Canada / USA - Thin capitalisation / Associated enterprises | Relevant Cases in the field of international taxation

Canada/USA-Thin capitalisation/Associated enterprises - Article IV(1)(a) of Canada-US 1942 Treaty - Article IX of the 1980 Canada-US Treaty - Section 18 of Canadian Income-tax Act - Thin capitalization rules in section 18(4) required a debt-equity ratio(total debt owed to non-resident related parties to total amounts of equity contributed by them) of not more than 3:1 - If debt-equity ratio of 3:1 exceeded, proportionate interest paid to non-resident related parties liable to be disallowed - Clearly, a debt to equity ratio of over $10,000,000 debt to $100 equity does not resemble an arm's length situation - Obviously, with virtually no equity capital, no arm's length lender would have issued loans to Appellant in substantial amounts at issue in this case - Accordingly, Minister was entitled to use sub-section 18(4) to restrict deductions claimed under paragraph 20(1)(c) - Indeed, such a result is authorized by both article IV of the 1942 Treaty and article IX of the 1980 Canada - US Treaty

FACTS

 

HELD

 

REASONS FOR JUDGMENT

 

McDonald J.A. - This is an appeal from a judgment of the Tax Court of Canada dismissing the appeal of Specialty Manufacturing Ltd. (the "Appellant") from reassessments for its 1984 to 1987 taxation years. In each of those years, the Appellant sought to deduct amounts totalling $963,691 in respect of interest payments to two related U.S. corporations pursuant to paragraph 20(1)(c) of the Income Tax Act (the "Act"). The Minister of National Revenue (the "Minister") denied $948,661 of these deductions under subsection 18(4) of the Act.

2. Paragraph 20(1) of the Act reads as follows:

20(1) Notwithstanding paragraphs 18(1)(a), (b) and (h), in computing a taxpayer's income for a taxation year from a business or property, there may be deducted such of the following amounts as are wholly applicable to that source or such part of the following amounts as may reasonably be regarded as applicable thereto:

(c) Interest - an amount paid in the year or payable in respect of the year (depending on the method regularly followed by the taxpayer in computing the taxpayer's income), pursuant to a legal obligation to pay interest on

(i) borrowed money used for the purpose of earning income from a business or property ...

3. Subsection 18(4) reads as follows:

18.(4) Notwithstanding any other provision of this Act, in computing the income for a taxation year of a corporation resident in Canada from a business or property, no deduction shall be made in respect of that proportion of any amount otherwise deductible in computing its income for the year in respect of interest paid or payable by it on outstanding debts to specified non-residents that

4. "Outstanding debts to specified non-residents", "Specified non-resident" and "specified non-resident shareholder" are defined in subsection 18(5). At the relevant times, these definitions read as follows:

18(5)(a) "outstanding debts to specified non-residents" of a corporation at any particular time in a taxation year means

(i) the aggregate of all amounts each of which is an amount outstanding at that time as or on account of a debt or other obligation to pay an amount

(A) that was payable by the corporation to a person who was, at any time in the year,

(I) a specified non-resident shareholder of the corporation, or

(II) a non-resident person, or a non-resident-owned investment corporation, who was not dealing at arm's length with a specified shareholder of the corporation, and

(B) on which any amount in respect of interest paid or payable by the corporation is or would be, but for subsection (4), deductible in computing the corporation's income for the year, ...

(b) "specified non-resident shareholder" of a corporation at any time means a specified shareholder of the corporation who was at that time a non-resident person or a non-resident-owned investment corporation, and

(c) "specified shareholder" of a corporation at any time means a shareholder who at that time, either alone or together with persons with whom that he was not dealing at arm's length, owned 25% or more of the issued shares of any class of the capital stock of the corporation.

18(5)(a) "dettes de la corporation qui n'ont pas encore été payées à des non-résidents déterminés", à une date donnée d'une année d'imposition, désigne

(i) le total de toutes les sommes dont chacune représente une somme due à cette date, à titre ou au titre d'une dette ou autre obligation de verser un montant,

(A) qui était payable par la corporation à une personne qui était, à une date quelconque de l'année,

(I) un actionnaire non résidant déterminé de la corporation, ou

(II) une personne non-résidante ou une corporation de placement appartenant à des non-résidents, qui avait un lien de dépendance avec un actionnaire déterminé de la corporation,

(B) au titre de laquelle toute somme relative à des intérêts payés ou payables par la corporation est déductible ou serait déductible, n'eût été le paragraphe (4), dans le calcul du revenu de la corporation pour l'année,

à l'exclusion, ...

(b) "actionnaire non-résidant déterminé" d'une corporation à une date quelconque désigne un actionnaire déterminé de la corporation qui était à cette date une personne non résidante ou une corporation de placements appartenant à des non-résidents; et

(c) "actionnaire déterminé" d'une corporation à une date quelconque désigne un actionnaire de la corporation qui seul, ou avec d'autres personnes avec lesquelles il avait un lien de dépendance, était à cette date propriétaire d'au moins 25% des actions émises d'une catégorie quelconque du capital-actions de la corporation. [emphasis added]

5. Also of significance is section 251 of the Act. The relevant portions of this section read as follows:

251(1) For the purposes of this Act,

(2) For the purpose of this Act, "related persons", or persons related to each other, are

...

(b) a corporation and

(c) any two corporations

(i) if they are controlled by the same person or group of persons, ...

(iii) if one of the corporations is controlled by one person and that person is related to any member of a related group that controls the other corporation, ...

251(1) Aux fins de la présente loi:

(2) Aux fins de la présente loi, sont des "personnes liées" ou des personnes liées entre elles, sont

...

(b) une corporation et :

(c) deux corporations quelconques

(i) si elles sont contrôlées par la même personne ou le même groupe de personnes, ...

(iii) si l'une des corporations est contrôlée par une personne et si cette personne est liée à un membre d'un groupe lié qui contôle l'autre corporation. [emphasis added]

6. It is clear that where interest is payable by a Canadian corporation to a non-resident shareholder holding or controlling more than a 25% interest in the company, subsection 18(4) operates to limit any deduction of interest pursuant to paragraph 20(1)(c) of the Act if the debt to equity ratio of the taxpayer corporation exceeds 3 to 1. The Appellant argues that as the Minister has admitted that the arrangements in this case are structured as if they were between arm's length parties, the provisions of the Canada-United States of America Tax Convention (the "1942 Treaty") and the Canada-United States Tax Convention (1980) (the "1980 Treaty") operate to preclude the application of subsection 18(4).

7. Specifically, the Appellant argues that, in respect of his 1984 and 1985 taxation years, paragraph 1 of Article IV of the 1942 Treaty supercedes the application of subsection 18(4) of the Act. This article reads:

8. Similarly, for its 1986 and 1987 taxation years, the Appellant argues that paragraph 1 of Article IX of the 1980 Treaty prevents the Minister from applying subsection 18(4). This provision reads:

1. Where a person in a Contracting State and a person in the other Contracting State are related and where the arrangements between them differ from those which would be made between unrelated persons, each State may adjust the amount of the income, loss or tax payable to reflect the income, deductions, credits or allowances which would, but for those arrangements, have been taken into account in computing such income, loss or tax. [emphasis added]

9. The Appellant is a corporation in the business of distributing novelties and souvenirs at expositions, carnivals and fairs. The Appellant was incorporated in British Columbia and at all relevant times was resident in Canada for purposes of the Act. Up to April 1, 1987, Mr. and Mrs. Ben Mayers (the "Mayers"), two U.S. residents, owned all the shares of the Appellant. On April 1, 1987 the Mayers transferred their shares of the Appellant to Ace Novelty Co., Inc. ("Ace"), a U.S. corporation which manufactures, sells and imports novelties and souvenirs in Washington State. At all relevant times, the Mayers were the sole shareholders of Ace. Mr. Mayers was also the sole shareholder of World's Fair Souvenirs, Inc. ("World's"), another novelty and souvenir company based in Washington State.

10. At all relevant times, the Mayers, Ace and World's were related persons for the purposes of the Act. Furthermore, pursuant to section 251, they are deemed not to deal with one another at arm's length. Until April 1, 1987, the Mayers were specified non-resident shareholders of the Appellant for the purposes of subsection 18(4) by virtue of the fact that they owned or controlled 100% of the Appellant's shares. After April 1, 1987, Ace became a specified non-resident shareholder of the Appellant.

11. It is clear that any amounts that the Appellant borrowed from Ace and World's would be "outstanding debts to specified non-residents" for the purposes of subsection 18(4). At all relevant times, these amounts were payable to either: (1) non-resident persons, i.e. Ace and World's who were not dealing at arm's length with specified non-resident shareholders of the Appellant; or (2) specified non-resident shareholders directly (i.e. Ace after April 1, 1987).

12. During 1983 and 1984 Ace and World's negotiated a contract, on behalf of the Appellant, with the Expo 86 Corporation to operate the novelty and souvenir concessions during the World Exposition ("Expo 86") held in Vancouver, B.C. from May 2 to October 13, 1986. On June 6, 1984, the Appellant, Ace and World's entered into an agreement that

Ace and World's would provide management, administrative and financial services to the Appellant in respect of the Expo 86 contract.

13. During its 1984-1987 taxation years, the Appellant borrowed money (the "Debts") from Ace and World's in order to finance its operations and carry out the Expo 86 contract. In each of the relevant taxation years, the Appellant's capital structure was as follows:

To fund the Debts, Ace and World's borrowed money from Seafirst Bank in Washington State ("Seafirst").

14. In its 1984-1987 taxation years the Appellant paid or incurred a liability for interest to Ace and World's in respect of the Debts as follows:

The interest rate paid by the Appellant was equal to the interest rate paid by Ace and World's to Seafirst on the money they had borrowed to fund the Debts.

15. In computing its income for the 1984-1987 taxation years, the Appellant deducted the interest paid or payable to Ace and World's in each year pursuant to paragraph 20(1)(c) of the Act. Pursuant to subsection 18(4) of the Act, the Minister reassessed the Appellant in the following manner:

16. The Appellant objected to the reassessments for each year on the basis that the Minister's disallowance of the interest deductions was not permitted under the terms of the Canada-U.S. Tax Treaty in force in each of the relevant taxation years. Specifically, the Appellant argued: (1) that Article IV of the 1942 Treaty precluded the application of subsection 18(4) to its 1984 and 1985 taxation years; and (2) that Article IX of the 1980 Treaty applied to its 1986 and 1987 taxation years. The reassessments were subsequently confirmed by the Minister and the Appellant appealed to the Tax Court of Canada. The Tax Court Judge dismissed the Appellant's appeal on the grounds that the neither the 1942 Treaty nor the 1980 Treaty limited the application of subsection 18(4).

17. As noted, subsection 18(4) provides that where more than 25% of the shares of a Canadian corporate taxpayer are owned by a non-resident, the deduction of interest by the taxpayer pursuant to paragraph 20(1)(c) for interest paid on loans obtained from the non-resident shareholder is limited to the extent that the taxpayer's debt level does not exceed three times its equity. If the corporation's debt to equity ratio exceeds 3:1, the interest on the amount of the loans in excess of this ratio is treated as income and the interest deduction is disallowed.

18. The motivation for the imposition of the 3:1 debt/equity rule (or thin capitalization rule) is to prevent the non-resident shareholders from capitalizing a Canadian corporation with excessive debt, thereby deducting the interest on the excessive debt in computing taxable income, that is to say, withdrawing "income" from the Canadian corporation as interest without paying Canadian income tax thereon. As stated by Madame Justice Reed in Uddeholm Limited :

There is no dispute as to the purpose of subsections 18(4) to (8) of the Income Tax Act, ... Those provisions are directed at preventing non-residents of Canada who own significant shareholdings (generally over 25%), in Canadian resident corporations, from withdrawing the profits of the Canadian corporation in the form of interest payments rather than in the form of dividends paid on the shares of the corporation. I quote from page 4423 of the CCH Canadian Tax Service:

Both interest and dividends paid to non-residents are subject to withholding tax under Part XIII but since interest is, but for the limitation in subsection 18(4), deductible in computing the income of the resident corporation subject to Canadian tax, it would clearly be to a non-resident's advantage to finance the operation of a Canadian resident corporation through interest bearing debt rather than through share capital, which would lead to the establishment of thinly capitalized corporations.

19. It is uncontested that in the absence of the U.S.-Canada Tax Treaties, subsection 18(4) would operate to disallow $948,661 of the interest deductions claimed by the Appellant. The Appellant contends that Article IV of the 1942 Treaty and Article IX of the 1980 Treaty operate to restrict the Minister's authority under subsection 18(4).

20. The relevant 1942 and 1980 treaty provisions clearly indicate that where two or more related parties engage in transactions which do not reflect arm's length arrangements, the tax consequences of the transactions may be adjusted by domestic taxing authorities. In essence, the Appellant's argument is that the converse must also be true. In other words, where two or more related parties engage in a transaction on terms which reflect an arm's length relationship, domestic taxing authorities are precluded from adjusting the income, deductions or other tax consequences of the transaction. Given the facts of this case, I find it unnecessary to deal with the Appellant's arguments regarding the application of the Tax Treaties.

21. The fundamental basis for the Appellant's argument is an apparent admission by the Minister during discovery that the arrangements between the Appellant, Ace and World's were the same as if they were arm's length transactions. The Appellant relies upon the following answers given on discovery by Myrna Chen, a senior appeals officer with Revenue Canada:

Q: Now, I take it you'd agree with me that the interest rate paid by Specialty to Ace and World's Fair for the 1984 through to the 1987 taxation years on the debts shown in paragraph 3.28 was an arm's-length rate of interest; is that correct?

A: Yes.

[Counsel for the Crown]: Market rate, arm's length.

Q: Well particularly, was it an arm's-length rate of interest?

A: Yes.

...

Q: ... Would it be correct to say that in analyzing article 9, you assumed that the structure of capital was the same as it would have been in an arm's length transaction?

A: Correct.

22. The Appellant also relies on the following passages from the Statement of Agreed Facts in this regard:10

22. The Debts [owed by the Appellant to Ace and World's] were true debts.

...

25. The interest rate paid by the Appellant to Ace and World's in respect of the Debts was an arm's length interest rate, equal to the rate Ace and World's paid to Seafirst on the money borrowed by them to fund the Debts.

23. There is no indication that the interest rate paid by the Appellant was not an arm's length interest rate, nor is there any issue that the Debts were "true debts". The only issue is whether the capital structure of the Appellant is the same as or different than an arm's length capital structure. It obviously is not the same. The Appellant had virtually no equity capital and was financed almost exclusively by loans from Ace and World's. Indeed, Ms. Chen noted the emphasis on debt financing in the Appellant's capital structure:

Q: And you say, "It appears that the arrangement is same as unrelated persons" and then in bold letter, you say, "- EXCEPT FOR THE STRUCTURE OF CAPITAL. I therefore conclude that the arrangement is not the same as unrelated persons". Could you explain for me, please, what you meant by the words "except for the structure of capital"?

A: When I looked at this, I was reviewing the terms of the loan being the interest rate, essentially the interest rate, that was charged between corporations, and I said that it was dealt with as though they were arm's-length. When I put this in there, I was thinking about the possibility that an arm's length party might not loan as much as what Sea-First - or sorry, as what Ace and World would have.

24. She continued stating:

Q: All right.

A: So it kind of throws you.

Q: No, go on.

A: So I was strictly looking at what the terms of the loans were, and I said, okay, it is what an arm's length party would have entered into so therefore we'll accept it.

Q: But particularly on the words "except for the structure of capital", do I now understand you to say that those words did not enter into your assumptions at all in re-assessing Specialty?

A: For the purposes of analyzing article 9, yes.

25. The most that can be said about the admissions made by Ms. Chen is that they are ambiguous. More likely they do not reflect the facts fully. The Court will not ignore the obvious. Clearly, a debt to equity ratio of over $10,000,000 debt to $100 equity does not resemble an arm's length situation. Obviously, with virtually no equity capital, no arm's length lender would have issued loans to the Appellant in the substantial amounts at issue in this case.

26. On the facts before the Court, the loan transactions giving rise to the interest claimed by the Appellant are clearly non-arm's length transactions. Accordingly, the Minister was entitled to use subsection 18(4) of the Act to restrict the deductions claimed under paragraph 20(1)(c) of the Act. Indeed, such a result is authorized by both Article IV of the 1942 Treaty and Article IX of the 1980 Treaty.

27. It must be noted that the Tax Court Judge did not address the issue of whether the loan transactions were the same as those between arm's length parties. He adopted facts from the "Statement of Agreed Facts" put forward by the parties, but did not address the admissions of Ms. Chen. Accordingly, he did not make any express factual findings which are in conflict with my conclusion that these were not the same as arm's length transactions.

28. I would dismiss the appeal with costs.