizations
Non-profit organizations (NPOs) currently enjoy exemptions from income tax where certain conditions are met. The 2014 Budget announces the government’s intention to review the scope of the exemption from tax applicable to NPOs and to determine whether there are adequate accountability and transparency measures in place with respect to these organizations. Since the time when the NPO rules were first introduced into the Act, little attention has been paid to them. In recent years, NPOs have been under increased scrutiny from CRA. This study may foreshadow a significant recalibration of the NPO rules for even the most altruistic NPOs, if such organizations fund themselves through activities that, in a “private sector” sense, would be considered commercial with a an objective to “make money” to fund other recreational or public pursuits. The federal government’s review will not cover registered charities or registered Canadian amateur athletic associations. The government intends to release a consultation paper for comment as part of its review.