This Perspective takes a short look back at tax developments in the U.S. and Canada in 2009 and offers a longer look forward to 2010 for possible developments affecting the U.S. and Canadian taxation of international companies and investors.
U.S. TAX REVIEW AND OUTLOOK
The year 2009 is memorable for having given rise to a number of potentially important proposed legislative changes to the Internal Revenue Code (the "Code"), but few of those proposals were enacted. Given the temporary expiration of the U.S. estate tax, sunset of the favorable 15% maximum rate on long-term capital gains and qualified dividends, and enormous need for tax revenue, 2010 looks to be a much more eventful year in the annals of U.S. international taxation.
We expect 2010 to bring substantial changes to the Code, including extension of the estate tax but relaxation of historical rates and exemption levels, an increase in rates on long-term capital gain and qualified dividends to at least 20% (though such change may not occur until 2011), the advent of a possibly temporary add-on tax of up to 5.4%, treatment of carried interests as ordinary income, and serious consideration by Congress and the Obama Administration of a potential nationwide federal value added tax ("VAT") at some indefinite point in the future.
Short review of U.S. international tax developments in 2009
As suggested above, 2009 may be more noteworthy for the changes that did not occur than for the changes that did. After enacting limits on certain deferred compensation arrangements in the fall of 2008 (e.g., new Code section 457A), the U.S. Congress mainly debated a host of possible revenue raisers, but enacted few. Changes that were made generally provided temporary relief from U.S. tax on debt restructurings, expanded carrybacks of small business net operating losses, clarified treatment of the tax losses of financial companies, provided relief from alternative minimum tax, and included temporary incentives on the purchase of automobiles and first homes.
The Obama Administration established a blue ribbon panel, chaired by former Federal Reserve Chair, Paul Volker, to consider fundamental international tax reform. Meanwhile, in May 2009, the Obama Administration proposed several draconian rules generally to apply to U.S. multinational corporations, including deferral of deductions attributable to unrepatriated foreign profits, foreign tax credit rate blending, adoption of a per se corporation rule for certain offshore disregarded entities, and deferral of benefits otherwise scheduled to take effect and that would have expanded the benefit of onshore financing of foreign affiliates. The end of the year brought only confusion as to the degree to which the Administration would continue to pursue those May proposals, which attracted criticism that such changes would make U.S. multinationals less competitive than foreign multinationals.
The May proposals would also penalize foreign financial institutions unless they provide additional international tax information to the U.S. about offshore accounts of U.S. citizens and residents.
The IRS entered into a deferred prosecution agreement with UBS in which UBS admitted that U.S. clients held tens of thousands of unreported Swiss bank accounts at UBS. UBS and the Swiss government subsequently agreed to turn over thousands of names of such account holders to the IRS.
The IRS also conducted a widely publicized amnesty program for U.S. taxpayers who previously had failed to report their foreign accounts. U.S. taxpayers were permitted to voluntarily report such accounts, pay prescribed penalties, and avoid criminal prosecution. Nearly 15,000 U.S. taxpayers took advantage of the amnesty program.
Several important cases were decided in 2009, including cases of interest on lease-inlease- outs, the repatriation of foreign profits, and the scope of privilege attaching to accountants' tax accrual workpapers. In U.S. v. Textron, the First Circuit Court of Appeals held that the taxpayer was required to turn over its tax accrual work papers sought by the IRS as part of an audit of Textron. Textron argued that the tax accrual work papers were protected by the work product doctrine, but the court held the product doctrine did not apply to documents prepared for a purpose other than litigation, such as for financial reporting purposes. The taxpayer has already asked the Supreme Court to review this case.
Schering-Plough v. U.S. involved a transaction that was designed to repatriate funds from a controlled foreign corporation (a "CFC") without triggering an inclusion under section 956. The U.S. parent entered into an interest rate swap with a counterparty under which each party was obligated to make semi-annual payments at a LIBOR based rate, in the case of the counterparty, and the fixed funds rate, in the case of Schering-Plough, on a notional principal amount. Schering-Plough then sold its rights to the future payment stream from the counterparty to one of its CFCs in exchange for a lump sum payment. Schering-Plough took the position that the income from the assignment was required to be taken into account over the term of the swap under Notice 89-21 and that § 956 of the Code did not apply because the subsidiary's investment was in a swap issued by the counterparty, not in a loan issued by the U.S. parent. The court agreed with the IRS that the purported transaction was really a loan from the CFC to the parent rather than a sale, with the counterparty acting as a mere conduit, notwithstanding that the indices on which the payment streams were based were different. The court held that "a floating rate loan... [is] nonetheless a loan". The court also held that the entire transaction lacked economic substance.
Veritas Software Corp. v. Comm'r. On December 10, 2009, the United States Tax Court issued a decision in favor of the taxpayer, rejecting the IRS position on the valuation of intangible property for the purpose of determining a "buy-in" payment for a cost sharing arrangement ("CSA") with a related foreign corporation. The court found the IRS position "arbitrary, capricious, and unreasonable". The case involved a U.S. corporation and its wholly-owned Irish subsidiary that entered into a CSA to develop software. The U.S. corporation transferred certain existing intangible property rights to the Irish subsidiary as part of the arrangement. The Irish subsidiary paid the U.S. corporation a buy-in payment, but the IRS disputed the amount of that buy-in payment. (The value of buy-in payments is currently on the IRS Tier I list of issues that warrant close examination.)
The IRS valued the buy-in payment using the method set forth in an IRS Coordinated Issue Paper: "Section 482 CSA Buy-in Adjustments" issued September 27, 2007 (the "CIP"), and Temporary Regulations Section 1.482-7T, promulgated on January 5, 2009. This method requires the valuation assume that the existing intangible property has a perpetual life, that later developed intangible property evolves from and adds to the value of existing intangible property, and that a transfer of intangible property rights under a CSA includes a transfer of rights in all intangible property owned by the taxpayer. The Tax Court instead held that the software had a 4-year useful life, that other intangible property developed under the CSA should not be taken into account, and property excluded from the buy-in under the tax rules, specifically property without significant value independent of an individual's services, should not be taken into account. The IRS is likely to appeal the decision.
Outlook for U.S. taxation in 2010
Unlike Canada, where reductions in corporate tax rates have been enacted, there are pressures in the United States to increase, rather than decrease, tax rates. Indeed, if the U.S. tax law were conducted in a gamblers' den, the main action would be taking place around how to fund the ballooning federal deficit, and the main sources of tax revenue seem to include raising tax rates on individuals and closing so-called corporate "tax loopholes", thereby broadening the tax base. Due to expiring provisions under current law, if nothing is done, tax rates generally revert (in taxable years beginning after December 31, 2010) to the rates in effect prior to the enactment of Pub. L. No. 108-27, the Jobs and Growth Tax Relief Reconciliation Act of 2003 (the "2003 Act"). Tax rates would thus revert to a maximum of 39.6% on ordinary income and to 20% on long-term capital gains of individuals and certain trusts beginning in 2011. (Corporate rates would not change, because the 2003 Act did not generally include corporate rate relief.)
Offshore Account Reporting. It is likely that the May legislative proposals to require foreign financial institutions to provide additional international tax information to the U.S. on the offshore accounts held by U.S. citizens and residents will pass in some form early in 2010. We also expect to see continued pressure from the IRS on banks and taxpayers regarding unreported offshore bank accounts.
Carried Interests. With revenues in short supply, it appears that the legislative proposals that would tax carried interests of private equity, hedge, real estate and infrastructure funds at the maximum rates on ordinary income are building momentum. While such rules may not directly impact returns to foreign investors in such funds, it is possible that fund sponsors will change the manner in which they function or deal with their investors, if it appears possible to recoup a portion of this somewhat targeted tax increase. Legislation taxing carried interests as ordinary income is likely to result in more structures using founders shares, strategic sales of sponsor entities, and more aggressive use of deferral techniques.
Other Changes to U.S. Tax Law. Some of the Obama Administration proposals made in May 2009 seem still to have momentum, but significant hearings and action should at least await the report of the blue ribbon panel. A close look will likely be taken at (a) coordinating inclusion and deductions attributable to deferred offshore earnings, (b) limiting offshore deferral, and (c) stimulating accelerated repatriation of offshore earnings by U.S. multinationals. (A program was in effect during 2004 and 2005 to encourage repatriation by U.S. multinationals, by permitting deduction under Code section 965 of up to 85% of previously unrepatriated foreign earnings, and resulting in a maximum rate on such earnings of 5.25%.) Consideration may be given to evaluating the effectiveness of Code section 199, the deduction for certain U.S. production activities, as well as the competitiveness of U.S. multinationals generally. Non-U.S. investors may be affected in 2010 by the resurrection of proposals to increase limits on interest paid to (or guaranteed by) related parties.
Treaty Guidance. Guidance is also clearly expected on various aspects of the United States-Canada Income Tax Convention 1980 (the "Treaty"), including the items described below under the Canadian Tax Review and Outlook as well as further guidance on the conduct of binding arbitration in competent authority cases that have dragged on too long.
Due to provisions enacted earlier, the estate tax was scheduled for reduction (to a maximum rate of 45% and through the increase in the lifetime U.S. residents exemption from $1 million to $3.5 million) until 2010, when the estate tax was to be repealed for only one year; the estate tax was then to revert to law as it was in effect before any of the changes were made. Meanwhile, the lifetime gift tax exemption remained at $1 million. At the time this Perspective went to press, the House of Representatives had passed legislation to reinstate the estate tax in 2010 at the 45% maximum rate with a personal exemption (and gift tax exemption) of $3.5 million for U.S. residents; but the Senate had yet to act, so uncertainty remained. (It should be noted that, in the past, rate increases have been imposed with retroactive effect on the estates of persons dying prior to reinstatement, and the U.S. Supreme Court permitted retroactive effects.)
Health Care Bill
The House and the Senate each passed a different health care bill in the last few days of 2009. The different approaches must be reconciled before there is any final legislation. The House bill would raise income taxes on single individual filers making more than $500,000 a year and joint filers making more than $1 million, impose a new $20 billion fee on medical device makers, and limits contributions to flexible spending accounts, as well as imposing a mix of other corporate taxes and fees. The Senate bill would impose fees on insurance companies and drug and medical device manufacturers, increase the uncapped medicare payroll tax to 2.35% on income over $200,000 a year for single filers or $250,000 for joint filers, and impose a 10% sales tax on tanning salons. The Senate bill would also impose an excise tax of 40% on insurance companies with respect to premiums paid on health care plans costing more than $8,500 annually for single individuals and $23,000 for families, fees for employers whose workers receive government subsidies to help them pay premiums, and fines on people who fail to purchase coverage.
The impact of the approaching 2010 mid-term elections in the fall on legislative developments is difficult to predict, but democrats in the House may fear being too aggressive on pushing tax increases in the meantime.
CANADIAN TAX REVIEW AND OUTLOOK
Corporate taxpayers continue to operate in an environment of declining tax rates, with the federal rate declining from 19% in 2009 to 18% in 2010 (and to 15% by 2012) and the corporate tax rates of many of the provinces also expected to decrease in 2010 and over the next few years. For example, the Ontario corporate tax rate was 14% in 2009 (for a combined federal/Ontario rate of 33%), is expected to be 12% effective July 1, 2010 (resulting in a combined federal/Ontario rate of 30%) and is expected to gradually decline each July 1 thereafter until it is 10% on July 1, 2013 (resulting in a combined federal/Ontario rate of 25%). There has been no indication to date that recent government deficits will derail these tax rate changes.
On December 10, 2008, the international tax advisory panel established by the Minister of Finance released a report recommending a number of changes to Canada's international tax regime, including the extension of the thin capitalization rules to non-corporate entities and a reduction in the allowable debt-to-equity thin capitalization ratio, a substantial broadening of the exemption system in the foreign affiliate rules, the curtailing of certain debt dumping transactions, simplifying certain aspects of Canada's withholding tax and clearance certificate procedures and eliminating the outbound double-dip rules in section 18.2 of the Income Tax Act (Canada) (the "Canadian Tax Act"). Thus far, Canada has only acted on one of the recommendations of the panel, being the repeal of the outbound double-dip rules in section 18.2 that would otherwise have become effective in 2011. Department of Finance officials have stated that they are still reviewing the other aspects of the panel's report and amendments to the Canadian Tax Act to deal with these other aspects could be forthcoming. It remains to be seen whether any such amendments will be released in 2010.
Short review of Canadian international tax developments in 2009
There were many important Canadian international tax developments in 2009. Among other things, significant provisions of the Fifth Protocol to the Treaty became effective; Canada signed the first of possibly many tax information exchange agreements; the Federal Court of Appeal provided its decision in the Prévost Car case (representing another failed attempt by the Canada Revenue Agency (CRA) in its attacks on treaty shopping); and a number of other cases with international tax implications were decided.
Treaty Provisions. Many of the provisions of the Fifth Protocol to the Treaty became effective in 2009 including: the reduction in the withholding tax rate to 4% on interest (other than certain participating or contingent interest) sourced in Canada or the U.S. paid to a related person resident in the other jurisdiction; Article IV(6) of the Treaty dealing with transparent entities; and Article XXIXA (the limitation on benefits article).
From a Canadian perspective, Article IV(6) is intended to provide relief from the CRA's long-standing position that a U.S. limited liability company ("LLC") is not entitled to benefits under the Treaty. Pursuant to Article IV(6), the income of an LLC is considered to be income of its U.S. resident members, who may claim benefits under the Treaty in respect of such income.
The U.S. has long included in its tax treaties a concept of limitation on benefits ("LOB") in order to deny treaty benefits to entities that are residents of the treaty partner state under the relevant treaty but which are considered to have an insufficient degree of connection with the partner state to warrant access to treaty benefits. Canada has not included LOB provisions in its tax treaties. However, because of the elimination of Canadian withholding tax on related party interest (see the 2010 discussion below) in the Fifth Protocol to the Treaty, Canada has, exceptionally, adopted the LOB provisions of the Treaty, which previously applied only for U.S. purposes. In the process, the LOB provisions themselves have been revised. It is not expected that Canada will adopt LOB provisions (or move to eliminate withholding tax on related party interest) in its other tax treaties.
As discussed below, other significant provisions of the Fifth Protocol will become effective in 2010.
TIEA. On August 29, 2009, the Department of Finance announced the signing of a tax information exchange agreement ("TIEA") with the Netherlands Antilles. At the same time, the Department announced that it was in TIEA negotiations with 14 other countries.
In its 2007 budget, the Department of Finance stated that it would seek TIEAs with tax haven countries and, as an incentive for tax havens to enter into TIEAs with Canada, it would expand the range of dividends received by Canadian corporations from their foreign affiliates that are exempt from Canadian taxation from dividends paid out of active business income of a foreign affiliate resident in a jurisdiction with which Canada has a tax treaty to include those out of active business income of a foreign affiliate resident in a jurisdiction with which Canada has a TIEA.
As a stick to go along with this carrot, business income earned by a controlled foreign affiliate will be subject to tax in Canada on an accrual basis (in the same manner as passive income) where the controlled foreign affiliate is resident in a jurisdiction that did not enter into a TIEA with Canada within 60 months after Canada either began or sought to enter into negotiations for a TIEA with that country.
Attack on Treaty Shopping – The CRA Fails Again. Over the last several years, the CRA has challenged taxpayers' entitlements to benefits under Canada's tax treaties in circumstances where it considered it inappropriate for the taxpayers to receive treaty benefits. In MIL Investments S.A. v. The Queen, the CRA had argued that the taxpayer was not entitled to the benefits of the Canada-Luxembourg tax treaty on the basis of the Canadian domestic general anti-avoidance rule and also argued that such tax treaty contained an implied anti-abuse rule. The CRA was unsuccessful in that case both at the Tax Court and Federal Court of Appeal.
In Prévost Car Inc. v. The Queen, the CRA argued that a shareholder was not entitled to benefits under the Canada-Netherlands tax treaty in respect of dividends paid by the taxpayer to the shareholder on the basis that the shareholder was not the beneficial owner of the dividends. The CRA was unsuccessful at the Tax Court and, on February 26, 2009, the Federal Court of Appeal affirmed the Tax Court's decision.
The sole shareholder of the taxpayer in Prévost was a Netherlands holding company ("Holdings"). The taxpayer had paid dividends to Holdings and remitted Canadian withholding tax at the applicable rate under the Canada-Netherlands tax treaty.
The CRA argued that Holdings was a conduit or funnel for its shareholders, Volvo Bussar Corporation ("Volvo"), a resident of Sweden, and Henlys Group PLC ("Henlys"), a resident of the U.K. and, accordingly, Holdings was not the beneficial owner of the dividends for the purposes of the Canada-Netherlands tax treaty. In its view, the taxpayer should have withheld tax from the dividend payments at the higher rates applicable under the Canada-Sweden tax treaty and Canada-U.K. tax treaty. Despite a shareholders agreement between Volvo and Henlys stating that not less than 80% of the profits of the taxpayer and Holdings would be distributed to the shareholders and Holdings' modest presence in the Netherlands, the Tax Court (as affirmed by the Federal Court of Appeal) held that Holdings was the beneficial owner of the dividends. The Tax Court noted that no dividends could be paid by Holdings unless its directors declared the dividends and subsequently the shareholders approved such dividends - that is, there was no predetermined or automatic flow of funds.
Although the Prévost decision is very helpful for non-residents investing in Canada through a third jurisdiction that has a beneficial tax treaty with Canada, it does not deal with "backto- back" arrangements, and its significance in such circumstances is less clear. There is at least one case pending (Velcro Canada Inc. v. The Queen) concerning beneficial ownership for the purposes of a Canadian income tax treaty in the context of a back-to-back arrangement, which may clarify this issue.
Other Noteworthy Cases. In 2009, two decisions (Copthorne Holdings v. The Queen and Collins & Aikman Products Co. et al. v. The Queen) considered the application of the general anti-avoidance rule to planning by non-resident shareholders to increase paid-up capital of a Canadian corporation. Paid-up capital is an important tax attribute to nonresident shareholders in a Canadian corporation as it can allow for the distribution of Canadian earnings to the non-resident shareholders without the imposition of Canadian withholding tax. Although the results of the two cases are very different with the taxpayer winning one case and losing the other, it may be possible to extract some conclusions as to what may or may not be acceptable in the context of paid-up capital planning. However, the taxpayer's success in Collins & Aikman has been appealed to the Federal Court of Appeal, so there may be further developments later this year.
In Lehigh Cement Limited v. The Queen, the taxpayer undertook a set of transactions designed to convert interest payable on non-arm's length cross-border debt that was subject to Canadian withholding tax into interest that qualified for an exemption from Canadian withholding tax by involving an arm's-length party in the arrangements. The Tax Court determined that the general anti-avoidance rule applied to the transactions undertaken by the taxpayer and, as a result, the interest continued to be subject to Canadian withholding tax. The taxpayer has appealed this decision to the Federal Court of Appeal.
The CRA's position to date has been that it is not reasonable for a subsidiary to pay fees to its parent in consideration for the parent guaranteeing the subsidiary's debt based on an "implicit support" theory: that a parent would not permit its subsidiary to become insolvent and would be expected to take actions to protect the subsidiary's creditworthiness in order to, among other things, protect its investment. In General Electric Capital Canada v. The Queen, the CRA challenged the payment of guarantee fees by a Canadian subsidiary to its indirect parent under the Canadian transfer pricing rules. The CRA's argument was based in part on the implicit support theory. The Court ultimately held in favor of the taxpayer and, while the case is very fact specific, it has implications for the payments of cross-border guarantee fees and, more generally, for the Canadian transfer pricing rules. At this time, it is not known whether the Crown will appeal the Tax Court's decision.
In Garron et al. v. The Queen and Antle et al. v. The Queen, the taxpayers claimed an exemption from Canadian tax on sales of shares of Canadian corporations by family trusts established in Barbados. In both cases, the Tax Court held that the dispositions of the shares were subject to Canadian tax. In Garron, the Tax Court concluded that the two trusts in question were resident in Canada and not Barbados. In coming to such conclusion, the Tax Court applied the corporate residence test of central management and control to determining the residence of the trusts, arguably a new judicial development. In Antle, the Tax Court held that the trust had not been properly constituted. Both the Garron and Antle cases have been appealed to the Federal Court of Appeal.
Outlook for Canadian international tax developments in 2010
In 2010, we may see amendments to the Canadian Tax Act in response to the international tax panel's report. In 2009, the Department of Finance released two sets of technical amendments to the foreign affiliate rules (the first set of amendments was enacted in March of 2009 and the other set of amendments is still in draft form). Much more comprehensive amendments to the foreign affiliate system have been in the works for many years, which may be released by the Department of Finance in 2010. These proposals are likely to be influenced by the international tax panel's report if the Department of Finance is able to reach conclusions on the report in this time frame. In addition, there have been proposed offshore anti-avoidance rules dealing with "non-resident trusts" and "foreign investment entities" dating back to 1999. In response to taxpayers' concerns that the proposed rules are overly broad and technical, the Minister of Finance stated in the 2009 budget that amendments to the last version of these rules were being considered. There may be guidance in this regard in 2010. Other major changes are not expected in the federal budget, traditionally delivered in March.
There may be additional case law on the meaning of beneficial ownership in the context of Canadian tax treaties (the Velcro case) and the Collins & Aikman and Lehigh Cement appeals should be heard. There may also be some additional case law on the Canadian transfer pricing rules: the Tax Court's 2008 decision in Glaxosmithkline Inc. v. The Queen is expected to be heard by the Federal Court of Appeal in 2010 and the General Electric case may be appealed to the Federal Court of Appeal.
In addition, a number of the key provisions of the Fifth Protocol to the Treaty will become effective in 2010 including: the elimination of withholding tax on interest (other than certain participating or contingent interest) sourced in Canada or the U.S. paid to a related person resident in the other jurisdiction; "anti-hybrid rules" in Article IV(7); and "deemed PE rules" in Article V(9).
Anti-Hybrid Rules. The Fifth Protocol to the Treaty added the "anti-hybrid rules" (in new Articles IV(7)(a) and IV(7)(b)). The anti-hybrid rules became effective on January 1, 2010, and will deny benefits under the Treaty in respect of amounts received or derived by Canadian and U.S. residents through certain hybrid entities (generally certain entities that are "fiscally transparent" for tax purposes in one country but not in the other).
Article IV(7)(b) is of particular relevance to U.S. residents investing in Canada through an unlimited liability corporation ("ULC") that is disregarded or treated as a partnership for U.S. income tax purposes. When first announced, it was believed that Article IV(7)(b) would put an end to the use of ULCs by U.S. residents on the basis that payments between the ULCs and U.S. residents would no longer qualify for benefits under the Treaty. However, the CRA, recognizing that Article IV(7)(b) is overbroad and its scope is well beyond the perceived mischief it was targeting, has recently provided a number of favorable interpretations of various planning alternatives that will allow U.S. residents in many circumstances to continue to access the benefits of the Treaty (or access the benefits of a treaty of a third jurisdiction) in respect of payments received from a ULC. There are likely to be ongoing refinements to the interpretation of this provision as taxpayers and the CRA come to grips with it this year. The interaction of these rules with the new look-through rules in Article IV(6) may also be an area of further development.
Deemed PE. Under the Treaty, a resident of Canada or the U.S. is only subject to tax in the other jurisdiction in respect of business profits to the extent that such business profits are attributable to a permanent establishment in that other jurisdiction. Article V provides rules for determining whether a resident of Canada or the U.S. has a permanent establishment in the other jurisdiction.
New Article V(9), which will become effective in 2010, will expand the situations in which a resident of Canada or the U.S. providing services in the other jurisdiction has a permanent establishment in the other jurisdiction. Article V(9)(a) will deem a resident of the U.S. or Canada to have a permanent establishment in the other jurisdiction where it performs services in the other jurisdiction through an individual present in that jurisdiction for a period or periods aggregating 183 days or more in any 12-month period and more than 50% of the gross active business revenues of the enterprise are derived from these services.
Article V(9)(b) will deem a resident of the U.S. or Canada to have a permanent establishment in the other jurisdiction where it performs services in the other jurisdiction for an aggregate of 183 days or more in any 12-month period with respect to the same or connected project for customers who are residents of that other jurisdiction, or who maintain a permanent establishment in that other jurisdiction and the services are provided in respect of that permanent establishment. The CRA has stated that Article V(9)(b) can give rise to a permanent establishment where the services in question are rendered to a related party. Article V(9)(b) is potentially broader in application than Article V(9)(a) since its presence test aggregates the working days of any number of persons and it does not contain a gross revenue test, although Article V(9)(b) does require the services to be in respect of the same or connected project.
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.