Wednesday, 31 May 2017

Two‐Year Holding of CCPC Options

Montminy (2016 TCC 110) is the first case to consider the interaction between regulations 6204(1)(b) and 6204(2) (c). The TCC concluded that the latter does not apply to negate the two-year
reasonable holding period in the former.

Were the taxpayers in Montminy entitled to a deduction whereby a CCPC employee defers the recognition of employment income to the year when he or she disposes of the CCPC's shares (paragraph 110(1)(d.1))? In conjunction with section 7, only half of the taxable benefit (simulating a capital gain) is taxed (paragraphs 110(1)(d) and 110(1)(d.1)). The 50 percent deduction is allowed if the shares are prescribed under regulation 6204.

The taxpayers were employed at Cybectec, a tech company in the competitive IT industry, which established a stock option plan in 2001 to retain employees. In 2007, Cybectec received an unsolicited offer from Cooper Industrial Electrical Inc. to purchase all of its shares; Cooper changed the offer to an offer to purchase all of Cybectec's assets. The founders of Cybectec sought to honour its employees' options by allowing the employees to exercise the options and immediately thereafter to sell the shares to a company related to Cybectec. The employees exercised their options in Cybectec and sold the shares the same day to the related company.

The taxpayers relied on paragraph 110(1)(d): paragraph 110(1)(d.1) requires that the shares be prescribed. The minister argued successfully that under regulation 6204(1)(b), the shares were not prescribed because once the options were exercised by the taxpayers, the shares were to be immediately purchased by the related company. Regulation 6204(1)(b) provides that a share is prescribed if the issuing corporation or "a specified person in relation to the corporation cannot reasonably be expected to, within two years after the time the share is sold or issued, as the case may be, redeem, acquire or cancel the share in whole or in part." The taxpayers acknowledged that the two-year holding period in regulation 6204(1)(b) was not met, but they said that regulation 6204(2)(c) allowed an exception to that requirement.

The TCC applied the SCC's guidance in Canada Trustco (2005 SCC 54), according to which an interpretation of a statutory provision must accord with a textual, contextual, and purposive analysis. The TCC concluded that regulation 6204(2)(c) does not disregard regulation 6204(1)(b): the former does not apply to the latter. Regulation 6204(1)(b) "raises a factual question," and the sole object of regulation 6204(2)(c) was, according to the TCC, "to disregard certain rights and obligations, notably to redeem, acquire or cancel the share, if all conditions of paragraph 6204(2)(c) are met." The TCC continued:

My conclusion that paragraph 6204(2)(c) of the Regulations does not disregard paragraph 6204(1)(b) is confirmed by the fact that paragraph 6204(1)(b) is applicable in cases where there is no right or obligation to redeem, acquire or cancel the shares at the time of their issue. For example, if, at the time of issue, a share is a common share without conditions, then the share is a prescribed share. However, if the facts show that the corporation knew that it would be redeeming its employees' shares within two years following the issue of the shares, then the share is not a prescribed share, since the expectation that the share will be redeemed is what triggers paragraph 6204(1)(b) regardless of whether the share has rights or obligations attached thereto. This shows that paragraph 6204(2)(c), used to eliminate from consideration certain rights or obligations, is not relevant to paragraph 6204(1)(b).
Moreover, contrary to situations in which there is a logical connection between the application of subsection 6204(2) of the Regulations and certain subparagraphs of paragraph 6204(1)(a), it is difficult to find a logical connection between the factual issue in paragraph 6204(1)(b), the two-year reasonable expectation, and paragraph 6204(2)(c), the purpose of which is to disregard the right or obligation to redeem, acquire or cancel the share or to cause the share to be redeemed, acquired or cancelled.

The TCC acknowledged that the two-year holding criteria did not apply to employees of public companies: tax policy dictates a different treatment for shares of public companies as opposed to those of private companies. The TCC noted the technical complexity of subsections 6204(1) and 6204(2) and said that "surely the time has come for a reform of these subsections."

The case is under appeal to the FCA.

Sunita Doobay, TaxChambers LLP, Toronto, Canadian Tax Highlights. Volume 25, Number 5, May 2017 ©2017, Canadian Tax Foundation.

Monday, 15 May 2017

US Country‐by‐Country Reporting

The US Treasury and the IRS implemented country-by-country (CbC) reporting requirements to ensure that US multinational enterprises (MNEs) are not subject to CbC filing obligations in multiple foreign tax jurisdictions. US CbC reporting requires the ultimate parent entity to annually file IRS form 8975, “Country-by-Country Report,” including schedule A, “Tax Jurisdiction and Constituent Entity Information.” The reporting period is for the ultimate parent’s annual financial statement that ends with or within its taxable year; if the parent entity does not prepare an annual financial statement, the reporting period is its taxable year.

Regulation section 1.60384( h) says that the reporting threshold is US$850 million. That amount is equivalent to the €750 million agreed to on January 1, 2015 under the OECD's BEPS Action 13: Guidance on the Implementation of Transfer Pricing Documentation and Country-by-Country Reporting. The July 18, 2016 Internal Revenue Bulletin (TD 9773) says that Treasury and the IRS expect other countries to acknowledge that the final BEPS report is inconsistent with a country's requiring local filing by the constituent entity of a US MNE whose revenue is less than US$850 million (paragraph 14). This is consistent with Canada's position. (See "Country-by-Country Reporting Is Here," Canadian Tax Highlights, March 2017: "The CRA administratively offers a Canadian filing exemption if the ultimate parent entity's jurisdiction 'has implemented a reporting threshold that is a near equivalent of €750 million in its domestic currency as it was at January 2015.'")

Fifty-seven countries had signed the OECD Multilateral Competent Authority Agreement on the Exchange of Country by Country Reports as of January 26, 2017. The United States is not a signatory to that agreement but has implemented CbC reporting. The preamble to the final regulations to Code section 6038 says that without the US implementation of CbC reporting, US MNEs would have been required to comply with the varying CbC filing rules applicable in foreign jurisdictions—for example, the cumbersome requirement to use local currency or language in filing. Treasury said the following in TD 9773:
In addition, CbC reports filed with the IRS and exchanged pursuant to a competent authority arrangement benefit from the confidentiality requirements, data safeguards, and appropriate use restrictions in the competent authority arrangement. If a foreign tax jurisdiction fails to meet the confidentiality requirements, data safeguards, and appropriate use restrictions set forth in the competent authority arrangement, the United States will pause exchanges of all reports with that tax jurisdiction. Moreover, if such tax jurisdiction has adopted CbC reporting rules that are consistent with the 2015 Final Report for Action 13 (Transfer Pricing Documentation and Country-by-Country Reporting) of the Organisation for Economic Cooperation and Development (OECD) and Group of Twenty (G20) Base Erosion and Profit Shifting (BEPS) Project (Final BEPS Report), the tax jurisdiction will not be able to require any constituent entity of the U.S. MNE group in the tax jurisdiction to file a CbC report. The ability of the United States to pause exchange creates an additional incentive for foreign tax jurisdictions to uphold the confidentiality requirements, data safeguards, and appropriate use restrictions in the competent authority arrangement.
The preamble to regulation 1.6038-4 discloses that the United States intends to enter into a competent authority arrangement to automatically exchange CbC reports with a jurisdiction with which it has an income tax treaty or tax information exchange agreement. According to TD 9773, Treasury and the IRS anticipate that information about the existence of competent authority arrangements for CbC reports will be made publicly available, in an as yet undetermined manner (paragraph 16).

Form 8975 is still draft: this is troublesome for US MNEs because most signatory countries require CbC reports in 2016. OECD guidelines say that a foreign subsidiary may be required to file a CbC report if its home country does not require reporting before 2017 (article 2(2) of action 13 of the BEPS report Action 13: Country-by-Country Reporting Implementation Package). In response, Revenue procedure 2017-23 was recently released to allow draft form 8975 to be filed as of September 1, 2017 for an earlier reporting period. The ultimate parent entity must file (or have filed) an income tax return for a taxable year that includes an earlier reporting period, but without a form 8975: procedures for filing an amended income tax return must be followed, and form 8975 attached, within 12 months of the end of the taxable year that includes the earlier reporting period. Ultimate parent entities are encouraged to file returns and forms 8975 electronically. The Revenue procedure says that the IRS will provide the software industry with specific electronic filing information on form 8975 in early 2017, with the intention of making the form available before the September 1, 2017 implementation date.

Sunita Doobay, TaxChambers LLP, Toronto, Canadian Tax Highlights. Volume 24, Number 4, April 2017 ©2017, Canadian Tax Foundation.


Sunday, 9 April 2017

A Reflection on The Common Reporting Standards




With over 100 countries as signatories to the CRS Multilateral Competent Authority Agreement there will be little need for incidents such as the Panama papers (https://panamapapers.icij.org/) for tax authorities to find out what their tax residents were squirreling away. The CRS which stands for Common Reporting Standards is in essence an automatic annual financial information exchange tool for tax authorities. It allows a tax authority to inform another tax authority of the financial accounts held by their tax residents in the first mentioned tax authority jurisdiction.

As of July 1, 2017 the Canada Revenue Agency (CRA) will share, with members of the CRS Multilateral Agreement with which the CRA has formalized a CRS partnership, details of the bank accounts held by their residents in Canada. In return, the CRA will receive information on financial accounts held by Canadian residents outside of Canada from its CRS partners. Canadians investing significant assets overseas where banks pay higher interest rates than domestic Canadian banks will now not be able to remain undetected from CRA. These Canadians who have maintained accounts overseas without disclosing the income earned on such accounts must consider the voluntary disclosure procedures to see relief from penalties that will be levied by the CRA.

The Canadian Financial Institutions will provide the non-resident's account holder's name and address, his or her date of birth, the account balance or value at year end and certain amounts credited or paid into the account during the year to the CRA. Unlike the U.S. FATCA legislation, the CRS has no de minimis amount for reporting purposes.
The United States is not a signatory to the CRS Multilateral Competent Authority Agreement as its FATCA legislation has been fairly successful in uncovering accounts held outside the US by US persons. Although the U.S. is not a signatory to the CRS – it should be noted that the U.S. has an automatic exchange relationship with 43 countries whereby deposit interest paid to non-residents are disclosed to the tax authorities of these 43 countries. See https://www.irs.gov/pub/irs-drop/rp-17-31.pdf. The 43 countries are: Australia, Azerbaijan, Belgium, Brazil, Canada, Columbia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Gibraltar, Guernsey, Hungary, Iceland, India, Ireland, Isle of Man, Israel, Italy, Jamaica, Jersey, Republic of Korea, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Saint Lucia, Slovak Republic, Slovenia, South Africa, Spain, Sweden and the United Kingdom.

It is often thought that the U.S. by not being a signatory to the Common Reporting Standards retained the taint of a tax haven. An argument can be made that it does for the tax residents of the countries who are not part of the "automatic exchange relationship". For the tax authorities of those countries - it will be only through a formal request under the tax treaty or tax information exchange agreement that information can be obtained on deposits held by US financial institutions in the U.S.

Sunita Doobay

Shielding Non-Resident's Assets via a Canadian LP

Before December 12, 2016, a common tactic for non-Americans was to shield their assets through a Delaware LLC. On the formation of an LLC in Delaware, the beneficial ownership was not disclosed. Thus, a German individual could hold his Parisian condo in an LLC without the US, German, or French authorities knowing that he was the condo's true owner. The U.S. Treasury and the IRS sought to remove this taint of a tax haven by by issuing final regulations on December 12, 2016 that requires a foreign-owned LLC treated as a flowthrough entity (partnership) to file IRS form 5472 ("Information Return of a 25% Foreign-Owned U.S. Corporation") for taxation years that start on or after January 1, 2017. Germany can now access the condo owner's information through a treaty's information exchange article (article 26 of the Germany-US income tax treaty).

Canada has so far been silent on the similar use of an LP by a non-resident of Canada to shield offshore assets and to conceal their ultimate beneficial ownership from authorities in his or her home country. An earlier article ("Non-Residents and Partnerships," Canadian Tax Highlights, February 2012) summarizes the Canadian taxation of partnerships as follows: "If a partnership interest is not taxable Canadian property and the partnership does not carry on business in Canada, the non-resident partners are not subject to Canadian tax. If there are no Canadian partners, there is also no Canadian reporting." There currently seems to be no Canadian reporting requirement, and it is not certain whether the OECD's Common Reporting Standard (CRS) Multilateral Competent Authority Agreement will result in the partners of the home country learning about assets held in a Canadian LP.

The CRS was signed by over 100 countries, including Canada, where it comes into force on July 1, 2017. The CRS allows for an automatic exchange between tax authorities of information about financial accounts held in a signatory jurisdiction by the resident of another signatory jurisdiction. Will the tax authorities of the jurisdiction that holds the financial accounts of the Canadian LP report the Canadian LP information only to the CRA? Or does the CRS mandate the LP to report its financial account information to the tax authorities of a beneficial partner's home jurisdiction? The CRS jurisdiction governing a partnership is the jurisdiction where the entity resides. A fiscally transparent entity, such as a Canadian LP with non-Canadian partners, will be treated (per The CRS Implementation Handbook, paragraph 83) as a resident of the jurisdiction where it was formed, where it has its place of management, or where it is subject to financial supervision. Assume that Mexican partners supervise the financial accounts of the Canadian LP: the partnership is deemed to be Mexican for CRS purposes. The partnership has nothing to report for the purposes of the CRS to the Mexican tax authorities, because its partners are not non-Mexicans.

The purpose of the CRS is to facilitate the mutual exchange of financial information by tax authorities as it relates to one another's residents; the CRS is not a mechanism for informing the tax authority about its own residents. It is likely therefore that non-Canadians will continue to use the Canadian LP to shield their assets from tax authorities in their non-Canadian home jurisdictions, unless Canada enacts legislation or the OECD amends its current guidelines.

Sunita Doobay TaxChambers LLP, Toronto Canadian Tax Highlights Volume 25, Number 3, March 2017 ©2017, Canadian Tax Foundation

Note:
From a Canadian legal perspective - an argument can be made that the Canadian LP is a sham. I hope to write more about this later this month.