Michael McLaren, Michael Colborne, Tim Barrett
Parliament has introduced a number of legislative proposals to target various forms of planning that it considers avoidance transactions. This includes measures to curtail the use of back-to-back arrangements to circumvent various provisions, and measures aimed at cross-border surplus stripping. The courts have also provided clarity in a number of areas of interest to international tax planners, including the decision in TDL, where the Federal Court of Appeal upheld a taxpayer's deduction for interest paid on borrowed money used to capitalise a subsidiary (the lower court having previously denied the deduction).
In World Tax 2016, we noted that Canada had announced its intention to replace Canada's eligible capital property (ECP) rules and that it would be releasing legislative proposals. On July 29 2016, Canada released detailed proposals that would do away with the ECP rules instead treating property that is classified as ECP as a new class of depreciable property.
The outgoing ECP rules govern the tax treatment of certain expenditures and receipts that are not otherwise accounted for as business revenues or expenses or under the rules relating to capital property. Generally, ECP consists of intangible property, including goodwill. Under the ECP regime, 75% of eligible expenditures and receipts are added to a notional pool from which the taxpayer can claim an annual 7% deduction on a declining-balance basis.
The ECP rules will be repealed and replaced by a new class of depreciable capital property (Class 14.1), effective January 1 2017. Property that was previously classified as ECP will become depreciable property, and expenditures and receipts that were accounted for under the ECP rules will be accounted for under the rules for depreciable capital property.
Under the new rules, 100% of the cost of the property that was formerly treated as ECP will be added to the undepreciated capital cost (UCC) of the new Class 14.1 pool. To account for the increase in the proportion of cost allowed to be depreciated from 75% to 100%, taxpayers will only be entitled to an annual deduction of 5% from the cost pool.
Gains from the disposition of property of the new class will be taxable as capital gains. Generally, when capital property is disposed of, the amount by which the proceeds of disposition exceed (or are less than) the cost of the property results in a capital gain (or capital loss), 50% of which is included in income as a taxable capital gain. Any negative amount of UCC (as a result of the disposition of capital property) is included in income as recapture.
Budget 2016 introduces a number of transitional rules. Among these rules, the UCC balance at the beginning of January 1 2017 for new Class 14.1 property will generally be equal to the amount that would have been the CEC balance at the beginning of January 1 2017. In addition, the depreciation rate for expenditures incurred before January 1 2017 will continue to be 7% for taxation years ending before January 1 2027.
The Canadian Income Tax Act (the Tax Act) requires all taxpayers to report their tax results in Canadian currency, unless the taxpayer makes an election to determine their Canadian tax results in a different currency (functional currency). The Tax Act contains rules that deem a taxpayer to have settled a foreign-denominated debt obligation in Canadian currency (and thus realise a foreign exchange gain or loss) when the taxpayer:
i) in a year when they revert to reporting in Canadian currency (a reversionary year) makes a payment on account of the principal amount of a pre-reversion debt, or
ii) at any time in a functional currency year or a reversionary year makes a payment on account of the principal amount of a debt entered into prior to the first functional currency year (a pre-transition debt).
Recent proposed amendments are aimed at integrating these rules with the existing debt-parking rules. Debt parking occurs when a debt is transferred at a discount to a person that does not deal at arm's length with the debtor in order to keep the loan outstanding (thus avoiding the debt forgiveness rules). When debt parking occurs, the debt is deemed to be settled for the amount paid by the non-arm's length person.
Under the proposed amendments, payments will be deemed to be made on pre-transition and pre-reversion debts (for the purpose of calculating foreign exchange gains or losses) if the pre-transition or pre-reversion debt becomes "parked" (this is an over-simplification). As a result, taxpayers will not be able to avoid realising a capital gain or loss by parking debt. These amendments will be deemed to have come into force on March 22 2016 (although the amendments will not apply to a debt that becomes parked prior to 2017 as a result of an agreement entered into before March 22, 2016).
The 2016 federal budget (Budget 2016) announced changes to section 212.1 of the Tax Act. This section is intended to combat cross-border surplus stripping. It applies when a non-resident sells shares of a Canadian resident corporation (the target) to another Canadian resident with which it does not deal at arm's length. If section 212.1 applies, the paid-up capital (PUC) of the purchaser's shares is limited to the historic PUC of the target. If non-share consideration is received that exceeds the target's PUC (such as a note), the excess is deemed to be a dividend paid to the non-resident vendor and subject to withholding tax.
Following recent litigation (described below), Budget 2016 proposes to narrow the scope of an important exception to the application of section 212.1. Subsection 212.1(4), as it currently reads, states that section 212.1 does not apply if, at the time of disposition, the Canadian purchaser of the target shares controlled the nonresident. Taxpayers commonly relied on this provision to effect post-acquisition reorganisations (where a non-resident indirectly acquired a Canadian corporation) that had the effect of increasing the cross-border PUC to the fair market value of the Canadian corporation at the time of the acquisition (i.e. to achieve the result that would have occurred if the non-resident had capitalised a Canadian acquisition company to acquire the Canadian target corporation).
Budget 2016 proposes to narrow this exception so that it only applies if it is not the case that a non-resident (a) owns shares of the Canadian purchaser corporation and (b) does not deal at arm's length with the Canadian corporation immediately before it acquires shares of the target (this is an over-simplification). This legislative proposal is a direct response to ongoing litigation where the tax authorities claimed that taxpayers had "misused" subsection 212.1(4) and therefore disallowed the exception based on the general anti-avoidance rule (the GAAR).
This measure will apply to dispositions occurring on or after March 22 2016.
In World Tax 2015 and World Tax 2016, we discussed amendments intended to prevent taxpayers from circumventing Canada's thin capitalisation rules and Part XIII tax (withholding tax on payments to non-residents) through the use of 'back-to-back' loan arrangements. Under such arrangements, a non-resident of Canada would indirectly provide debt funding to a Canadian resident taxpayer through an intermediary, rather than directly to the taxpayer. In Budget 2016, Canada proposed additional rules to curtail the use of back-to-back arrangements to avoid Canadian tax. Two of the proposals are particularly significant.
First, the back-to-back rules will be extended to shareholder loans. Subsection 15(2) generally requires that certain indebtedness of a shareholder be included in the shareholder's income in the year in which the indebtedness arose (unless certain exceptions apply). Where the debtor is a non-resident, subsection 15(2) works in conjunction with Part XIII to deem a dividend to have been received by the debtor that is subject to withholding tax at the applicable rate. Similarly, subsection 80.4(2) deems a shareholder that has received certain non-interest or low-interest indebtedness to have received a benefit. These rules will be amended to ensure that they cannot be avoided where a corporation – rather than providing debt funding directly to the shareholder – instead provides debt funding indirectly through one or more intermediaries. These new back-to-back loan rules are complex and are modelled on the back-to-back loan rules in Part XIII (which are discussed in more detail in World Tax 2016). These rules are generally applicable to indebtedness incurred, and amounts outstanding, after March 21 2016.
Budget 2016 also proposes to extend the back-to-back rules to royalty payments paid or credited to a non-resident person or a partnership any member of which is a non-resident person. Part XIII imposes withholding tax in respect of such payments, which includes amounts on account of, in lieu of payment of, or in satisfaction of rent, royalty or similar payment, in respect of a particular lease, licence or similar agreement. As with the new back-to-back loan rules for subsections 15(2) and 80.4(2), the new back-to-back rules for royalties are mired in complexity and are based on the Part XIII rules described in World Tax 2016. For this purpose, it is sufficient to note that the new rules are intended to ensure that non-resident withholding tax is not avoided in respect of rent, royalty or similar payments by an arrangement in which an intermediary is imposed between a Canadian-resident payor and a non-resident payee. This amendment will apply to payments paid or credited after 2016.
In addition to the amendments described above, Budget 2016 proposes new back-to-back rules with respect to arrangements that raise the same policy concerns as back-to-back loans and royalty payments, but would otherwise circumvent the rules because one or more of the arrangements is not legally a debt (or a "specified right") or a lease, licence or similar agreement. Budget 2016 will also clarify the application of the back-to-back loan rules in cases where the arrangement involves multiple intermediaries or multiple debt obligations.
Canada has introduced draft legislation to impose country-by-country reporting (CbCR) requirements for large multinational enterprises (MNEs) that carry on business in Canada. The proposals implement recommendations of the OECD's BEPS Project, and are aimed at enhancing enforcement of Canada's transfer pricing legislation and addressing other profit-shifting techniques.
Under the proposals, the ultimate parent of a "multinational enterprise group" that is resident in Canada in the reporting fiscal year will be required to file a prescribed form with respect to that year within 12 months of the end of the year. The reporting requirement will only apply to an MNE (generally, any group of companies that carries on business in multiple jurisdictions) that has total consolidated group revenue of more than €750 million ($843 million) during the immediately preceding fiscal year.
Canada will exchange country-by-country reports with other countries that have enacted similar legislation and with which Canada has an agreement to exchange tax information. However, a Canadian resident constituent entity of an MNE that is not the ultimate parent will be required to file a country-by-country report in Canada in circumstances where Canada would not otherwise acquire the information (e.g. if the ultimate parent is not required to file a country-by-country report in its jurisdiction of tax residence).
The new reporting requirement applies to reporting fiscal years of MNE groups that begin on or after January 1 2016. Budget 2016 also proposes to extend existing penalty provisions in the Tax Act to include failure to file a country-by-country report when required.
In addition to the above, the following statutory developments included in the 2016 Budget are worth noting:
In World Tax 2016, we discussed Canada's commitment to implement the common reporting standard (CRS) developed by the OECD whereby the Canadian tax authorities will exchange information regarding accounts held by non-residents at Canadian financing institutions with the tax authorities in participating countries. Canada is, at the time of writing, one of 98 jurisdictions committed to implementing the CRS.
On April 15 2016, Canada released draft proposals to implement the CRS in Canada. Part XIX of the Tax Act proposes a "reporting financial institution" to implement due diligence procedures to identify accounts held by non-residents, and report information relating to these accounts to the Canadian tax authorities. It is anticipated that the Canadian tax authorities will exchange this information and receive reciprocal information relating to financial accounts that are held by Canadian residents in other jurisdictions. The proposals are set to come into force on July 1 2017; that deadline is consistent with the government's 2015 Budget announcement that it will implement and allow for a first exchange of information in 2018.
Budget 2016 states that Canada will begin exchanging tax rulings with other tax authorities that could potentially give rise to BEPS concerns.
In World Tax 2010, we discussed the technical rules for the application of Canada's exemption system (that is, the exempt surplus regime) and accrual system (that is, the FAPI regime) and the interaction between those detailed technical rules and tax information exchange agreements (TIEAs) concluded between Canada and other countries. Generally speaking, active business income of a foreign affiliate earned in a TIEA country can be repatriated tax-free as exempt surplus.
TIEAs have entered into force with 22 countries: Anguilla, Aruba, Bahamas, Bahrain, Bermuda, British Virgin Islands, Brunei, Cayman Islands, Costa Rica, Dominica, Guernsey, Isle of Man, Jersey, Liechtenstein, Netherlands Antilles, Panama, San Marino, Saint Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines, Turks and Caicos Islands, and Uruguay. A TIEA has been signed with the Cook Islands, but it is not yet in force. Canada is currently negotiating TIEAs with Antigua and Barbuda, Belize, Gibraltar, Grenada, Liberia, Montserrat, and Vanuatu.
On January 15 2016, Canada and Taiwan entered into an income tax convention. The tax convention is based on the OECD model and reflects the OECD standard for exchanging tax information. The convention is not yet in force.
In The Queen v. Agnico-Eagle Mines, 2016 FCA 130, the Federal Court of Appeal clarified the correct methodology for calculating a foreign exchange gain/loss when a corporation issues shares for debt under US-dollar convertible debentures. The Canada tax authority took the view that a foreign exchange gain is realised on the share issuance if the Canadian dollar value of the US principal amount of the debt at the time of conversion (to shares) is less than the Canadian dollar value of the debt when the debentures were issued.
The Tax Court of Canada sided with the taxpayer, finding there to be no foreign exchange gain (however, it appears to have mischaracterised the transaction). The Federal Court of Appeal allowed the tax authority's appeal, but remitted the matter back for reassessment. It stated that the question was whether the corporation, in Canadian dollar terms, paid less on the repayment of the indebtedness (through issuing shares) than it received on the issuance of the debentures. Following earlier decisions, the Court determined that the amount "paid" to discharge the indebtedness was the value of the shares calculated in accordance with the trading price on the New York Stock Exchange (NYSE) at the time of conversion – the amount of money the corporation would have received for the shares. Given this analysis, the issuance of shares to discharge the US dollar convertible debenture would result in a foreign exchange gain if the Canadian dollar amount of the issued shares at the time of conversion was less than the Canadian dollar amount of the indebtedness at the time it was issued.
Because the debentures were exchanged for shares over a period of three months, during which the exchange rate and the trading price of the shares fluctuated, the matter was remitted back the Minister for reassessment.
In World Tax 2016, we discussed the Tax Court of Canada's surprising decision in TDL Group Co. v. The Queen, 2015 TCC 60, in which the Court denied a taxpayer an interest deduction for interest paid on borrowed funds that were used to purchase shares of a foreign subsidiary. In reaching its decision, the Court was influenced by the subsidiary's use of the funds (making an interest-free loan to the parent of the corporate group), which the Court concluded did not satisfy the income-producing purpose requirement for deductibility under Canadian tax law.
This year, the Federal Court of Appeal reversed the Tax Court's decision, permitting the taxpayer to deduct interest: 2016 FCA 67. It found that the Tax Court erred in importing a requirement for interest deductibility that the borrower have a reasonable expectation of receiving income on the newly-acquired shares in the period immediately following the acquisition. There is no such requirement in Canadian tax law. In addition, it found that the Tax Court erred by letting its concern about possible tax avoidance motives influence its analysis of the application of the relevant provisions of the Tax Act.
The Federal Court of Appeal's decision provides welcome guidance. It affirms that taxpayers can deduct interest on borrowed money used to capitalise a subsidiary, even if the subsidiary is not expected to be profitable in the near-term (e.g. in the case of a start-up). In addition, the Federal Court Appeal emphasised once again that courts should not let an overriding concern with tax avoidance colour their approach to interpreting and applying legislation. Taxpayers are entitled to the benefit of unambiguously drafted legislation.
In the section "Statutory developments" above, we discussed the Budget 2016 proposal to amend subsection 212.1(4). As discussed, the legislation was a response to the tax authority's attempt to apply the GAAR to prevent non-residents with Canadian subsidiaries from reorganizing the group in order to take advantage of subsection 212.1(4).
Following the 2016 Budget, the Tax Court released its decision in Univar Holdco Canada ULC v. The Queen, 2016 TCC 159. In this decision, the Tax Court ruled that the taxpayer had misused or abused the "object, spirit or purpose" of subsection 212.1(4), and therefore denied the benefits of that provision on the basis of the GAAR (with the result that section 212.1 applied to the transaction, thereby reducing the PUC on shares of the Canadian purchaser). The Court was not swayed by the fact that the impugned transaction achieved the same tax result that would have been obtained if the non-resident had been able to purchase shares of the Canadian target corporation directly through a freshly capitalised Canadian acquisition company (which the non-resident could not do for business reasons). The taxpayer has appealed the Tax Court's decision.
As discussed above, Budget 2016 announced that Canada is continuing to work with the OECD to implement various BEPS recommendations, including those addressing treaty abuse. The Canadian tax authority is also attempting to address this issue using existing legislation. It is now reassessing taxpayers to deny treaty benefits on the basis of the GAAR in situations where the tax authority believes that the taxpayer structured its affairs to take advantage of a tax benefit conferred by a particular tax treaty. At the time of writing, there are no Tax Court decisions testing the merit of this assessing position although some cases are before the courts.
In CIT Group Securities (Canada) Inc. v. The Queen, 2016 TCC 163, the Tax Court of Canada clarified the meaning of an important provision in the Tax Act that can deem certain income earned by a controlled foreign affiliate (a CFA) of a Canadian resident to be 'foreign accrual property income' (FAPI), and thus include it in the Canadian resident's income on a current basis. Specifically, the decision deals with the meaning of paragraph 95(2)(l), which deems income earned by a CFA from a business, the principal purpose of which is to derive income from trading or dealing in indebtedness, to be FAPI, unless certain exceptions apply.
The appeal concerned income earned by a CFA of the Canadian taxpayer. The CFA was CCG Trust Corporation (CCG), which carried on business through a permanent establishment in Barbados. CCG was licensed under the Financial Intermediaries Regulatory Act of Barbados and subject to regulation by the Central Bank of Barbados. The Court found that the principal purpose of CCG's business during the relevant period was to earn interest on indebtedness. Canada's tax authority reassessed the Canadian parent on the basis that CCG's income from this business was FAPI pursuant to paragraph 95(2)(l).
The Tax Court agreed that CCG carried on a business of trading or dealing in indebtedness within the meaning of paragraph 95(2)(l). In the Court's view, "trading of dealing in indebtedness" encompasses a business the principal purpose of which is to earn interest on indebtedness. However, the Court found that paragraph 95(2)(l) did not apply because CCG carried on business in Barbados as a regulated bank. Specifically, the level of regulation and oversight of CCG in Barbados brought CCG within the exception in clause 95(2)(l)(iii)(A), which excludes income from businesses carried on by a foreign affiliate "as a foreign bank … regulated under the laws of each country in which the business is carried on through a permanent establishment in that country and of the country whose laws the affiliate is governed…".
The Supreme Court of Canada released two companion cases this year dealing with the tax authority's ability to compel lawyers and notaries to produce material subject to solicitor-client privilege: Canada (Attorney General) v. Chambre des Notaires du Quebec, 2016 SCC 20 and Canada (National Revenue) v. Thompson, 2016 SCC 21. The decisions uphold and clarify the protections afforded by solicitor-client privilege in the tax audit context. In the words of the Supreme Court, "[firms of notaries or lawyers] must not be turned into archives for the tax authorities…".
The facts of the two cases are similar. In the course of conducting audits, the tax authority served requirements on a lawyer and a notary requesting certain documents relating to taxpayers. In doing so, the tax authority relied on a provision in the Tax Act that defines privileged information more narrowly than the common law meaning, and allows the authority to request taxpayer information from "any person". Both the lawyer and the notary resisted the requirements on the basis that the requirements' attempt to circumscribe solicitor-client privilege was unconstitutional.
The Supreme Court agreed that the Tax Act could not statutorily override solicitor-client privilege in the audit context. However, the Court went further, stating that lawyers and notaries should be excluded from the requirement regime. The Court also recognised that privileged documents can include a wide range of communications, including accounting records of lawyers and notaries. The Court noted that there is a "rebuttable presumption to the effect that all communications between lawyer and client and the information they shared would be considered prima facie confidential in nature". No such privilege exists with respect to tax advice received from a non-lawyer.
This year has seen a continuous downturn in Canada's economy, with commodity prices falling sharply and global growth slowing down. As a country that relies heavily on oil prices remaining stable, Canada has seen its economic growth falling below 2% on average over the past four years as oil prices have stuttered. This has led many smaller businesses to agree to merger or acquisition deals.
"There has been a lot of action in the oil and gas restructuring field over the past year, and we are quite busy with work related to resource company restructuring," said Carrie Smit, head of tax at Goodmans. Jon Northup, partner at the same firm, said he thought that there were a lot of companies that were struggling and that an M&A transaction offered a path out of trouble.
The weak Canadian dollar has, surprisingly, not had a big impact on most companies, practitioners said. Inbound investments are possibly the area that has seen the most growth. "There are a lot of inbound investments into Canada, and we are seeing an uptick in private equity," said Jeffrey Trossman, head of tax at Blake, Cassels & Graydon. "Infrastructure and energy are some of the areas in which we have been seeing significant inbound investments," he added.
Canada is also planning to implement several changes from the OECD's BEPS Project. The country intends to implement Action 14 on dispute resolution mechanisms, Action 5 on countering harmful tax practices, Action 6 on preventing treaty abuse and Action 13 on country-by-country reporting (CbCR). Applying the transfer pricing provisions found in Actions 8-10 is also being discussed.
Although tax authorities' attitudes have not changed significantly since last year, Trossman said that there is a long-term trend towards more aggressive enforcement and more auditing in general. In the wake of the release of the Panama Papers, and the resulting media coverage, the Canada Revenue Agency (CRA) has been under increasing pressure to appear more focused on 'cracking down' on non-compliant taxpayers. In this year's federal Budget, the government announced that it would spend C$444 million ($344 million) to enhance the CRA's ability to detect, audit, and prosecute tax evasion, both domestically and abroad.
The CRA also reported that it found aggressive tax planning, both domestic and international, to be a high-risk area in terms of compliance with the law, and therefore set up a programme designed to identify tax avoidance issues.
"These trends have resulted in more challenges and more scrutiny, but not necessarily more effective or focused scrutiny," said Trossman.
Another measure that is likely to help increase transparency is the OECD's new standard for automatic exchange of information, which Canada has endorsed. This will mean that Canadian financial entities will have to provide the CRA with financial account information on their foreign clients. The data has to be provided annually to the CRA, which will exchange the information with tax authorities participating in the initiative. The agreement works on a reciprocal basis.
The CRA is also planning to create a special programme dedicated to stopping "the organisations that create and promote tax schemes for the wealthy", according to the government. Taxpayers, especially those which are considered high-risk, can therefore expect more enforcement from the authorities in the coming years.
Blake, Cassels & Graydon LLP
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Members of the Blakes Tax Group across Canada provide our clients with innovative and effective tax advice in all areas of tax law.
Blakes tax lawyers are recognized both in Canada and internationally as leaders in all areas of Canadian tax, including mergers and acquisitions, restructuring, corporate finance, international tax, transfer pricing, private equity, structured finance, taxation of investment funds, resource taxation and employee benefits. Blakes commodity tax lawyers have unparalleled expertise in customs, sales tax, and goods and services tax/harmonized sales tax legislation. Blakes tax controversy and litigation lawyers have the depth, experience and expertise necessary to effectively represent our clients' interests in dealing with tax authorities at all levels, including in the courts.
Davies Ward Phillips & Vineberg LLP is an integrated firm of approximately 240 lawyers with offices in Toronto, Montréal and New York. The firm is focused on business law and is consistently at the heart of the largest and most complex commercial and financial matters on behalf of its clients.
Our market-leading tax group offers comprehensive practical and timely Canadian and U.S. tax advice on a wide variety of domestic and cross-border transactions and business vehicles, including mergers, acquisitions, reorganizations, inbound and outbound investments, workouts, infrastructure developments, financings, derivative transactions, joint ventures, private equity and investment funds, and business trusts. We also provide sophisticated personal tax planning to individuals and families. In addition to our pre-eminent tax planning practice, we offer expert advice on transfer pricing matters and counsel on all aspects of tax litigation and dispute resolution, including representation before every level of court.
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Based in Toronto, Goodmans LLP is a leading Canadian full-service business law firm of over 200 lawyers providing legal advice and representation to domestic and foreign business clients. Our tax practice is transaction-driven and focused on providing our clients with dynamic, strategic and practical tax advice in structuring and successfully completing their business transactions. Our tax lawyers have worked on many of Canada's most innovative deals.
Goodmans' core tax strength is its M&A tax practice and all of our partners practice in this area. We specialize in strategic acquisitions and joint ventures, private equity transactions and public company M&A, including going private transactions. Goodmans' tax group provides tax expertise and strategic advice in structuring and implementing sophisticated, innovative corporate finance transactions in domestic, cross-border and international equity and debt capital markets. Goodmans' tax group is also a part of Canada's leading restructuring and insolvency practice and has been consistently involved with Canada's most significant corporate restructurings, insolvencies and recapitalizations.
Goodmans' tax group has particular expertise with cross-border transactions. Much of our tax practice involves the inbound and outbound structuring of international business arrangements and investments, requiring us to work seamlessly with co-counsel in other jurisdictions.
Our market leading practice areas are further bolstered by top-quality expertise in tax dispute resolution and litigation, transfer pricing, commodity tax, executive compensation and trust, estate and personal domestic and international tax planning.
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Gowling WLG is an international law firm with over 1,400 legal professionals providing a range of dedicated support in 18 cities in Canada, the UK, Europe, Asia and the Middle East. The Firm offers a diverse range of services to assist domestic and international organizations in achieving their business objectives. Our focus is key global sectors including energy, financial services, life sciences, natural resources, real estate and technology.
Gowling WLG clients can draw on a wealth of tax expertise, from former cabinet ministers to senior officers of the Canada Revenue Agency and the Department of Finance. The Tax Group in Canada is comprised of more than 30 professionals that includes lawyers, accountants and economists with extensive experience across a broad spectrum of sectors. Working as a team, the Tax Group develops multidisciplinary solutions for your specific needs.
Gowling WLG expertise has been recognized by the International Tax Review, which has repeated named Gowling WLG a tier one firm for tax planning, Transfer Pricing Firm of the Year Canada (2011, 2013, 2015), and Indirect Tax Firm of the Year North America (2012, 2013, 2014). The International Tax Review also awarded Gowling WLG the Americas Tax Deal of the Year award in both financial services and private equity (2014).
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Osler is widely recognized as one of Canada's best law firms for tax. Our 60+ tax planning and tax dispute lawyers operate as an integrated team. Clients involved in complex tax litigation benefit from the specialized expertise of tax planning lawyers. Clients with sophisticated tax planning can leverage the unique perspective of tax litigators.
Osler's tax lawyers regularly act in Canada's most complex tax-related transactions. They are integral to the firm's M&A practice, developing innovative approaches and structures for Canadian and foreign multinationals. Lawyers in our pre-eminent tax dispute and litigation practice have argued a number of landmark cases in the Supreme Court of Canada, including successfully arguing the first GAAR case, and the first and only transfer pricing case heard by the Court. Osler is also a leader in transfer pricing dispute resolution and provincial GAAR litigation.
Through our New York office, Osler provides U.S. tax advice to Canadian clients with operations in the U.S., and U.S.-based clients with operations in Canada.
Osler is recognized for the breadth and depth of its expertise in business law and is consistently ranked as one of Canada's top law firms. We serve our clients through offices in Toronto, Montréal, Calgary, Vancouver, Ottawa and New York.
Thorsteinssons LLP was founded in 1964 by P.N. Thorsteinsson, Q.C. Since then, Thorsteinssons has grown to become Canada's largest firm practicing exclusively in tax.
Our practice encompasses all aspects of federal and provincial tax matters including tax planning, compliance, representation and civil and criminal tax litigation.
Tax is an area of great complexity. By restricting our practice to tax, we are better able to provide the level of skill and attention demanded by our clients. Our level of specialization ensures that we complement – not compete with – other professional advisors representing our clients.
We serve clients across Canada and around the world including a broad range of public and private corporations, domestic and offshore trusts, individuals, charitable and non-profit organizations and all levels of foreign and domestic government.
Our lawyers are consistently recognized among the leading tax practitioners domestically and internationally. Our lawyers teach at the university level, are frequent speakers at domestic and international conferences, author articles in a wide range of legal journals and serve on a number of government advisory committees.
Our level of expertise is highly regarded in the legal, accounting and business community. Our reputation has been earned one client at a time and is backed by longstanding client relationships that are built on satisfaction and trust.
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Torys LLP is an international business law firm that works with clients who expect the best advice and exceptional service. Torys' dedication to excellence across practice areas and industries has resulted in an enviable record of experience in Canada and globally. Teamwork is one of the firm's distinguishing features, reflected in all aspects of how the firm partners with clients and collaborates internally. Long-standing clients continue to retain Torys not only for its excellent service and legal expertise, but also because of a shared value for lasting partnerships based on trust and respect.
Our tax practitioners have represented corporations in significant cross-border joint ventures where the participants are strategic, financial or tax-exempt. We represent large multinational businesses, domestic public and private companies, and financial institutions, including banks, insurance companies and trust companies. We also represent issuers and sponsors of private equity investment funds and superannuated pension funds, and assist venture capital investors, start-up companies and mature businesses with national and international tax management.
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|Federal corporate income tax rate||15%||A|
|Federal capital gains tax||7.5%||A B|
|Net Operating Losses (years)|
|Royalties from, for example, patents, know-how||25%||C|
|Branch Remittance Tax||25%||E|
A These 2016 rates are applied to general income that is not eligible for the manufacturing and processing deduction or the small business deduction. Additional tax is levied by the provinces and territories of Canada, and the combined federal and provincial or territorial rates on general income may vary from approximately 25% to 31%.
B 50% of capital gains is subject to tax.
C Final tax applicable only to non-residents. This rate may be reduced by a tax treaty.
D In general, no withholding tax is imposed on interest paid to payees who are dealing at arm’s length with the payer. However,
withholding tax at a rate of 25% typically applies to interest paid or credited to related non-residents (the rate may be reduced by a
tax treaty). Other specific exemptions or specific inclusions may apply to change the general rules noted above.
E This tax is imposed in addition to the regular corporate income tax. The rate may be reduced by a tax treaty.
Aird & Berlis advises clients on domestic and international tax planning, structuring business transactions and tax litigation. Barbara Worndl leads the tax practice group while Jack Bernstein chairs the firm's international tax practice. David Malach and Louise Summerhill are the co-chairs of the tax litigation team. Worndl's practice deals with income tax, with an emphasis on corporate and partnership taxation, structuring cross-border acquisitions, reorganisations and mergers. She is also experienced in dealing with dispute resolution, including transfer pricing. Bernstein is known for his international tax planning, M&A, corporate restructuring, reorganisation and financing skills. Malach is known for tax litigation, corporate reorganisation and estate planning. Summerhill practises almost exclusively in tax litigation and provides support and advocacy at the audit stage. She also advises clients on transfer pricing, goods and services tax, provincial tax and federal income tax issues.
Baker & McKenzie has four partners, one of counsel, three associates and a director of economics. Jacques Bernier chairs the Toronto office tax practice group. The group has five sub-specialities: tax planning and transactions, tax controversies, transfer pricing, indirect taxes, and global wealth management. The firm has particular expertise and experience in supporting its clients' cross-border needs due to its many offices worldwide, and is also able to assist its clients in all stages of dispute resolution and litigation.
In 2015, the Toronto office was the Canadian counsel to Catamaran Corporation in its $12.8 billion sale to UnitedHealth Group. The firm reviewed the structure in order for the deal to move forward. The firm advises many large public and private companies, including Symantec, Canadian National Railway, NASDAQ, The Boeing Company and Whirlpool Corporation.
Clients of the firm highlight Bernier and Peter Clark. "They are very responsive, strategic in their thinking and very open," said a client.
The Toronto tax group also often participates in firm-sponsored briefings, webinars and workshops, keeping clients and friends of the firm updated on recent tax developments.
Tax practitioners at Bennett Jones are experienced in Canadian and cross-border transactions, corporate law, tax litigation, and transfer pricing. Thomas Bauer and Darcy Moch are co-heads of the tax department. Bauer's expertise includes M&A tax, corporate reorganisations, structured financings, income trusts and cross-border transactions. He represents clients in disputes with the CRA, both at the audit and appeals levels, and has been a counsel in numerous cases before the Tax Court of Canada and Federal Court. Moch's practice involves the income tax aspects of corporate reorganisations, M&A, takeovers, debt and asset-based financings, cross-border financing and leasing transactions.
Blake, Cassels & Graydon is recognised for its work in all areas of tax, such as corporate tax, transfer pricing, tax controversy and litigation, and commodity tax and customs. It has offices in Montréal, Toronto, Calgary and Vancouver, and specialises in sophisticated transactions and dispute resolution. The firm's tax practitioners advise on all aspects of commodity tax and VAT advice, from conventional and cutting-edge tax planning to appearing as counsel before courts and tribunals, including assessments and appeals. The litigation practice represents clients at all stages of the dispute process. Clients of the firm include leading Canadian and global multinational enterprises.
Jeffrey Trossman leads the team of 30 partners and 11 other tax professionals.
In 2016, the firm was engaged by Jaffe Raitt Heuer & Weiss on behalf of Sun Communities for Canadian tax, corporate and real estate matters in connection with Sun Communities' acquisition of all of the issued and outstanding shares of common stock of Carefree Communities from Centerbridge Capital Partners II for C$1.68 billion. The legal advice included complex cross-border structuring, financing and reorganisation matters. Bryan Bailey and Peter Lee assisted on the matter. Other big deals in 2016 included:
"Our experience with them was excellent, the project was handled efficiently and timely," one client said.
Borden Ladner Gervais, Taxand Canada provides strategic tax advice, planning, tax structure and risk assessments as well as work within M&A, private equity, inbound investments, public offerings, and tax litigation.
The firm boasts 23 partners and 20 other tax professionals, with Lindsay Holmes serving as national leader of the practice. Located in five offices around the country, the firm offers specific expertise to clients in industries including electricity markets, investment funds, energy, mining, and oil and gas.
Beverly Gilbert and Shannon James are advising a client with sales tax advice in compliance with new legislative provisions. In 2016, Randy Morphy assisted in the reorganisation of a client's holding and financing structure. This was done in compliance with the tax laws of three jurisdictions.
"The experience has been excellent – insightful and supported by legal arguments. They are our main tax advisers," said a client.
John Brussa is vice chairman of the tax practice at Burnet, Duckworth & Palmer. The team represents a broad spectrum of clients in transactional and litigation matters. The tax practice has experience in advising on M&A, reorganisations, structuring and financing, cross-border transactions, planning, and tax litigation and disputes. Brussa's practice concentrates on resource taxation, corporate reorganisations, cross-border and international transactions, tax-deferred financing, taxation of non-residents, structured finance and public finance.
Davies Ward Phillips & Vineberg focuses on tax law with an emphasis on transactional work. The firm also has a litigation practice headed by Guy Du Pont. John Ulmer, Ian Crosbie and Brian Bloom are co-heads of the tax practice. The firm has 21 partners and 10 associates in its offices in Toronto and Montréal. Ulmer is the leading adviser to a number of Canada-based multinational groups on the tax structuring of their global investments. Crosbie has extensive experience in domestic and cross-border M&A, financings and financial products. Bloom has structured major transactions for various high-profile clients.
The firm is acting as counsel for a financial investment services company in a litigation case before the Tax Court of Canada. Other clients of the firm include Schlumberger, The Kraft Heinz Company, Barrick Gold and Shaw Communications.
The firm advises clients in various sectors, including waste management, mining, real estate, food processing, restaurants, pharmaceuticals, telecommunications, power and utilities, healthcare and logistics.
Deloitte offers public and private clients a broad range of fully integrated services that span tax, assurance and advisory, risk management, financial advisory and consulting. The firm has a tax controversy management team of nearly 50 people who have experience in dealing with the CRA, court matters and issues with the Department of Justice. This team deals with highly complex international tax matters as well as straightforward processing problems. Its national law firm has offices in Toronto, Calgary, Vancouver and Montréal.
In August 2015, Deloitte Canada assisted a client in the acquisition of substantially all of the operating assets of a US telecommunications company and its parent company.
Clients of the firm include Power Corporation of Canada, the Bank of Nova Scotia, Onex Corporation and George Weston. "They are very professional, we received good value for fees," one client said.
Heather Evans is the head of the tax team, which consists of 223 partners and 1,247 other professionals. Evans advises on domestic and cross-border tax and estate planning and wealth management issues.
Dentons has a team of specialists that offers services in corporate tax, litigation and dispute resolution, sales taxes, international tax and transfer pricing matters. Neil Bass leads the firm's national tax group and is respected for his work in litigation and commodity taxation. He has dealt with various tax authorities and has represented clients before the Canadian International Trade Tribunal, the Tax Court of Canada, the Federal Court and Federal Court of Appeal, as well as before provincial courts.
Alycia Calvert leads the tax department at EY. The firm has 117 partners and 1,200 other tax professionals. The team covers all areas, including business tax consulting, compliance and reporting, international tax law, transfer pricing, indirect taxes, and policy and controversy. Calvert has experience structuring royalty trusts and income funds, acquisitions of Canadian public and private corporations, and advising on post-acquisition restructuring and the provision of tax due diligence services.
International tax firm Fasken Martineau has experience advising on commodity tax and VAT, tax litigation and dispute resolution, transfer pricing, cross-border taxation, international tax planning and customs. Led by Christopher Steeves, the team of 34 partners and 10 other professionals helps clients across various sectors with tax matters. The firm has particular expertise in the mining, financing (structured finance and products), energy and funds industries.
Nicolas Simard was promoted to partner in 2015.
In 2015, the firm played the lead role in all tax structuring matters for an estate in a $412 million deal. The firm assisted the estate in its investment in a property through a limited partnership. The firm advised in connection with the acquisition and complex financings, and was also involved in preparing and negotiating the documentation of the limited partnership arrangements.
The practitioners at Felesky Flynn focus exclusively on tax. The firm's expertise spans the areas of tax planning and representation and litigation. Core areas include corporate tax, M&A, international tax, reorganisations, audits and appeals. Donald Biberdorf and Ken Skingle are co-managing partners of the Calgary office, and Richard Kirby is the managing partner in Edmonton. Biberdorf concentrates on personal tax planning, resource taxation, M&A, corporate tax planning, reorganisations of public and private corporations and other entities, estate planning and dispute resolution. Skingle covers personal and corporate tax planning, reorganisation of public and private business enterprises and represents clients during tax litigation. Kirby deals with personal and corporate tax planning for entrepreneurs and public corporations, and advises on international and first-nation income tax issues.
The tax practice at Goodmans focuses its advice on M&A, corporate finance, restructuring transactions, and litigation. The firm has seven partners, one counsel and three associates.
The firm advises clients from numerous sectors, including financial services, hospitality, healthcare, energy and utilities and manufacturing.
In the past year, the firm's M&A transactions have included the announced acquisition of InterOil by Oil Search and the acquisition of Regal Lifestyle Communities by Welltower and Revera.
Carrie Smit is the head of tax. Her expertise covers all areas of income taxation, cross-border mergers, corporate reorganisations, domestic and international debt financings, debt restructurings and private equity investments.
Gowling WLG offers services in transfer pricing, indirect tax and customs, private equity, executive compensation, Aboriginal taxation and international tax planning. Michael Bussmann leads the tax team, which consists of 21 partners and seven other tax professionals.
The firm is acting as counsel to Jaguar Land Rover Canada ULC in two parallel appeals to recover goods and services tax/harmonised sales tax. In February 2016, the firm also assisted on the winding up of TD Equipment Finance Canada into the Toronto-Dominion Bank.
Clients of the firm come from sectors including energy and utilities, financial services, manufacturing, healthcare, technology, media and telecommunications (TMT), and computers, software, online and digital.
"For tax advice, I work with Michael Bussman and Carl Hinzmann and have received excellent client service from both of them," one client said. Another client described the firm's advice as "practical and creative".
Elio Luongo is the Canadian managing partner for tax at KPMG. The practice has 225 partners and 1,313 fee earners. The team has experience in all areas of tax including disputes, consulting, planning, advisory, accounting, reverse audit and compliance. The dispute resolution and controversy services team has 27 professionals dedicated to protecting clients against, preparing for, and responding to challenges by various tax authorities. Paul Lynch, a former CRA official, leads the tax litigation and dispute resolution practice.
KPMG also offers digital compliance services in an effort to increase efficiency and standardisation of compliance for its clients.
McCarthy Tétrault has offices in Vancouver, Calgary, Toronto and Montréal, and has 21 partners, nine associates and two counsel. The team offers services in the areas of financial institutions, financial products, M&A, reorganisations, REITS, and cross-border transactions. The practice also offers litigation and transfer pricing dispute services.
"Great experience, personal and pro-active communication together with top quality advice and deliverables," said a client.
The firm advises companies in sectors including energy and utilities, financial services, food, fast-moving consumer goods (FMCG) and agriculture, and manufacturing. The firm is representing Club Intrawest on a case involving common law principles of agency law as they are applied to federal sales taxes.
Patrick McCay is the national practice group leader for tax. He advises on complex acquisitions, financings and related transactions.
McMillan is a full-service business law firm that advises on matters such as corporate reorganisations, M&A, structured finance, transfer pricing and cross-border transactions, as well as dispute resolution and litigation. The firm has five partners and six other professionals led by Michael Friedman.
McMillan was Canadian counsel to PlentyOfFish and its founder, Markus Frind, in connection with the acquisition of PlentyOfFish by Match Group for $575 million.
Clients of the firm work in sectors including financial services, manufacturing, TMT, energy and utilities and healthcare.
"They are extremely knowledgeable, and have developed many innovative tax strategies that have involved a low to moderate amount of risk while saving a significant amount of income taxes," said one client.
The firm has also produced a tool that simulates the inquiries that may be posed by the CRA when assessing whether a worker is serving as an employee or an independent contractor.
The boutique tax and trade law firm Millar Kreklewetz is led by Jack Millar and Robert Kreklewetz. The team specialises in commodity tax, and customs and trade matters, including audits, litigation and transfer pricing. Millar's expertise covers commodity tax, customs and trade as well as tax and trade litigation. Kreklewetz's focus is on indirect tax, income tax, and trade, customs and exports control matters as well as tax and trade litigation.
Norton Rose Fulbright assists clients with domestic and international transactional tax planning, dispute resolution and litigation, transfer pricing, commodity taxes and customs matters. Jules Charette and Adrienne Oliver are the co-chairs of the Canadian tax team. Charette advises businesses, developers, public bodies and financial institutions on the tax aspects of financings, M&A, reorganisations, executive compensation and international transactions, while Oliver has tax planning and implementation experience, primarily in corporate tax.
The tax team at Osler, Hoskin & Harcourt advises on a range of tax issues, including M&A, corporate reorganisations, restructurings, general tax, litigation and dispute resolution. Monica Biringer and Firoz Ahmed lead the team of 37 partners and 27 other tax professionals.
The firm represented BMO Financial Group, one of Canada's largest banks, in the acquisition of GE Capital's Transportation Finance business in the US and Canada. The firm was also counsel for Target Canada in its wind-down of its Canadian operations.
Biringer is experienced in corporate income tax and is a specialist in the use of exchangeable shares in cross-border mergers, inbound corporate financing and leasing as a form of financing. She has also been involved in tax litigation relating to the general anti-avoidance rule.
Ahmed specialises in M&A taxation, corporate reorganisations, debt restructurings, partnership arrangements and international taxation.
A client highlighted Ahmed, saying he was "fantastic, extremely responsive, very practical and knows the rules well".
PwC's tax practice works with companies of all sizes and in all industries. They offer services in corporate tax, compliance, international tax, dispute resolution, VAT and trade, and transfer pricing. Christopher Kong is the national managing partner with the tax services group. He advises on all corporate tax matters.
Jim Cruickshank leads the tax practice at Stewart McKelvey, which provides planning advice to entities of various sizes. The team specialises in corporate tax planning and reorganisations, commodity taxes, international tax, transactions, and tax planning for executive compensation. Cruickshank is an experienced corporate tax, estate planning and litigation practitioner.
Stikeman Elliott's tax team offers tax advice, planning, advocacy and litigation work to its local and international clients. The practice advises on income tax, transfer pricing, customs, procurement and sales tax. John Lorito leads the Toronto office, Luc Bernier leads in Montréal and Douglas Richardson in Calgary. In September 2015, the firm acted for Hudson's Bay Company in connection with its announced purchase of Galeria Holding, parent company of German department store Kaufhof.
Lorito focuses his practice on corporate reorganisations, M&A, investment funds and international tax planning. He has advised clients on tax issues related to cross-border and domestic financial products and non-resident investment in Canadian power and infrastructure projects, and he has acted as counsel on federal and provincial income tax appeals before the Federal Court of Appeal and the Ontario courts.
Brenier specialises in corporate structuring and reorganisations such as domestic and cross-border M&A, tax consolidation and financing including derivative products and public offerings. Richardson focuses on domestic and international energy-related transactions and investments, M&A, corporate reorganisations and cross-border private equity investments.
David Davies leads the tax team at Thorsteinssons. The team is experienced in corporate tax advice and planning, international tax, sales tax, customs and international trade, tax disputes and litigation. He represents taxpayers in their disputes with the CRA, and in complex tax planning matters that could receive CRA scrutiny.
Corrado Cardarelli chairs the tax practice at Torys. The team handles matters concerning international tax, tax controversy and litigation, transfer pricing, sales and commodity tax, and restructuring and planning. Cardarelli is based in Toronto. He specialises in corporate, partnership, trust, foreign and general business taxation and is experienced in structuring domestic, cross-border, and international business transactions, including M&A, dispositions, financings, reorganisations and other business restructurings.
|Tier 1 - Canada|
|Blake, Cassels & Graydon|
|Davies Ward Phillips & Vineberg|
|Osler, Hoskin & Harcourt|
|Tier 2 - Canada|
|Tier 3 - Canada|
|Baker & McKenzie|
|Norton Rose Fulbright|
|Tier 4 - Canada|
|Borden Ladner Gervais, Taxand Canada|
|Tier 5 - Canada|
|Aird & Berlis|
|Burnet, Duckworth & Palmer|