Alta Energy: FCA Confirms that Treaty Shopping is not Abusive (for now …)

On February 12, 2020, in Canada v Alta Energy Luxembourg S.A.R.L. (2020 FCA 43), the Federal Court of Appeal (“FCA”) unanimously held that the general anti-avoidance rule (“GAAR”) did not deny a capital gains exemption claimed by a Luxembourg holding company under the Convention between the Government of Canada and the Government of the Grand Duchy of Luxembourg for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital (the “Treaty”) following a disposition of “taxable Canadian property” that consisted of shares of a wholly-owned Canadian subsidiary that principally derived its value from “Canadian resource property”.

Although the formation of the Luxembourg holding company and its subsequent acquisition of the subsidiary’s shares were tax-motivated, the FCA stated that treaty shopping, in itself, does not trigger the application of the GAAR. It found that the text, context and purpose of the relevant Treaty provisions,[1] as mutually chosen by Canada and Luxembourg, were not frustrated by the avoidance transactions at issue. It concluded that the tax-free result was therefore appropriate in the circumstances.

Background Facts

Alta Energy Partners, LLC (“Alta US Holdco”), a Delaware limited liability company, formed Alta Energy Partners Ltd. (“Alta Canada”) for the purpose of developing shale oil and natural gas properties in Alberta.

A restructuring was implemented after it was discovered that the US holding company structure exposed foreign investors to Canadian income tax. To fix this, ownership of Alta Canada was transferred to a newly-formed Luxembourg holding company, Alta Luxembourg S.A.R.L. (“Alta Lux”).[2] A year later, Alta Lux sold the shares of Alta Canada to a third party at a substantial gain.

It was not disputed that the shares of Alta Canada principally derived their value from Canadian resource property and, as a result, were “taxable Canadian property”. However, Alta Lux took the position that the capital gain was not taxable in Canada due to the exemption set out in Article 13(4) of the Treaty, which provides as follows:

4. Gains derived by a resident of a Contracting State from the alienation of:

(a) shares (other than shares listed on an approved stock exchange in the other Contracting State) forming part of a substantial interest in the capital stock of a company the value of which shares is derived principally from immovable property situated in that other State; […]

may be taxed in that other State. For the purposes of this paragraph, the term “immovable property” does not include property (other than rental property) in which the business of the company […] was carried on; and a substantial interest exists when the resident and persons related thereto own 10 per cent or more of the shares of any class or the capital stock of a company.

The Canada Revenue Agency reassessed Alta Lux on the basis that the Treaty exemption did not apply and raised the GAAR in the alternative.

Tax Court of Canada

At the Tax Court of Canada, the Crown argued that the Treaty exemption did not apply because Alta Canada did not carry on activities in its shale property, as it was generally set aside for future drilling and extraction. Failing that, it argued that the exemption should be applied on a licence-by-licence basis[3], with the exemption only qualifying for those sections of the resource reserve that had drilling and extraction activities.

The Court dismissed these arguments, largely on the basis of a government position paper that contradicted the Crown’s restrictive interpretation, and the commercial reality of resource exploration and development. Accordingly, it held that Alta Lux was entitled to claim the exemption under Article 13(4) of the Treaty.

With respect to the GAAR, the parties agreed that the restructuring of Alta Canada under Alta Lux resulted in a tax benefit and was an avoidance transaction in the sense that it could not be said to have been reasonably undertaken or arranged primarily for a bona fide purpose other than to obtain a tax benefit. The only dispute was whether the restructuring resulted in a misuse or an abuse of the Income Tax Act (Canada) (the “Act”) and/or the Treaty.

The Crown argued in the affirmative because Alta Lux (i) was created for the sole purpose of avoiding Canadian income tax on the capital gain; (ii) was merely a conduit used to pass on the tax exemption to its ultimate shareholders who were not entitled to claim Treaty benefits themselves; and (iii) paid no tax in Luxembourg.

The Court ruled that there was no misuse or abuse of the Act because, having found that the Treaty exemption applied, the Act operated as intended (i.e., the Alta Canada shares were “treaty-protected property” and therefore not taxable in Canada).

The Court also held that the Treaty provisions were not misused or abused. It stated that there could be no misuse or abuse of the Treaty exemption in Article 13(4) if Alta Lux was a resident of Luxembourg for the purposes of the Treaty (which the Crown did not challenge) and all of the other requirements of the exemption were met. The Court also stated that the absence of foreign tax paid was not relevant to the GAAR analysis, and there was no evidence to support the Crown’s claim that Alta Lux was acting as agent (i.e., a conduit) for its ultimate shareholders.

Federal Court of Appeal (“FCA”)

The only issue before the FCA was whether the GAAR applied to Alta Lux’s use of the Treaty exemption.

The FCA rejected the Crown’s suggestion that there had been an abuse of the Treaty, on the basis that the purpose of the Treaty exemption was to encourage entities who have the potential to realize income and have commercial and economic ties in Luxembourg to invest in Canada.

First, it did not accept that a Luxembourg taxpayer must make an investment in a Canadian company in order to claim the exemption. Second, the FCA did not accept that a taxpayer may only access the exemption if it actually pays tax on the relevant capital gain in its country of residence. And third, the FCA did not accept that the exemption should only benefit Luxembourg residents who have commercial or economic ties to Luxembourg.

The FCA held that the object, spirit and purpose of the Treaty exemption are no broader than its text, such that a Luxembourg entity will qualify for the exemption if: (a) it is a resident of Luxembourg for the purposes of the Treaty, (b) it holds a “substantial interest” in the corporation the shares of which are disposed of, and (c) the value of the corporation’s shares is principally derived from immovable property (other than rental property) situated in Canada in which the corporation’s business is carried on. Alta Lux having met all of these conditions, the FCA dismissed the Crown’s appeal.

Of equal importance, the FCA also commented on the Crown’s perceived abuse of Alta Lux’s treaty shopping. Although it acknowledged that the Department of Finance has signalled that it would take steps to curb this practice, it found that no such steps had been formally taken during the period in dispute. The FCA further stated that treaty shopping is not, in itself, abusive. In this regard, it cited with approval the TCC’s decision in MIL (Investments) S.A. (2006 TCC 460, aff’d by 2007 FCA 236), which said in part that “[t]here is nothing inherently proper or improper with selecting one foreign regime over another” and “the shopping or selection of a treaty to minimize tax on its own cannot be viewed as being abusive”. Instead, “[i]t is the use of the selected treaty that must be examined.” Having found that Alta Lux used the Treaty (and, in particular, the exemption under Article 13(4)) as the contracting states had intended, the FCA Court concluded that the application of the GAAR could not be justified in the circumstances.

Commentary

Although this decision is nothing short of a resounding victory for the taxpayer, its long-term practical impact is questionable.

Importantly, this decision was made without reference to the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (the “MLI”) and its principal purpose test (“PPT”), neither of which were in effect at the time of the transactions in question.

The PPT is a broad anti-avoidance rule which provides that a benefit under a tax treaty shall not be granted if it is reasonable to conclude that obtaining the benefit was one of the principal purposes of the relevant arrangement or transaction, unless it is established that granting the benefit would be in accordance with the object and purpose of the relevant provisions of the treaty.[4]

Furthermore, the MLI provides that all “Covered Tax Agreements” will be amended to include the following text (which expressly prohibits treaty shopping) in their preamble:[5]

“Intending to eliminate double taxation with respect to the taxes covered by this agreement without creating opportunities for non-taxation or reduced taxation through tax evasion or avoidance (including through treaty-shopping arrangements aimed at obtaining reliefs provided in this agreement for the indirect benefit of residents of third jurisdictions),”. [Emphasis added.]

The MLI became effective for Canada’s tax treaties with many countries, including Luxembourg, (a) for withholding taxes on January 1, 2020, and (b) for other taxes (including capital gains taxes), for taxation years beginning on or after June 1, 2020 (which, for calendar year taxpayers, would be January 1, 2021).

The MLI raises questions about its impact on the outcome of the FCA’s decision and beyond, including the following:

  • If the MLI had been in effect at the time of the Alta Canada sale, would the result have been the same?
  • If not, what if the Luxembourg holding company structure had been implemented from the outset?
  • Will foreign courts and tax authorities apply the PPT in a consistent manner across a common set of facts?

Although the FCA’s decision may significantly curtail the Minister’s ability to challenge treaty shopping under the GAAR moving forward, the same cannot be said with respect to the PPT. The impact of the MLI, however, may not be known until many years from now, once tax assessments make their way through court systems in Canada and abroad.[6] In the meantime, taxpayers may need to rely on rulings and other administrative positions for guidance.


[1]       Article 1 (Persons Covered), Article 4 (Resident) and Article 13 (Capital Gains).

[2]       The transfer was taxable but when it occurred there was no accrued gain on the shares of Alta Canada.

[3]       Each licence gave Alta Canada rights to specific sections of the resource reserve.

[4]       MLI, Article 7(1).

[5]       MLI, Article 6(1).

[6]       The GAAR, which was introduced in Canada in 1988 and was first adjudicated by the Supreme Court of Canada in 2005 in Canada Trustco Mortgage Co., may offer a useful timeline in this regard.

facebooktwittergoogle_pluslinkedinmail

Fiscalité & immobilier – les autorités fiscales vérifient minutieusement les transactions immobilières

Suite aux annonces du Budget 2019, l’Agence du Revenu du Canada (« l’ARC ») a lancé un Groupe de travail sur l’immobilier dont la mission est de dissuader le non-respect des règles fiscales dans le marché immobilier. Le gouvernement fédéral a alloué des fonds et des ressources considérables pour examiner les transactions immobilières dans lesquelles les parties n’ont pas respecté les règles de l’art. 

Voici le questionnaire (disponible en anglais seulement) de l’ARC envoyé à des personnes et des sociétés sélectionnées dans le cadre du processus de vérification. Le questionnaire est vaste, contient plus de 35 questions et demande au contribuable de fournir une documentation importante.

Ce programme de vérification des transactions immobilières est spécifiquement ciblé et peut avoir un impact sur :

  • Les promoteurs et développeurs immobiliers en ce qui concerne le respect des taxes de ventes;
  • Les contribuables impliqués dans des activités de flips immobiliers;
  • Les contribuables percevant des commissions dans le secteur immobilier; et
  • Les contribuables qui déclarent la vente d’une résidence principale.

Compte tenu de ce qui précède, il est primordial de structurer et de planifier vos transactions immobilières en conformité avec la législation fiscale en vigueur. Si vous avez reçu une demande d’information similaire, il est recommandé de demander des conseils et des avis juridiques avant de répondre au questionnaire.

Nicolas Simard possède une vaste expérience en litige fiscal de toute nature concernant l’impôt sur le revenu, les taxes à la consommation ainsi que les divulgations volontaires. Il peut être joint au 514-397-5288.


David H. Benarroch est spécialisé dans de nombreux domaines de la fiscalité, notamment le contentieux fiscal, la conformité fiscale et la planification fiscale.

facebooktwittergoogle_pluslinkedinmail

Tax and Real Estate – Tax Authorities Scrutinizing Real Estate Transactions

Following the Budget 2019 announcements, the Canada Revenue Agency (“CRA”) launched a Real Estate Task Force whose mission is to deter tax non-compliance in the real estate market.

 The federal government has allocated significant funds and resources to scrutinize real estate transactions in which parties have failed to comply with the appropriate regulations.

Here you will find a CRA questionnaire sent to selected individuals and corporations as part of the audit process. The questionnaire is broad, contains over 35 questions and requests significant documentation.

This real estate audit program is specifically aimed and can impact:

  • Promoters and developers for sales tax compliance;
  • Taxpayers involved in property flipping activities;
  • Taxpayers earning commissions in the real estate sector; and
  • Taxpayers reporting the sale of a principal residence.

In light of the foregoing, structuring and planning real estate transactions while ensuring tax compliance is of primary importance. If you have received a similar information requests, seeking legal guidance and advice is recommended before answering the questionnaire.

Nicolas Simard has extensive experience in every kind of tax litigation concerning income tax, consumption taxes and voluntary disclosure. He may be reached at 514-397-5288.


David H. Benarroch specializes in many areas of tax, including tax litigation, tax compliance and tax planning.

facebooktwittergoogle_pluslinkedinmail

Award Winning FASKEN TAX

Kathryn Walker a tax associate in Fasken’s Toronto office has received the Canadian Tax Foundation the “Young Practitioner Award” for her 2018 article “Making or Accepting Payment in Crypto: A GST/HST Risk?”.

The award is granted annually to three tax practitioners with less than ten years of tax experience. The award is given for the best newsletter article which appeared in any of the three Canadian Tax Foundation newsletters in a calendar year and was written solely by author(s) who were young practitioners at the time of publication. 

You can read more about the award and find a link to the article on the Canadian Tax Foundation website.

facebooktwittergoogle_pluslinkedinmail

As Vaping Replaces Tobacco BC Proposes New Legislation

This month, the British Columbia Health Minister announced plans to introduce legislation that will increase the BC’s provincial tax on vaping products from 7% to 20%. In doing so, BC will become the first province to tax e-cigarettes and vaping.

In all other provinces, vaping demonstrates an interesting inconsistency in some provincial legislation: under some provincial public health legislation vaping is regulated like other tobacco use yet under provincial tax legislation vaping is not treated like tobacco and is only subject to either the provincial HST component or provincial sales tax. Thus, vaping actually provides a much more tax-effective way for a user to get a nicotine fix. Put otherwise, vaping is essentially subsidized nicotine consumption.

Vaping involves the use of a handheld electronic device that heats an “e-liquid”—sometimes called e-substance, e-oil, or e-juice—to a point where it becomes an inhalable vapour.

The e-liquid is typically composed of nicotine, a carrier substance such as glycerine, and flavouring. E-cigarettes and e-liquid are tobacco-free. Most Canadian provinces (Alberta and Saskatchewan are exceptions) have public health legislation that regulates the use of e-cigarettes in a manner that parallels the regulation of cigarettes and other tobacco products.

For example, Ontario’s Smoke-Free Ontario Act, 2017 regulates the sale, advertisement, packaging, and consumption of e-cigarettes, in some ways reproducing restrictions on tobacco use.

In Canada, both federal and provincial governments exercise jurisdiction over health. This dual jurisdiction explains why there are two layers of tobacco legislation: the provincial laws noted above and the federal Tobacco and Vaping Products Act (SC 1997, c. 13), which governs public health aspects of tobacco and vape consumption in Canada.

Although provincial public health legislation regulates e-cigarettes as it does tobacco cigarettes, provincial tax legislation does not. In all 10 provinces, tobacco sales are taxed under special tobacco tax legislation, and in most provinces tobacco sales are also subject to GST/HST. For example, in Ontario a pack of 20 cigarettes is subject to a tobacco tax of $3.30 and an additional 13 percent HST. However, vaping liquid, or e-liquid, does not come within the scope of tobacco tax legislation, which is limited to tobacco products.  As a result without new legislation, vape products escape the additional taxed levied on tobacco products.

As explained above, e-cigarettes and e-liquid are tobacco-free, and while the nicotine in e-liquid may give smokers a sensation similar to that of a traditional cigarette, the nicotine is not a tobacco product. As a result, while sales of e-cigarettes and e-liquid are subject to GST/HST, they are not subject to a special tobacco tax.

This means that now as more Canadians have shifted from traditional smoking to vaping, they are escaping the financial burden of tobacco taxation.  In turn, this means that provinces are losing their tobacco tax base. However, it is estimated that BC’s new legislation will generate roughly $10 million a year in new tax revenue.  We won’t be surprised to see other provinces follow BC’s lead.

facebooktwittergoogle_pluslinkedinmail