Canadian legislation on foreign investment entities: October 31, 2001.

On October 31, 2001, TEI submitted the following letter to the Canadian Minister of Finance, Paul Martin, commenting on draft legislation relating to Foreign Investment Entities (FIE). For TEI's comments on the latest draft of the NRT provisions, which are part of the same legislative package from the Department of Finance, see the related comments in this issue. The comments on the FIE provisions follow up on a submission sent by TEI in February 2001 relating to an earlier version of the draft legislation. TEI members also met with representatives of the Department of Finance in May to discuss the draft legislation. (For TEI's earlier comments, which address the FIE and NRT provisions in a single package, see the March-April 2001 issue of The Tax Executive.) The comments below were prepared under the aegis of TEI's Canadian Income Tax Committee, whose chair is David M. Penney of General Motors of Canada Limited. Contributing substantially to the development of TEI's comments were Vince Alicandri of Hydro One Networks, Inc. and Alan Wheable of Toronto Dominion Bank.

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On June 22, 2000, the Department of Finance released draft legislation relating to Foreign Investment Entities (FIE) and Non-Resident Trusts (NRT). In response to public comments and consultations on the draft proposals, the Department on September 7, 2000, announced modifications to the proposals, delayed the implementation date, and extended the consultation period. Tax Executives Institute submitted comments on the modified draft in February 2001 and met with representatives from the Department of Finance in May. TEI is pleased that the Department afforded us the opportunity to discuss the draft legislation and to elaborate on our written comments. Subsequently, another draft of the legislation was released on August 2, 2001. While the draft legislation has been improved, TEI remains concerned about the draft legislation relating to Foreign Investment Entities. On October 25, we submitted separate comments on the latest draft of the Non-Resident Trust provisions.

Background

Tax Executives Institute is the preeminent association of business tax executives. The Institute's 5,300 professionals manage the tax affairs of the leading 2,800 companies in Canada, the United States, and Europe and must contend daily with the planning and compliance aspects of Canada's business tax laws. Canadians constitute 10 percent of TEI's membership, with our Canadian members belonging to chapters in Calgary, Montreal, Toronto, and Vancouver, which together make up one of our eight geographic regions. Our non-Canadian members (including those in Europe) work for companies with substantial activities in Canada. In sum, TEI's membership includes representatives from most major industries including manufacturing, distributing, wholesaling, and retailing; real estate; transportation; financial services; Telecommunications; and natural resources (including timber and integrated oil companies). The comments set forth in this letter reflect the views of the Institute as a whole, but more particularly those of our Canadian constituency.

TEI is concerned with issues of tax policy and administration and is dedicated t9 working with government agencies in Ottawa (and Washington), as well as in the provinces (and the states), to reduce the costs and burdens of tax compliance and administration to our common benefit. We are convinced that the administration of the tax laws in accordance with the highest standards of professional competence and integrity, as well as an atmosphere of mutual trust and confidence between business and government, will promote the efficient and equitable operation of the tax system. In furtherance of this principle, TEI supports efforts to improve the tax laws and their administration at all levels of government.

Overview of Draft Legislation and TEI Comments

The draft Non-Resident Trust (NRT) and Foreign Investment Entity (FIE) legislation released by the Department of Finance on August 2, 2001, is intended to replace the current rules in respect of foreign trusts in section 94 of the Income Tax Act (hereinafter "the Act") and the "offshore investment fund" rules found in section 94.1 of the Act. The draft legislation replaces the draft originally released on June 22, 2000.

The current rules in sections 94 and 94.1 are anti-avoidance provisions that are intended to prevent taxpayers from inappropriately deferring or avoiding tax (including conversion of income gains to capital in specific situations). Current section 94 applies where a person resident in Canada transfers or loans property to a foreign trust that has one or more beneficiaries resident in Canada. Current section 94.1 applies where a taxpayer has invested in an offshore investment fund and one of the main reasons for the investment is to reduce or defer the tax liability that would have applied to the income generated by the underlying assets of the fund if such income had been earned directly by the taxpayer.

In announcing the June 2000 draft legislation, the Department's press release explained the general purpose of the provisions to expand the scope of the anti-avoidance rules, as follows:

   It is important that the income tax system not provide a means for
   Canadians to avoid Canadian income tax by transferring funds to offshore
   trusts or accounts. The proposed rules intend to provide a fair and
   workable approach to dealing with this complex area.

While the August 2001 draft legislation includes important and substantial revisions, the latest rules remain overbroad, extraordinarily complex, confusing, and, in the case of the FIE provisions, continue to overlap and conflict with the entire foreign affiliate regime, including section 17 as it applies to loans to non-residents. As a result, the provisions will interfere with legitimate business operations. In addition, the FIE rules do not integrate well with the new rules governing non-resident trusts. Although the latest version of the draft legislation helpfully reduces the number of instances where a non-resident corporation operating an active business could qualify as a FIE, TEI continues to believe that, once an entity is trapped in the labyrinth of the FIE rules, taxpayers will be unable to comply. We also continue to question whether auditors from Canada Customs and Revenue Agency (CCRA) will, anymore than taxpayers, have the requisite resources to be able to properly administer these rules. From both compliance and administrative perspectives, these rules would be vastly improved if they were more limited in scope and focused solely on remedying perceived abuses. To the extent that the government can identify specific abuses, it should propose narrower, targeted solutions. These draft proposals, however, remain unworkable and we again urge the government to withdraw it.

The preamble before the table of contents for the explanatory notes states that the notes are for information purposes only and should not be construed as an official interpretation of the provisions described. Given the complexity of these provisions, it is imperative that taxpayers have the benefit of official guidance immediately upon the provisions' coming into force. Indeed, in the absence of a more authoritative or persuasive interpretation, taxpayers, CCRA, and the courts will be compelled to resort to the explanatory notes as a guide. (1) Rather than diminish the persuasiveness of the explanatory notes, we recommend that the Department expand the explanatory notes even further in order to elaborate and explain the underlying policy and operation of the provisions.

In addition to the foregoing general observations, we have a number of questions, comments, and concerns about specific provisions as detailed below. We have limited Our comments to the most fundamental definitional issues in the application of these rules because compliance will be possible except in the simplest facts and circumstances.

Foreign Investment Entities--Accrual Treatment--Definitions

A. Carrying Value

Under the proposed rules, a nonresident entity that holds at least 50 percent of its assets in "investment property" may be considered a FIE. Hence, the definition and measurement of "carrying value" for "investment property" are central to the application of the draft rules. The explanatory notes issued with the draft legislation provide that "carrying value" of a property held by an entity means:

   The amount at which the property would be valued at that time for the
   purpose of the entity's balance sheet, if the balance sheet were prepared
   in accordance with generally accepted accounting principles used in Canada
   or accounting principles substantially similar to generally accepted
   accounting principles used in Canada and included property that is deemed
   under subsection (10) (i.e., property held by certain entities in which the
   entity has a significant interest) to be owned by the entity at that time,
   or

   If the taxpayer elects in writing in the taxpayer's return of income for
   the taxpayer's taxation year that includes that time, the carrying value is
   the amount representing the fair market value of the property at that time
   as determined in accordance with generally accepted accounting principles
   used in Canada or generally accepted accounting principles substantially
   similar to generally accepted accounting principles used in Canada.
   (Emphasis added.)

First, TEI is pleased that the Department accepted one of the recommendations relating to carrying value in our February submission. Specifically, where financial statements prepared in accordance with Canadian generally accepted accounting principles (GAAP) are not made available for an entity, new draft paragraph 94.1(15)(a) will permit an interest holder to comply with the FIE regime using financial statements prepared in accordance with GAAP used in the United States or a country that is a member of the European Union. The new exception will diminish the administrative burden of obtaining financial statements restated in accordance with Canadian GAAP for investments in the United States or European Union countries. We are, however, disappointed that the policy was not extended to all countries that are members of the International Accounting Standards Committee.

In addition, we have the following specific questions and comments regarding the definition of "carrying value" in the revised draft legislation:

* Under certain circumstances, U.S. GAAP requires mark-to-market adjustments. Where a taxpayer is required to make such an adjustment to the carrying value for U.S. GAAP purposes, is the adjusted U.S. GAAP carrying value acceptable as substantially similar to Canadian GAAP? Or, is the taxpayer required to restate the carrying value in accordance with Canadian GAAP?

* For financial statements prepared for entities outside of the United States and the European Union, what does the phrase "substantially similar" to generally accepted accounting principles in Canada mean?

* Are differences in industry accounting rules and practices ignored in determining whether the foreign rules are substantially similar to Canadian GAAP?

* How will taxpayers and government auditors develop information necessary to calculate the substituted values based on Canadian GAAP? The only information available may well be the financial statements prepared on a non-Canadian GAAP basis.

* Will CCRA personnel be trained to recognize the differences among generally accepted accounting principles in different jurisdictions throughout the world (other than the United States or the European Union) in order to determine whether the accounting principles employed are substantially similar to Canadian GAAP?

* We recommend again that the explanatory notes include a reference to pronouncements of accounting principles by accounting standard-setting bodies that the government would consider substantially similar to Canadian GAAP.

* How should a taxpayer ascertain the fair market value of the assets of a corporation for purposes of determining whether to elect to base "carrying value" on fair market? If the taxpayer makes the election, will the value of intangible property be recognized? It is unclear from the definition whether self-created goodwill is eligible for the fair market value election and its fair market value should be used in the determination of "carrying value." We believe that self-created goodwill, like purchased goodwill, should be eligible for the election.

As we noted in our February submission, there are frequent disputes within the accounting profession about the application of generally accepted accounting principles to various transactions. Hence, the requirement to restate financial statements of an entity into Canadian (or substantially similar) GAAP will provide fertile ground for contentious and unproductive disputes between taxpayers and the CCRA. The audit disputes, in turn, will increase the cost of Canadian corporations conducting business outside Canada and render them less competitive with local businesses.

We recommend that the requirement to restate the foreign financial statements to Canadian GAAP (other than statements prepared in accordance with GAAP used in the United States or the European Union that are considered to be substantially similar to Canadian GAAP) be eliminated. Adopting this change would more closely conform the proposed rules to the controlled foreign affiliate regime, including the rules for computation of exempt surplus, taxable surplus, etc.

B. Entity

The definition of "entity" includes a "fund," but we are uncertain what enterprises, operations, or entities the government intends to include within the term "fund." Accordingly, we recommend that the Department provide a definition of "fund."

C. Exempt Interest

An investor is not subject to draft section 94.1 if a participating interest in a foreign entity is considered an "exempt interest." The most common forms of "exempt interests" include:

* A participating interest in a controlled foreign affiliate, including an affiliate that is a controlled foreign affiliate because of an election made under subsection 94.1(12).

* A participating interest in a FIE resident in a country where there is a prescribed stock exchange if the interests are listed on a prescribed stock exchange and are widely held and actively traded and there is no tax avoidance motive for acquiring the interest. Paragraph 94.1(15)(g) provides that a participating interest will be deemed to be widely held if at least 150 persons who are dealing with each other at arm's length own such participating interests and each of those persons owns participating interests with a total value of at least $500. Paragraph 94.1(15)(h) deems a participating interest to be actively traded if such interest is listed on a prescribed stock exchange or is otherwise qualified for distribution to the public under the relevant securities law of the country in which the entity was formed and the interest may be purchased and sold by any member of the public in the open market.

* A participating interest in a "qualifying entity."

* A participating interest held by the taxpayer in a FIE that was formed, organized, or continued under and is governed by the laws of a country (other than a prescribed country) with which Canada has entered into a tax treaty and under that treaty if (a) the FIE is resident in that treaty country, (b) participating interests in the FIE that are identical to the participating interest are widely held and actively traded, and (c) the taxpayer did not have a tax avoidance motive as defined by subsection 94.1(1.1).

TEI welcomes the expanded definition of "exempt interest" in the revised draft legislation, but we are concerned that, as a practical matter, very few entities will qualify as exempt. Our concerns are, as follows:

* The names of the shareholders of companies listed and traded on a public stock exchange are generally not available to other shareholders. Accordingly, how will a taxpayer be able to determine whether there are at least 150 shareholders? How will the taxpayer be able to determine whether each of the 150 or more shareholders deals at arm's length with one another?

* The residence test incorporates other factual and legal criteria for which information will also be unavailable. For example, the location of a company's board of directors meetings must be taken into account in many countries in order to determine the corporation's residence. How will a taxpayer obtain that information to determine the residence of the corporation?

* How will the taxpayer determine whether each of the 150 shareholders hold participating interests having a total value of at least $500?

* The determination of whether an entity is a "qualifying entity" will require access to detailed financial and other information generally unavailable to most shareholders. Additional comments on this issue are set forth below.

* How will a taxpayer determine whether participating interests in a FIE that is resident in a country with which Canada has a tax treaty are actively traded and widely held?

Despite the expanded definition of 'exempt interest" and the government's likely intent to afford taxpayers' useful exceptions and broad relief from the FIE rules, it is likely that only participating interests in controlled foreign affiliates will qualify as an "exempt interest." A lack of sufficient financial and other information will stymie most taxpayers' efforts to determine whether their investment interests qualify as an "exempt interest."

D. Foreign Investment Entity

Generally, a FIE is any non-resident entity unless at the end of its taxation year the "carrying value" of all of the entity's "investment property" is less than 50 percent of the "carrying value" of all of the entity's assets. A FIE does not include an entity the principal business of which is not an investment business.

TEI welcomes the exclusion from FIE status for entities whose principal business is not an investment business. We are concerned, however, that, because this determination is to be made based upon a comparison of the accounting income from investment property with the accounting income from businesses other than an investment business, the entity's status as a FIE will vary from year to year based solely on fluctuations in accounting earnings. Hence, the FIE may be subject to multiple "fresh-starts" (as defined by subsection 94.1(6)). For each fresh start, taxpayers are subject to a multitude of calculations and other costly administrative and compliance burdens.

In addition, we are concerned that the test is an income rather than a revenue-based test. In similar tests under the Income Tax Act (e.g., definition of a leasing business), the entity's principal business is determined based on a comparison of revenues. An income-oriented test requires access to a greater level of detailed information (e.g., cost of goods sold) than a revenue-based test. Hence, we question whether taxpayers will have sufficiently detailed financial information to make the determination. Also, an entity sustaining business losses from a substantial operating business might be considered to be engaged in an investment business simply because it owns a minor investment property that produces a positive yield during a loss year. We believe this latter result is inequitable and may be unintended.

Finally, the concerns expressed above in respect of the definition of "carrying value" will make it very difficult for a taxpayer to determine whether an entity is a FIE and, in turn, determine whether it should elect to base the reported "carrying value" on the fair market value of the assets.

E. Investment Business

The definition of "investment business" excludes a business (other than any business conducted principally with persons with whom the entity does not deal at arm's length) that consists of leasing or licensing of property manufactured, produced, developed or purchased and developed by the entity or by another entity related to the entity. We recommend that the definition of investment business also exclude the leasing or licensing of property that has been leased or licensed by the entity or by another entity related to the taxpayer. Adopting TEI's recommended language would ensure that many active operating businesses (for example, the subleasing of private lines by a telecommunications company) would not be treated as investment businesses.

F. Investment Property

Under paragraph (k), a derivative financial product is generally classified as part of the investment property of an entity. No explicit exception is provided for derivative financial products employed to hedge the risks of non-investment properties or business transactions undertaken in the ordinary course of an active business. As a result, the provision is overbroad and TEI recommends that the Department revise paragraph (k), as follows:

   except where the derivative financial product can reasonably be determined
   to be related to the hedging, in whole or in part, of risks of the
   business, a derivative financial product (other than a commodity future to
   which the exception in paragraph (g) applies); or.... (Emphasis added to
   highlight the new language.)

Indeed, paragraphs (g) (relating to commodities and commodity futures), (j) (relating to currency), and (l) (relating to interests or options in respect of property described in paragraphs (a) to (k)), similarly lack explicit exceptions for property used in whole or in part to hedge other business property or transactions. We recommend that the Department reconsider whether the definition of investment property should be revised so that fluctuations in the value of hedged property and the hedging item are accorded symmetrical treatment.

G. Qualifying Entity

The definition of "qualifying entity" is relevant for determining (1) whether a participating interest in an entity is an "exempt interest" for purposes of determining whether the entity is a FIE and (2) whether certain property is investment property. A "qualifying entity" is an entity all or substantially all of the carrying value of the property of which, throughout the period, is attributed to the carrying value of the following types of property:

* Properties other than investment property;

* Participating interests in or debts of other entities in which the entity has a significant interest (i.e., shares having at least 25 percent of the votes and value of the other entity) if the other entity is an entity whose principal business is not an investment business; or

* Participating interests in and debts of other entities whose principal business is not an investment business or an entity that is a qualifying entity in which the entity has a strategic interest.

We question whether any minority shareholder will be able to obtain the necessary financial and other information to determine whether an entity is a qualifying entity. The challenge will be even greater when an entity has a participating interest in a second-tier company and the investor is attempting to ascertain whether the participating interest is a "significant interest" or whether the upper-tier entity exercises "significant influence" over the lower-tier entity. We recommend that the government provide a more efficacious definition of "qualifying entity" because few investors in non-investment businesses will be able to produce the requisite information the draft legislation demands in order to satisfy the definition of a qualifying entity.

H. Taxation Year

Under the draft legislation, the taxation year of non-resident, non-corporate entities is deemed to be the calendar year. Under paragraph (d) of the definition of foreign investment entity, the comparison of the carrying value of the entity's investment property as a percentage of the total assets is made at the end of the entity's taxation year. Hence, the interaction of the two provisions will engender considerable administrative burdens for taxpayers investing in active businesses that operate in partnership form and have a taxation year other than the calendar year. We fail to see what the government gains by compelling partnerships with active businesses to prepare financial statements on a basis other than the entity's actual taxation year. (2) We recommend that investors in partnerships with active businesses be permitted to submit financial statements in accord with the partnership's taxation year.

Subsections 94.1(2) to (4)

Where sufficient financial information is available and the taxpayer files an election in the earliest year in which the draft provisions apply to a FIE, a Canadian taxpayer owning an interest in a FIE is permitted to report its pro-rata share of the FIE's income on an accrual basis.

The proposal will require taxpayers to currently report all of the entity's income, not just the passive investment income, on an accrual basis. As noted in our February comments, the concept of current inclusion is radically contrary to the general principles of the Canadian tax system that taxation of active business income is deferred until repatriated; that tax is paid on only realized gains and income; and that tax is not paid on distributions to corporations--a proxy for a foreign tax credit that recognizes a foreign country's right to tax the income. Also, the requirement to currently report all of the entity's income will affect the foreign tax credit allowable to a taxpayer because the timing of the income recognition may not coincide with the payment of the foreign income and withholding tax. Moreover, the character of the income might change since amounts that would otherwise be reported as capital gains (or losses) upon disposition of shares would be reported currently as income. Finally, while income is reported on an accrual basis, accrued FIE losses are deductible only to the extent of previously taxed FIE income. In our view, this is an extremely inequitable and one-sided tax policy. Regrettably, none of these issues has been addressed in the revised draft legislation.

Subsections 94.1(5) and (6)

Subsections 94.1(5) and (6) provide the framework for computing the accrual-basis income of the FIE reportable by the Canadian taxpayer. Again, none of the comments set forth in our February 2001 submission on these subsections has been addressed in the revised legislation. Rather than restate those comments, we refer you to the earlier submission. In addition, we have the following comments on the August 2001 draft legislation.

Subsection 94.1(5) provides a formula for computing the income allocation of a particular taxpayer that has invested in the FIE. Paragraph 94.1(5)(b) states that for this purpose, the FIE is deemed to dispose of each property at the beginning of the fresh-start year for proceeds equal to its fair market value and to have immediately reacquired the property at that same value. We question whether minority shareholders will be able to establish the deemed cost of the property because it is unlikely that the investor will have this information or be able to obtain it from the FIE. Each investor is required to establish its own values based upon its own particular 'fresh-start" period., but it is highly unlikely that the FIE will have sufficient information (or be willing to shoulder the cost of furnishing the requisite information) for each shareholder.

Paragraph 94.1(5) also provides that each discretionary deduction permitted in computing the FIE's income for the FIE's fresh-start year and subsequent years is deemed to have been claimed to the extent designated by the investor taxpayer The explanatory notes state:

   Thus, in calculating an income allocation in respect of the FIE, the
   investor taxpayer will be permitted to claim deductions such as capital
   cost allowance.

Again, we question how the investor taxpayer will be able to obtain sufficient information to claim these discretionary deductions.

Subsection 94.1 (11)

A corporation is considered to "have a "significant interest" in an entity--whether a corporation, partnership, or non-discretionary trust--where its interest represents at least 25 percent of the votes and value of the entity. Where a taxpayer holds a "significant interest" in an entity, "look through" rules apply and the lower-tier company assets are aggregated with the upper-tier corporation owner's assets for purposes of determining whether the upper-tier companies are considered FIEs. Since the legislation has not been modified, the comments in our February 2001 submission apply to the revised draft legislation.

Subsection 94.1 (12)

Subsection 94.1(12) permits a Canadian taxpayer to make an irrevocable election to treat a qualifying FIE as a controlled foreign affiliate (CFA), provided the taxpayer's interest in the FIE represents at least ten percent of the votes and value of the FIE. For many taxpayers, making the CFA election will ease the administrative burden of coping with these rules. Hence, TEI is pleased that the revised draft legislation removes at least one barrier to electing CFA status by eliminating the requirement that the FIE be either an "excluded investment business" or a business that is not an investment business. The intended relief, however, may be ineffective without additional changes. Specifically, under subsection 94.1(17) an election to treat the FIE as a foreign affiliate will be rendered invalid unless the taxpayer is able to demonstrate to CCRA that the foreign accrual property income (FAPI) of the entity has been properly reported. Since few Canadian taxpayers will be able to obtain the information necessary to calculate FAPI for non-controlled entities, most taxpayers will be precluded from making the CFA election. To be effective, the relief intended to be provided by this subsection should be substantially broadened.

Mark-to-Market

Since the application of the mark-to-market rules is essentially unchanged in the latest draft of the legislation, please refer to the comments in our February 2001 submission. Specific comments on the effects of the mark-to-market regime were included under the following headings:

   Valuation Issues Subsection 94.2(4) Compliance Issues Accrual vs.
   Mark-to-Market Accounting Double Taxation Exchangeable Shares

Subsection 94.2(10)

New subsection 94.2(10) sets forth the treatment of an interest in a foreign insurance policy. The proposed subsection applies to foreign branches of Canadian businesses and, by way of proposed paragraph 95(2)(g.3), to foreign affiliates. TEI believes the provision is overbroad and poses a substantial risk of interfering with active operating businesses. Moreover, it seems inappropriate to potentially subject companies to tax for obtaining insurance policies covering risks that likely cannot be insured through a Canadian-based insurer. As well, it seems inappropriate to tax policies to which the special premium excise taxes apply. In order to limit the scope of this provision, we recommend adding the following language to paragraph 94.2(10)(c):

   (iv) the premiums are attributable to a business of the taxpayer carried on
   through a permanent establishment outside of Canada;

   (v) the premiums are attributable to a business of the taxpayer and
   described in subsection 4(2) of the Excise Tax Act; or

   (vi) the premiums have been subject to a tax under subsection 4(1) of the
   Excise Tax Act.

Subsection 94.2(19)

This subsection provides that, in certain circumstances, amounts subject to an income inclusion under subsection 94.2(4) in respect of a participating interest in a foreign entity may be reported as capital gains and losses rather than as income from property. The subsection may be utilized when all or substantially all of the amount required to be added or deducted in computing the taxpayer's income relates to either realized or unrealized capital gains and losses. At the risk of redundancy, a minority investor will not have access to the detailed level of information necessary to demonstrate that they satisfy the conditions for the intended relief. Hence, few, if any, taxpayers will be able to avail themselves of the promised relief.

Conclusion

Despite the many helpful changes that the government has incorporated in the revised draft legislation, we believe that the legislation remains unworkable. We urge the government to withdraw the proposed FIE legislation and, to the extent that specific abuses are identified, craft targeted solutions to address those transactions or investments that circumvent the current anti-avoidance rules.

TEI's comments were prepared under the aegis of the Institute's Canadian Income Tax Committee, whose chair is David M. Penney. If you should have any questions about the submission, please do not hesitate to call Mr. Penney at [phone], or Alan Wheable, TErs Vice President for Canadian Affairs, at [phone].

(1) In a recent case interpreting the bare-bones General Anti-Avoidance Rule, the court made frequent references to commentators' explanations of GAAR in order to understand and explain the underlying policies. See OSFC Holdings Ltd. v. The Queen, Federal Court of Appeal (September 18, 2001). For the FIE provisions, the explanatory notes are critical in gaining an understanding of the legislation.

(2) In addition, the Department should recognize that holders of minority interests in partnerships with a fiscal reporting year other than the calendar year will be unable to obtain a financial statement at the deemed taxation year end.