Author: Puyang Zhao

New Reporting Rules for Digital Platform Operators

Stately set of Corinthian Columns on a building in Montreal, Canada

On November 3, 2022, the Department of Finance introduced draft legislation to implement the reporting and due diligence standards of the Model Rules for Reporting by Platform Operators (the “Model Rules”) developed by the Organisation for Economic Co-operation and Development.

The draft legislation proposes to implement these Model Rules as part of the new Part XX of the Income Tax Act (Canada) (the “ITA”). Under the new Part XX, certain platform operators (“reporting platform operators”) would be required to determine the jurisdiction of residence of certain of the sellers on their platforms (“reportable sellers”) and to report certain information in respect of these reportable sellers and their activities subject to certain due diligence standards. These measures were initially announced as part of the 2022 Federal Budget. New Part XX of the ITA is proposed to come into force on January 1, 2024. A public consultation period for the draft legislation will run until January 6, 2023.

Reporting Platform Operators

Reporting platform operators are platform operators that are:

  • resident in Canada;
  • resident or incorporated or managed in a partner jurisdiction and who facilitates the provision of relevant activities by sellers resident in Canada or with respect to rental of immovable property located in Canada and elects to be a reporting platform operator; or
  • not resident in Canada or a partner jurisdiction, and who facilitates the provision of relevant activities by sellers resident in Canada or with respect to rental of immovable property located in Canada.

A platform operator is an entity that contracts directly or indirectly with sellers to make a software platform available for the sellers to be connected to other users for the (i) provision of relevant services including the rental of either immovable property or a means of transport or personal services, or (ii) the sale of goods. A platform also includes operations to collect compensation from users for the relevant activities (e.g. sale of goods, personal services, real property rentals) facilitated through the platform. Reporting platform operators are subject to the information reporting obligations under new Part XX unless they are an “excluded platform operator”.

Platform operators are excluded from the rules in Part XX if they can demonstrate that the platform’s underlying business model is such that sellers cannot derive a profit from compensation in connection with relevant activities through the platform, or that facilitate relevant activities through the platform only for sellers that are not reportable sellers.

There are further exemptions with respect to software platforms that exclusively facilitates the processing of compensation in relation to relevant activities; the mere listing or advertising of relevant activities; and the transfer of users to another platform, provided, in each case, that there is no further intervention in the provision of relevant activities.

Reportable Sellers

Reportable sellers will generally be active users (other than “excluded sellers”) that are determined by the reportable platform operator to:

  • be resident in a reportable jurisdiction;
  • have provided relevant services for the rental of immovable property located in a reportable jurisdiction; or
  • have been paid or credited consideration in connection with relevant services for the rental of immovable property located in a reportable jurisdiction.

A reportable jurisdiction is Canada or one of the partner jurisdictions with which there is an agreement in place to collect and share information in accordance with the Model Rules.

Specific exemptions will be provided for “excluded sellers” who generally include sellers of more than 2,000 relevant services for the rental of immovable property (i.e. large-scale hotels), governmental entities, certain public companies, and sellers with very low volume (less than 30 sales per year) and low value sales (not exceed €2,000 per year).

Reporting Requirements

Reporting platform operators would need to complete due diligence procedures to identify reportable sellers and their jurisdiction of residence including collection and verification of each reportable seller’s name, primary address, date of birth, tax identification number (“TIN”), the jurisdiction in which the TIN was issued, business registration number for entities, and the address of each property listed on the platform.

With respect to each reportable seller that provided relevant services, rented out a means of transportation or sold goods, the reporting platform operator is also required to report: (i) financial account identifiers to the extent available, (ii), the name of the holder of the financial account to which the consideration is paid or credited if such name is different from the name of the reportable seller, (iii) each jurisdiction in which the reportable seller is resident, (iv) the total consideration paid or credited during each quarter of the reportable period and the number of such relevant activities or relevant services in respect of which it was paid or credited, and (v) any fees, commissions or taxes withheld or charged by the reporting platform operator during each quarter of the reportable period.

With respect to each reportable seller that provided relevant services for the rental of immovable property, the reporting platform operator is also required to report the address of each property listing and, if available, the land registration number and where available, the number of days each property listing was rented during the reportable period and the type of each property listing.

The reporting platform operator is also required to determine whether the information collected is reliable, using all records available to the reporting platform operator, as well as any publicly available electronic interface to ascertain the validity of the TIN.

The reporting platform operator would be required to report to the Canada Revenue Agency such information on reportable sellers by January 31 of the year following the calendar year for which a seller is identified as a reportable seller. Reporting platform operators would also be required to provide the information relating to each reportable seller to that seller by the same date.

There is an anti-avoidance rule which provides that where a person enters into an arrangement or engages in a practice, the primary purpose of which is to avoid an obligation under new Part XX, the person is subject to the obligation as if the person had not entered into the arrangement or engaged in the practice.

Written by: Kevin Yip and Puyang Zhao

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Proposed Legislative Changes to the Taxation of Employee Stock Options in Canada

In the 2019 Federal Budget, the Canadian government outlined its proposal to introduce a $200,000 annual limit on employee stock option grants for employees of “large, long-established, mature firms”. The government takes the view that the current regime of preferential tax treatment for employee stock options does not help to achieve the policy objective of supporting younger and growing Canadian businesses, but instead, disproportionally benefits executives of large, mature companies who take advantage of the rules as a preferred form of compensation. 

In an effort to provide further clarifications to the proposed new stock options rules, the Department of Finance released a Notice of Ways and Means Motionon June 17, 2019.

Current Regime

Under the current stock option rules, pursuant to subsection 7(1) of the Income Tax Act (Canada) (the “Act”), at the time when employee stock options are exercised by an employee, a taxable benefit is added to the employee’s taxable income to the extent the fair market value (“FMV”) of the underlying shares exceeds the exercise price specified in the option agreement. However, provided that at the time of the grant, the options are not in-the-money (i.e. exercise price is not less than FMV) and, generally, common shares are issued upon the exercise of the options, the employee is entitled to claim a deduction under paragraph 110(1)(d) in the amount of 50% of the taxable benefit determined under subsection 7(1).

New Proposed Amendments

The new draft legislative proposals, if enacted as proposed, would impose a $200,000 annual vesting limit on employee stock option grants (based on the fair market value of the underlying shares at the time the options are granted) that could be entitled to receive the 50% deduction allowed under paragraph 110(1)(d). 

Under the new regime, a vesting year in respect of an option agreement is determined by either: (i) the calendar year in which the employee is first able to exercise his or her option as specified in the option agreement; or (ii) if the option agreement does not specify a vesting time, the first calendar year in which the option can reasonably be expected to be exercised.

The new annual vesting limit would not apply to employee stock options granted by “specified persons” as defined in the Act to mean: (i) Canadian-controlled private corporations (“CCPCs”); and (ii) non-CCPCs that meet certain prescribed conditions (yet to be released).

In addition, the new draft legislative proposals introduce a tax deduction for an employer who enters into an option agreement with its employee to grant non-qualified securities. The amount of deductions the employer is entitled to claim against its taxable income for a taxation year would be equal to the amount of taxable benefit its employees realize under subsection 7(1) in respect of non-qualified securities.

An employer would be entitled to claim such deductions under circumstances where the following conditions are met: (i) at the time of entering into the agreement, the employer notifies the employee in writing that the security is a non-qualified security; (ii) the employer notifies the Minister of National Revenue that the security is a non-qualified security in prescribed form filed with the employer’s income tax return in the year the agreement is entered into; and (iii) the employer is a specified person and the employees would have otherwise been entitled to claim the deduction under paragraph 110(1)(d).

In order to be entitled to claim the tax deduction, it is critical that the employer designates the options that would have otherwise qualified for a deduction under paragraph 110(1)(d) as non-qualified securities by specifying this in the option agreement.

The new draft legislative proposals will apply to employee stock options granted on or after January 1, 2020.

The federal government is currently seeking input on the characteristics of companies that should be considered “start-up, emerging, and scale-up companies” for purposes of the prescribed conditions as well as views on the administrative and compliance implications associated with putting such characteristics into legislation. Submissions of any comments with respect to the prescribed conditions for the consideration by the Department of Finance are due on September 16, 2019.

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