Canadas Two Faced Tieas Netherlands Antilles Trumps Bermuda
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Volume 55, Number 12 September 21, 2009 (C) Tax Analysts 2009. All rights reserved. Tax Analysts does not claim copyright in any public domain or third party content. Canada’s Two-Faced TIEAs — Netherlands Antilles Trumps Bermuda by Nathan Boidman Reprinted from Tax Notes Int’l, September 21, 2009, p. 1023 (C) Tax Analysts 2009. All rights reserved. does not claim copyright in any public domain or third party content. Canada’s Two-Faced TIEAs — Netherlands Antilles Trumps Bermuda by Nathan Boidman Nathan Boidman is with Davies Ward Phillips & Vineberg LLP in Montreal. lthough Bermuda sought to be the first country to One relates to the interests of Canadian-based multina- Asign a tax information exchange agreement with tionals. The other relates to matters involving the shad- Canada,1 that status has been claimed by the Nether- owy underworld of those who may not be complying lands Antilles, which signed a TIEA with Canada on with Canada’s tax laws. August 29.2 At the same time, the Canadian govern- ment announced TIEA negotiations were under way Returning to the question of who got there first, on with 14 other countries, including Bermuda.3 This ar- May 7 Bermuda, but not Canada, announced that the ticle focuses on two entirely different fields of interest two countries had reached an agreement on a TIEA. It arising from Canadian TIEAs once entered into force.4 indicated that Bermuda would become Canada’s first pure tax haven partner and therefore, as a result of some unique Canadian laws relating to TIEAs, would become a much more tax-effective base for Canadian- 1Nathan Boidman, ‘‘Bermuda: Canada’s First TIEA Part- owned foreign operations than it is now.5 That status ner?’’ Tax Notes Int’l, May 18, 2009, p. 560, Doc 2009-10609,or might now first be accorded to the Netherlands Antil- 2009 WTD 94-2. les, as discussed below. However, it is not known how 2On August 29 the Department of Finance announced the quickly Canada will sign TIEAs with the countries re- signing of Canada’s first TIEA with the Kingdom of the Nether- ferred to in note 3 or the order in which they will be lands regarding the Netherland Antilles. (See Department of Fi- nance Release 2009-080.) For an electronic copy of the Agree- brought into force. ment Between the Government of Canada and the Government of the Kingdom of the Netherlands in Respect of the Nether- lands Antilles on Exchange of Information on Tax Matters, see http://www.fin.gc.ca/treaties-conventions/antilles-agree-eng.asp. 5See ‘‘TIEA Agreements Reached With Canada,’’ http:// 3See Department of Finance News Release, PR 2009/08/31A www.plp.bm/node/1943. See also Jonathan Kent, ‘‘Canada TEIA (Aug. 31, 2009). These negotiations started in 2005 with the Brit- [sic] Spin-Off Could Boost Business,’’ Bermuda Royal Gazette,May ish Virgin Islands, the Isle of Man, and Jersey, and in 2009 with 7, 2009; Kent notes that Canada has long granted, by entering Anguilla, Aruba, the Bahamas, Bahrain, Bermuda, the Cayman into double tax agreements, such status to countries such as Bar- Islands, Gibraltar, Guernsey, St. Kitts and Nevis, St. Lucia, and bados, which may have generally substantial tax systems, but of- Turks and Caicos. Separately, it is instructive to note that in the fer tax-haven-like regimes to foreign multinationals and other mere 12 days after Canada and the Netherlands Antilles signed investors. The Bermuda Ministry of Finance’s anticipation of their TIEA (on August 29), there had been signings of 27 new benefits of the TIEA was stated as follows: TIEAs between various countries, according to a September 11 In signing the TIEA, Canada will extend an important OECD release (‘‘Tax Information Exchange Agreements benefit to Bermuda that had previously been conferred (TIEAS)’’). only to countries with which Canada has a double tax 4As noted below, the TIEA with the Netherlands Antilles treaty in force. Dividends of foreign affiliates that are resi- would enter into force on the first day of the third month after dent in Bermuda that are paid to their Canadian parent each country has effectuated domestic requirements and has noti- companies out of the active business income earned in fied each other thereof. Bermuda will be exempt from Canadian taxation. TAX NOTES INTERNATIONAL SEPTEMBER 21, 2009 • 1023 FEATURED PERSPECTIVES Significance for Canadian-Based MNCs ber 2007 (in Bill C-28) in the form of rules (which may (C) Tax Analysts 2009. All rights reserved. does not claim copyright in any public domain or third party content. not come into effect for several years) that will immedi- Overview ately tax profits, whether or not repatriated, earned in For Canadian-based multinationals that, in general, countries that have failed to effectuate TIEAs with are fully compliant with Canada’s tax laws, the signifi- Canada within five years of having been invited to do cance of the signing of the TIEA with the Netherlands so or having commenced negotiations. In this context, Antilles has nothing to do with information that will the only interest of Canadian-based multinationals in be exchanged. Rather, it can serve to make the Nether- TIEAs is that they are entered into, not their content. lands Antilles an attractive place for Canadian compa- nies to carry on business. Background Since 1976 income tax treaties have been the keys The TIEA can serve to that unlock the effects of a European-style ‘‘participa- tion exemption’’ or ‘‘territorial’’ tax system for Cana- make the Netherlands dian multinationals operating abroad. Such a system Antilles an attractive place exempts the parent from home country tax on divi- dends received from foreign subsidiaries. Under the for Canadian companies to March 2007 budget and the regulations brought into force in March, another type of treaty — involving the carry on business. exchange of tax information (that is, TIEAs) — will also open the doors to that treatment. And that will be effective the year a TIEA enters into force. 6 In its controversial 2007 spring budget, Canada Under rules in effect since 1976 (often referred to as made an offer to the tax havens of the world: Provide the ‘‘foreign affiliate’’ system or the ‘‘exempt surplus’’ us, through TIEAs, with information about the undis- system) a Canadian corporation does not pay any per- closed income dishonest Canadians are hiding in your manent tax on dividends it receives out of the exempt banks and trust companies and we will reward you surplus of a foreign affiliate.9 A nonresident corpora- with investment by honest Canadians, motivated by tion is a foreign affiliate vis-à-vis a Canadian who Canadian tax incentives given to them; however, if you owns 10 percent or more of the shares of any class of refuse, they will be subject to punitive Canadian tax on the nonresident corporation.10 Exempt surplus is the income earned in your jurisdiction. after-tax active (or deemed active) business profits of The incentive portion of that carrot and stick ap- an affiliate that is ‘‘resident’’ in a ‘‘designated treaty proach7 to inducing TIEAs was brought into force this country’’ (DTC), provided those profits are earned in past March by amendments to the ‘‘foreign affiliate that or any other DTC.11 Before the advent of TIEAs, regulations’’8 (see below) that will provide tax exemp- only income tax treaties were relevant, and in that con- tions to Canadians who carry on business in TIEA text, residency in the DTC required that status for pur- countries. The punitive portion was enacted in Decem- poses of the treaty between Canada and the DTC as well as that status as understood under Canadian do- mestic law (that is, based on mind and management).12 When only a TIEA is involved, the latter will be rel- 6The March 2007 budget had proposed severe restrictions on evant. deductibility of financing costs related to foreign acquisitions, which, however, were withdrawn by the government two months later amid a swirl of controversy. Instead, the government an- nounced a different restriction in this area, respecting ‘‘double- 9 dip’’ financings, which was subsequently enacted (comprising It may pay a potentially fully refundable tax on the divi- new section 18.2 of the Income Tax Act, (Canada), R.S.C. 1985, dends if it does not own more than 10 percent, by both votes Chap. 1 (5th supp.), as amended) in December 2007, as part of and value, of the affiliate and it does not have certain affiliated Bill C-28. party nexus to the affiliate. See Part IV of the Income Tax Act. 7 The underlying exemption from permanent tax arises under the See Lorne Saltman, ‘‘The Carrot and the Stick: Canada’s provisions of paragraph 113(1)(a) of the ITA. Approach to TIEAs,’’ Tax Notes Int’l, Dec. 3, 2007, p. 951, Doc 10 2007-24515,or2007 WTD 237-12. Also, the status can arise with as little as a 1 percent owner- 8 ship when certain affiliated parties own at least 9 percent. See The regulation was brought into force (by the unusual pro- subsection 95(1) and 95(4) of the ITA. cedure of enactment) as part of Bill C-10, enacted as S.C. 2009, 11 c.2 (Mar. 12, 2009). For the background, see Legislative Pro- Technically, the earnings comprise ‘‘exempt earnings,’’ a posals and Explanatory Notes Relating to the Income Tax Act, component of ‘‘exempt surplus.’’ See section 5907(1) of the In- the Excise Act, 2001 and the Excise Tax Act, Department of come Tax Regulations. Finance, Ottawa, Canada, July 14, 2008. For discussion, see 12Before the March amendment, section 5907(11) of the regu- Nathan Boidman, ‘‘Draft Regs for Novel Use of TIEAs,’’ Tax lations referred to a ‘‘comprehensive agreement or convention for Notes Int’l, July 21, 2008, p.