Opções de ações canadá nos tratado

Opções de ações canada us treaty
No anexo B do quinto Protocolo (o “Protocolo”) ao Tratado do Canadá-EUA, há um acordo entre o Canadá e os EUA sobre como tributar a renda do emprego proveniente de opções de ações. No passado, havia uma inconsistência entre os dois países, que por vezes resultava em dupla tributação. A fim de aliviar esta questão, os dois países concordaram em taxar a renda do emprego em uma proporção acordada. O rácio baseia-se no número de dias em que um indivíduo esteve empregado no local de trabalho até ao número de dias empregados entre a data de concessão e a data de exercício. Suponha os seguintes fatos: Um indivíduo recebeu uma opção de ações no primeiro dia de seu emprego no Canadá. O indivíduo trabalhou por 300 dias no Canadá antes de se mudar para os Estados Unidos. O indivíduo exerceu as opções 400 dias depois de se mudar para os Estados Unidos.
Em um caso como esse, 300 mais de 700 dos rendimentos do trabalho serão alocados para o Canadá e o restante alocado para os Estados Unidos.
Não obstante o acima exposto, as autoridades competentes de ambos os países podem concordar em atribuir a renda de uma maneira diferente se ambos os países concordarem que os termos da opção eram tais que a concessão era essencialmente uma transferência de propriedade. Por exemplo, se as opções foram concedidas “no dinheiro” ou não sujeitas a um período de aquisição substancial, então a autoridade competente pode realocar o rendimento do emprego.
DICA TRIBUTÁRIA DA SEMANA é fornecida como um serviço gratuito a clientes e amigos das empresas-membro do Tax Specialist Group. O Tax Specialist Group é uma afiliação nacional de empresas que se especializam na prestação de serviços de consultoria tributária a outros profissionais, empresas e indivíduos de alta renda em questões tributárias canadenses e internacionais e disputas tributárias.

Mudança de posição na alocação de benefícios de opções de ações transnacionais.
Data de lançamento: 22 de fevereiro de 2013.
Convidado: Chantal McCalla.
Duração: 7:30 minutos.
Através de entrevistas com proeminentes profissionais da área tributária da PwC, a Tax Tracks é uma série de podcasts de áudio projetada para apresentar comentários sucintos sobre questões técnicas, políticas e administrativas de impostos que fornecem informações ocupadas aos diretores fiscais que elas necessitam.
Mudança de posição na alocação de benefícios de opções de ações transnacionais.
Ouça o podcast completo.
Mudança de posição na alocação de benefícios de opções de ações transnacionais.
Você está ouvindo outro episódio de Tax Tracks da PwC em pwc / ca / ​​taxtracks. Esta série analisa as questões técnicas e administrativas mais urgentes que afetam os diretores fiscais mais ocupados da atualidade.
Sharon: Olá, aqui é Sharon Mitchell, da PwC Canada, e este é um podcast sobre as recentes mudanças na alocação de receita de ações aceitas pela Agência Canadense de Renda. Com a gente hoje é Chantal McCalla, gerente sênior em nosso escritório em Toronto. Ela é especializada nos desafios de recursos humanos enfrentados por cessionários internacionais de entrada e saída.
Chantal: Obrigado Sharon - é bom estar aqui.
Sharon: Chantal, você pode nos dar uma introdução de alto nível das mudanças do outono de 2012 relacionadas à alocação de opções de ações?
Chantal: Claro Sharon, o que aconteceu é que a Agência Canadense de Receitas (CRA) confirmou recentemente que aplicará os princípios estabelecidos no Comentário sobre o Artigo 15 da Convenção Fiscal Modelo da OCDE sobre renda e capital, ao alocar um benefício de opção de compra de ações. para o Canadá. Ou seja, a menos que um tratado de imposto de renda se aplique especificamente. Esta convenção modelo da OCDE fornece orientação aos países para ajudar a resolver questões envolvendo dupla tributação internacional e constitui um ponto de partida para negociações de tratados tributários entre países. Esta alteração aplica-se a exercícios de opção de ações após 2012.
Sharon: Chantal, qual foi a alocação anteriormente aceita antes dessa mudança?
Chantal: Bem, a visão de longo prazo do CRA foi alocar o benefício aos serviços prestados no ano da concessão, a menos que haja evidências convincentes para sugerir que algum outro período é mais apropriado. Em contraste, a partir de 2005, a orientação da OCDE informou que a chave é determinar o valor do benefício derivado do emprego exercido no país de origem, considerando todos os fatos e circunstâncias relevantes. Em muitos casos de países, esse seria o período de concessão para a aquisição das opções.
Sharon: Entendo, então, historicamente, havia alguma desvantagem em terceirizar a opção de compra de ações para os serviços prestados no ano de concessão versus os países aplicáveis ​​onde os serviços eram realizados em diferentes períodos, como concessão para exercício ou aquisição de direitos?
Chantal: Sim, exatamente Sharon certamente poderia ser, você vê que a posição padrão da CRA pode levar a uma dupla tributação quando não há alívio de crédito fiscal estrangeiro ou outro alívio disponível sob um tratado de imposto de renda dependendo das outras jurisdições estrangeiras envolvidas e seu próprio ponto de vista abastecimento.
Sharon: Então presumo que a mudança alivia o risco de dupla tributação. Você pode nos contar um pouco sobre como aplicar essas mudanças?
Chantal: Claro. Para o seu primeiro ponto, você está correto. Essa mudança ajuda a reduzir a ambiguidade em torno do fornecimento de opções de ações e, como você mencionou, alivia o risco de dupla tributação. Ele traz a posição padrão do Canadá de acordo com o modelo de diretrizes da convenção da OCDE e, portanto, com as abordagens de muitos países em todo o mundo.
Para ser específico, o CRA resumiu os princípios da OCDE da seguinte forma:
A determinação do valor de um benefício de opção de compra de ações que é derivado de emprego exercido em um país de origem deve levar em consideração todos os fatos e circunstâncias relevantes, incluindo os contratos subjacentes. Em particular, um benefício de opção de compra de ações é distribuído para cada país de origem com base no número de dias de emprego exercidos naquele país sobre o número total de dias no período durante o qual os serviços de emprego dos quais o benefício de opção de ações é exercido são exercidos.
Geralmente, presume-se que um benefício de stock option se relaciona com o período de emprego que é requerido como uma condição para o empregado adquirir o direito de exercer a opção, isto é, o "período de aquisição". e um benefício de opção de ações é geralmente assumido como não relacionado a serviços passados, a menos que haja evidência indicando que serviços passados ​​são relevantes nas circunstâncias particulares.
Nesta base, o resultado é uma melhor correspondência dos créditos fiscais estrangeiros para opções de ações transfronteiriças.
Sharon: Ok, acho que entendo, você pode nos dar um exemplo de como esses princípios mudaram as alocações de opções de ações.
Chantal: Claro, digamos que eu tenha um residente canadense para fins fiscais, que tenha uma opção de compra de ações enquanto morador do Canadá e que o indivíduo vá para os EUA e depois dos EUA para a América do Sul nos anos subsequentes, mas continue sendo residente do Canadá durante todo este período de tempo. Como um residente permanente do Canadá, este indivíduo é tributado em 100% do benefício da opção de ações. Nesse caso, o indivíduo tem uma opção de ações cujo período de concessão para vest abrange o período de atribuição. Esse indivíduo pode estar sujeito a impostos nos EUA e na América do Sul no exercício da opção de compra de ações. Na ausência de evidência em contrário, o Canadá teria adquirido previamente a opção de compra de ações para os serviços prestados no ano da concessão, neste caso o Canadá, não deixando nenhuma capacidade de reivindicar o crédito de imposto estrangeiro sobre o retorno canadense para o potencial dos EUA. Impostos sul-americanos pagos. Com a nova orientação em vigor, esse indivíduo pode agora obter o benefício da opção de compra de ações sobre o serviço de emprego de três países e reivindicar o crédito de imposto estrangeiro sobre o retorno canadense para os impostos americanos e sul-americanos pagos.
Sharon: Obrigado por essa explicação detalhada Chantal. Há alguma possível exceção a essa nova orientação?
Chantal: Ótima pergunta Sharon. Como afirma o Modelo da Convenção da OCDE, pode haver circunstâncias em que um período de alocação diferente do da concessão ao colete seja apropriado, como serviços passados, mas o contrato de opção precisaria estipular isso claramente. A CRA também observa que, quando os termos da opção indicam que a concessão é tratada como uma transferência de propriedade de títulos, a CRA pode atribuir o benefício de acordo (ou seja, fornecido para o local no momento da concessão). As circunstâncias observadas como indicativas de uma transferência de propriedade incluem onde as opções estavam dentro do dinheiro ou onde elas não estão sujeitas a um período de aquisição substancial.
Sharon: Então, Chantal, no final, qual é o resultado final?
Chantal: No final, Sharon, este último anúncio permite ao empregador e ao executivo internacionalmente móvel maior certeza quanto à alocação adequada de seus benefícios de opções de ações transnacionais para fins fiscais canadenses e ajuda a aliviar o potencial de dupla tributação, como Ele traz a abordagem do Canadá de acordo com a visão predominante de muitos países ao redor do mundo.
Sharon: Obrigado Chantal por esta discussão informativa sobre as recentes mudanças nas alocações de opções de ações no Canadá.
Chantal: meu prazer Sharon.
Sharon: Se você tiver alguma dúvida relacionada a este tópico, os detalhes de contato de Chantal podem ser encontrados em nosso site de podcast do PwC, pwc / ca / ​​taxtracks.
As informações contidas neste podcast são fornecidas com o entendimento de que os autores e editores não estão envolvidos na prestação de consultoria ou serviços jurídicos, contábeis, tributários ou outros profissionais. O público deve discutir com consultores profissionais como a informação pode se aplicar à sua situação específica.
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Um resumo sobre o protocolo do tratado Canadá-EUA.
Boletins informativos.
O Quinto Protocolo (1) do Tratado do Imposto de Renda entre Canadá e Estados Unidos faz mudanças significativas no tratamento de transações internacionais, incluindo grandes mudanças substantivas para entidades que são fiscalmente transparentes em um dos parceiros do tratado, bem como para pensões, anuidades e opções de ações. O protocolo adiciona um novo teste de estabelecimento permanente para alguns serviços e elimina o imposto sobre o interesse no estado da fonte.
O protocolo também acrescenta uma cláusula de arbitragem obrigatória que pode permitir uma resolução mais oportuna das disputas inevitáveis ​​que surgem em transações transnacionais e nos procedimentos de acordo mútuo subsequentes.
O protocolo altera o Artigo IV, o artigo de residência do tratado, acrescentando novas regras para empresas de dupla incorporação e entidades fiscalmente transparentes.
Uma mudança no tratado em 1995 introduziu uma provisão ao Parágrafo 3 do Artigo IV que trata uma companhia criada em um estado e continuou no outro estado (incorporando-se lá) como um residente do segundo estado para fins do tratado. (2) Isso representou uma reversão da regra no tratado, como originalmente entrou em vigor, que atribuiu a residência do tratado ao estado onde a corporação foi criada - na teoria de que a criação pode ocorrer apenas uma vez. Alguns contribuintes aproveitaram a provisão de 1995, continuando para o outro estado (tipicamente Canadá) e reivindicando direitos baseados em tratados no primeiro estado (os Estados Unidos) enquanto simultaneamente reivindicavam benefícios fiscais em seu estado de origem como uma corporação doméstica. (3) O protocolo muda esta regra, fornecendo implicitamente que uma empresa pode ser criada sob as leis de ambos os estados. Uma empresa criada sob as leis de um estado, mas não do outro, será considerada residente do primeiro estado, mas em todos os outros casos, o residente dual não será tratado como residente de nenhum dos estados com a finalidade de reivindicar benefícios sob o tratado. a menos que as autoridades competentes cheguem a acordo sobre o estado de residência. Uma vez ratificado o protocolo, esta alteração será aplicada às continuações corporativas efetuadas após 17 de setembro de 2000. (4)
Entidades de transparência fiscal.
A explicação técnica também fornece regras especiais para determinar a identidade do beneficiário quando a receita é obtida através de uma entidade fiscalmente transparente. As leis do estado de residência são aplicadas para determinar quem deriva a renda e se ela será levada em consideração para fins de imposto estadual de residência. As leis do estado de origem aplicam-se para determinar se a pessoa que obtém a receita é o proprietário beneficiário. (8)
Entidade não residente no estado de origem.
Nos termos do tratado anterior ao protocolo, o Canadá interpretou a exigência do Artigo IV de que um residente seja "tributável". significa que o residente deve estar sujeito a taxação abrangente. Portanto, algumas entidades híbridas dos EUA, como as empresas de responsabilidade limitada dos EUA (LLCs), não se qualificaram como residentes dos Estados Unidos. O protocolo prevê que os proprietários de uma entidade fiscalmente transparente sejam tratados como residentes que obtenham rendimentos quando o Estado de residência vê esses proprietários como sujeitos ao imposto sobre o rendimento em questão e o tratamento do rendimento nas suas mãos é o mesmo que se tivesse recebido diretamente por eles. (9) Esta regra não se aplica quando a entidade fiscalmente transparente for residente do estado de origem; esta situação é abordada no novo artigo IV, n. º 7, alínea b). (10)
A explicação técnica também esclarece que o Canadá aplicará as disposições do Parágrafo 6 dentro de sua própria estrutura legal (ou seja, uma LLC dos EUA é a única pessoa "visível" para o Canadá). (11) Isso significa que uma LLC dos EUA, e não seus proprietários, apresentará uma declaração fiscal canadense na qual reivindicará os benefícios do tratado e fornecerá a documentação apropriada.
O parágrafo 6 aplica-se aos lucros das empresas e, portanto, pode exigir uma determinação sobre se os rendimentos foram obtidos através de um estabelecimento permanente. (12) A determinação da existência de um estabelecimento estável em razão das atividades comerciais de uma entidade fiscalmente transparente difere em cada Estado. A determinação do Canadá será baseada na presença e atividades no Canadá da US LLC e não olhará para as atividades dos proprietários agindo por direito próprio; a LLC dos EUA estará sujeita a imposto sobre os lucros atribuíveis ao estabelecimento permanente. Em contraste, os Estados Unidos & rsquo; A determinação de uma parceria limitada canadense será baseada nas atividades da entidade e de seus parceiros.
Entidade residente no estado de origem.
Quando uma entidade transparente fiscalmente é vista como residente pelo estado de origem, regras diferentes se aplicam. (13) Novamente, esta disposição trata de entidades que o estado de origem considera não transparente, mas o estado de residência percebe como transparente. (14) Um exemplo pode ser uma empresa de responsabilidade ilimitada da Nova Escócia (NSULC), considerada uma corporação não transparente no Canadá, mas que pode ser transparente sob o regime de check-the-box da lei dos EUA. (15) Antes do protocolo, se um investidor americano investisse através de um NSULC, os montantes que o NSULC pagou ao investidor norte-americano não teriam nenhum efeito tributário nos EUA. Segundo o protocolo, o Canadá poderá cobrar o imposto estatutário não-reduzido sobre os dividendos pagos pelo NSULC ao investidor, porque o tratamento desses dividendos nos Estados Unidos difere do tratamento que resultaria se a entidade não fosse transparente. (16)
A explicação do Comitê Conjunto de Tributação observou que esta disposição é potencialmente excessiva, pois pode haver razões legítimas para uma empresa dos EUA usar uma empresa de responsabilidade ilimitada canadense para operações no Canadá. (17) Como resultado do Parágrafo 7 (b), muitos contribuintes que não haviam estruturado suas operações no Canadá-EUA para tirar proveito de deduções duplas precisarão se reestruturar para evitar a dupla tributação.
Não é um residente do estado de residência.
O protocolo adota novas regras que regem o tratamento de entidades que são fiscalmente transparentes no estado da fonte e tributáveis ​​no estado de residência do proprietário. O proprietário de tal entidade que o estado de origem não considera um residente do estado de residência do proprietário não obtém renda para fins do tratado se o tratamento da renda for diferente, na visão do estado de residência, de o que teria ocorrido se a renda fosse derivada diretamente pelo proprietário. Essa regra é um análogo canadense à Seção 894 (c) do Internal Revenue Code dos EUA, que nega os benefícios do tratado para a renda da fonte norte-americana quando não considerada recebida por um residente do parceiro do tratado. No entanto, ao contrário da Seção 894 (c), que trata apenas de alíquotas reduzidas na fonte sobre pagamentos a híbridos reversos domésticos, o protocolo nega todos os benefícios do tratado, incluindo o limite do estabelecimento permanente para determinar a tributação dos lucros das empresas.
Por exemplo, sob a lei pré-protocolo, se uma pessoa dos EUA investiu no Canadá através de uma entidade canadense que o Canadá vê como uma parceria, mas que os Estados Unidos percebem como uma corporação (em razão das regras do caixa de seleção), renda paga do Canadá para a entidade se qualificaria para o alívio do tratado no Canadá, porque o Canadá veria o investidor dos EUA como receptor da renda. No entanto, como os Estados Unidos consideram a entidade como não transparente, a receita chega ao investidor norte-americano somente quando a entidade paga um dividendo. Essa estrutura fornece um tratamento para o investidor que é totalmente diferente do tratamento que seria aplicado se a receita fosse paga diretamente ao investidor norte-americano.
Serviços Estabelecimento Permanente.
O protocolo adiciona um novo conceito de estabelecimento permanente de serviços que não requer um escritório ou local fixo de negócios. (18) Regras semelhantes têm aparecido comumente em tratados fiscais dos EUA com o mundo em desenvolvimento. (19) A disposição considera existir um estabelecimento permanente se: (i) os serviços forem realizados no estado de origem por um indivíduo que esteja presente nesse estado por um período de 183 dias ou mais em qualquer período de 12 meses e mais de 50 % das receitas brutas ativas da empresa são atribuíveis a esses serviços; (20) ou (ii) os serviços são realizados no estado de origem por uma empresa por um período de 183 dias ou mais em qualquer período de 12 meses com relação aos mesmos projetos ou conectados para clientes que sejam residentes do estado de origem, ou que têm um estabelecimento permanente no estado de origem e os serviços são fornecidos para esse estabelecimento permanente. (21) Como os dias são contados varia ligeiramente para cada teste. (22) No primeiro teste, "dias" refere-se a qualquer dia em que um indivíduo está presente no estado de origem. No segundo teste, apenas dias úteis (dias não úteis, como finais de semana e feriados) contam para a satisfação do teste de 183 dias. Para ambos os testes, mesmo que vários indivíduos trabalhem em um projeto em um determinado dia, sua presença coletiva é responsável por apenas um dia nos testes. A explicação técnica esclarece que somente os serviços prestados por uma empresa a terceiros dentro do estado de origem são cobertos por essa nova disposição. (23)
A regra de estabelecimento permanente de serviços provavelmente apresentará problemas de conformidade e administração. Funcionários de rastreamento & rsquo; dias no exterior será difícil tanto para os contribuintes quanto para as administrações tributárias, e exigirá que os contribuintes estabeleçam sistemas e processos. (24) A regra dos 183 dias aplica-se independentemente do ano civil ou fiscal e, portanto, os registros devem ser passíveis de revisão por qualquer período consecutivo de 12 meses. Se diferentes projetos de serviços podem ser considerados apropriadamente & quot; o mesmo ou conectados & rdquo; também é provável que dê origem a desentendimentos. (25) O protocolo e a explicação técnica não abordam se a utilização de um subcontratante pode dar origem a um estabelecimento permanente de um contratante geral ao abrigo desta nova disposição. (26)
A disposição é efetiva para o terceiro ano fiscal após a entrada em vigor do protocolo, mas em nenhum caso as atividades que ocorram ou surjam antes de 1º de janeiro de 2010 contam para a determinação de um estabelecimento permanente de serviços. (27) Esta data de eficácia com atraso pode permitir que as autoridades fiscais emitam orientações adicionais.
Uma troca de notas anexa ao protocolo esclarece que as diretrizes de preços de transferência da Organização para Cooperação e Desenvolvimento Econômico (OCDE) serão aplicadas para fins de determinação dos lucros atribuíveis a um estabelecimento permanente. (28) Em especial, os lucros das empresas atribuíveis a um estabelecimento estável incluirão apenas os lucros decorrentes dos ativos utilizados, os riscos assumidos e as atividades exercidas pelo estabelecimento permanente. A troca de notas prevê ainda que um estabelecimento permanente será tratado como tendo o mesmo montante de capital que seria necessário para apoiar as suas atividades se fosse uma empresa distinta e separada envolvida em atividades semelhantes. A explicação técnica também prevê que: (i) no cálculo dos lucros das empresas de um estabelecimento permanente, as deduções não serão limitadas a despesas incorridas exclusivamente para o estabelecimento permanente, mas também incluirão as despesas incorridas para os propósitos da empresa como um todo; e (ii) deduções devem ser permitidas, independentemente de qual unidade contábil da empresa registra as despesas, desde que sejam incorridas para os fins do PE. (29)
Disposições de confiança de investimento imobiliário.
O protocolo atualiza as disposições do Fundo de Investimento Imobiliário (REIT) do Artigo X (Dividendos) para torná-las consistentes com o modelo atual dos EUA. Assim, altera as limitações de redução de taxa para dividendos pagos por um REIT. O imposto reduzido de 15% sobre os dividendos será aplicado quando:
os dividendos são pagos por uma classe de ações que é negociada publicamente e o beneficiário efetivo dos dividendos é uma pessoa que detém uma participação não superior a 5% de qualquer classe de ações da REIT; o beneficiário efetivo dos dividendos é um indivíduo que detém uma participação no REIT de não mais de 10%; ou o beneficiário efectivo dos dividendos é uma pessoa que detém uma participação no REIT não superior a 10% e o REIT não é “diversificado”. A explicação técnica define o termo “diversificado”. como quando o valor bruto de nenhum juro único em imóveis detidos pelo REIT excede 10% do valor bruto dos interesses totais do REIT em imóveis. (30)
O protocolo também inclui atualizações para endereçar dividendos pagos através de entidades fiscalmente transparentes. A taxa na fonte é reduzida para 5% se o beneficiário for uma empresa que detém 10% do capital votante da empresa que paga os dividendos. Para esse fim, a propriedade de 10% das ações com direito a voto inclui ações com direito a voto de propriedade de uma entidade fiscalmente transparente, conforme visto pelo estado de residência, proporcionalmente à participação da empresa na entidade transparente fiscalmente. No entanto, a entidade transparente fiscalmente não pode ser um residente do estado de origem para que essa disposição seja aplicada. (31)
Juros e Taxas de Garantia.
Em talvez o desenvolvimento economicamente mais significativo do protocolo, o Artigo 6 elimina o imposto de base de fonte sobre pagamentos de juros entre partes não relacionadas. A taxa de 10% pré-protocolo é gradualmente descontinuada para juros pagos ou creditados a pessoas relacionadas, de 7% durante o primeiro ano civil que termina após a entrada em vigor do protocolo, para 4% no segundo ano até 0% para anos subsequentes. (32) O protocolo prevê que os juros contingentes serão tributados à taxa de 15%, se não forem considerados como juros da carteira. O interesse que é uma inclusão em excesso de um canal de investimento em hipoteca de imóveis é tributável de acordo com a lei doméstica.
Além disso, o protocolo adiciona uma nova regra de fornecimento para taxas de garantia no Artigo XXII (Outras Receitas). A indemnização recebida por uma garantia é tributável apenas no Estado de residência, a menos que a compensação seja considerada lucro comercial atribuível a um estabelecimento permanente no Estado de origem. (33)
Pensões, anuidades e opções de ações.
O protocolo faz grandes alterações no Artigo XVIII (Pensões e Anuidades), alterando um parágrafo e acrescentando dois novos parágrafos relativos a contribuições transfronteiriças e benefícios de planos de aposentadoria qualificados. (34) O artigo revisado define um plano de aposentadoria qualificado como residente de um estado, geralmente isento do imposto de renda naquele estado, que é operado principalmente para fornecer benefícios de pensão ou aposentadoria (ou seja, não um acordo individual em relação ao qual o indivíduo). o empregador não tem envolvimento), e que a autoridade competente do Estado de origem percebe que se assemelha a um plano de pensão ou aposentadoria reconhecido em seu estado. (35)
As principais disposições que tratam dos planos de aposentadoria transnacionais encontram-se nos novos parágrafos 8, 10 e 13, adicionados ao artigo XVIII do tratado. As distribuições de pensões ou planos de aposentadoria que sejam razoavelmente atribuíveis a uma contribuição ou benefício pelo qual um benefício foi permitido sob um desses parágrafos são consideradas como tendo origem no estado onde o plano é estabelecido. (36)
O parágrafo 8 permite deduções e exclusões de contribuições e benefícios acumulados de planos qualificados em um estado para serviços de indivíduos conduzidos no outro estado (fonte) em atribuições de curto prazo. (37) Por exemplo, o Canadá permitirá deduções ou exclusões de contribuições para um plano de aposentadoria qualificado dos EUA por pessoas que trabalhem no Canadá e que atendam às condições prescritas. Para um cidadão dos EUA, os benefícios concedidos não devem exceder aqueles concedidos para residentes nos EUA sob planos de aposentadoria dos EUA reconhecidos para fins fiscais. Além disso, as contribuições feitas ao plano de residência pelo empregador do indivíduo serão permitidas como uma dedução na computação dos lucros do empregador no estado de origem. (38)
Por outro lado, o protocolo prevê no novo Parágrafo 10 do Artigo XVIII que o estado de residência de um indivíduo permitirá deduções e exclusões para pagamentos a planos estaduais de origem quando as contribuições do indivíduo forem atribuíveis a serviços executados no estado de origem. (39) Por exemplo, o Canadá permitirá deduções ou exclusões de contribuições feitas a um plano qualificado nos Estados Unidos por um residente canadense que trabalhe nos Estados Unidos, uma cláusula que abranja os passageiros transnacionais. Para fins de tributação no Canadá, os benefícios são limitados ao limite de dedução nos planos de poupança-reforma registrados, menos as contribuições reais para esses planos, e o valor deduzido é levado em consideração ao se calcular o limite de dedução para os anos subseqüentes. Para fins de tributação nos EUA, os benefícios não podem exceder aqueles permitidos sob um plano de pensão ou aposentadoria geralmente correspondente nos Estados Unidos e, ao fazer esse cálculo, as contribuições para um plano canadense são tratadas como se fossem feitas para um plano dos EUA.
Regras especiais aplicam-se, sob o novo Parágrafo 13 do Artigo XVIII, aos cidadãos dos Estados Unidos residentes no Canadá. Esses contribuintes podem receber uma dedução ou exclusão para fins de imposto nos EUA para contribuições do plano que se qualificam para benefícios fiscais no Canadá. (40) No entanto, esses benefícios não podem exceder aqueles que estariam disponíveis para um residente dos EUA com relação a um plano geralmente correspondente nos EUA e esta disposição se aplica somente a serviços para um residente do Canadá ou um estabelecimento permanente canadense.
Anuidades ou outros montantes pagos periodicamente ao abrigo de uma apólice de seguro de vida ou anuidade serão tributados no estado de origem, a menos que o pagamento seja suportado por um estabelecimento permanente fora do estado de residência e a obrigação que origina a anuidade seja incorrida em relação ao estabelecimento estável. . (41)
O tratamento fiscal das opções de ações não foi tratado anteriormente no tratado. Esse tratamento foi um assunto importante para as negociações, uma vez que as opções de ações são frequentemente concedidas a funcionários que migram entre o Canadá e os Estados Unidos. Para funcionários cujo principal local de trabalho abrange os Estados Unidos e o Canadá entre a data da concessão e a data do exercício, o protocolo fornece regras específicas de fornecimento. (42) O funcionário será considerado como tendo obtido em um estado a proporção de renda igual ao número de dias em que o seu principal local de trabalho & rdquo; para o empregador estava naquele estado sobre o número total de dias entre a data de concessão e a data de exercício. A explicação técnica prevê que o estado de residência terá o direito de tributar todos os rendimentos decorrentes do exercício da opção. Sob a troca de notas, o estado de origem tem o direito de tributar uma parte da renda apenas após os testes do Artigo XV (2) (isto é, que a remuneração não excedeu US $ 10.000 ou que o beneficiário está presente no estado de origem por um Um período que não exceda, no total, 183 dias em qualquer período de 12 meses e que a remuneração não seja paga por uma pessoa que seja residente do Estado de origem ou que tenha um estabelecimento permanente no Estado de origem) seja aplicada aos anos em que os serviços relevantes foram executados no estado de origem. Na medida em que a renda está sujeita a impostos em ambos os estados, a dupla tributação é aliviada pelo Artigo XXIV (Eliminação da dupla tributação). (43)
No entanto, as autoridades competentes podem concordar que os termos de uma opção de compra de ações eram tais que a concessão da opção é adequadamente tratada como uma transferência das ações e, nesse caso, a receita será atribuída de acordo. A troca de notas sugere que este pode ser o caso quando as opções estavam dentro do dinheiro ou não sujeitas a um período de aquisição substancial.
A limitação do protocolo sobre provisões de benefícios (LOB) é geralmente similar a outras provisões do LOB nos recentes tratados dos EUA. A maior mudança é que a nova disposição será aplicada reciprocamente. Sob o tratado antes do protocolo, as cláusulas da LOB se aplicavam apenas aos benefícios reivindicados nos Estados Unidos. Talvez devido à recente perda do governo canadense em um caso envolvendo compras de tratados, (44) a nova disposição também se aplicará aos benefícios canadenses.
O protocolo também faz alterações nos requisitos para os benefícios do tratado sob as regras de LOB. Ele testa a propriedade não apenas do voto e do valor das ações, mas também do voto e do valor de "cada classe de ações desproporcional". Uma classe desproporcional & rsquo; é qualquer classe de ações de uma empresa residente em um dos estados que dê ao acionista uma participação desproporcionalmente maior, por meio de dividendos, pagamentos de resgate ou de outra forma, em lucros gerados no outro estado a partir de ativos ou atividades específicas da empresa. (45) O protocolo também elimina o direito a benefícios para empresas detidas por pessoas dos EUA (isto é, residentes ou cidadãos dos Estados Unidos); o teste publicamente negociado e o teste de erosão de base agora provêem que somente posse por pessoas qualificadas & rsquo; satisfaz o teste. (46) The protocol clarifies that for the base erosion test, the amount of expenses deductible from gross income is determined by the state of residence of the company, and that direct or indirect payments to non-qualifying persons in excess of 50% will disqualify a company for benefits. (47)
The exchange of notes clarifies that because the United States and Canada are part of the same regional free-trade area, publicly traded companies resident in one of the states may satisfy the publicly traded limitation on benefits test if their shares are traded on the stock exchange in the other state. (48) However, in making future amendments to the treaty, modifications may be made, including alterations to discourage corporate inversion transactions. (49)
One of the most anticipated changes to the treaty is a new mandatory arbitration provision outlined in the protocol and elaborated on in the exchange of notes. An increasing number of cases of double taxation have not been resolved satisfactorily through the mutual agreement procedure (MAP). In 2005 the two governments issued two memorandums of understanding on the MAP process in an effort to improve the process. (50)
The protocol’s mandatory arbitration provision covers disputes only under:
Article IV (Residence), insofar as they relate to natural persons; Article V (Permanent Establishment); Article VII (Business Profits); Article IX (Related Persons); and Article XII (Royalties), as it applies to transactions involving related persons and royalty disputes arising under Paragraph 2 or 3 of the article. (51)
This may be because the negotiators were interested in arbitration for disputes that are mostly factual in nature. Any case may be found unsuitable for arbitration if the competent authorities so agree.
The dispute resolution technue adopted in the protocol is based on that used in baseball arbitration: each state submits a proposed disposition of the specific amounts of income, expense or tax in dispute, and a three-member arbitration panel chooses one of the proposals. (52) The states will prepare position papers supporting their proposals and may, if they desire, prepare reply submissions to the other state’s submission. Additional information may be submitted to the arbitration panel only at its request. The panel will apply:
the provisions of the treaty; any agreed commentaries or explanations of the treaty; the laws of the states, to the extent they are not inconsistent with each other; and any OECD materials regarding relevant portions of the OECD model convention. (53)
The resolution of arbitration proceedings is binding on the states. A taxpayer may reject the final decision of the panel, but if the decision is rejected, the taxpayer is precluded from further arbitration proceedings. The competent authorities may also terminate arbitration proceedings before a decision if they come to a mutually agreeable solution. The arbitration panel will not provide a rationale for its decision and the resolution is not precedential.
A central issue under the arbitration provision is what to do with MAP cases already in the pipeline. By its terms, the protocol contemplates that arbitration will begin no earlier than two years after it enters into force, unless the competent authorities agree otherwise. Assuming all cases will need to wait the full two years, a significant number of backlogged cases are likely to go to arbitration at precisely the same time, potentially creating resource issues. It is therefore hoped that the competent authorities will agree to consider some of the approximately 60 cases that have already been stalled for over two years. (54) Many taxpayers and practitioners are also hopeful that the prospect of mandatory arbitration will help to bring cases to resolution outside a formal arbitration process. The format of baseball arbitration, in which the arbitrators pick the more reasonable and rational proposal, should help to restrain the more extreme positions of both states.
The protocol contains other noteworthy provisions.
The exemption for dividends and interest in the source state is extended to amounts derived for the benefit of a religious, scientific, literary, educational or charitable organization. (55)
The non-discrimination provisions are extended from citizens to nationals, including entities. The provision also applies to individuals who are not residents of either state. (56)
Article XXVII (Exchange of Information)
The protocol expands the exchange of information provision to allow representatives to interview individuals and examine books and records, and to prohibit a state from declining to supply information because it is held by a financial institution, nominee or other person acting in an agency or fiduciary capacity. (57)
Former citizens and long-term residents of the United States may, for a period of 10 years following the loss of such status, be taxed in accordance with the laws of the United States on income from sources within the United States, including income deemed under the domestic law of the United States to arise from such sources. (58) Under special rules, US-source income includes:
gains from the sale or exchange of stock of a US company or debt obligation of a US person or governmental entity; gains from property located in the United States; and in certain cases income or gains derived from the sale of stock of a non-US company or the disposition of property contributed to a non-US company when such company would be a controlled foreign corporation if the person had remained a US person. (59)
The protocol makes significant updates to the treaty to bring it into line with current US treaty policy. However, two new provisions - the services permanent establishment rule and the treatment of certain fiscally transparent entities - represent departures from general US treaty policy. Taxpayers will need to consider restructuring their operations to accommodate these provisions. Fortunately, the effective date for both provisions is delayed, allowing time for necessary compliance and organizational changes.
The protocol also introduces mandatory arbitration. Arbitration should improve the ability of the competent authorities to settle disputes in a timely manner. However, it will be crucial for the competent authorities to agree on an orderly process to decide how to handle the many cases that have already been submitted for mutual agreement. It is hoped that some of these cases may be considered before the two-year waiting period envisioned by the protocol.
For further information on this topic please contact H David Rosenbloom or Elizabeth Peters at Caplin & Drysdale by telephone (+1 202 862 5000) or by fax (+1 202 429 3301) or by email (hdr@capdale or ehp@capdale).
(1) Protocol Amending the Convention Between the United States and Canada with Respect to Taxes on Income and on Capital Done at Washington on September 26 1980, as Amended by the Protocols of June 14 1983, March 28 1984, March 17 1995 and July 29 1997.
The protocol is clarified by the US Department of Treasury technical explanation. Canada’s government has reviewed the technical explanation and “subscribes” to its contents. The technical explanation is considered by both the United States and Canada to “accurately reflect the policies behind particular protocol provisions, as well as understandings reached with respect to the application and interpretation of the protocol” (Technical explanation, Introduction).
(2) The treaty partners, Canada and the United States, are referred to consistently as ‘states’ in this update.
(3) See, for example, FSA 200117019 (January 24 2001) (taxpayer claimed under the treaty that a US subsidiary was a Canadian resident for purposes of the treaty, and therefore that dividends from a third country received by the subsidiary were not subject to tax under the "Other Income" article of the treaty; for US statutory purposes, the taxpayer claimed that the US subsidiary remained a US corporation and could claim foreign tax credits on dividends from foreign affiliates, and that dividends from domestic affiliates were eliminated in consolidation).
(4) Article 27(3)(a) of the protocol.
(5) Article 2(2) of the protocol. The technical explanation clarifies that fiscally transparent entities for US purposes include “partnerships, common investment trusts under Section 584, grantor trusts and business entities such as a limited liability company that is treated as a partnership or is disregarded as an entity separate from its owner for US tax purposes”, and for Canadian purposes include partnerships and ‘bare’ trusts. Technical explanation, Article 2. Entities that are subject to tax, but for which tax may be relieved under an integrated system, are not considered fiscally transparent entities.
The treatment of S corporations under the protocol will depend on the residence of the beneficial owner of the corporation. If a US resident derives income from an S corporation, the US resident will be considered as the person who derived the income. However, Canada considers an S corporation to be a resident of the United States for purposes of the treaty, and thus allows benefits to the S corporation itself; when the S corporation is owned by a resident of Canada and has US-source income, the income will not be considered derived by the shareholder, but by the corporation itself (Technical explanation, Article 2).
(6) For the purposes of Paragraphs 6 and 7, whether the treatment of an amount derived by the taxpayer is “the same as its treatment would be if that amount had been derived directly” is determined in accordance with Section 894 and the regulations thereunder concerning whether an entity will be considered fiscally transparent. These rules include that the jurisdiction require the interest holder separately to take into account on a current basis its share of income paid to the entity (regardless of whether distributed), with the character and source of the income remaining the same as in the hands of the entity (Technical explanation, Article 2).
(7) Throughout this update, the terms ‘hybrid’ and ‘reverse hybrid’ are used from a US perspective. Therefore, a hybrid entity is an entity that is fiscally transparent in the United States and non-transparent in the foreign jurisdiction, and a reverse hybrid entity is an entity that is non-transparent in the United States and fiscally transparent in the foreign jurisdiction.
(8) Technical explanation, Article 2 provides the following example:
& ldquo; Assume, for instance, that interest arising in the United States is paid to CanLP, an entity established in Canada which is treated as fiscally transparent for Canadian tax purposes but is treated as a company for US tax purposes. CanCo, a company incorporated in Canada, is the sole interest holder in CanLP. Paragraph 6 of Article IV provides that CanCo derives the interest. However, if under the laws of the United States regarding payments to nominees, agents, custodians and conduits, CanCo is found to be a nominee, agent, custodian or conduit for a person who is not a resident of Canada, CanCo will not be considered the beneficial owner of the interest and will not be entitled to the benefits of Article XI with respect to such interest. The payment may be entitled to benefits, however, if CanCo is found to be a nominee, agent, custodian or conduit for a person who is a resident of Canada. & rdquo;
(9) Article 2(2) of the protocol.
(10) Therefore, the rule of Paragraph 6 applies to any US owner deriving income through a non-Canadian resident entity that is fiscally transparent in the United States or any Canadian owner deriving income through a non-US resident entity that is fiscally transparent in Canada.
(11) Technical explanation, Article 2.
(12) Technical explanation, Article 2.
(13) Article IV(7) becomes effective three years after the protocol enters into force. See Article 27(3)(b) of the protocol.
(14) The technical explanation notes that this provision would cover situations in which a payment is viewed under Canadian tax law as a dividend, but under US tax law as a partnership distribution, for a dividend paid by an entity that is a corporation for Canadian purposes but a partnership (as opposed to being disregarded) for US purposes. Also, this would cover a US limited partnership owned by a Canadian corporation that is considered to be a corporation in the United States, but is considered under Canadian law to be a branch of the Canadian corporation. The payment from the US limited partnership is treated as a branch remittance for Canadian tax purposes, whereas if Canada regarded the US limited partnership as a corporation the payment would be treated as a dividend (Technical explanation, Article 2).
The Joint Committee on Taxation notes that there are no examples relating to deductible interest or royalty payments from a hybrid partnership. The US recipient of a payment from a hybrid partnership would treat the payment as interest or a royalty. Therefore, the committee concludes that “one might expect that Subparagraph 7(b) would not apply” in this situation (Joint Committee on Taxation, Explanation of Proposed Protocol to the Income Tax Treaty Between the United States and Canada (JCX - 57-08), July 8 2008, at p 103).
(15) Treasury Regulation Sections 301.7701-2, -3.
(16) The Section 894(c) domestic reverse hybrid regulations have already purported to restrict abusive uses of such a structure when an item of income is paid by a domestic reverse hybrid to a related party. See Treasury Regulation Section 1.894-1(d)(2)(ii). A domestic reverse hybrid entity is a US domestic entity treated as not fiscally transparent in the United States but fiscally transparent in the interest holder’s jurisdiction.
The technical explanation notes that for payments that are covered under Paragraph 7, Section 894(c) and the regulations thereunder are not relevant. Presumably this is because a person covered by the provision is not entitled to the benefits of the treaty under the plain language of the treaty (Technical explanation, Article 2).
(17) These may include to operate in branch form for US tax purposes, in order better to manage Canadian foreign taxes for US purposes and to increase its Canadian tax basis in Canadian assets acquired through a purchase of the stock of a Canadian company (Joint Committee on Taxation explanation, at page 100).
(18) This provision is intended to reverse the result of the Canadian Federal Court of Appeal decision in The Queen v Dudney , 99 DTC 147 (TCC), aff’d 2000 DTC 6169 (FCA) (Joint Committee on Taxation explanation, at p 95).
(19) The services permanent establishment provision generally follows the UN model convention and the OECD’s proposed draft services permanent establishment rule.
(20) The term ‘gross active business revenues’ is defined further in the technical explanation. Those revenues are gross revenues “attributable to active business activities that the enterprise has charged or should charge for its active business activities, regardless of when the actual billing will occur or of domestic law rules concerning when such revenues should be taken into account for tax purposes”. The active business activities are not restricted to the provision of services, but they do not include income from passive investments (Technical explanation, Article 3).
(21) Article 3(2) of the protocol.
(22) Technical explanation, Article 3.
(23) Technical explanation, Article 3. Therefore, it is not sufficient that the relevant services be merely furnished to a resident of the source state. For example, “where… an enterprise provides customer support or other services by telephone or computer to customers located in the other state, those would not be covered by [the services permanent establishment rule] because they are not performed or provided by that enterprise within the other state".
(24) The Joint Committee on Taxation explanation notes that taxpayers will probably not have permanent employees in the source state to implement the taxpayer’s tax compliance efforts, including paying estimated taxes and filing tax returns (Joint Committee on Taxation explanation, page 96). Also, it may be difficult for taxpayers to know if they have a services permanent establishment until after one has been established.
(25) An exchange of notes clarifies that projects are considered connected if they constitute a coherent whole, commercially and geographically. See Annex B, exchange of notes (September 21 2007), Paragraph 2. The technical explanation clarifies that this determination is made from the point of view of the enterprise (not that of the customer) and depends on facts and circumstances, including whether the projects would have been concluded under one contract (in the absence of tax planning), whether the nature of the work involved in the projects is the same, and whether the same individuals work on both projects (Technical explanation, Article 3).
The technical explanation states that when “a technology consultant is contracted to install a particular computer system for a company and is also hired by the same company pursuant to a separate contract to train its employees on the use of another computer software that is unrelated to the first system”, commercially coherent projects are lacking and therefore days spent on each contract may not be aggregated.
(26) See Joint Committee on Taxation explanation, pages 97-98.
(27) Article 27(3)(c) of the protocol.
(28) Annex B, exchange of notes, Paragraph 9.
(29) Technical explanation, Article 4.
(30) Technical explanation, Article 5. For purposes of the diversification test, the technical explanation provides that foreclosure property is not considered an interest in real property and a REIT holding a partnership interest is treated as owning its proportionate share of the real property held by the partnership.
(31) Article 5(1) of the protocol. The technical explanation explains that the provision addressing fiscally transparent entities is only a “clarification” to the pre-protocol treaty (Technical explanation, Article 5).
(32) Article 27(3)(d) of the protocol.
(33) The technical explanation states that compensation paid to a financial services company to provide a guarantee in the ordinary course of business constitutes business profits under Article VII (Business Profits). Guarantees made with respect to related-party debt are not an ordinary independent economic undertaking that would generate business profits and are thus ordinarily treated under Article XXII (Other Income).
(34) Article 13, Paragraphs 2 and 3 of the protocol.
(35) Article XVIII(15). The protocol clarifies that pensions include Roth individual retirement accounts. The exchange of notes provides that qualified retirement plans include qualified plans under Section 401(a) of the Internal Revenue Code (including Section 401(k) arrangements); individual retirement plans that are part of a simplified employee pension plan that satisfies Section 408(k); Section 408(p) simple retirement accounts; Section 403(a) qualified annuity plans; Section 403(b) plans; Section 457(g) trusts providing benefits under Section 457(b) plans; the Thrift Savings Fund (Section 7701(j)); and any individual retirement account under Section 408(a) that is funded exclusively by rollover contributions from one or more of the preceding plans.
According to Annex B, exchange of notes, Paragraph 10, for Canada, the term ‘qualifying retirement plan’ include registered pension plans under Section 147.1 of the Income Tax Act; registered retirement savings plans under Section 146 that are part of a group arrangement described in Subsection 204.2(1.32); deferred profit-sharing plans under Section 147; and any registered retirement savings plan under Section 146 or registered retirement income fund under Section 146.3 that is funded exclusively by rollover contributions from one or more of the preceding plans. If a particular plan is not specifically listed as a qualified retirement plan, a taxpayer may request a determination from the competent authority that a plan qualifies (Technical explanation, Article 13).
(36) Article XVIII(16).
(37) Article XVIII(8). To qualify, the individual must perform services as an employee in the source state; the remuneration must be taxable in that state; the contributions and benefits must be attributable to those services; and the contributions and benefits must be made or accrued during the period in which the individual performs those services.
The individual must also have been participating in that retirement plan (or a similar plan) immediately before performing services in the source state. Also, the individual must not have performed services in the source state for the same employer for more than 60 of the last 120 months. If an individual receives benefits in the source state for contributions made in the residence state, the services to which the contributions relate may not be taken into account for purposes of determining the individual’s entitlement to benefits under a retirement plan in the source state. The individual must not have been a resident (as determined by Article IV (Residence)) of the source state immediately before he or she began performing services in the source state.( Technical explanation, Article 13).
(38) The technical explanation clarifies that the deduction is allowed even though such a deduction might not otherwise be allowable under the domestic law of the source state (Technical explanation, Article 13).
(39) Article XVIII(10). For Paragraph 10 to apply, the individual must perform services as an employee in the source state; the remuneration of that employment must be taxable in the source state; and the remuneration must be borne by either a source state employer or a permanent establishment in the source state (Article XVIII(10) and technical explanation, Article 13).
(40) Article XVIII(13).
(41) Article XVIII(4).
(42) See Annex B, exchange of notes, Paragraph 6. In more recent treaties, the United States has explicitly addressed the allocation of taxing rights for stock options. See, for example, Exchange of Diplomatic Notes Accompanying the UK-US Tax Treaty (July 24 2001).
(43) Technical explanation, Article 10.
(44) MIL (Investments) SA v The Queen , [2006] 5 CTC 2552 (TCC).
(45) See Article XXIXA(5)(b). The protocol also defines the term ‘principal class of shares’ used to determine the publicly traded test under Article XXIXA(2)(c). The technical explanation provides an example of a situation in which a corporation will not qualify for benefits due to a disproportionate class of shares: “OCo is a corporation resident in Canada. OCo has two classes of shares: common and preferred. The common shares are listed and regularly traded on a designated stock exchange in Canada. The preferred shares have no voting rights and are entitled to receive dividends equal in amount to interest payments that OCo receives from unrelated borrowers in the United States. The preferred shares are owned entirely by a single investor that is a resident of a country with which the United States does not have a tax treaty. The common shares account for more than 50% of the value of OCo and for 100% of the voting power. Because the owner of the preferred shares is entitled to receive payments corresponding to the US - source interest income earned by OCo, the preferred shares are a disproportionate class of shares. Because the preferred shares are not primarily and regularly traded on a recognized stock exchange, OCo will not qualify for benefits under Subparagraph 2(c).”
(46) See Article XXIXA(2), Subparagraphs (d) and (e).
(47) See Article XXIXA(2)(e). See also Article XXIXA(4) (changing the similar base erosion component of the derivative benefits test).
(48) Article XXIXA 2(c).
(49) See Annex B, exchange of notes, Paragraph 14.
(50) See Memorandum of Understanding Between the Competent Authorities of Canada and the United States Regarding the Mutual Agreement Procedure (June 3 2005) and Memorandum of Understanding Between the Competent Authorities of Canada and the United States Regarding Factual Disagreements Under the Mutual Agreement Procedure (December 23 2005).
(51) In contrast, the mandatory arbitration provision in the Belgium-US tax treaty covers all matters falling under the jurisdiction of the competent authorities.
(52) The arbitration board will consist of one person chosen by each state and a third person (not a citizen of either state) chosen by the first two.
(53) The technical explanation is presumably an “agreed commentary or explanation” as to the meaning of the convention.
(54) Article 27 of the technical explanation signals that the competent authorities may attempt to address this issue. It provides as follows: “To avoid the potential for a large number of MAP cases becoming subject to arbitration immediately upon the expiration of two years from entry into force, the competent authorities are encouraged to develop and implement procedures for arbitration by January 1 2009, and [to] begin scheduling arbitration of otherwise unresolvable MAP cases in inventory (and meeting the agreed criteria) prior to two years from entry into force.”
(55) Article XXI(3)(a). The technical explanation explains that this revised paragraph now allows charitable organizations to invest in pooled funds with trusts, companies, organizations, or other arrangements that are operated to provide pension or retirement benefits. Previously, the Internal Revenue Service had ruled that a pooled investment fund that included charitable investors would not be exempt from taxation on dividend and interest income arising in the other state (Technical explanation, Article 16).
(56) An important factor in the analysis is whether the persons being compared are both taxable on worldwide income (Technical explanation, Article 20). For example, non-resident US citizens are subject to tax on their worldwide income and therefore are not in the same circumstances regarding US taxation as citizens of Canada who are not US residents. Thus, the application of the provision to individuals who are not residents of either state will have effect only in Canada.
(57) The exchange of notes clarifies that the standards and practices in Article XXVII (Exchange of Information) of the treaty are to be in no respect less effective than those described in the Model Agreement on Exchange of Information on Tax Matters developed by the OECD Global Forum Working Group on Effective Exchange of Information. (Annex B, exchange of notes, Paragraph 13).
(58) A 'long-term resident' is defined as an individual who is a lawful permanent resident of the United States in eight or more tax years during the preceding 15 tax years. For these purposes, years when the individual is treated as a resident of Canada under the treaty, or as a resident of any other country except the United States under another US tax treaty, and the individual does not waive the benefits of such treaty, will not count. See Annex B, exchange of notes, Paragraph 11.
(59) Annex B, exchange of notes, Paragraph 12. It is not clear whether these changes will have any effect in light of the enactment of Section 877A, which adopts a mark-to-market regime for the pre-existing 10-year taxation of US-source income, applicable after June 16 2008.
An earlier version of this update was first published in Tax Notes International (August 18 2008).
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Xnxx vedios.
Trazer de volta o layout antigo com pesquisa de imagens.
sim: a única possibilidade (eu acho) enviar todas as informações para (alienvault.
Desinformação na ordem DVD.
Eu pedi DVD / Blueray "AL. A confidencial" tudo que eu consegui foi Blue ray & amp; um contato # para obter o DVD que não funcionou. Eu encomendo minha semana com Marilyn ____DVD / blue ray & amp; Eu peguei os dois - tolamente, assumi que o mesmo se aplicaria a L. A. ___ETC não. Eu não tenho uma máquina de raio azul ----- Eu não quero uma máquina de raio azul Eu não quero filmes blueray. Como obtenho minha cópia de DVD de L. A. Confidential?
yahoo, pare de bloquear email.
Passados ​​vários meses agora, o Yahoo tem bloqueado um servidor que pára nosso e-mail.
O Yahoo foi contatado pelo dono do servidor e o Yahoo alegou que ele não bloquearia o servidor, mas ainda está sendo bloqueado. CEASE & amp; DESISTIR.
Não consigo usar os idiomas ingleses no e-mail do Yahoo.
Por favor, me dê a sugestão sobre isso.
Motor de busca no Yahoo Finance.
Um conteúdo que está no Yahoo Finance não aparece nos resultados de pesquisa do Yahoo ao pesquisar por título / título da matéria.
Existe uma razão para isso, ou uma maneira de reindexar?
consertar o que está quebrado.
Eu não deveria ter que concordar com coisas que eu não concordo com a fim de dizer o que eu acho - eu não tive nenhum problema resolvido desde que comecei a usar o Yahoo - fui forçado a jogar meu antigo mensageiro, trocar senhas, obter novas messenger, disse para usar o meu número de telefone para alertar as pessoas que era o meu código de segurança, receber mensagens diárias sobre o bloqueio de yahoo tentativas de uso (por mim) para quem sabe por que como ele não faz e agora eu obter a nova política aparecer em cada turno - as empresas costumam pagar muito caro pela demografia que os usuários fornecem para você, sem custo, pois não sabem o que você está fazendo - está lá, mas não está bem escrito - e ninguém pode responder a menos que concordem com a política. Já é ruim o suficiente você empilhar o baralho, mas depois não fornece nenhuma opção de lidar com ele - o velho era bom o suficiente - todas essas mudanças para o pod de maré comendo mofos não corta - vou relutantemente estar ativamente olhando - estou cansado do mudanças em cada turno e mesmo aqueles que não funcionam direito, eu posso apreciar o seu negócio, mas o Ameri O homem de negócios pode vender-nos ao licitante mais alto por muito tempo - desejo-lhe boa sorte com sua nova safra de guppies - tente fazer algo realmente construtivo para aqueles a quem você serve - a cauda está abanando o cachorro novamente - isso é como um replay de Washington d c
Eu não deveria ter que concordar com coisas que eu não concordo com a fim de dizer o que eu acho - eu não tive nenhum problema resolvido desde que comecei a usar o Yahoo - fui forçado a jogar meu antigo mensageiro, trocar senhas, obter novas messenger, disse para usar o meu número de telefone para alertar as pessoas que era o meu código de segurança, receber mensagens diárias sobre o bloqueio de yahoo tentativas de uso (por mim) para quem sabe por que isso acontece e agora eu recebo a nova política em cada turno - as empresas costumam pagar muito pela demografia que os usuários fornecem para você ... mais.

CANADA-US CROSS BORDER TAX ISSUES IN CONNECTION WITH EMPLOYEE STOCK OPTIONS.
Canada and the US both tax employees who receive benefits from options they are granted to acquire shares in their employer or a related entity. This article will focus on the Canadian tax implication of employee stock options (“ESO”), and how these rules apply in certain Canada-US cross-border situations.
As a general rule, stock options benefits are taxed under section 7 of the Income Tax Act (“the Act”). No taxation results at the time that the ESO is granted-rather taxation results at the time the ESO is exercised. The amount taxable will be equal to the excess of the fair market of the stock at that time over the exercise price.
In cases where the ESO was not “in the money” at the time of grant (i. e. exercise price no less than fair market value of shares at that time), an offsetting deduction for 50% of that amount is allowed. Hence, only 50% is included in taxable income [1].
The cost base of the shares for capital gains purposes effectively winds-up being the fair market value at the time of exercise [2], so the benefit does not get taxed a second time when the shares are sold.
What happens, however, if there is a Canada-US cross-border aspect to the situation? The following comments will deal with the most common situations.
Canadian Resident Exercising ESOs for Shares in US Company.
As long as the options relate to employment, whether by a Canadian subsidiary, or the US parent itself, the same Canadian taxation rules as discussed above will apply.
In addition, even if the Canadian resident was a non-resident when the ESO’s were granted, the rules above will still apply.
Assuming that the Canadian resident is not a US citizen, no amount should be taxable in the US except to the extent that it relates to employment in the US.
US Resident Exercising ESO for Shares in Canadian Company.
To the extent that the options relate to employment in Canada, the same Canadian taxation rules as discussed above will apply [3].
It should be noted that these rules will apply even if the US resident is no longer an employee of the Canadian company at the time the ESO is exercised [4].
Canadian Expat Exercising ESO While US Resident.
Under Canada’s domestic tax law, a Canadian expat who exercises an ESO while resident in the US could be subject to Canadian tax on the resulting income even if such income does not relate to employment in Canada. That will be the case as long as the income relates to a period during which the expat was resident in Canada [5].
However, it is arguable that the Treaty would preclude Canada from taxing such income if it does not relate to employment in Canada [6].
Related to Employment in Both Canada and US.
What if there has been employment in both Canada and the US for the relevant employer (or affiliate) between the time that the ESO was granted and when it was exercised? The Treaty contains a special apportionment rule that may be applied for the purposes of determining the extent to which the related taxable amount is considered to be derived from employment in Canada or the US. This rule, which is found in Article 6 of “Annex B” to the Diplomatic Notes to the 2007 Protocol, states as follows:
“For purposes of applying Article XV (Income from Employment) and Article XXIV (Elimination of Double Taxation) of the Convention to income of an individual in connection with the exercise or other disposal (including a deemed exercise or disposal) of an option that was granted to the individual as an employee of a corporation or mutual fund trust to acquire shares or units (“securities”) of the employer (which is considered, for the purposes of this Note, to include any related entity) in respect of services rendered or to be rendered by such individual, or in connection with the disposal (including a deemed disposal) of a security acquired under such an option, the following principles shall apply:
(a) Subject to subparagraph 6( b ) of this Note, the individual shall be deemed to have derived, in respect of employment exercised in a Contracting State, the same proportion of such income that the number of days in the period that begins on the day the option was granted, and that ends on the day the option was exercised or disposed of, on which the individual’s principal place of employment for the employer was situated in that Contracting State is of the total number of days in the period on which the individual was employed by the employer; e.
(b) Notwithstanding subparagraph 6( a ) of this Note, if the competent authorities of both Contracting States agree that the terms of the option were such that the grant of the option will be appropriately treated as transfer of ownership of the securities (e. g., because the options were in-the-money or not subject to a substantial vesting period), then they may agree to attribute income accordingly.”
The effect of this rule is generally that taxable benefit is apportioned based on the period of time during which the principal place of employment is in the US or Canada during the period between grant and exercise.
[1] Paragraph 110(1)(d) the Act-all subsequent statutory references are to the Act. However, with the recent election of a Liberal government, the availability of this deduction may be limited.
[2] Paragraph 53(1)(j)
[3] Subparagraph 115(1)(a)(i); Article XV(1) of the Canada-US Tax Convention (“the Treaty”)
[4] Subsection 7(4)
[5] Subparagraph 115(1)(a)(i)
[6] Article XV(1) of the Treaty would seem to only allow Canada to tax a US resident on income derived from employment in Canada.

Convention Between Canada and the United States of America.
With Respect to Taxes on Income and on Capital.
This consolidated version of the Canada-United States Convention with Respect to Taxes on Income and on Capital signed at Washington on September 26, 1980, as amended by the Protocols signed on June 14, 1983, March 28, 1984, March 17, 1995 and July 29, 1997, is provided for convenience of reference only and has no official sanction.
Canada and the United States of America, desiring to conclude a Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, have agreed as follows:
Personal Scope.
This Convention is generally applicable to persons who are residents of one or both of the Contracting States.
Article II.
Taxes Covered.
1. This Convention shall apply to taxes on income and on capital imposed on behalf of each Contracting State, irrespective of the manner in which they are levied.
2. Notwithstanding paragraph 1, the taxes existing on March 17, 1995 to which the Convention shall apply are:
(a) in the case of Canada, the taxes imposed by the Government of Canada under the Income Tax Act ; e.
(b) in the case of the United States, the Federal income taxes imposed by the Internal Revenue Code of 1986. However, the Convention shall apply to:
(i) the United States accumulated earnings tax and personal holding company tax, to the extent, and only to the extent, necessary to implement the provisions of paragraphs 5 and 8 of Article X (Dividends);
(ii) the United States excise taxes imposed with respect to private foundations, to the extent, and only to the extent, necessary to implement the provisions of paragraph 4 of Article XXI (Exempt Organizations);
(iii) the United States social security taxes, to the extent, and only to the extent, necessary to implement the provisions of paragraph 2 of Article XXIV (Elimination of Double Taxation) and paragraph 4 of Article XXIX (Miscellaneous Rules); e.
(iv) the United States estate taxes imposed by the Internal Revenue Code of 1986, to the extent, and only to the extent, necessary to implement the provisions of paragraph 3(g) of Article XXVI (Mutual Agreement Procedure) and Article XXIX B (Taxes Imposed by Reason of Death).
3. The Convention shall apply also to:
(a) any taxes identical or substantially similar to those taxes to which the Convention applies under paragraph 2; e.
(b) taxes on capital;
which are imposed after March 17, 1995 in addition to, or in place of, the taxes to which the Convention applies under paragraph 2.
Article III.
General Definitions.
1. For the purposes of this Convention, unless the context otherwise requires:
(a) when used in a geographical sense, the term "Canada" means the territory of Canada, including any area beyond the territorial seas of Canada which, in accordance with international law and the laws of Canada, is an area within which Canada may exercise rights with respect to the seabed and subsoil and their natural resources;
(b) the term "United States" means:
(i) the United States of America, but does not include Puerto Rico, the Virgin Islands, Guam or any other United States possession or territory; e.
(ii) when used in a geographical sense, such term also includes any area beyond the territorial seas of the United States which, in accordance with international law and the laws of the United States, is an area within which the United States may exercise rights with respect to the seabed and subsoil and their natural resources;
(c) the term "Canadian tax" means the taxes referred to in Article II (Taxes Covered) that are imposed on income by Canada;
(d) the term "United States tax" means the taxes referred to in Article II (Taxes Covered), other than in subparagraph (b)(i) to (iv) of paragraph 2 thereof, that are imposed on income by the United States;
(e) the term "person" includes an individual, an estate, a trust, a company and any other body of persons;
(f) the term "company" means any body corporate or any entity which is treated as a body corporate for tax purposes;
(g) the term "competent authority" means:
(i) in the case of Canada, the Minister of National Revenue or his authorized representative; e.
(ii) in the case of the United States, the Secretary of the Treasury or his delegate;
(h) the term "international traffic" with reference to a resident of a Contracting State means any voyage of a ship or aircraft to transport passengers or property (whether or not operated or used by that resident) except where the principal purpose of the voyage is to transport passengers or property between places within the other Contracting State;
(i) the term "State" means any national State, whether or not a Contracting State; e.
(j) the term "the 1942 Convention" means the Convention and Protocol between Canada and the United States for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion in the case of Income Taxes signed at Washington on March 4, 1942, as amended by the Convention signed at Ottawa on June 12, 1950, by the Convention signed at Ottawa on August 8, 1956 and by the Supplementary Convention signed at Washington on October 25, 1966.
2. As regards the application of the Convention by a Contracting State any term not defined therein shall, unless the context otherwise requires and subject to the provisions of Article XXVI (Mutual Agreement Procedure), have the meaning which it has under the law of that State concerning the taxes to which the Convention applies.
Article IV.
1. For the purposes of this Convention, the term "resident" of a Contracting State means any person that, under the laws of that State, is liable to tax therein by reason of that person's domicile, residence, citizenship, place of management, place of incorporation or any other criterion of a similar nature, but in the case of an estate or trust, only to the extent that income derived by the estate or trust is liable to tax in that State, either in its hands or in the hands of its beneficiaries. For the purposes of this paragraph, an individual who is not a resident of Canada under this paragraph and who is a United States citizen or an alien admitted to the United States for permanent residence (a "green card" holder) is a resident of the United States only if the individual has a substantial presence, permanent home or habitual abode in the United States, and that individual's personal and economic relations are closer to the United States than to any third State. The term "resident" of a Contracting State is understood to include:
(a) the Government of that State or a political subdivision or local authority thereof or any agency or instrumentality of any such government, subdivision or authority, and.
(b) (i) a trust, organization or other arrangement that is operated exclusively to administer or provide pension, retirement or employee benefits; e.
(ii) a not-for-profit organization.
that was constituted in that State and that is, by reason of its nature as such, generally exempt from income taxation in that State.
2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows:
(a) he shall be deemed to be a resident of the Contracting State in which he has a permanent home available to him; if he has a permanent home available to him in both States or in neither State, he shall be deemed to be a resident of the Contracting State with which his personal and economic relations are closer (centre of vital interests);
(b) if the Contracting State in which he has his centre of vital interests cannot be determined, he shall be deemed to be a resident of the Contracting State in which he has an habitual abode;
(c) if he has an habitual abode in both States or in neither State, he shall be deemed to be a resident of the Contracting State of which he is a citizen; e.
(d) if he is a citizen of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
3. Where by reason of the provisions of paragraph 1 a company is a resident of both Contracting States, then if it was created under the laws in force in a Contracting State, it shall be deemed to be a resident of that State. Notwithstanding the preceding sentence, a company that was created in a Contracting State, that is a resident of both Contracting States and that is continued at any time in the other Contracting State in accordance with the corporate law in that other State shall be deemed while it is so continued to be a resident of that other State.
4. Where by reason of the provisions of paragraph 1 an estate, trust or other person (other than an individual or a company) is a resident of both Contracting States, the competent authorities of the States shall by mutual agreement endeavor to settle the question and to determine the mode of application of the Convention to such person.
5. Notwithstanding the provisions of the preceding paragraphs, an individual shall be deemed to be a resident of a Contracting State if:
(a) the individual is an employee of that State or of a political subdivision, local authority or instrumentality thereof rendering services in the discharge of functions or a governmental nature in the other Contracting State or in a third State; e.
(b) the individual is subjected in the first-mentioned State to similar obligations in respect of taxes on income as are residents of the first-mentioned State.
The spouse and dependent children residing with such an individual and meeting the requirements of subparagraph (b) above shall also be deemed to be residents of the first-mentioned State.
Permanent Establishment.
1. For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of a resident of a Contracting State is wholly or partly carried on.
2. The term "permanent establishment" shall include especially:
(a) a place of management;
(e) a workshop; e.
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.
3. A building site or construction or installation project constitutes a permanent establishment if, but only if, it lasts more than 12 months.
4. The use of an installation or drilling rig or ship in a Contracting State to explore for or exploit natural resources constitutes a permanent establishment if, but only if, such use is for more than three months in any twelve-month period.
5. A person acting in a Contracting State on behalf of a resident of the other Contracting State-other than an agent of an independent status to whom paragraph 7 applies-shall be deemed to be a permanent establishment in the first-mentioned State if such person has, and habitually exercises in that State, an authority to conclude contracts in the name of the resident.
6. Notwithstanding the provisions of paragraphs 1, 2 and 5, the term "permanent establishment" shall be deemed not to include a fixed place of business used solely for, or a person referred to in paragraph 5 engaged solely in, one or more of the following activities:
(a) the use of facilities for the purpose of storage, display or delivery of goods or merchandise belonging to the resident;
(b) the maintenance of a stock of goods or merchandise belonging to the resident for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the resident for the purpose of processing by another person;
(d) the purchase of goods or merchandise, or the collection of information, for the resident; e.
(e) advertising, the supply of information, scientific research or similar activities which have a preparatory or auxiliary character, for the resident.
7. A resident of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because such resident carries on business in that other State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business.
8. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not constitute either company a permanent establishment of the other.
9. For the purposes of the Convention, the provisions of this Article shall be applied in determining whether any person has a permanent establishment in any State.
Article VI.
Income from Real Property.
1. Income derived by a resident of a Contracting State from real property (including income from agriculture, forestry or other natural resources) situated in the other Contracting State may be taxed in that other State.
2. For the purposes of this Convention, the term "real property" shall have the meaning which it has under the taxation laws of the Contracting State in which the property in question is situated and shall include any option or similar right in respect thereof. The term shall in any case include usufruct of real property, rights to explore for or to exploit mineral deposits, sources and other natural resources and rights to amounts computed by reference to the amount or value of production from such resources; ships and aircraft shall not be regarded as real property.
3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting or use in any other form of real property and to income from the alienation of such property.
Article VII.
Business Profits.
1. The business profits of a resident of a Contracting State shall be taxable only in that State unless the resident carries on business in the other Contracting State through a permanent establishment situated therein. If the resident carries on, or has carried on, business as aforesaid, the business profits of the resident may be taxed in the other State but only so much of them as are attributable to that permanent establishment.
2. Subject to the provisions of paragraph 3, where a resident of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the business profits which it might be expected to make if it were a distinct and separate person engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the resident and with any other person related to the resident (within the meaning of paragraph 2 of Article IX (Related Persons)).
3. In determining the business profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the permanent establishment, including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere. Nothing in this paragraph shall require a Contracting State to allow the deduction of any expenditure which, by reason of its nature, is not generally allowed as a deduction under the taxation laws of that State.
4. No business profits shall be attributed to a permanent establishment of a resident of a Contracting State by reason of the use thereof for either the mere purchase of goods or merchandise or the mere provision of executive, managerial or administrative facilities or services for such resident.
5. For the purposes of the preceding paragraphs, the business profits to be attributed to a permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
6. Where business profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.
7. For the purposes of the Convention, the business profits attributable to a permanent establishment shall include only those profits derived from the assets or activities of the permanent establishment.
Article VIII.
Transporte.
1. Notwithstanding the provisions of Articles VII (Business Profits), XII (Royalties) and XIII (Gains), profits derived by a resident of a Contracting State from the operation of ships or aircraft in international traffic, and gains derived by a resident of a Contracting State from the alienation of ships, aircraft or containers (including trailers and related equipment for the transport of containers) used principally in international traffic, shall be exempt from tax in the other Contracting State.
2. For the purposes of this Convention, profits derived by a resident of a Contracting State from the operation of ships or aircraft in international traffic include profits from:
(a) the rental of ships or aircraft operated in international traffic;
(b) the use, maintenance or rental of containers (including trailers and related equipment for the transport of containers) used in international traffic; e.
(c) the rental of ships, aircraft or containers (including trailers and related equipment for the transport of containers) provided that such profits are incidental to profits referred to in paragraph 1, 2(a) or 2(b).
3. Notwithstanding the provisions of Article VII (Business Profits), profits derived by a resident of a Contracting State from a voyage of a ship where the principal purpose of the voyage is to transport passengers or property between places in the other Contracting State may be taxed in that other State.
4. Notwithstanding the provisions of Articles VII (Business Profits) and XII (Royalties), profits of a resident of a Contracting State engaged in the operation of motor vehicles or a railway as a common carrier or a contract carrier derived from:
(a) the transportation of passengers or property between a point outside the other Contracting State and any other point; ou.
(b) the rental of motor vehicles (including trailers) or railway rolling stock, or the use, maintenance or rental of containers (including trailers and related equipment for the transport of containers) used to transport passengers or property between a point outside the other Contracting State and any other point.
shall be exempt from tax in that other Contracting State.
5. The provisions of paragraphs 1, 3 and 4 shall also apply to profits or gains referred to in those paragraphs derived by a resident of a Contracting State from the participation in a pool, a joint business or an international operating agency.
6. Notwithstanding the provisions of Article XII (Royalties), profits derived by a resident of a Contracting State from the use, maintenance or rental of railway rolling stock, motor vehicles, trailers or containers (including trailers and related equipment for the transport of containers) used in the other Contracting State for a period or periods not expected to exceed in the aggregate 183 days in any twelve-month period shall be exempt from tax in the other Contracting State except to the extent that such profits are attributable to a permanent establishment in the other State and liable to tax in the other State by reason of Article VII (Business Profits).
Article IX.
Related Persons.
1. Where a person in a Contracting State and a person in the other Contracting State are related and where the arrangements between them differ from those which would be made between unrelated persons, each State may adjust the amount of the income, loss or tax payable to reflect the income, deductions, credits or allowances which would, but for those arrangements, have been taken into account in computing such income, loss or tax.
2. For the purposes of this Article, a person shall be deemed to be related to another person if either person participates directly or indirectly in the management or control of the other, or if any third person or persons participate directly or indirectly in the management or control of both.
3. Where an adjustment is made or to be made by a Contracting State in accordance with paragraph 1, the other Contracting State shall (notwithstanding any time or procedural limitations in the domestic law of that other State) make a corresponding adjustment to the income, loss or tax of the related person in that other State if:
(a) it agrees with the first-mentioned adjustment; e.
(b) within six years from the end of the taxable year to which the first-mentioned adjustment relates, the competent authority of the other State has been notified of the first-mentioned adjustment. The competent authorities, however, may agree to consider cases where the corresponding adjustment would not otherwise be barred by any time or procedural limitations in the other State, even if the notification is not made within the six-year period.
4. In the event that the notification referred to in paragraph 3 is not given within the time period referred to therein, and the competent authorities have not agreed to otherwise consider the case in accordance with paragraph 3(b), the competent authority of the Contracting State which has made or is to make the first-mentioned adjustment may provide relief from double taxation where appropriate.
5. The provisions of paragraphs 3 and 4 shall not apply in the case of fraud, willful default or neglect or gross negligence.
1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State; but if a resident of the other Contracting State is the beneficial owner of such dividends, the tax so charged shall not exceed:
(a) 5 per cent of the gross amount of the dividends if the beneficial owner is a company which owns at least 10 per cent of the voting stock of the company paying the dividends;
(b) 15 per cent of the gross amount of the dividends in all other cases.
This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
3. The term "dividends" as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as income subjected to the same taxation treatment as income from shares by the taxation laws of the State of which the company making the distribution is a resident.
4. The provisions of paragraph 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article VII (Business Profits) or Article XIV (Independent Personal Services), as the case may be, shallapply.
5. Where a company is a resident of a Contracting State, the other Contracting State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to a tax, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.
6. Nothing in this Convention shall be construed as preventing a Contracting State from imposing a tax on the earnings of a company attributable to permanent establishments in that State, in addition to the tax which would be chargeable on the earnings of a company which is a resident of that State, provided that any additional tax so imposed shall not exceed 5 per cent of the amount of such earnings which have not been subjected to such additional tax in previous taxation years. For the purposes of this paragraph, the term "earnings" means the amount by which the business profits attributable to permanent establishments in a Contracting State (including gains from the alienation of property forming part of the business property of such permanent establishments) in a year and previous years exceeds the sum of:
(a) business losses attributable to such permanent establishments (including losses from the alienation of property forming part of the business property of such permanent establishments) in such year and previous years;
(b) all taxes, other than the additional tax referred to in this paragraph, imposed on such profits in that State;
(c) the profits reinvested in that State, provided that where that State is Canada, such amount shall be determined in accordance with the existing provisions of the law of Canada regarding the computation of the allowance in respect of investment in property in Canada, and any subsequent modification of those provisions which shall not affect the general principle hereof; e.
(d) five hundred thousand Canadian dollars ($500,000) or its equivalent in United States currency, less any amounts deducted by the company, or by an associated company with respect to the same or a similar business, under this subparagraph (d); for the purposes of this subparagraph (d) a company is associated with another company if one company directly or indirectly controls the other, or both companies are directly or indirectly controlled by the same person or persons, or if the two companies deal with each other not at arm's length.
7. Notwithstanding the provisions of paragraph 2,
(a) dividends paid by a company that is a resident of Canada and a non-resident-owned investment corporation to a company that is a resident of the United States, that owns at least 10 per cent of the voting stock of the company paying the dividends and that is the beneficial owner of such dividends, may be taxed in Canada at a rate not exceeding 10 per cent of the gross amount of the dividends;
(b) paragraph 2(b) and not paragraph 2(a) shall apply in the case of dividends paid by a resident of the United States that is a Regulated Investment Company; e.
(c) Paragraph 2(a) shall not apply to dividends paid by a resident of the United States that is a Real Estate Investment Trust, and paragraph 2(b) shall apply only where such dividends are beneficially owned by an individual holding an interest of less than 10 per cent in the trust; otherwise the rate of tax applicable under the domestic law of the United States shall apply. Where an estate or a testamentary trust acquired its interest in a Real Estate Investment Trust as a consequence of an individual's death, for the purposes of the preceding sentence the estate or trust shall for the five-year period following the death be deemed with respect to that interest to be an individual.
8. Notwithstanding the provisions of paragraph 5, a company which is a resident of Canada and which has income subject to tax in the United States (without regard to the provisions of the Convention) may be liable to the United States accumulated earnings tax and personal holding company tax but only if 50 per cent or more in value of the outstanding voting shares of the company is owned, directly or indirectly, throughout the last half of its taxable year by citizens or residents of the United States (other than citizens of Canada who do not have immigrant status in the United States or who have not been residents in the United States for more than three taxable years) or by residents of a third state.
Article XI.
1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such interest may also be taxed in the Contracting State in which it arises, and according to the laws of that State; but if a resident of the other Contracting State is the beneficial owner of such interest, the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3. Notwithstanding the provisions of paragraph 2, interest arising in a Contracting State shall be exempt from tax in that State if:
(a) the interest is beneficially owned by the other Contracting State, a political subdivision or local authority thereof or an instrumentality of such other State, subdivision or authority, and is not subject to tax by that other State;
(b) the interest is beneficially owned by a resident of the other Contracting State and is paid with respect to debt obligations issued at arm's length and guaranteed or insured by that other State or a political subdivision thereof or an instrumentality of such other State or subdivision which is not subject to tax by that other State;
(c) the interest is beneficially owned by a resident of the other Contracting State and is paid by the first-mentioned State, a political subdivision or local authority thereof or an instrumentality of such first-mentioned State, subdivision or authority which is not subject to tax by that first-mentioned State;
(d) the interest is beneficially owned by a resident of the other Contracting State and is paid with respect to indebtedness arising as a consequence of the sale on credit by a resident of that other State of any equipment, merchandise or services except where the sale or indebtedness was between related persons; ou.
(e) the interest is paid by a company created under the laws in force in the other Contracting State with respect to an obligation entered into before the date of signature of this Convention, provided that such interest would have been exempt from tax in the first-mentioned State under Article XII of the 1942 Convention.
4. The term "interest" as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and whether or not carrying a right to participate in the debtor's profits, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures, as well as income assimilated to income from money lent by the taxation laws of the Contracting State in which the income arises. However, the term "interest" does not include income dealt with in Article X (Dividends).
5. The provisions of paragraphs 2 and 3 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article VII (Business Profits) or Article XIV (Independent Personal Services), as the case may be, shall apply.
6. For the purposes of this Article, interest shall be deemed to arise in a Contracting State when the payer is that State itself, or a political subdivision, local authority or resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a State other than that of which he is a resident a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated and not in the State of which the payer is a resident.
7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of the Convention.
8. Where a resident of a Contracting State pays interest to a person other than a resident of the other Contracting State, that other State may not impose any tax on such interest except insofar as it arises in that other State or insofar as the debt-claim in respect of which the interest is paid is effectively connected with a permanent establishment or a fixed base situated in that other State.
9. The provisions of paragraphs 2 and 3 shall not apply to an excess inclusion with respect to a residual interest in a Real Estate Mortgage Investment Conduit to which Section 860G of the United States Internal Revenue Code , as it may be amended from time to time without changing the general principle thereof, applies.
Article XII.
1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such royalties may also be taxed in the Contracting State in which they arise, and according to the laws of that State; but if a resident of the other Contracting State is the beneficial owner of such royalties, the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3. Notwithstanding the provisions of paragraph 2,
(a) copyright royalties and other like payments in respect of the production or reproduction of any literary, dramatic, musical or artistic work (other than payments in respect of motion pictures and works on film, videotape or other means of reproduction for use in connection with television);
(b) payments for the use of, or the right to use, computer software;
(c) payments for the use of, or the right to use, any patent or any information concerning industrial, commercial or scientific experience (but not including any such information provided in connection with a rental or franchise agreement); e.
(d) payments with respect to broadcasting as may be agreed for the purposes of this paragraph in an exchange of notes between the Contracting States;
arising in a Contracting State and beneficially owned by a resident of the other Contracting State shall be taxable only in that other State.
4. The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work (including motion pictures and works on film, videotape or other means of reproduction for use in connection with television), any patent, trade mark, design or model, plan, secret formula or process, or for the use of, or the right to use, tangible personal property or for information concerning industrial, commercial or scientific experience, and, notwithstanding the provisions of Article XIII (Gains), includes gains from the alienation of any intangible property or rights described in this paragraph to the extent that such gains are contingent on the productivity, use or subsequent disposition of such property or rights.
5. The provisions of paragraphs 2 and 3 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article VII (Business Profits) or Article XIV (Independent Personal Services), as the case may be, shall apply.
6. For the purposes of this Article,
(a) royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a State a permanent establishment or a fixed base in connection with which the obligation to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated and not in any other State of which the payer is a resident; e.
(b) where subparagraph (a) does not operate to treat royalties as arising in either Contracting State and the royalties are for the use of, or the right to use, intangible property or tangible personal property in a Contracting State, then such royalties shall be deemed to arise in that State.
7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
8. Where a resident of a Contracting State pays royalties to a person other than a resident of the other Contracting State, that other State may not impose any tax on such royalties except insofar as they arise in that other State or insofar as the right or property in respect of which the royalties are paid is effectively connected with a permanent establishment or a fixed base situated in that other State.
Article XIII.
1. Gains derived by a resident of a Contracting State from the alienation of real property situated in the other Contracting State may be taxed in that other State.
2. Gains from the alienation of personal property forming part of the business property of a permanent establishment which a resident of a Contracting State has or had (within the twelve-month period preceding the date of alienation) in the other Contracting State or of personal property pertaining to a fixed base which is or was available (within the twelve-month period preceding the date of alienation) to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment or of such a fixed base, may be taxed in that other State.
3. For the purposes of this Article the term "real property situated in the other Contracting State"
(a) In the case of real property situated in the United States, means a United States real property interest and real property referred to in Article VI (Income from Real Property) situated in the United States, but does not include a share of the capital stock of a company that is not a resident of the United States; e.
(b) in the case of real property situated in Canada means:
(i) real property referred to in Article VI (Income from Real Property) situated in Canada;
(ii) a share of the capital stock of a company that is a resident of Canada, the value of whose shares is derived principally from real property situated in Canada; e.
(iii) an interest in a partnership, trust or estate, the value of which is derived principally from real property situated in Canada.
4. Gains from the alienation of any property other than that referred to in paragraphs 1, 2 and 3 shall be taxable only in the Contracting State of which the alienator is a resident.
5. The provisions of paragraph 4 shall not affect the right of a Contracting State to levy tax on gains from the alienation of property derived by an individual who is a resident of the other Contracting State if such individual:
(a) was a resident of the first-mentioned State for 120 months during any period of 20 consecutive years preceding the alienation of the property; e.
(b) was a resident of the first-mentioned State at any time during the ten years immediately preceding the alienation of the property;
and if such property (or property for which such property was substituted in an alienation the gain on which was not recognized for the purposes of taxation in the first-mentioned State) was owned by the individual at the time he ceased to be a resident of the first-mentioned State.
6. Where an individual (other than a citizen of the United States) who was a resident of Canada became a resident of the United States, in determining his liability to United States taxation in respect of any gain from the alienation of a principal residence in Canada owned by him at the time he ceased to be a resident of Canada, the adjusted basis of such property shall be no less than its fair market value at that time.
7. Where at any time an individual is treated for the purposes of taxation by a Contracting State as having alienated a property and is taxed in that State by reason thereof and the domestic law of the other Contracting State at such time defers (but does not forgive) taxation, that individual may elect in his annual return of income for the year of such alienation to be liable to tax in the other Contracting State in that year as if he had, immediately before that time, sold and repurchased such property for an amount equal to its fair market value at that time.
8. Where a resident of a Contracting State alienates property in the course of a corporate or other organization, reorganization, amalgamation, division or similar transaction and profit, gain or income with respect to such alienation is not recognized for the purpose of taxation in that State, if requested to do so by the person who acquires the property, the competent authority of the other Contracting State may agree, in order to avoid double taxation and subject to terms and conditions satisfactory to such competent authority, to defer the recognition of the profit, gain or income with respect to such property for the purpose of taxation in that other State until such time and in such manner as may be stipulated in the agreement.
9. Where a person who is a resident of a Contracting State alienates a capital asset which may in accordance with this Article be taxed in the other Contracting State and.
(a) that person owned the asset on September 26, 1980 and was resident in the first-mentioned State on that date; ou.
(b) the asset was acquired by that person in an alienation of property which qualified as a non-recognition transaction for the purposes of taxation in that other State;
the amount of the gain which is liable to tax in that other State in accordance with this Article shall be reduced by the proportion of the gain attributable on a monthly basis to the period ending on December 31 of the year in which the Convention enters into force, or such greater portion of the gain as is shown to the satisfaction of the competent authority of the other State to be reasonably attributable to that period. For the purposes of this paragraph the term "non-recognition transaction" includes a transaction to which paragraph 8 applies and, in the case of taxation in the United States, a transaction that would have been a non-recognition transaction but for Sections 897(d) and 897(e) of the Internal Revenue Code . The provisions of this paragraph shall not apply to.
(c) an asset that on September 26, 1980 formed part of the business property of a permanent establishment or pertained to a fixed base of a resident of a Contracting State situated in the other Contracting State;
(d) an alienation by a resident of a Contracting State of an asset that was owned at any time after September 26, 1980 and before such alienation by a person who was not at all times after that date while the asset was owned by such person a resident of that State; ou.
(e) an alienation of an asset that was acquired by a person at any time after September 26, 1980 and before such alienation in a transaction other than a non-recognition transaction.
Article XIV.
Independent Personal Services.
Income derived by an individual who is a resident of a Contracting State in respect of independent personal services may be taxed in that State. Such income may also be taxed in the other Contracting State if the individual has or had a fixed base regularly available to him in that other State but only to the extent that the income is attributable to the fixed base.
Article XV.
Dependent Personal Services.
1. Subject to the provisions of Articles XVIII (Pensions and Annuities) and XIX (Government Service), salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in a calendar year in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) such remuneration does not exceed ten thousand dollars ($10,000) in the currency of that other State; ou.
(b) the recipient is present in the other Contracting State for a period or periods not exceeding in the aggregate 183 days in that year and the remuneration is not borne by an employer who is a resident of that other State or by a permanent establishment or a fixed base which the employer has in that other State.
3. Notwithstanding the provisions of paragraphs 1 and 2, remuneration derived by a resident of a Contracting State in respect of an employment regularly exercised in more than one State on a ship, aircraft, motor vehicle or train operated by a resident of that Contracting State shall be taxable only in that State.
Article XVI.
Artistes and Athletes.
1. Notwithstanding the provisions of Articles XIV (Independent Personal Services) and XV (Dependent Personal Services), income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as an athlete, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State, except where the amount of the gross receipts derived by such entertainer or athlete, including expenses reimbursed to him or borne on his behalf, from such activities do not exceed fifteen thousand dollars ($15,000) in the currency of that other State for the calendar year concerned.
2. Where income in respect of personal activities exercised by an entertainer or an athlete in his capacity as such accrues not to the entertainer or athlete but to another person, that income may, notwithstanding the provisions of Articles VII (Business Profits), XIV (Independent Personal Services) and XV (Dependent Personal Services), be taxed in the Contracting State in which the activities of the entertainer or athlete are exercised. For the purposes of the preceding sentence, income of an entertainer or athlete shall be deemed not to accrue to another person if it is established that neither the entertainer or athlete, nor persons related thereto, participate directly or indirectly in the profits of such other person in any manner, including the receipt of deferred remuneration, bonuses, fees, dividends, partnership distributions or other distributions.
3. The provisions of paragraphs 1 and 2 shall not apply to the income of:
(a) an athlete in respect of his activities as an employee of a team which participates in a league with regularly scheduled games in both Contracting States; ou.
(b) a team described in subparagraph (a).
4. Notwithstanding the provisions of Articles XIV (Independent Personal Services) and XV (Dependent Personal Services) an amount paid by a resident of a Contracting State to a resident of the other Contracting State as an inducement to sign an agreement relating to the performance of the services of an athlete (other than an amount referred to in paragraph 1 of Article XV (Dependent Personal Services) may be taxed in the first-mentioned State, but the tax so charged shall not exceed 15 per cent of the gross amount of such payment.
Article XVII.
Withholding of Taxes in Respect of Personal Services.
1. Deduction and withholding of tax on account of the tax liability for a taxable year on remuneration paid to an individual who is a resident of a Contracting State (including an entertainer or athlete) in respect of the performance of independent personal services in the other Contracting State may be required by that other State, but with respect to the first five thousand dollars ($5,000) in the currency of that other State, paid as remuneration in that taxable year by each payer, such deduction and withholding shall not exceed 10 per cent of the payment.
2. Where the competent authority of a Contracting State considers that an amount that would otherwise be deducted or withheld from any amount paid or credited to an individual who is a resident of the other Contracting State in respect of the performance of personal services in the first-mentioned State is excessive in relation to the estimated tax liability for the taxable year of that individual in the first-mentioned State, it may determine that a lesser amount will be deducted or withheld.
3. The provisions of this Article shall not affect the liability of a resident of a Contracting State referred to in paragraph 1 or 2 for tax imposed by the other Contracting State.
Article XVIII.
Pensions and Annuities.
1. Pensions and annuities arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State, but the amount of any such pension that would be excluded from taxable income in the first-mentioned State if the recipient were a resident thereof shall be exempt from taxation in that other State.
(a) pensions may also be taxed in the Contracting State in which they arise and according to the laws of that State; but if a resident of the other Contracting State is the beneficial owner of a periodic pension payment, the tax so charged shall not exceed 15 per cent of the gross amount of such payment; e.
(b) annuities may also be taxed in the Contracting State in which they arise and according to the laws of that State; but if a resident of the other Contracting State is the beneficial owner of an annuity payment, the tax so charged shall not exceed 15 per cent of the portion of such payment that would not be excluded from taxable income in the first-mentioned State if the beneficial owner were a resident thereof.
3. For the purposes of this Convention, the term "pensions" includes any payment under a superannuation, pension or other retirement arrangement, Armed Forces retirement pay, war veterans pensions and allowances and amounts paid under a sickness, accident or disability plan, but does not include payments under an income-averaging annuity contract or, except for the purposes of Article XIX (Government Service), any benefit referred to in paragraph 5.
4. For the purposes of the Convention, the term "annuities" means a stated sum paid periodically at stated times during life or during a specified number of years, under an obligation to make the payments in return for adequate and full consideration (other than services rendered), but does not include a payment that is not a periodic payment or any annuity the cost of which was deductible for the purposes of taxation in the Contracting State in which it was acquired.
5. Benefits under the social security legislation in a Contracting State (including tier 1 railroad retirement benefits but not including unemployment benefits) paid to a resident of the other Contracting State shall be taxable only in that other State, subject to the following conditions:
(a) a benefit under the social security legislation in the United States paid to a resident of Canada shall be taxable in Canada as though it were a benefit under the Canada Pension Plan, except that 15 per cent of the amount of the benefit shall be exempt from Canadian tax; e.
(b) a benefit under the social security legislation in Canada paid to a resident of the United States shall be taxable in the United States as though it were a benefit under the Social Security Act, except that a type of benefit that is not subject to Canadian tax when paid to residents of Canada shall be exempt from United States tax.
6. Alimony and other similar amounts (including child support payments) arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable as follows:
(a) such amounts shall be taxable only in that other State;
(b) notwithstanding the provisions of subparagraph (a), the amount that would be excluded from taxable income in the first-mentioned State if the recipient were a resident thereof shall be exempt from taxation in that other State.
7. A natural person who is a citizen or resident of a Contracting State and a beneficiary of a trust, company, organization or other arrangement that is a resident of the other Contracting State, generally exempt from income taxation in that other State and operated exclusively to provide pension, retirement or employee benefits may elect to defer taxation in the first-mentioned State, under rules established by the competent authority of that State, with respect to any income accrued in the plan but not distributed by the plan, until such time as and to the extent that a distribution is made from the plan or any plan substituted therefore.
Article XIX.
Government Service.
Remuneration, other than a pension, paid by a Contracting State or a political subdivision or local authority thereof to a citizen of that State in respect of services rendered in the discharge of functions of a governmental nature shall be taxable only in that State. However, the provisions of Article XIV (Independent Personal Services), XV (Dependent Personal Services) or XVI (Artistes and Athletes), as the case may be, shall apply, and the preceding sentence shall not apply, to remuneration paid in respect of services rendered in connection with a trade or business carried on by a Contracting State or a political subdivision or local authority thereof.
Article XX.
Payments which a student, apprentice or business trainee, who is or was immediately before visiting a Contracting State a resident of the other Contracting State, and who is present in the first-mentioned State for the purpose of his full-time education or training, receives for the purpose of his maintenance, education or training shall not be taxed in that State provided that such payments are made to him from outside that State.
Article XXI.
Exempt Organizations.
1. Subject to the provisions of paragraph 3, income derived by a religious, scientific, literary, educational or charitable organization shall be exempt from tax in a Contracting State if it is resident in the other Contracting State but only to the extent that such income is exempt from tax in that other State.
2. Subject to the provisions of paragraph 3, income referred to in Articles X (Dividends) and XI (Interest) derived by:
(a) a trust, company, organization or other arrangement that is a resident of a Contracting State, generally exempt from income taxation in a taxable year in that State and operated exclusively to administer or provide pension, retirement or employee benefits; ou.
(b) a trust, company, organization or other arrangement that is a resident of a Contracting State, generally exempt from income taxation in a taxable year in that State and operated exclusively to earn income for the benefit of an organization referred to in subparagraph (a);
shall be exempt from income taxation in that taxable year in the other Contracting State.
3. The provisions of paragraphs 1 and 2 shall not apply with respect to the income of a trust, company, organization or other arrangement from carrying on a trade or business or from a related person other than a person referred to in paragraph 1 or 2.
4. A religious, scientific, literary, educational or charitable organization which is resident in Canada and which has received substantially all of its support from persons other than citizens or residents of the United States shall be exempt in the United States from the United States excise taxes imposed with respect to private foundations.
5. For the purposes of United States taxation, contributions by a citizen or resident of the United States to an organization which is resident in Canada, which is generally exempt from Canadian tax and which could qualify in the United States to receive deductible contributions if it were resident in the United States shall be treated as charitable contributions; however, such contributions (other than such contributions to a college or university at which the citizen or resident or a member of his family is or was enrolled) shall not be deductible in any taxable year to the extent that they exceed an amount determined by applying the percentage limitations of the laws of the United States in respect of the deductibility of charitable contributions to the income of such citizen or resident arising in Canada. The preceding sentence shall not be interpreted to allow in any taxable year deductions for charitable contributions in excess of the amount allowed under the percentage limitations of the laws of the United States in respect of the deductibility of charitable contributions. For the purposes of this paragraph, a company that is a resident of Canada and that is taxable in the United States as if it were a resident of the United States shall be deemed to be a resident of the United States.
6. For the purposes of Canadian taxation, gifts by a resident of Canada to an organization that is a resident of the United States, that is generally exempt from United States tax and that could qualify in Canada as a registered charity if it were a resident of Canada and created or established in Canada, shall be treated as gifts to a registered charity; however, no relief from taxation shall be available in any taxation year with respect to such gifts (other than such gifts to a college or university at which the resident or a member of the resident's family is or was enrolled) to the extent that such relief would exceed the amount of relief that would be available under the Income Tax Act if the only income of the resident for that year were the resident's income arising in the United States. The preceding sentence shall not be interpreted to allow in any taxation year relief from taxation for gifts to registered charities in excess of the amount of relief allowed under the percentage limitations of the laws of Canada in respect of relief for gifts to registered charities.
Article XXII.
Other Income.
1. Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that State, except that if such income arises in the other Contracting State it may also be taxed in that other State.
2. To the extent that income distributed by an estate or trust is subject to the provisions of paragraph 1, then, notwithstanding such provisions, income distributed by an estate or trust which is a resident of a Contracting State to a resident of the other Contracting State who is a beneficiary of the estate or trust may be taxed in the first-mentioned State and according to the laws of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the income; provided, however, that such income shall be exempt from tax in the first-mentioned State to the extent of any amount distributed out of income arising outside that State.
3. Losses incurred by a resident of a Contracting State with respect to wagering transactions the gains on which may be taxed in the other Contracting State shall, for the purpose of taxation in that other State, be deductible to the same extent that such losses would be deductible if they were incurred by a resident of that other State.
Article XXIII.
1. Capital represented by real property, owned by a resident of a Contracting State and situated in the other Contracting State, may be taxed in that other State.
2. Capital represented by personal property forming part of the business property of a permanent establishment which a resident of a Contracting State has in the other Contracting State, or by personal property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, may be taxed in that other State.
3. Capital represented by ships and aircraft operated by a resident of a Contracting State in international traffic, and by personal property pertaining to the operation of such ships and aircraft, shall be taxable only in that State.
4. All other elements of capital of a resident of a Contracting State shall be taxable only in that State.
Article XXIV.
Elimination of Double Taxation.
1. In the case of the United States, subject to the provisions of paragraphs 4, 5 and 6, double taxation shall be avoided as follows: In accordance with the provisions and subject to the limitations of the law of the United States (as it may be amended from time to time without changing the general principle hereof), the United States shall allow to a citizen or resident of the United States, or to a company electing to be treated as a domestic corporation, as a credit against the United States tax on income the appropriate amount of income tax paid or accrued to Canada; and, in the case of a company which is a resident of the United States owning at least 10 per cent of the voting stock of a company which is a resident of Canada from which it receives dividends in any taxable year, the United States shall allow as a credit against the United States tax on income the appropriate amount of income tax paid or accrued to Canada by that company with respect to the profits out of which such dividends are paid.
2. In the case of Canada, subject to the provisions of paragraphs 4, 5 and 6, double taxation shall be avoided as follows:
(a) subject to the provisions of the law of Canada regarding the deduction from tax payable in Canada of tax paid in a territory outside Canada and to any subsequent modification of those provisions (which shall not affect the general principle hereof)
(i) income tax paid or accrued to the United States on profits, income or gains arising in the United States, and.
(ii) in the case of an individual, any social security taxes paid to the United States (other than taxes relating to unemployment insurance benefits) by the individual on such profits, income or gains.
shall be deducted from any Canadian tax payable in respect of such profits, income or gains;
(b) subject to the existing provisions of the law of Canada regarding the taxation of income from a foreign affiliate and to any subsequent modification of those provisions - which shall not affect the general principle hereof - for the purpose of computing Canadian tax, a company which is a resident of Canada shall be allowed to deduct in computing its taxable income any dividend received by it out of the exempt surplus of a foreign affiliate which is a resident of the United States; e.
(c) notwithstanding the provisions of subparagraph (a), where Canada imposes a tax on gains from the alienation of property that, but for the provisions of paragraph 5 of Article XIII (Gains), would not be taxable in Canada, income tax paid or accrued to the United States on such gains shall be deducted from any Canadian tax payable in respect of such gains.
3. For the purposes of this Article:
(a) profits, income or gains (other than gains to which paragraph 5 of Article XIII (Gains) applies) of a resident of a Contracting State which may be taxed in the other Contracting State in accordance with the Convention (without regard to paragraph 2 of Article XXIX (Miscellaneous Rules)) shall be deemed to arise in that other State; e.
(b) profits, income or gains of a resident of a Contracting State which may not be taxed in the other Contracting State in accordance with the Convention (without regard to paragraph 2 of Article XXIX (Miscellaneous Rules)) or to which paragraph 5 of Article XIII (Gains) applies shall be deemed to arise in the first-mentioned State.
4. Where a United States citizen is a resident of Canada, the following rules shall apply:
(a) Canada shall allow a deduction from the Canadian tax in respect of income tax paid or accrued to the United States in respect of profits, income or gains which arise (within the meaning of paragraph 3) in the United States, except that such deduction need not exceed the amount of the tax that would be paid to the United States if the resident were not a United States citizen; e.
(b) for the purposes of computing the United States tax, the United States shall allow as a credit against United States tax the income tax paid or accrued to Canada after the deduction referred to in subparagraph (a). The credit so allowed shall not reduce that portion of the United States tax that is deductible from Canadian tax in accordance with subparagraph (a).
5. Notwithstanding the provisions of paragraph 4, where a United States citizen is a resident of Canada, the following rules shall apply in respect of the items of income referred to in Article X (Dividends), XI (Interest) or XII (Royalties) that arise (within the meaning of paragraph 3) in the United States and that would be subject to United States tax if the resident of Canada were not a citizen of the United States, as long as the law in force in Canada allows a deduction in computing income for the portion of any foreign tax paid in respect of such items which exceeds 15 per cent of the amount thereof:
(a) the deduction so allowed in Canada shall not be reduced by any credit or deduction for income tax paid or accrued to Canada allowed in computing the United States tax on such items;
(b) Canada shall allow a deduction from Canadian tax on such items in respect of income tax paid or accrued to the United States on such items, except that such deduction need not exceed the amount of the tax that would be paid on such items to the United States if the resident of Canada were not a United States citizen; e.
(c) for the purposes of computing the United States tax on such items, the United States shall allow as a credit against United States tax the income tax paid or accrued to Canada after the deduction referred to in subparagraph (b). The credit so allowed shall reduce only that portion of the United States tax on such items which exceeds the amount of tax that would be paid to the United States on such items if the resident of Canada were not a United States citizen.
6. Where a United States citizen is a resident of Canada, items of income referred to in paragraph 4 or 5 shall, notwithstanding the provisions of paragraph 3, be deemed to arise in Canada to the extent necessary to avoid the double taxation of such income under paragraph 4(b) or paragraph 5(c).
7. For the purposes of this Article, any reference to "income tax paid or accrued" to a Contracting State shall include Canadian tax and United States tax, as the case may be, and taxes of general application which are paid or accrued to a political subdivision or local authority of that State, which are not imposed by that political subdivision or local authority in a manner inconsistent with the provisions of the Convention and which are substantially similar to the Canadian tax or United States tax, as the case may be.
8. Where a resident of a Contracting State owns capital which, in accordance with the provisions of the Convention, may be taxed in the other Contracting State, the first-mentioned State shall allow as a deduction from the tax on the capital of that resident an amount equal to the capital tax paid in that other State. The deduction shall not, however, exceed that part of the capital tax, as computed before the deduction is given, which is attributable to the capital which may be taxed in that other State.
9. The provisions of this Article relating to the source of profits, income or gains shall not apply for the purpose of determining a credit against United States tax for any foreign taxes other than income taxes paid or accrued to Canada.
10. Where in accordance with any provision of the Convention income derived or capital owned by a resident of a Contracting State is exempt from tax in that State, such State may nevertheless, in calculating the amount of tax on other income or capital, take into account the exempted income or capital.
Article XXV.
Non-Discrimination.
1. Citizens of a Contracting State, who are residents of the other Contracting State, shall not be subjected in that other State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which citizens of that other State in the same circumstances are or may be subjected.
2. Citizens of a Contracting State, who are not residents of the other Contracting State, shall not be subjected in that other State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which citizens of any third State in the same circumstances (including State of residence) are or may be subjected.
3. In determining the taxable income or tax payable of an individual who is a resident of a Contracting State, there shall be allowed as a deduction in respect of any other person who is a resident of the other Contracting State and who is dependent on the individual for support the amount that would be so allowed if that other person were a resident of the first-mentioned State.
4. Where a married individual who is a resident of Canada and not a citizen of the United States has income that is taxable in the United States pursuant to Article XV (Dependent Personal Services), the United States tax with respect to such income shall not exceed such proportion of the total United States tax that would be payable for the taxable year if both the individual and his spouse were United States citizens as the individual's taxable income determined without regard to this paragraph bears to the amount that would be the total taxable income of the individual and his spouse. For the purposes of this paragraph,
(a) the "total United States tax" shall be determined as if all the income of the individual and his spouse arose in the United States; e.
(b) a deficit of the spouse shall not be taken into account in determining taxable income.
5. Any company which is a resident of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar companies of the first-mentioned State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of a third State, are or may be subjected.
6. Notwithstanding the provisions of Article XXIV (Elimination of Double Taxation), the taxation on a permanent establishment which a resident of a Contracting State has in the other Contracting State shall not be less favourably levied in the other State than the taxation levied on residents of the other State carrying on the same activities. This paragraph shall not be construed as obliging a Contracting State:
(a) to grant to a resident of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents; ou.
(b) to grant to a company which is a resident of the other Contracting State the same tax relief that it provides to a company which is a resident of the first-mentioned State with respect to dividends received by it from a company.
7. Except where the provisions of paragraph 1 of Article IX (Related Persons), paragraph 7 of Article XI (Interest) or paragraph 7 of Article XII (Royalties) apply, interest, royalties and other disbursements paid by a resident of a Contracting State to a resident of the other Contracting State shall, for the purposes of determining the taxable profits of the first-mentioned resident, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State. Similarly, any debts of a resident of a Contracting State to a resident of the other Contracting State shall, for the purposes of determining the taxable capital of the first-mentioned resident, be deductible under the same conditions as if they had been contracted to a resident of the first-mentioned State.
8. The provisions of paragraph 7 shall not affect the operation of any provision of the taxation laws of a Contracting State:
(a) relating to the deductibility of interest and which is in force on the date of signature of this Convention (including any subsequent modification of such provisions that does not change the general nature thereof); ou.
(b) adopted after such date by a Contracting State and which is designed to ensure that a person who is not a resident of that State does not enjoy, under the laws of that State, a tax treatment that is more favorable than that enjoyed by residents of that State.
9. Expenses incurred by a citizen or resident of a Contracting State with respect to any convention (including any seminar, meeting, congress or other function of a similar nature) held in the other Contracting State shall, for the purposes of taxation in the first-mentioned State, be deductible to the same extent that such expenses would be deductible if the convention were held in the first-mentioned State.
10. Notwithstanding the provisions of Article II (Taxes Covered), this Article shall apply to all taxes imposed by a Contracting State.
Article XXVI.
Mutual Agreement Procedure.
1. Where a person considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Convention, he may, irrespective of the remedies provided by the domestic law of those States, present his case in writing to the competent authority of the Contracting State of which he is a resident or, if he is a resident of neither Contracting State, of which he is a national.
2. The competent authority of the Contracting State to which the case has been presented shall endeavor, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the Convention. Except where the provisions of Article IX (Related Persons) apply, any agreement reached shall be implemented notwithstanding any time or other procedural limitations in the domestic law of the Contracting States, provided that the competent authority of the other Contracting State has received notification that such a case exists within six years from the end of the taxable year to which the case relates.
3. The competent authorities of the Contracting States shall endeavor to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention. In particular, the competent authorities of the Contracting States may agree:
(a) to the same attribution of profits to a resident of a Contracting State and its permanent establishment situated in the other Contracting State;
(b) to the same allocation of income, deductions, credits or allowances between persons;
(c) to the same determination of the source, and the same characterization, of particular items of income;
(d) to a common meaning of any term used in the Convention;
(e) to the elimination of double taxation with respect to income distributed by an estate or trust;
(f) to the elimination of double taxation with respect to a partnership;
(g) to provide relief from double taxation resulting from the application of the estate tax imposed by the United States or the Canadian tax as a result of a distribution or disposition of property by a trust that is a qualified domestic trust within the meaning of section 2056A of the Internal Revenue Code , or is described in subsection 70(6) of the Income Tax Act or is treated as such under paragraph 5 of Article XXIX B (Taxes Imposed by Reason of Death), in cases where no relief is otherwise available; ou.
(h) to increases in any dollar amounts referred to in the Convention to reflect monetary or economic developments.
They may also consult together for the elimination of double taxation in cases not provided for in the Convention.
4. Each of the Contracting States will endeavor to collect on behalf of the other Contracting State such amounts as may be necessary to ensure that relief granted by the Convention from taxation imposed by that other State does not enure to the benefit of persons not entitled thereto. However, nothing in this paragraph shall be construed as imposing on either of the Contracting States the obligation to carry out administrative measures of a different nature from those used in the collection of its own tax or which would be contrary to its public policy (ordre public).
5. The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs.
6. If any difficulty or doubt arising as to the interpretation or application of the Convention cannot be resolved by the competent authorities pursuant to the preceding paragraphs of this Article, the case may, if both competent authorities and the taxpayer agree, be submitted for arbitration, provided that the taxpayer agrees in writing to be bound by the decision of the arbitration board. The decision of the arbitration board in a particular case shall be binding on both States with respect to that case. The procedures shall be established in an exchange of notes between the Contracting States. The provisions of this paragraph shall have effect after the Contracting States have so agreed through the exchange of notes.
Article XXVI A.
Assistance in Collection.
1. The Contracting States undertake to lend assistance to each other in the collection of taxes referred to in paragraph 9, together with interest, costs, additions to such taxes and civil penalties, referred to in this Article as a "revenue claim".
2. An application for assistance in the collection of a revenue claim shall include a certification by the competent authority of the applicant State that, under the laws of that State, the revenue claim has been finally determined. For the purposes of this Article, a revenue claim is finally determined when the applicant State has the right under its internal law to collect the revenue claim and all administrative and judicial rights of the taxpayer to restrain collection in the applicant State have lapsed or been exhausted.
3. A revenue claim of the applicant State that has been finally determined may be accepted for collection by the competent authority of the requested State and, subject to the provisions of paragraph 7, if accepted shall be collected by the requested State as though such revenue claim were the requested State's own revenue claim finally determined in accordance with the laws applicable to the collection of the requested State's own taxes.
4. Where an application for collection of a revenue claim in respect of a taxpayer is accepted.
(a) by the United States, the revenue claim shall be treated by the United States as an assessment under United States laws against the taxpayer as of the time the application is received; e.
(b) by Canada, the revenue claim shall be treated by Canada as an amount payable under the Income Tax Act , the collection of which is not subject to any restriction.
5. Nothing in this Article shall be construed as creating or providing any rights of administrative or judicial review of the applicant State's finally determined revenue claim by the requested State, based on any such rights that may be available under the laws of either Contracting State. If, at any time pending execution of a request for assistance under this Article, the applicant State loses the right under its internal law to collect the revenue claim, the competent authority of the applicant State shall promptly withdraw the request for assistance in collection.
6. Subject to this paragraph, amounts collected by the requested State pursuant to this Article shall be forwarded to the competent authority of the applicant State. Unless the competent authorities of the Contracting States otherwise agree, the ordinary costs incurred in providing collection assistance shall be borne by the requested State and any extraordinary costs so incurred shall be borne by the applicant State.
7. A revenue claim of an applicant State accepted for collection shall not have in the requested State any priority accorded to the revenue claims of the requested State.
8. No assistance shall be provided under this Article for a revenue claim in respect of a taxpayer to the extent that the taxpayer can demonstrate that.
(a) where the taxpayer is an individual, the revenue claim relates to a taxable period in which the taxpayer was a citizen of the requested State, and.
(b) where the taxpayer is an entity that is a company, estate or trust, the revenue claim relates to a taxable period in which the taxpayer derived its status as such an entity from the laws in force in therequested State.
9. Notwithstanding the provisions of Article II (Taxes Covered), the provisions of this Article shall apply to all categories of taxes collected by or on behalf of the Government of a Contracting State.
10. Nothing in this Article shall be construed as:
(a) limiting the assistance provided for in paragraph 4 of Article XXVI (Mutual Agreement Procedure); ou.
(b) imposing on either Contracting State the obligation to carry out administrative measures of a different nature from those used in the collection of its own taxes or that would be contrary to its public policy (ordre public).
11. The competent authorities of the Contracting States shall agree upon the mode of application of this Article, including agreement to ensure comparable levels of assistance to each of the Contracting States.
Article XXVII.
Exchange of Information.
1. The competent authorities of the Contracting States shall exchange such information as is relevant for carrying out the provisions of this Convention or of the domestic laws of the Contracting States concerning taxes to which the Convention applies insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Article I (Personal Scope). Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the taxation laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the administration and enforcement in respect of, or the determination of appeals in relation to the taxes to which the Convention applies or, notwithstanding paragraph 4, in relation to taxes imposed by a political subdivision or local authority of a Contracting State that are substantially similar to the taxes covered by the Convention under Article II (Taxes Covered). Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. The competent authorities may release to an arbitration board established pursuant to paragraph 6 of Article XXVI (Mutual Agreement Procedure) such information as is necessary for carrying out the arbitration procedure; the members of the arbitration board shall be subject to the limitations on disclosure described in this Article.
2. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall endeavor to obtain the information to which the request relates in the same way as if its own taxation was involved notwithstanding the fact that the other State does not, at that time, need such information. If specifically requested by the competent authority of a Contracting State, the competent authority of the other Contracting State shall endeavor to provide information under this Article in the form requested, such as depositions of witnesses and copies of unedited original documents (including books, papers, statements, records, accounts or writings), to the same extent such depositions and documents can be obtained under the laws and administrative practices of that other State with respect to its own taxes.
3. In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; ou.
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information the disclosure of which would be contrary to public policy (ordre public).
4. For the purposes of this Article, the Convention shall apply, notwithstanding the provisions of Article II (Taxes Covered):
(a) to all taxes imposed by a Contracting State; e.
(b) to other taxes to which any other provision of the Convention applies, but only to the extent that the information is relevant for the purposes of the application of that provision.
Article XXVIII.
Diplomatic Agents and Consular Officers.
Nothing in this Convention shall affect the fiscal privileges of diplomatic agents or consular officers under the general rules of international law or under the provisions of special agreements.
Article XXIX.
Miscellaneous Rules.
1. The provisions of this Convention shall not restrict in any manner any exclusion, exemption, deduction, credit or other allowance now or hereafter accorded by the laws of a Contracting State in the determination of the tax imposed by that State.
2. Except as provided in paragraph 3, nothing in the Convention shall be construed as preventing a Contracting State from taxing its residents (as determined under Article IV (Residence)) and, in the case of the United States, its citizens (including a former citizen whose loss of citizenship had as one of its principal purposes the avoidance of tax, but only for a period of ten years following such loss) and companies electing to be treated as domestic corporations, as if there were no convention between the United States and Canada with respect to taxes on income and on capital.
3. The provisions of paragraph 2 shall not affect the obligations undertaken by a Contracting State:
(a) under paragraphs 3 and 4 of Article IX (Related Persons), paragraphs 6 and 7 of Article XIII (Gains), paragraphs 1, 3, 4, 5, 6(b) and 7 of Article XVIII (Pensions and Annuities), paragraph 5 of Article XXIX (Miscellaneous Rules), paragraphs 1, 5 and 6 of Article XXIX B (Taxes Imposed by Reason of Death), paragraphs 2, 3, 4 and 7 of Article XXIX B (Taxes Imposed by Reason of Death) as applied to the estates of persons other than former citizens referred to in paragraph 2 of this Article, paragraphs 3 and 5 of Article XXX (Entry into Force), and Articles XIX (Government Service), XXI (Exempt Organizations), XXIV (Elimination of Double Taxation), XXV (Non-Discrimination) and XXVI (Mutual Agreement Procedure);
(b) under Article XX (Students), toward individuals who are neither citizens of, nor have immigrant status in, that State.
4. With respect to taxable years not barred by the statute of limitations ending on or before December 31 of the year before the year in which the Social Security Agreement between Canada and the United States (signed in Ottawa on March 11, 1981) enters into force, income from personal services not subject to tax by the United States under this Convention or the 1942 Convention shall not be considered wages or net earnings from self-employment for purposes of social security taxes imposed under the Internal Revenue Code .
5. Where a person who is a resident of Canada and a shareholder of a United States S corporation requests the competent authority of Canada to do so, the competent authority may agree, subject to terms and conditions satisfactory to such competent authority, to apply the following rules for the purposes of taxation in Canada with respect to the period during which the agreement is effective:
(a) the corporation shall be deemed to be a controlled foreign affiliate of the person;
(b) all the income of the corporation shall be deemed to be foreign accrual property income;
(c) for the purposes of subsection 20(11) of the Income Tax Act , the amount of the corporation's income that is included in the person's income shall be deemed not to be income from a property; e.
(d) each dividend paid to the person on a share of the capital stock of the corporation shall be excluded from the person's income and shall be deducted in computing the adjusted cost base to the person of the share.
6. For purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that:
(a) a measure falls within the scope of the Convention only if:
(i) the measure relates to a tax to which Article XXV (Non-Discrimination) of the Convention applies; ou.
(ii) the measure relates to a tax to which Article XXV (Non-Discrimination) of the Convention does not apply and to which any other provision of the Convention applies, but only to the extent that the measure relates to a matter dealt with in that other provision of the Convention; e.
(b) notwithstanding paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, any doubt as to the interpretation of subparagraph (a) will be resolved under paragraph 3 of Article XXVI (Mutual Agreement Procedure) of the Convention or any other procedure agreed to by both Contracting States.
7. The appropriate authority of a Contracting State may request consultations with the appropriate authority of the other Contracting State to determine whether change to the Convention is appropriate to respond to changes in the law or policy of that other State. Where domestic legislation enacted by a Contracting State unilaterally removes or significantly limits any material benefit otherwise provided by the Convention, the appropriate authorities shall promptly consult for the purpose of considering an appropriate change to the Convention.
Article XXIX A.
Limitation on Benefits.
1. For the purposes of the application of this Convention by the United States,
(a) a qualifying person shall be entitled to all of the benefits of this Convention, and.
(b) except as provided in paragraphs 3, 4 and 6, a person that is not a qualifying person shall not be entitled to any benefits of the Convention.
2. For the purposes of this Article, a qualifying person is a resident of Canada that is:
(a) a natural person;
(b) the Government of Canada or a political subdivision or local authority thereof, or any agency or instrumentality of any such government, subdivision or authority;
(c) a company or trust in whose principal class of shares or units there is substantial and regular trading on a recognized stock exchange;
(d) a company more than 50 per cent of the vote and value of the shares (other than debt substitute shares) of which is owned, directly or indirectly, by five or fewer persons each of which is a company or trust referred to in subparagraph (c), provided that each company or trust in the chain of ownership is a qualifying person or a resident or citizen of the United States;
(e) (i) a company 50 per cent or more of the vote and value of the shares (other than debt substitute shares) of which is not owned, directly or indirectly, by persons other than qualifying persons or residents or citizens of the United States, or.
(ii) a trust 50 per cent or more of the beneficial interest in which is not owned, directly or indirectly, by persons other than qualifying persons or residents or citizens of the United States,
where the amount of the expenses deductible from gross income that are paid or payable by the company or trust, as the case may be, for its preceding fiscal period (or, in the case of its first fiscal period, that period) to persons that are not qualifying persons or residents or citizens of the United States is less than 50 per cent of its gross income for that period;
(g) a not-for-profit organization, provided that more than half of the beneficiaries, members or participants of the organization are qualifying persons or residents or citizens of the United States; ou.
(h) an organization described in paragraph 2 of Article XXI (Exempt Organizations) and established for the purpose of providing benefits primarily to individuals who are qualifying persons, persons who were qualifying persons within the five preceding years, or residents or citizens of the United States.
3. Where a person that is a resident of Canada and is not a qualifying person of Canada, or a person related thereto, is engaged in the active conduct of a trade or business in Canada (other than the business of making or managing investments, unless those activities are carried on with customers in the ordinary course of business by a bank, an insurance company, a registered securities dealer or a deposit-taking financial institution), the benefits of the Convention shall apply to that resident person with respect to income derived from the United States in connection with or incidental to that trade or business, including any such income derived directly or indirectly by that resident person through one or more other persons that are residents of the United States. Income shall be deemed to be derived from the United States in connection with the active conduct of a trade or business in Canada only if that trade or business is substantial in relation to the activity carried on in the United States giving rise to the income in respect of which benefits provided under the Convention by the United States are claimed.
4. A company that is a resident of Canada shall also be entitled to the benefits of Articles X (Dividends), XI (Interest) and XII (Royalties) if.
(a) its shares that represent more than 90 per cent of the aggregate vote and value represented by all of its shares (other than debt substitute shares) are owned, directly or indirectly, by persons each of whom is a qualifying person, a resident or citizen of the United States or a person who.
(i) is a resident of a country with which the United States has a comprehensive income tax convention and is entitled to all of the benefits provided by the United States under that convention;
(ii) would qualify for benefits under paragraphs 2 or 3 if that person were a resident of Canada (and, for the purposes of paragraph 3, if the business it carried on in the country of which it is a resident were carried on by it in Canada); e.
(iii) would be entitled to a rate of United States tax under the convention between that person's country of residence and the United States, in respect of the particular class of income for which benefits are being claimed under this Convention, that is at least as low as the rate applicable under this Convention; e.
(b) the amount of the expenses deductible from gross income that are paid or payable by the company for its preceding fiscal period (or, in the case of its first fiscal period, that period) to persons that are not qualifying persons or residents or citizens of the United States is less than 50 per cent of the gross income of the company for that period.
5. For the purposes of this Article,
(a) the term "recognized stock exchange" means:
(i) the NASDAQ System owned by the National Association of Securities Dealers, Inc. and any stock exchange registered with the Securities and Exchange Commission as a national securities exchange for purposes of the Securities Exchange Act of 1934;
(ii) Canadian stock exchanges that are "prescribed stock exchanges" under the Income Tax Act ; e.
(iii) any other stock exchange agreed upon by the Contracting States in an exchange of notes or by the competent authorities of the Contracting States;
(b) the term "not-for-profit organization" of a Contracting State means an entity created or established in that State and that is, by reason of its not-for-profit status, generally exempt from income taxation in that State, and includes a private foundation, charity, trade union, trade association or similar organization; e.
(c) the term "debt substitute share" means:
(i) a share described in paragraph (e) of the definition "term preferred share" in the Income Tax Act , as it may be amended from time to time without changing the general principle thereof; e.
(ii) such other type of share as may be agreed upon by the competent authorities of the Contracting States.
6. Where a person that is a resident of Canada is not entitled under the preceding provisions of this Article to the benefits provided under the Convention by the United States, the competent authority of the United States shall, upon that person's request, determine on the basis of all factors including the history, structure, ownership and operations of that person whether.
(a) its creation and existence did not have as a principal purpose the obtaining of benefits under the Convention that would not otherwise be available; ou.
(b) it would not be appropriate, having regard to the purpose of this Article, to deny the benefits of the Convention to that person.
The person shall be granted the benefits of the Convention by the United States where the competent authority determines that subparagraph (a) or (b) applies.
7. It is understood that the fact that the preceding provisions of this Article apply only for the purposes of the application of the Convention by the United States shall not be construed as restricting in any manner the right of a Contracting State to deny benefits under the Convention where it can reasonably be concluded that to do otherwise would result in an abuse of the provisions of the Convention.
Article XXIX B.
Taxes Imposed by Reason of Death.
1. Where the property of an individual who is a resident of a Contracting State passes by reason of the individual's death to an organization referred to in paragraph 1 of Article XXI (Exempt Organizations), the tax consequences in a Contracting State arising out of the passing of the property shall apply as if the organization were a resident of that State.
2. In determining the estate tax imposed by the United States, the estate of an individual (other than a citizen of the United States) who was a resident of Canada at the time of the individual's death shall be allowed a unified credit equal to the greater of.
(a) the amount that bears the same ratio to the credit allowed under the law of the United States to the estate of a citizen of the United States as the value of the part of the individual's gross estate that at the time of the individual's death is situated in the United States bears to the value of the individual's entire gross estate wherever situated; e.
(b) the unified credit allowed to the estate of a nonresident not a citizen of the United States under the law of the United States.
The amount of any unified credit otherwise allowable under this paragraph shall be reduced by the amount of any credit previously allowed with respect to any gift made by the individual. The credit otherwise allowable under subparagraph (a) shall be allowed only if all information necessary for the verification and computation of the credit is provided.
3. In determining the estate tax imposed by the United States on an individual's estate with respect to property that passes to the surviving spouse of the individual (within the meaning of the law of the United States) and that would qualify for the estate tax marital deduction under the law of the United States if the surviving spouse were a citizen of the United States and all applicable elections were properly made (in this paragraph and in paragraph 4 referred to as "qualifying property"), a non-refundable credit computed in accordance with the provisions of paragraph 4 shall be allowed in addition to the unified credit allowed to the estate under paragraph 2 or under the law of the United States, provided that.
(a) the individual was at the time of death a citizen of the United States or a resident of either Contracting State;
(b) the surviving spouse was at the time of the individual's death a resident of either Contracting State;
(c) if both the individual and the surviving spouse were residents of the United States at the time of the individual's death, one or both was a citizen of Canada; e.
(d) the executor of the decedent's estate elects the benefits of this paragraph and waives irrevocably the benefits of any estate tax marital deduction that would be allowed under the law of the United States on a United States Federal estate tax return filed for the individual's estate by the date on which a qualified domestic trust election could be made under the law of the United States.
4. The amount of the credit allowed under paragraph 3 shall equal the lesser of.
(a) the unified credit allowed under paragraph 2 or under the law of the United States (determined without regard to any credit allowed previously with respect to any gift made by the individual), and.
(b) the amount of estate tax that would otherwise be imposed by the United States on the transfer of qualifying property.
The amount of estate tax that would otherwise be imposed by the United States on the transfer of qualifying property shall equal the amount by which the estate tax (before allowable credits) that would be imposed by the United States if the qualifying property were included in computing the taxable estate exceeds the estate tax (before allowable credits) that would be so imposed if the qualifying property were not so included. Solely for purposes of determining other credits allowed under the law of the United States, the credit provided under paragraph 3 shall be allowed after such other credits.
5. Where an individual was a resident of the United States immediately before the individual's death, for the purposes of subsection 70(6) of the Income Tax Act , both the individual and the individual's spouse shall be deemed to have been resident in Canada immediately before the individual's death. Where a trust that would be a trust described in subsection 70(6) of that Act, if its trustees that were residents or citizens of the United States or domestic corporations under the law of the United States were residents of Canada, requests the competent authority of Canada to do so, the competent authority may agree, subject to terms and conditions satisfactory to such competent authority, to treat the trust for the purposes of that Act as being resident in Canada for such time as may be stipulated in the agreement.
6. In determining the amount of Canadian tax payable by an individual who immediately before death was a resident of Canada, or by a trust described in subsection 70(6) of the Income Tax Act (or a trust which is treated as being resident in Canada under the provisions of paragraph 5), the amount of any Federal or state estate or inheritance taxes payable in the United States (not exceeding, where the individual was a citizen of the United States or a former citizen referred to in paragraph 2 of Article XXIX (Miscellaneous Rules), the amount of estate and inheritance taxes that would have been payable if the individual were not a citizen or former citizen of the United States) in respect of property situated within the United States shall,
(a) to the extent that such estate or inheritance taxes are imposed upon the individual's death, be allowed as a deduction from the amount of any Canadian tax otherwise payable by the individual for the taxation year in which the individual died on the total of.
(i) any income, profits or gains of the individual arising (within the meaning of paragraph 3 of Article XXIV (Elimination of Double Taxation)) in the United States in that year, and.
(ii) where the value at the time of the individual's death of the individual's entire gross estate wherever situated (determined under the law of the United States) exceeded 1.2 million U. S. dollars or its equivalent in Canadian dollars, any income, profits or gains of the individual for that year from property situated in the United States at that time, and.
(b) to the extent that such estate or inheritance taxes are imposed upon the death of the individual's surviving spouse, be allowed as a deduction from the amount of any Canadian tax otherwise payable by the trust for its taxation year in which that spouse dies on any income, profits or gains of the trust for that year arising (within the meaning of paragraph 3 of Article XXIV (Elimination of Double Taxation)) in the United States or from property situated in the United States at the time of death of the spouse.
For purposes of this paragraph, property shall be treated as situated within the United States if it is so treated for estate tax purposes under the law of the United States as in effect on March 17, 1995, subject to any subsequent changes thereof that the competent authorities of the Contracting States have agreed to apply for the purposes of this paragraph. The deduction allowed under this paragraph shall take into account the deduction for any income tax paid or accrued to the United States that is provided under paragraph 2(a), 4(a) or 5(b) of Article XXIV (Elimination of Double Taxation).
7. In determining the amount of estate tax imposed by the United States on the estate of an individual who was a resident or citizen of the United States at the time of death, or upon the death of a surviving spouse with respect to a qualifed domestic trust created by such an individual or the individual's executor or surviving spouse, a credit shall be allowed against such tax imposed in respect of property situated outside the United States, for the federal and provincial income taxes payable in Canada in respect of such property by reason of the death of the individual or, in the case of a qualified domestic trust, the individual's surviving spouse. Such credit shall be computed in accordance with the following rules:
(a) a credit otherwise allowable under this paragraph shall be allowed regardless of whether the identity of the taxpayer under the law of Canada corresponds to that under the law of the United States;
(b) the amount of a credit allowed under this paragraph shall be computed in accordance with the provisions and subject to the limitations of the law of the United States regarding credit for foreign death taxes (as it may be amended from time to time without changing the general principle hereof), as though the income tax imposed by Canada were a creditable tax under that law;
(c)a credit may be claimed under this paragraph for an amount of federal or provincial income tax payable in Canada only to the extent that no credit or deduction is claimed for such amount in determining any other tax imposed by the United States, other than the estate tax imposed on property in a qualified domestic trust upon the death of the surviving spouse.
8. Provided that the value, at the time of death, of the entire gross estate wherever situated of an individual who was a resident of Canada (other than a citizen of the United States) at the time of death does not exceed 1.2 million U. S dollars or its equivalent in Canadian dollars, the United States may impose its estate tax upon property forming part of the estate of the individual only if any gain derived by the individual from the alienation of such property would have been subject to income taxation by the United States in accordance with Article XIII (Gains).
Article XXX.
Entry Into Force.
1. This Convention shall be subject to ratification in accordance with the applicable procedures of each Contracting State and instruments of ratification shall be exchanged at Ottawa as soon as possible.
2. The Convention shall enter into force upon the exchange of instruments of ratification and, subject to the provisions of paragraph 3, its provisions shall have effect:
(a) for tax withheld at the source on income referred to in Articles X (Dividends), XI (Interest), XII (Royalties) and XVIII (Pensions and Annuities), with respect to amounts paid or credited on or after the first day of the second month next following the date on which the Convention enters into force;
(b) for other taxes, with respect to taxable years beginning on or after the first day of January next following the date on which the Convention enters into force; e.
(c) notwithstanding the provisions of subparagraph (b), for the taxes covered by paragraph 4 of Article XXIX (Miscellaneous Rules) with respect to all taxable years referred to in that paragraph.
3. For the purposes of applying the United States foreign tax credit in relation to taxes paid or accrued to Canada:
(a) notwithstanding the provisions of paragraph 2(a) of Article II (Taxes Covered), the tax on 1971 undistributed income on hand imposed by Part IX of the Income Tax Act of Canada shall be considered to be an income tax for distributions made on or after the first day of January 1972 and before the first day of January 1979 and shall be considered to be imposed upon the recipient of a distribution, in the proportion that the distribution out of undistributed income with respect to which the tax has been paid bears to 85 per cent of such undistributed income;
(b) the principles of paragraph 6 of Article XXIV (Elimination of Double Taxation) shall have effect for taxable years beginning on or after the first day of January 1976; e.
(c) the provisions of paragraph 1 of Article XXIV shall have effect for taxable years beginning on or after the first day of January 1981.
Any claim for refund based on the provisions of this paragraph may be filed on or before June 30 of the calendar year following that in which the Convention enters into force, notwithstanding any rule of domestic law to the contrary.
4. Subject to the provisions of paragraph 5, the 1942 Convention shall cease to have effect for taxes for which this Convention has effect in accordance with the provisions of paragraph 2.
5. Where any greater relief from tax would have been afforded by any provision of the 1942 Convention than under this Convention, any such provision shall continue to have effect for the first taxable year with respect to which the provisions of this Convention have effect under paragraph 2(b).
6. The 1942 Convention shall terminate on the last date on which it has effect in accordance with the preceding provisions of this Article.
7. The Exchange of Notes between the United States and Canada dated August 2 and September 17, 1928, providing for relief from double income taxation on shipping profits, is terminated. Its provisions shall cease to have effect with respect to taxable years beginning on or after the first day of January next following the date on which this Convention enters into force.
8. The provisions of the Convention between the Government of Canada and the Government of the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on the Estates of Deceased Persons signed at Washington on February 17, 1961 shall continue to have effect with respect to estates of persons deceased prior to the first day of January next following the date on which this Convention enters into force but shall cease to have effect with respect to estates of persons deceased on or after that date. Such Convention shall terminate on the last date on which it has effect in accordance with the preceding sentence.
Article XXXI.
Terminação.
1. This Convention shall remain in force until terminated by a Contracting State.
2. Either Contracting State may terminate the Convention at any time after 5 years from the date on which the Convention enters into force provided that at least 6 months' prior notice of termination has been given through diplomatic channels.
3. Where a Contracting State considers that a significant change introduced in the taxation laws of the other Contracting State should be accommodated by a modification of the Convention, the Contracting States shall consult together with a view to resolving the matter; if the matter cannot be satisfactorily resolved, the first-mentioned State may terminate the Convention in accordance with the procedures set forth in paragraph 2, but without regard to the 5 year limitation provided therein.
4. In the event the Convention is terminated, the Convention shall cease to have effect:
(a) for tax withheld at the source on income referred to in Articles X (Dividends), XI (Interest), XII (Royalties), XVIII (Pensions and Annuities) and paragraph 2 of Article XXII (Other Income), with respect to amounts paid or credited on or after the first day of January next following the expiration of the 6 months' period referred to in paragraph 2; e.
(b) for other taxes, with respect to taxable years beginning on or after the first day of January next following the expiration of the 6 months' period referred to in paragraph 2.

Taxation of Stock Options for Employees in Canada.
Allan Madan, CA.
Did you receive stock options from your Canadian employer? If yes, then it’s highly recommended that you go over the points in this article. In this article, I explain how the “Taxation of Stock Options for Employees in Canada” directly affects you.
Uma opção de ações para funcionários é um acordo em que o empregador concede a um funcionário o direito de comprar ações da empresa em que ele trabalha normalmente a um preço com desconto especificado pelo empregador. There are different types of stock options that can be issued to employees – more information can be found on the Canada Revenue Agency’s website.
For employers who are looking to sell the shares of their company, please have a look at our article, “Planning on Selling a Business?”
CCPCs (Canadian Controlled Private Corporations) – Employee Stock Options.
A CCPC is a company that’s incorporated in Canada, whose shares are owned by Canadian residents. By definition, a CCPC is a ‘private company’ and is therefore not listed on a public stock exchange like the New York Stock Exchange or the Toronto Stock Exchange.
When your employer grants or gives a stock option to you, you do not have to include anything in your taxable income at that time. In other words, there is no tax consequence to you at the grant date.
When you exercise a stock option, which means to purchase the shares through your employer, you must include a taxable benefit in your income. The taxable benefit is equal to the difference between the exercise price (i. e. the price you paid to buy the shares) and the market value of the shares at the time of purchase.
There is a special tax deferral for employees of CCPCs. The taxable benefit can be postponed to the date the shares are sold. This makes it easier for employees to pay tax because they will have cash available from the sale of the shares.
Employee Stock Options CCPC.
Vamos ver um exemplo. Assume that the exercise price is $3 / share, and the market value is $10 / share. When you exercise your right to buy the shares, a taxable benefit is realized for $7 / share ($10 minus $3). Remember, for employees of CCPC’s the taxable benefit is postponed until the shares are sold.
If you meet one of these two conditions, you can claim a tax deduction equal to ½ of the taxable benefit, or $3.50 in this example (50% x $7).
You have held the shares for at least two years after you have purchased them The exercise price is at least equal to the fair market value of the shares when they were granted to you Tax Implications for Employee Stock Options CCPC.
Public Companies – Employee Stock Options.
Now, let’s move on to the taxation of stock options for public companies.
On the date that you are granted or receive stock options in an employer that is a publicly listed company, you do not have a personal tax consequence. However, on the date that you purchase the shares, you will get a taxable benefit equal to the difference between the exercise price of the shares and the market value of the shares on that date. You cannot postpone the timing of this taxable benefit.
Let’s assume you work for Coca-Cola Canada and the fair market value of the shares today is $30 / share. According to the option agreement, you can exercise or buy the shares for $10 / share. Therefore, the taxable benefit that will be included in your income at the time of exercise is $20 / share.
After buying the shares, you have two choices: (A) You can immediately sell the shares or (B) You can hold onto them if you believe they will increase in value in the future. If you choose to hold onto the shares and sell them in the future for a profit, the profit made from the sale will be classified as a capital gain and subject to tax. Whether you sell the shares or hold onto them, taxes will be deducted from your paycheck to account for the taxable benefit you realized on the purchase of the shares.
Decision Tree for Employee Stock Options for Public Companies.
However, don’t hold onto the shares for too long after purchasing them. This is because if the price of the stock drops you’re still liable for the taxable benefit realized on the purchase date.
You can claim a tax deduction for ½ of the taxable benefit realized on the exercise date. To do so, all of these 3 conditions must be met:
You receive normal common shares upon exercise The exercise price is at least equal to the fair market value of the shares at the time the options were granted You deal at arm’s length or on a third party basis with your employer.
Aviso Legal.
The information provided on this page is intended to provide general information. The information does not take into account your personal situation and is not intended to be used without consultation from accounting and financial professionals. Allan Madan and Madan Chartered Accountant will not be held liable for any problems that arise from the usage of the information provided on this page.
SOBRE O AUTOR.
ALLAN MADAN.
Allan Madan is a CPA, CA and the founder of Madan Chartered Accountant Professional Corporation. Allan provides valuable tax planning, accounting and income tax preparation services in the Greater Toronto Area.

Tax treaties.
Os esquemas de opções de ações dos funcionários estão crescendo em importância em toda a OCDE e isso levanta várias questões para a política fiscal doméstica e internacional. Em vista disso, o Comitê de Assuntos Fiscais da OCDE está realizando trabalhos sobre o tratamento de opções de ações em tratados fiscais, o tratamento doméstico de esquemas de opções de ações e as implicações de preços de transferência de esquemas de opções de ações.
Diversas questões relacionadas a tratados tributários surgem ao considerar as opções de ações dos empregados:
Diferenças de tempo para benefícios de emprego. Determinar a qual serviço uma opção está relacionada. Distinguir renda de emprego de renda de capital. Tributação de residência múltipla. Alienação de opções de ações. Diferenças na avaliação entre mercados.
O trabalho sobre estas questões está bem avançado, e um rascunho de discussão que descreve essas questões e propõe possíveis interpretações e soluções no contexto do Modelo de Convenção Tributária da OCDE está agora disponível para comentário público (ver: Questões Transfronteiriças de Imposto de Renda Planos de opções - um rascunho de discussão pública). Observe que, a pedido das pessoas que desejarem fornecer comentários sobre este rascunho, o prazo original para comentários, que foi 31 de julho de 2002, foi adiado para 31 de outubro de 2002.
Tratamento Tributário Nacional.
O trabalho nesta área destina-se a fornecer informações e análises para ajudar os países a alcançar suas próprias decisões políticas. A análise se concentra em três áreas:
Descrição do tratamento fiscal atual dos esquemas de opções de ações para funcionários nos países da OCDE. A análise de qual forma de tratamento tributário proporcionaria neutralidade em comparação aos salários. Identificação e discussão de argumentos que são avançados em favor e contra a taxação de opções de ações de funcionários de forma diferente dos salários.
Este trabalho está em andamento. No entanto, já está claro que existem grandes diferenças entre os países da OCDE na maneira como as opções de ações dos funcionários são tributadas. Além disso, vários países da OCDE têm mais de um tratamento tributário de esquemas de opções de ações para funcionários, dependendo da natureza precisa dos esquemas.
Problemas de preços de transferência.
Essa área de trabalho analisa as implicações das opções de ações dos funcionários para transações entre empresas e o princípio do braço. Problemas incluem:
A empresa emissora deve cobrar do empregador (se diferente) pelas opções de ações? Como as opções de ações dos funcionários afetariam os métodos de preços de transferência padrão? Como as opções de ações de funcionários afetariam os acordos de contribuição de custos?