On Nov. 11, 2012, after relatively swift negotiations, the Government of Canada signed a tax treaty with the Government of the Hong Kong Special Administrative Region of China (the "Treaty"). The Treaty with Hong Kong is a positive development given that Canada entered into a similar tax treaty with China in 1986 (the "Canada-China Treaty") and that a relatively large number of residents of Hong Kong have social and economic ties with Canada. It has already been held that the Canada-China Treaty does not apply to Hong Kong, despite the reunification of Hong Kong and China in 1997, thus creating a need for a separate tax treaty between Canada and Hong Kong. Assuming that both Canada and Hong Kong ratify the Treaty in 2013, the Treaty will come into force in Canada for any income year beginning on or after Jan. 1, 2014, and will come into force in Hong Kong for any year of assessment beginning on or after April 1, 2014. Once the Treaty is ratified by the respective governments, it will provide tax relief for residents of both jurisdictions and, more importantly, could encourage inbound investments to Canada from Hong Kong.
Ramifications on Outbound Investments from Mainland China
The importance and ramifications of this Treaty extend beyond residents of Hong Kong, as outbound investments from mainland China have commonly been structured through offshore tax jurisdictions, such as Hong Kong, in response to unfavourable tax treatment in mainland China of foreign-source dividend income and capital gains. Moreover, China's current foreign exchange control laws and regulations also result in the use of Chinese outbound investment structures involving intermediary entities in Hong Kong. Consequently, the Treaty could, once ratified, have an important impact on existing and future inbound investment structures into Canada through Hong Kong from mainland China.
There have also been important developments affecting the Canada-China Treaty. On Feb. 19, 2012, the Canadian Prime Minister's Office announced that the Canadian and Chinese governments had reached an agreement in principle to update the Canada-China Treaty. The anticipated future updates to the Canada-China Treaty may affect the benefits of structuring outbound investment structures from mainland China into Canada through Hong Kong. Therefore, such outbound investment structures should be reviewed once draft language to the new Canada-China Treaty is published.
Overview and Analysis of Key Aspects of the Treaty
1) Dual Residency Provisions and Definition of "Resident of a Party"
Since Hong Kong is not a sovereign state, the signing of this Treaty has led to certain departures from the more traditional language seen in Canada's other tax treaties. For example, Article 1 of the Treaty refers to "residents of one or both of the Parties" as opposed to "residents of one or both of the Contracting States." Article 4 has similar changes in terminology. The term "national" in Article 3 of the Treaty has only a unilateral definition for Canadian nationals. As a result, there are slight changes to the wording in certain provisions of the non-discrimination article. All these changes seem relatively benign, with the possible exception of the changes to Article 4 of the Treaty where the term "resident of a Party" is defined. The traditional "liable to tax" test in Article 4 will only apply on a unilateral basis to Canada.
With respect to residents of Hong Kong, the determination of whether a taxpayer is a "resident of a Party," and thus entitled to the benefits of the Treaty, will not be subject to the traditional "liable to tax" standard. Instead, in the case of a corporation, for example, the test is simply "a company incorporated in the Hong Kong Special Administrative Region or, if incorporated outside the Hong Kong Special Administrative Region, being centrally managed and controlled in the Hong Kong Special Administrative Region."
The aforementioned test would appear to be a significant departure from Canada's treaty policies. For example, in Income Tax Technical News No. 35, the Canada Revenue Agency (CRA) stated that:
In order to qualify for the benefits under Canada's tax treaties, a person must be considered a resident of a contracting state for the purposes of the relevant treaty. Treaty residence is also a prerequisite for certain dividend deductions under Canada's domestic foreign affiliate rules and regulations. To be a resident of a contracting state, a person must be "liable to tax" in that state by virtue of a criterion referred to in the residence article of the relevant tax treaty. It has been the long-standing position of [the CRA] that, to be considered "liable to tax" for the purposes of the residence article of our treaties, a person must be subject to the most comprehensive form of taxation as exists in the relevant country. For Canada, this generally means full tax liability on worldwide income. This is supported by the comments found in the Supreme Court decision The Queen v. Crown Forest Industries Ltd et al (95 DTC 5389) as well as the Commentary to the OECD [Organisation for Economic Co-operation and Development] Model.... It remains CRA's position that, to be considered "liable to tax" for the purposes of the residence article of Canada's tax treaties, a person must generally be subject to the most comprehensive form of taxation as exists in the relevant country.
Only time will tell if this provision becomes problematic for Canada. On the surface, it seems that the entitlement to treaty benefits, subject to the limitation of benefits provisions in the Treaty (see below), is a relatively easy test to meet for Hong Kong residents.
The use of the term "resident of a Party" as opposed to "resident of a Contracting State" should not adversely impact the application of Canada's foreign affiliate rules. For example, Canada's foreign affiliate rules provide that income from the active business of a Canadian corporation's foreign affiliate that qualifies as exempt surplus may be distributed as a dividend free of Canadian tax to the Canadian corporation if the foreign affiliate is located in a country with which Canada has a tax treaty or tax information exchange agreement (TIEA). Regulation 5907(11) of Canada's Income Tax Act (the "Tax Act") is drafted in such a manner that a designated treaty country with which Canada has entered into a comprehensive agreement or convention for the elimination of double tax includes "a sovereign state or other jurisdiction." Therefore, the fact that Hong Kong is not a sovereign state as such should not affect the tax-free repatriation of dividends out of exempt surplus from a foreign affiliate located in Hong Kong. However, the language in Regulation 5907(11.2)1 is slightly ambiguous in light of Hong Kong being a "jurisdiction" as opposed to a "country," and the CRA may eventually be called upon to provide some clarification regarding the interpretation of that provision.
Perhaps one of the key benefits of the Treaty is the introduction of the standard dual resident tie-breaker rules for individuals, which are common in most of Canada's tax treaties. In light of the significant number of Hong Kong residents who have moved to Canada since the late 1980s and the number of situations where questions regarding residence exist, the inclusion of these tie-breaker rules should help dual resident individuals ascertain with a significant degree of certainty in most cases the jurisdiction in which they would be considered resident. In reference to subsection 250(5) of the Tax Act, dual resident individuals who are found to be residents of Hong Kong under the tie-breaker rules will be deemed to be non-residents of Canada provided that they were not resident in Canada prior to Feb. 25, 1998.
However, corporations that incorporated in Canada but have central management and control in Hong Kong, or vice versa, should be aware that Article 4 of the Treaty does not include a definitive corporate tie-breaker rule. A dual resident corporation would be dependent on the competent authorities of Canada and Hong Kong to resolve any elements of double taxation that may arise due to the dual residence.
2) Business Profits
Under the Treaty, Hong Kong residents carrying on business in Canada will only be taxed on business income earned through a Canadian permanent establishment. Prior to the Treaty, any Canadian income earned by a Hong Kong resident carrying on business in Canada was taxable in Canada. Article 5 of the Treaty provides a definition of "permanent establishment." Notably, however, there are no special rules deeming non-resident service providers to have a permanent establishment. Accordingly, taxpayers need to be aware of the manner in which the common law in Canada has elaborated on the meaning of "permanent establishment" with respect to service providers using space at their clients' facilities.2
Issues may arise in allocating income from business operations between Canada and Hong Kong. With respect to the allocation of economic profits between countries, including the deductibility of certain notional expenses, Article 7 of the 2010 OECD Model Tax Convention on Income and on Capital (the "OECD Model Treaty") and its Commentary (the "OECD Commentary") on Article 7 were amended to achieve a higher degree of symmetry on the taxation of a foreign entity's business profits regardless of whether that foreign entity operates a branch or uses a subsidiary that is a separate legal entity. However, Canada and Hong Kong ignored the recommended wording from Article 7 of the OECD Model Treaty in drafting Article 7 of the Treaty.
Given the general understanding that contracting states would negotiate or amend existing treaties to reflect the new wording of Article 7 of the OECD Model Treaty, this departure from the OECD Model Treaty is questionable in light of the OECD's work on this project. Therefore, in the absence of diplomatic notes or any public comment from the CRA confirming that the intention of the treaty negotiators was to adopt the full authorized OECD approach, taxpayers should proceed with caution in deciding whether to deduct certain notional expenses in computing income attributable to a permanent establishment.
3) Associated Enterprises (Transfer Pricing)
The avoidance of double taxation on income is a fundamental objective of any bilateral tax treaty. The most important article in a treaty dealing with the avoidance of double taxation is Article 9, which deals with transfer pricing adjustments. The negotiators of the Treaty have incorporated nearly all of Article 9 of the OECD Model Treaty, which creates an obligation on both parties to provide full relief on transfer pricing adjustments provided that the party providing the relief agrees with the quantum of the adjustments. When such a commitment is included in a treaty, Canadian negotiators generally insist on including time limits in the treaty that limit the length of time during which a party is able to make a transfer pricing adjustment. In the Treaty, the time limit is seven years. Some of the benefits associated with such a provision include the comfort that the taxpayer generally cannot be audited beyond the seven-year limit, as well as the obligation on the competent authorities to provide correlative relief to the extent they agree with the merits of the adjustment.
4) Reduced Withholding Tax Rates on Dividends, Interest and Royalties
One of the key impacts of the Treaty will be that many cross-border payments, such as dividends, certain interest income and royalties, made between Canada and Hong Kong residents will attract lower Canadian withholding tax rates under the Treaty. In effect, the Treaty should reduce the tax costs of repatriating income or profits from Canada to Hong Kong, thereby stimulating cross-border capital flow and foreign direct investment.
Under Article 10 of the Treaty, dividends paid to residents of Hong Kong by Canadian resident companies will now be subject to a maximum withholding tax rate of 15 per cent rather than the 25 per cent rate stipulated in subsection 212(1) of the Tax Act. Furthermore, where the beneficial owner of the dividend is a company resident in Hong Kong that controls at least 10 per cent of the voting power in the Canadian resident company paying the dividend, the withholding tax rate is further reduced to five per cent.
With respect to interest payments, Article 11 of the Treaty limits the withholding tax rate on such payments to 10 per cent on non-arm's length debt and zero per cent on arm's length debt other than arm's length debt with contingent or participating interest. Under the Tax Act, however, cross-border interest payments, other than contingent or participating interest, between arm's length parties already do not attract any withholding tax in Canada. Therefore, with respect to interest arising in Canada, the Treaty will mainly benefit non-arm's length parties as well as contingent interest arrangements.
Pursuant to Article 12, the Treaty reduces the withholding tax rate on royalty payments to 10 per cent. In contrast to some of Canada's other bilateral tax treaties, there is no elimination of withholding tax on royalty payments relating to the use of computer software, or the use of patents or information concerning industrial, commercial or scientific experience. This is unfortunate. However, paragraph 212(1)(d) of the Tax Act may apply to exempt certain payments from withholding tax. This paragraph exempts certain royalties, such as those from the production or reproduction of literary, dramatic, musical or artistic work, in certain instances.
5) Capital Gains
It is well known that there has been significant investment by Hong Kong residents in Canadian real estate. Under Article 13, Canada reserves its right to tax capital gains arising from the disposition of immovable property in Canada, and from the disposition of shares that derive more than 50 per cent of their value directly or indirectly from immovable property in Canada. This test applies, for example, even if the property being disposed consists of shares of a non-Canadian corporation. As a result, Hong Kong residents may still wish to consider structuring their investments in Canada through another treaty country (e.g., the Netherlands or Luxembourg) that has more favourable Article 13 provisions in its treaty with Canada and fairly non-threatening limitation of benefits provisions. The Article 13 provision in the Treaty may also cause some outbound investments from mainland China into Canada to use an intermediary in a jurisdiction other than Hong Kong.
6) Limitation of Benefits and Anti-Treaty Shopping Provisions
Like many of Canada's tax treaties, the Treaty also includes a general limitation of benefits provision in Article 26. Generally, a limitation of benefits provision seeks to limit treaty shopping by requiring that persons, other than individuals, claiming treaty benefits be "true" residents of the respective treaty jurisdiction. The provision is typically included to thwart treaty shopping structures in which a person establishes residence in a jurisdiction without any significant or substantial ties to that jurisdiction for the purpose of taking advantage of specific treaty benefits.
Of greater significance, however, are the anti-treaty shopping provisions in Articles 10 to 12. Anti-treaty shopping provisions appear in many of Canada's tax treaties with other countries in various forms. These provisions will often deny the reduced withholding rates under a treaty when one of the main purposes of a transaction relating to a dividend, interest or royalty payment is to obtain treaty benefits. However, in the case of the anti-treaty shopping provision in Articles 10 to 12 of the Treaty, the provisions are broadly worded and may potentially act to deny treaty benefits on many common structures. Therefore, in structuring any Canada-Hong Kong cross-border transaction, special consideration must be given to the effect of these anti-treaty shopping provisions and the manner in which they are or will be interpreted and applied by the relevant taxing jurisdiction.3
Of particular interest in this Treaty is that there are no treaty benefits to residents of either Canada or Hong Kong in respect of pension benefits other than the requirement under Article 21 to provide relief from double tax. Therefore, the full withholding rate of 25 per cent under subsection 212(1) of the Tax Act will apply, where applicable, to pension payments from Canada to residents of Hong Kong. As such, residents of Hong Kong should be aware of their options under Canadian tax law to potentially reduce that liability by making a section 217 election where applicable.
8) Income from Employment
Article 14 of the Treaty provides what could be a tremendous benefit to Hong Kong residents, particularly to Hong Kong companies sending their employees to temporarily work in Canada. Currently, in the absence of a bilateral tax treaty with Canada, any remuneration paid to a non-resident employee for services performed in Canada is taxed under the Tax Act with no safe-harbour rules. Article 14 includes the traditional OECD Model Treaty protection, which provides that remuneration derived by a resident of one jurisdiction in respect of an employment exercised in the other jurisdiction will be taxable only in the first-mentioned jurisdiction if:
- The recipient is present in the other jurisdiction for a period or periods not exceeding in the aggregate 183 days in any 12-month period commencing or ending in the taxable period concerned, and
- The remuneration is not paid by (or on behalf of) an employer who is resident in the other jurisdiction or borne by a permanent establishment of the employer in the other jurisdiction.
9) Exchange of Information
The Treaty includes an exchange of information article, which allows the competent authorities of Canada to request tax-related information from Hong Kong regarding Canadian residents, and vice versa. Therefore, for the purposes of administering and enforcing Canada'stax laws, the competent authorities of Canada will be able to obtain pertinent information from Hong Kong relating to any Canadian resident's assets or investments held in Hong Kong, or income earned in Hong Kong. This exchange of information article in the Treaty will be an important tool against tax evasion, especially for Canada (which taxes its residents on their income earned in foreign countries), as the CRA will now have added powers to determine if Canadian residents have unreported income in Hong Kong.
10) Mutual Agreement Procedure (MAP)
Article 23 of the Treaty contains MAP provisions that allow the competent authorities from Hong Kong and Canada to work together to resolve international tax disputes involving double taxation, and cases involving inconsistent application and interpretation of the Treaty.
By comparing the Treaty and a few other of Canada's more recently signed tax treaties to Canada's older tax treaties, a change in Canada's treaty policies regarding Article 23 can be discerned. A "notwithstanding clause" has been inserted into paragraph 2 of Article 23. The effect of this clause is to free the respective competent authorities from domestic statute of limitation requirements that may impose time limits on resolving tax disputes. Hence, the inclusion of the "notwithstanding clause" in the Treaty benefits residents of Hong Kong and Canada, as cases of "taxation not in accordance with" the Treaty, including juridical and economic double-tax cases, presented to the competent authorities within the three-year application period should be resolved notwithstanding domestic statute of limitation impediments in either Canada's or Hong Kong's tax system. Until recently, this "notwithstanding clause," in the context of the MAP Article of Canada's treaty network, had historically only been seen in the tax treaty between Canada and the United States.
Since Hong Kong has a territorial tax system and does not currently levy withholding taxes on interest and dividends, the benefits for Canadian residents with dividend and interest income from Hong Kong may be less significant. However, the provisions in the Treaty to reduce withholding tax rates on dividends and interest payments will undoubtedly benefit Hong Kong residents with investments in Canada and make Canada an even more attractive destination for capital from Hong Kong. This, in turn, may be useful for investors from mainland China who structure their investments through Hong Kong, particularly until amendments to the Canada-China Treaty come into force. The Treaty is another step that reinforces Canada's growing presence in the Asia-Pacific region.
1 Regulation 5907(11.2) deems a foreign affiliate not to be resident in a country with which Canada has entered into a comprehensive agreement or convention for the elimination of double tax unless, generally, the foreign affiliate is a resident of that country for the purposes of the agreement or convention.
2 The Queen v. William A. Dudney (2000 DTC 6169) (FCA)
3 The potentially significant ramifications of these anti-treaty shopping provisions will be further analyzed in a separate paper by the same authors, titled "New Limitation on Benefits Provisions in Canada's Tax Treaties: A Step Too Far?" to be released in a future edition of Canadian Tax @ Gowlings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.