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April 18, 2011

Cross-border costs: If you're considering doing business in Canada, pay attention to taxes

Tax principal and international practice leader at Baker Newman Noyes, Portland


Are you shipping your product into Canada to Canadian customers? Are you considering expanding your marketing and sales efforts into Canada? Do your employees occasionally cross the Canadian border to sell your product? Are your employees providing services in Canada?

If you answered "yes" to any of these questions, you should have a clear understanding of the Canadian income tax and transactional taxes that such Canadian business activities could generate.

Canada slashed its corporate tax rates

First of all, not only are more and more US businesses looking to Canada to expand their markets, but Canada has been cutting its corporate tax rates to attract more inbound business investment. The federal rate this year is 16.5% - down 1.5 percentage points from 18% last year- and is scheduled to be further reduced to 15% for 2012 and subsequent years. Moreover, most provinces (including Ontario, Canada's largest) will have a 10% add-on rate by mid-2013, resulting in an aggregate effective Canadian corporate tax rate of 25%. In New Brunswick, the combined federal and provincial tax rate will be 23% by July of 2012, the lowest in North America. These are significant rate reductions given that the average combined tax rate in Canada was 42.6% in 2000. Such low rates in Canada are striking in comparison to the current U.S. average combined effective federal and Maine state rate of just over 40%.

"Carrying on a business in Canada"

The Canadian tax law is fairly broad on just what it considers as "carrying on a business" in Canada. It includes the normal business activities, such as producing, growing , manufacturing, constructing , fabricating and packing. But they also include the soliciting of orders or offering anything for sale in Canada through an "agent or servant" whether the contract or transaction is to be completed inside or outside Canada. Carrying business in Canada can also include providing services in Canada. Even the mere solicitation of orders is enough to be carrying on a business in Canada. So if you have a salesperson traveling to Canada for weeks at a time visiting Canadian customers, you are carrying on a business there.

Qualifying for the Benefits of the Canadian Income Tax Treaty

Non-residents carrying on a business in Canada are subject to income tax on the profits from their Canadian operations. For U.S. resident companies, however, our income tax treaty with Canada provides some relief from these broad rules. Exporters that only sell cross-border and other businesses that have only a limited presence often can claim exemption from having Canadian activities within the treaty provisions and therefore not pay any Canadian income taxes on such activities.

As long as you avoid creating a "permanent establishment" as defined in the treaty, Canada will not tax you on the profits from your Canadian business activities. A permanent establishment ("PE" for short) is a fixed place of business though which the business is wholly or partly carried on. So for example, if you rent an office or a factory, or have other permanent space available to you, you probably have a PE. A warehouse used only for purposes of storage , display or delivery of goods is specifically exempted. Construction projects lasting up to 12 months are also exempted.

The treaty also permits you to sell through an independent broker or agent, as long as that agent sells other company's products in addition to yours.

So if you know you do not have a PE in Canada, does that get you out of having to file Canadian tax returns? No, you are not automatically protected by the treaty. There are compliance costs. To claim the benefit of the treaty exemption, you must file a Canadian tax return providing details of your operations in Canada.

LLCs and Canada's changing view

Limited liability companies are a popular form of doing business in the United States, because of the tax and legal benefits they provide small businesses. However, LLCs doing business in Canada are not allowed the same pass-through status as they are in the U.S. A LLC doing business in Canada is taxed as a regular corporation in Canada, and thus have to pay income tax at on their Canadian-sourced profits and branch profits tax which is equivalent to dividend withholding taxes on the remittance of such profits to the U.S. owner.

Prior to January 2010, the Canada Revenue Agency took the position that an LLC was not entitled to protection of the U.S. Canada income tax treaty. Without the benefit of the tax treaty, not only would a U.S. LLC be required to pay income taxes on its Canadian-sourced income, it would also would be assessed a 25% "branch profits " tax on any profits that are repatriated to the U.S. owner of the LLC (instead of the 5% branch tax allowed under the treaty).

Now with the new Protocol (revisions to the US Canada tax treaty) to the U.S. Canada income tax treaty, that took effect in January 2010, and a recent Canadian court decision (T.D. Securities (U.S.A.) LLC v. The Queen), U.S. LLCs can qualify for treaty benefits, which allow reduced branch profits taxes and withholding taxes on certain cross border transactions.

Best structure to do business in Canada

The tax structure of your Canadian operations is one of the first considerations when doing business in Canada and each case is different depending on the profile of the business and business owner.

Branch office: This is probably the least expensive approach and in certain cases very efficient. Any profits from a Canadian branch of a U.S. or other foreign corporation are subject to income tax in Canada. The income tax paid in Canada are creditable (i.e. allowed as a credit dollar for dollar) against your US income tax on that same income. Additionally, any losses incurred in Canada are included on the U.S. owner's U.S. income tax return and are allowed to offset other income. This structure works well when the branch operations may incur start up losses.

Incorporation in Canada: Incorporating a business makes sense if you are concerned about limiting your legal liability. The tax rates are no different than what a branch structure would incur.

Providing services in Canada

As a general rule, anyone who provides services in Canada will be subject to Canadian tax on the income earned from the performance of those services.

The Canadian treaty creates a PE, and thus a filing requirement, in certain circumstances even in the absence of a fixed office or place of business. There are two provisions in the U.S. Canada tax treaty that would trigger an automatic PE in Canada if services are performed in Canada for a significant period of time.

First, a company or person will be deemed to have a PE in Canada if such person provides services in Canada for 183 days or more in a 12 month period and more than 50% of the gross active business revenue of the business is derived from services rendered in Canada. This provision is meant to trigger PE treatment for the one owner professional service provider or self employed consultant providing services in Canada for a significant time.

The second provision in the treaty concerning services deems a resident of the U.S. to have a PE in Canada if services are provided in Canada for 183 days or more in any 12 month period regarding the same project or a connected project and the services are provided for customers who are resident in Canada. Unlike the first test, which relates to a single person, this test aggregates the days spent in Canada by all persons. So this test would trigger Canadian tax filings for software companies implementing large software projects for Canadian customers at their customer's sites even when such software companies might not have an office in Canada.

Regardless of these treaty exemptions, Canadians who make payments to non-residents other than employees) for income such as fees, commissions or other payments for services rendered in Canada are required to withhold a 15% tax on the gross amount paid. This is true regardless of whether the services are performed by a company or an individual, and regardless of whether the individual or business has a permanent establishment in Canada under the treaty. There are Canadian procedures to eliminate the withholding if the U.S. service provider files certain information and will be truly exempt. But this has to be filed well in advance of the Canadian payments for services. So for example, I have seen a U.S. company that provides power line tree clearing services in Canada on an emergency basis for storm clean up for Canadian power companies be subject to such withholding taxes. The Canadian power company had to withhold 15% on all their payments to this Maine-based company and since they were only in Canada for less than a month, they were exempt under the treaty. They had to file tax returns well after the work had been done to obtain a refund of all these withheld taxes.

These are just some of the income tax issues that a business in Maine should consider around doing business in Canada. There are also transactional taxes that should be reviewed. Canada has a Goods and Services Tax at the federal level and then certain provinces piggy-back off this GST tax, to what is known as the Harmonized Sales Tax. Then certain other provinces have local provincial sales taxes. These taxes can be significant, where the combined GST/HST taxes can be 13% in Ontario and New Brunswick. Quebec has a 7.5% provincial sales tax. Each of these taxes has various complexities and is a topic for another time, but should be reviewed when doing business in Canada.


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