Canada: Energy @ Gowlings – April 2007

Edited by Paul Harricks

• 2007 Federal Budget - Non-Tax

• 2007 Federal Budget - Tax

• 2007 Ontario Budget - Non-Tax

• 2007 Ontario Budget - Tax

• IESO - The Ontario Reliability Outlook 2007

• Gowlings Lawyer Recognized for Solar Initiative

2007 FEDERAL BUDGET - NON-TAX

Compared to recent years the 2007 federal budget contained little, for the energy sector. In it, the government noted that the environment, economy and energy are inextricably linked. The following are the highlights of the federal budget:

• The government will be setting short-term targets for the reduction in greenhouse gas emissions and air pollutants from key industrial sectors. The government has also committed to establish medium and long-term targets for additional reductions. In the long term, the government has established the goal of reducing greenhouse gas emissions by 45 to 65 % from 2003 levels by 2050;

• The budget sets aside $4.5 billion to clean the air and water, reduce greenhouse gases and combat greenhouse gases. The initiatives include:

• Supporting major clean air and climate change projects with provinces and territories through the $1.5 billion Canada ecoTrust for Clean Air and Climate Change;
• Rebalancing the tax system to encourage investments by the oil sands and other sectors in clean and renewable energy while phasing out accelerated capital cost allowance for oil sands development;
• Providing a performance-based rebate program offering up to $2,000 for the purchase of a new fuel efficient or efficient alternative fuel vehicle;
• Introducing a new Green Levy on "gas guzzlers";
• Providing $36 million over the next two years to help get older polluting vehicles off the road; and
• Dedicating $2 billion over seven years for the production of renewable fuels. In addition to the recent regulation requiring a 5 % average renewable content in gasoline by 2010, the government intends to develop a regulation for diesel fuel and heating oil to contain 2 % average renewable content by 2012 once it has been verified that the new blended fuel is safe and effective for the Canadian climate and conditions.
• The budget will also make $500 million available over seven years to Sustainable Development Technology Canada to invest, with the private sector, in establishing large-scale facilities for the production of next generation renewable fuels;
• The budget will also provide funding for hiring 100 additional Environmental Enforcement Officers. The budget provides $22 million over two years for enforcement capacity.

The budget establishes a Major Projects Management Office. The office will streamline the review of large natural resource projects. The government will be investing $60 million over two years with the goal of reducing the average regulatory review period by 50 % from the current four year average. The goal is to accomplish this reduction without compromising regulatory standards. The budget notes that lack of coordination and accountability within the federal government have contributed to unnecessary delays and have been significant obstacles to the successful development of major projects such as interprovincial electricity or oil and gas transmission projects.

2007 FEDERAL BUDGET - TAX

During his tenure as Minister of Finance, Jim Flaherty has never failed to surprise most observers and, whether one agrees with his tax policies or not, he cannot be criticized for being reluctant to make major tax policy proposals. Indeed, considering that he is a Minister in a minority government that is expected to go to the polls later this year, most commentators expected a pre-election budget full of "goodies" for the general electorate, and no real tax policy proposals. Yet again, Minister Flaherty proved the commentators wrong.

The following is a brief overview, with comments, on the most significant tax policy proposals from the Budget as they relate to the energy sector.

Foreign Affiliates - Interest Deductibility

What is probably one of the two most significant proposals in the Budget is the set of measures relating to interest deductibility and investments by Canadian corporations in foreign subsidiaries (so-called "foreign affiliates"). Currently, tax rules contain what is, in many respects, a form of "participation exemption" for investments in foreign affiliates. These rules favour Canadian corporations that receive dividends from a foreign affiliate where the dividends are deemed to be paid from that affiliate's "exempt surplus" (being, in general terms, income from an active business of the foreign affiliate carried on in a country with which Canada has a tax treaty). A Canadian corporation may receive dividends from the "exempt surplus" of a foreign affiliate free of Canadian tax. In addition, while such dividends are not taxed in Canada, a Canadian corporation is entitled to deduct an amount in respect of interest incurred on borrowed money used to finance the foreign affiliate. This treatment has been criticized in some quarters (including by Canada's Auditor General) as being overly generous.

The Budget proposes to eliminate this interest deduction. Disallowed interest expense may be carried forward and deducted in future years if and to the extent that the shares of the foreign affiliate generate non-exempt income for the corporation.

These changes will apply to interest payable after 2007 on new debt incurred on or after March 19, 2007. Interest payable on existing non-arm's length debt will be subject to the new rules after 2008 or after the expiry of its current term, whichever is sooner. Interest payable on existing arm's length debt will be subject to the new rules after 2009 or after the expiry of its current term, whichever is sooner.

AIM and Other Stock Exchanges

There was also some good news for Canadian technology companies in the 2007 Budget.

Listing on the Alternative Investment Market (AIM) of the London Stock Exchange has become an attractive financing opportunity for Canadian technology and resource companies at a certain stage of development. Unfortunately, Canadian tax rules were not conducive to AIM listings because trades on AIM were considered to be subject to tax clearance requirements. To avoid this unduly burdensome compliance requirement for each and every trade on the AIM by a non-resident investor, certain companies incurred great cost and inconvenience to convert themselves into mutual fund corporations before proceeding to AIM.

Under the Budget proposals, shares listed on AIM will no longer be subject to tax clearance requirements. Specifically, the Budget proposes to introduce a new category of "recognized stock exchange" which will include any stock exchange located in any OECD country with which Canada has a tax treaty. This will include AIM and many other exchanges that were not previously listed. Shares listed on these recognized stock exchanges will be excluded from the ambit of the requirement to obtain a tax clearance certificate.

The proposed change will be effective on Royal Assent.

Gowlings was a key player in the lobbying effort to achieve this important change.

Further International Tax Changes

In addition to the introduction of new rules in restricting the deductibility of interest paid on indebtedness used to invest in foreign affiliates, the Budget, in its "International Tax Fairness Initiative", includes the following new measures affecting the existing rules on active business income.

As mentioned above, in general, under the current rules, active business income earned in a treaty country (a country with which Canada has a tax treaty) by a foreign affiliate of a Canadian corporate taxpayer may be repatriated into Canada by way of dividend without Canadian taxation.

The new international initiative included in the Budget proposes to:

• Narrow the current recharacterization rules that permit certain passive income earned by a foreign affiliate to be treated as active business income. The current rules allow certain passive income (such as interest and royalties) paid between related foreign affiliates to be deemed to be active business income. For tax purposes, a corporation may be related to another without one owning shares in the other. The new measure will require that the Canadian taxpayer own, directly or indirectly, at least a 10% economic interest in the foreign entity paying the passive income. One could wonder why such a new rule is being introduced as the notion of related corporations implies that the foreign affiliates are ultimately controlled by the same person or group of persons;

• Expand the exemption from Canadian tax on active business income earned, not only in a treaty country, but also in a non-treaty jurisdiction which has signed a tax information exchange agreement (TIEA) with Canada. This new rule will also apply in relation to countries with which Canada entertains TIEA negotiations, except where those negotiations do not result in an agreement within five years; and

• As a counterpart of this enhancement in respect of TIEA countries, active income earned by a foreign affiliate in a non-treaty, non-TIEA country will be taxed in Canada as it is earned in the foreign country (in other words, it will be treated as so-called "FAPI").

In the context of the Canada-US Tax Treaty, the Budget also announced that the protocol to the treaty is expected to address the following items:

• The harmonization of pension contribution rules in Canada and the U.S.; and

• Clarification of the treatment of cross-border stock options.

U.S. LLCs

The treatment of U.S. "limited liability corporations" (LLCs) under the Canada-U.S. Tax Treaty has been a controversial topic for many years. The Canada Revenue Agency has taken the position that LLCs that are fiscally transparent for U.S. tax purposes are not entitled to the benefits of the Canada-U.S. Tax Treaty. The Budget announced the extension of treaty benefits to U.S. LLCs. This will await announcement and ratification of the forthcoming protocol to the treaty.

Capital Cost Allowance Rates

The Budget includes a proposal to temporarily increase the capital cost allowance (CCA) rate for manufacturing and processing (M&P) machinery and equipment currently included in Class 43 to a 50% straight-line rate, up from the current 30% rate. The new rate will apply to eligible assets acquired on or after March 19, 2007 and before 2009.

The Budget also contains proposed increases in the CCA rates for the following assets acquired on or after March 19, 2007:

• Buildings used for manufacturing or processing - from 4% to 10%;

• Other non-residential buildings - from 4% to 6%;

• Computer equipment - from 45% to 55%;

• Natural gas distribution lines - from 4% to 6%; and

• Liquified natural gas facilities - from 4% to 8%.

To enjoy the enhanced CCA rates for buildings used in M&P and for other non-residential buildings, the asset must be placed in a separate class; otherwise the current treatment will apply. Further, at least 90% of the building (measured by square footage) must be used for the designated purpose by the end of the taxation year. Buildings used for M&P that do not meet the 90% M&P usage threshold at the end of the taxation year will at least be eligible for the new 6% proposed rate for other non-residential buildings if 90% of the building is used for non-residential purposes.

Phase-out of Accelerated CCA for Oil Sands

The Budget proposes to eliminate the additional CCA allowance that allows taxpayers to deduct up to 100% of the remaining cost of eligible assets used for oil sands projects for a taxation year (up to the taxpayer's income for the year from the project after deducting regular CCA). Oil sands projects (both mining and in situ) will continue to be eligible for the regular 25% CCA rate for such projects.

Accelerated CCA will continue to be available for assets acquired before March 19, 2007 and for assets acquired before 2012 that are part of a project phase on which major construction began before March 19, 2007. For other assets, the additional accelerated CCA will be phased out over a period from 2011 to 2015.

Accelerated CCA for Clean Energy Generation

The budget proposes to extend eligibility for accelerated CCA under Class 43.1 (30%) or 43.2 (50%) to include the following assets acquired on or after March 19, 2007 and used to produce clean energy through the following emerging technologies:

• Wind and tidal energy equipment;

• Active solar equipment;

• Small photovoltaic and fixed-location fuel cell systems;

• Biogas production equipment;

• Pulp and paper waste fuel cogeneration systems;

• Biomass drying and other fuel upgrading equipment; and

• Waste-fuelled thermal energy systems.

2007 ONTARIO BUDGET - NON-TAX

The 2007 Ontario budget had a definite "green" tone for the energy sector. The budget re-iterated the government's intention of phasing out coal-fired generation. The government also notes in the budget that it will unveil a major plan for a greener economy during the spring of 2007. The following provides highlights of the non-tax energy sector portion of the budget:

• The federal government has established a trust for clean air and climate change. Ontario's portion of that trust is $586 million which will be used to fund further climate change initiatives. The government will include more than $84 million over the next three years to develop and implement policies to monitor, analyze and address smog and air toxins and $3.9 million to establish a bio-energy research centre associated with the Atikokan Generating Station;

• The government notes that, "It is well recognized that a key element in addressing climate change is investing in the development of new environmental technology." Therefore the government is providing $6 million to the Ontario BioAuto Council, a multi-industry initiative to position the province as a global leader in manufacturing auto parts and other materials from agricultural and forestry feedstocks;

• The government is providing $15 million for the Ontario Centre of Excellence for Energy which is helping business and academia work together to bring energy innovation to market for a cleaner environment;

• The government is providing $21 million to Queen's University for working in partnership with the private sector to establish a convergence centre for bioproducts and biomaterials that will help make Ontario a global leader in the field of high-value-added, environmentally sustainable manufacturing;

• The government is providing $6 million to Lakehead University which is building its capacity to contribute to the competitive and sustainable development of Ontario's boreal forest;

• The government is providing $3 million to the University of Ontario Institute of Technology which is developing its capacity in hydrogen technology research;

• The government is providing $400,000 to the Durham Strategic Energy Alliance, an organization of industry, academia, local and regional Durham governments committed to developing sustainable energy solutions for Ontario;

• The government is providing $3 million to the Ontario Sustainable Energy Association which is a non-profit association of local organizations developing sustainable energy projects in and for their communities;

• To promote system reliability, Hydro One plans to invest more than $4 billion from 2007 to 2009 to sustain, expand and reinforce its transmission and distribution systems;

2007 ONTARIO BUDGET - TAX

During late March, Ontario Finance Minister Greg Sorbara announced the province's 2007 Budget. Below are highlights of some of the announced tax changes.

Public Electricity Utilities

The Electricity Act, 1998 requires public electricity utilities that are exempt from corporate income tax to make payments-in-lieu (PILs) of the taxes that they would be liable to pay if they were not exempt. The Budget proposes rules to confirm the current administrative practice of allowing public electricity utilities to defer PILs on rollovers under sections 85 and 97 of the Income Tax Act (Canada) under certain circumstances.

In addition, new rules have been proposed to limit the deductibility of interest by municipal electricity utilities (MEUs) made to municipalities after March 22, 2007 in accordance with a debt-to-equity ratio. The objective of these rules is to prevent excessive interest deductions by MEUs as municipalities are not subject to tax or PILs on interest. Furthermore, these rules would make the deductibility of interest by MEUs consistent with the proposed Ontario Energy Board cost-of-capital rules.

Finally, new rules have been proposed to prevent some MEUs from deducting losses from activities other than electricity distribution in computing income. Effective for taxation years ending after March 22, 2007, deductions and losses from a particular business will only be allowed to offset income from that particular business.

Investments in Electricity Infrastructure

The Budget reconfirms that the government has directed the Ontario Power Authority (OPA) to produce an Integrated Power System Plan to ensure long-term supply adequacy, which will be submitted to the Ontario Energy Board for review and approval. As part of the government's commitment to promoting investments in electricity infrastructure support, about $11.5 billion in investments are being made in projects in progress for new and refurbished generation Furthermore, the Minister of Energy has asked the OPA to develop a plan for replacing coal-fired generation in the earliest practical time frame.

The government has also directed Ontario Power Generation to start feasibility studies on refurbishing its existing nuclear units, and initiate a federal approvals process for new nuclear units at an existing site.

To promote reliable delivery of electricity, Hydro One plans to invest more than $4 billion from 2007 to 2009 to sustain, expand and reinforce its transmission and distribution systems. This budget is significantly more on an annual basis than the capital expenditures invested in 2006.

Environmental Initiatives

The Budget provides a number of environment initiatives to move towards a greener Ontario. To encourage homeowners to undertake energy audits, the government is providing homeowners with rebates of up to $150 to help lower the cost of a home energy audit, which totals $24 million over four years. This new initiative will complement the recently announced federal ecoENERGY Retrofit Program, which provides financial support and information for energy retrofits in homes, small buildings and industries.

In addition to the home audit rebates, the government will allocate $1.5 million to Project Porchlight, which delivers energy-efficient light bulbs to Ontario homes.

Capital Tax

In addition to the above initiatives that are focused on the electricity industry, public electricity utilities will benefit from the accelerated elimination of the Ontario's capital tax. The Budget confirms that Ontario capital tax will be eliminated as of July 1, 2010 (elimination is pro-rated for taxation years straddling the effective date). The proposed reductions are as follows:

Effective for taxation years ending after 2008, Ontario will transfer the administration of certain Ontario corporate taxes, including Ontario's corporate income tax and capital tax, to the Canada Revenue Agency. Moving to a single corporate tax administration is expected to eliminate duplication and simplify tax compliance.

In March 2007, Ontario's Independent Electricity System Operator (IESO) released its 2007 Ontario Reliability Outlook. The report concluded that since the Outlook's last release in June 2006, the province's future electricity reliability has improved significantly. The main points of the report are as follows:

It is expected that, over the next decade, Ontario's electricity sector will experience the largest infrastructure change in its history. Previously identified concerns in areas such as Toronto and the western part of the Greater Toronto Area will now have about 7,000 MW of new or refurbished generation coming into service by 2011. Although increasing climate change concerns have led to the planned reduction in use of coal-fired generation in Ontario, these facilities will only be shut down as soon as system reliability allows for it.

Included in the planned new generation is the Portlands Energy Centre in Toronto. Phase One of this project will see a contract capacity of 250 MW scheduled to meet demands in the summer of 2008, with Phase Two having 288 MW ready to come into service before the summer of 2009.

Wind has also been making an increased contribution to meeting Ontario's capacity needs - more than 400 MW of wind is currently installed around the province with approximately 850 MW planned before the end of 2009. It has been assumed that wind generation has a dependable capacity contribution of, 10 % of overall capacity in the province.

More than half of Ontario's installed capacity, including nuclear, co-generation, plus some hydroelectric and wind generating assets, is baseload or non-manoeuvrable generation. This capacity is expected to increase over the new few years with the addition of 1,500 MW of Bruce A generation plus additional wind generation. Such generation must be consumed when it is made available and, during particular periods in the spring and fall, can exceed the amount required to meet the demand, resulting in the need to curtail generation.

New transmission facilities remain a priority for the IESO over the next decade. Major projects are required to deliver additional electricity from the Bruce facilities to enable the planned expansion of hydroelectric capability in northeast Ontario and to increase supply for the Toronto load. Without such development, existing facilities would have to be operated at near maximum capabilities, resulting in little margin for unexpected errors or events and possibly requiring complex arrangements should routine maintenance be needed on critical facilities.

A new 500 kV line is required urgently to meet the additional generation expected from new and refurbished Bruce units. In addition, short-term solutions are being made available to minimize the potential congestion that would result from the planned restart of Bruce Unit 2 in 2009.

Currently, Hydro One and TransÉnergie are building a 1,250 MW interconnection which consists of a 230 kV line and back-to-back high-voltage direct-current converters which is scheduled to be brought into service in 2009.

With the Ontario government setting aggressive conservation and demand management (CDM) targets for the near future, the OPA and local distribution companies have introduced various programs encouraging customers to adopt energy efficiency measures and to engage in demand response activities. More than 1,000 MW targeted CDM savings are being pursued by several market participants but it will take time before results of any of these programs and initiatives can be verified. In addition, there is a risk in the short-term of relying on associated contributions to capacity during operational planning. Once the CDM results are confirmed, the IESO will closely monitor the CDM programs and their contribution during peak demand and tight supply events in order to determine reliability and efficiently schedule resources to operate the system.

The full text of the Outlook can be viewed at the following site:

http://www.ieso.ca/imoweb/pubs/marketReports/ORO_Report-2007-2-1.pdf

Gowlings lawyer Malcolm Ruby is the first homeowner in his midtown Toronto neighbourhood to install a set of rooftop photovoltaic solar panels. These panels collect energy from the sun and feed about 8 - 10 kilowatt hours a day of power directly into his home, resulting in a 20 - 30% drop in his electricity bill. Ruby is now in the midst of completing paper work to apply for the incentive program under the Ontario Power Authority's Standard Offer Program which would pay him 42 cents per kilowatt hour produced through his solar power system. Although the price tag of this innovative idea starts at $12,000, Ruby believes that people who can afford it should consider solar.

As a result of his efforts, St. Paul's Councillor Michael Walker nominated Ruby for the Green Toronto Awards, which recognize individuals, organizations and businesses who make concerted efforts to go green and reduce consumption.

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.