Technical Tax Amendments Act, 2012 (S.C. 2013, c. 34)
Full Document:
Assented to 2013-06-26
348. Paragraph 214(3)(k) of the French version of the Act is replaced by the following:
k) le montant distribué par une fiducie au profit d’un athlète amateur à un moment donné, qui serait à inclure, en application du paragraphe 143.1(2), dans le calcul du revenu d’un particulier si la partie I s’appliquait est réputé avoir été payé au particulier à ce moment à titre de paiement relatif à une fiducie au profit d’un athlète amateur;
349. (1) The portion of subsection 216(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Alternatives re rents and timber royalties
216. (1) If an amount has been paid during a taxation year to a non-resident person or to a partnership of which that person was a member as, on account of, in lieu of payment of or in satisfaction of, rent on real or immovable property in Canada or a timber royalty, that person may, within two years (or, if that person has filed an undertaking described in subsection (4) in respect of the year, within six months) after the end of the year, file a return of income under Part I for that year in prescribed form. On so filing and without affecting the liability of the non-resident person for tax otherwise payable under Part I, the non-resident person is, in lieu of paying tax under this Part on that amount, liable to pay tax under Part I for the year as though
(2) The portion of subsection 216(5) of the Act before paragraph (a) is replaced with the following:
Marginal note:Disposition by non-resident
(5) If a person or a trust under which a person is a beneficiary has filed a return of income under Part I for a taxation year as permitted by this section or as required by section 150 and, in computing the amount of the person’s income under Part I an amount has been deducted under paragraph 20(1)(a), or is deemed by subsection 107(2) to have been allowed under that paragraph, in respect of property that is real property in Canada — or an interest therein — or an immovable in Canada — or a real right therein —, a timber resource property or a timber limit in Canada, the person shall file a return of income under Part I in prescribed form on or before the person’s filing-due date for any subsequent taxation year in which the person is non-resident and in which the person, or a partnership of which the person is a member, disposes of that property or any interest, or for civil law any right, in it. On so filing and without affecting the person’s liability for tax otherwise payable under Part I, the person is, in lieu of paying tax under this Part on any amount paid, or deemed by this Part to have been paid, in that subsequent taxation year in respect of any interest in, or for civil law any right in, that property to the person or to a partnership of which the person is a member, liable to pay tax under Part I for that subsequent taxation year as though
(3) Subsection 216(7) of the Act is repealed.
(4) Subsections (1) and (2) apply to taxation years that end after December 20, 2002.
350. (1) Section 220 of the Act is amended by adding the following after subsection (2.1):
Marginal note:Exception
(2.2) Subsection (2.1) does not apply in respect of a prescribed form, receipt or document, or prescribed information, that is filed with the Minister on or after the day specified, in respect of the form, receipt, document or information, in subsection 37(11) or paragraph (m) of the definition “investment tax credit” in subsection 127(9).
(2) Paragraph 220(4.6)(a) of the French version of the Act is replaced by the following:
a) par le seul effet du paragraphe 107(5), les alinéas 107(2)a) à c) ne s’appliquent pas à une distribution de biens canadiens imposables effectuée par une fiducie au cours d’une année d’imposition (appelée « année de la distribution » au présent article);
(3) Paragraph 220(4.6)(c) of the French version of the Act is replaced by the following:
c) le ministre accepte, jusqu’à la date d’exigibilité du solde applicable à la fiducie pour une année d’imposition ultérieure, une garantie suffisante fournie par la fiducie, ou en son nom, au plus tard à la date d’exigibilité du solde qui lui est applicable pour l’année de la distribution pour le moins élevé des montants suivants :
(i) le montant obtenu par la formule suivante :
A – B – [((A – B)/A) × C]
où :
- A
- représente le total des impôts prévus par les parties I et I.1 qui seraient payables par la fiducie pour l’année de la distribution s’il n’était pas tenu compte de l’exclusion ou de la déduction de chaque montant visé à l’alinéa 161(7)a),
- B
- le total des impôts prévus par ces parties qui auraient été ainsi payables si les règles énoncées au paragraphe 107(2) (sauf celle portant sur le choix prévu à ce paragraphe) s’étaient appliquées à chaque distribution, effectuée par la fiducie au cours de l’année de la distribution, de biens auxquels s’applique l’alinéa a) (sauf les biens dont il est disposé ultérieurement avant le début de l’année ultérieure),
- C
- le total des montants réputés par la présente loi ou une autre loi avoir été payés au titre de l’impôt de la fiducie en vertu de la présente partie pour l’année de la distribution,
(ii) si l’année ultérieure suit immédiatement l’année de la distribution, le montant déterminé selon le sous-alinéa (i); sinon, le montant déterminé selon le présent alinéa relativement à la fiducie pour l’année d’imposition précédant l’année ultérieure;
(4) The portion of subsection 220(4.61) of the French version of the Act before paragraph (a) is replaced by the following:
Marginal note:Restriction
(4.61) Malgré le paragraphe (4.6), le ministre est réputé, à un moment donné, ne pas avoir accepté de garantie aux termes de ce paragraphe pour l’année de la distribution d’une fiducie pour un montant supérieur à l’excédent du total visé à l’alinéa a) sur le total visé à l’alinéa b) :
(5) Paragraph 220(4.61)(b) of the French version of the Act is replaced by the following:
b) le total des impôts qui seraient déterminés selon l’alinéa a) si les alinéas 107(2)a) à c) s’étaient appliqués à chaque distribution effectuée par la fiducie au cours de l’année de biens auxquels s’applique l’alinéa (1)a).
(6) Subsection (1) applies in respect of a prescribed form, receipt and document, and prescribed information, filed with the Minister of National Revenue on or after November 17, 2005 other than a prescribed form, receipt or document, or prescribed information, in respect of which the Minister of National Revenue has received, before November 17, 2005, a request made in writing with the Minister that the Minister waive the filing requirements in subsection 37(11) of the Act and paragraph (m) of the definition “investment tax credit” in subsection 127(9) of the Act that apply, but for any waiver, to the expenditures to which the prescribed form, receipt or document, or prescribed information, relates.
351. (1) The portion of subsection 227(8) of the Act before paragraph (a) is replaced by the following:
Marginal note:Penalty
(8) Subject to subsection (9.5), every person who in a calendar year has failed to deduct or withhold any amount as required by subsection 153(1) or section 215 is liable to a penalty of
(2) Paragraph 227(10)(b) of the Act is replaced by the following:
(b) subsection 237.1(7.4) or (7.5) or 237.3(8) by a person or partnership,
352. (1) Paragraph 230(2)(a) of the French version of the Act is replaced by the following:
a) des renseignements sous une forme qui permet au ministre de déterminer s’il existe des motifs de révocation de l’enregistrement de l’organisme ou de l’association en vertu de la présente loi;
(2) Subsection 230(3) of the French version of the Act is replaced by the following:
Marginal note:Ordre du ministre quant à la tenue de registres
(3) Le ministre peut exiger de la personne qui n’a pas tenue les registres et livres de compte voulus pour l’application de la présente loi qu’elle tienne ceux qu’il spécifie. Dès lors, la personne doit tenir les registres et livres de compte qui sont ainsi exigés d’elle.
353. The portion of subsection 231.2(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Requirement to provide documents or information
231.2 (1) Notwithstanding any other provision of this Act, the Minister may, subject to subsection (2), for any purpose related to the administration or enforcement of this Act (including the collection of any amount payable under this Act by any person), of a listed international agreement or, for greater certainty, of a tax treaty with another country, by notice served personally or by registered or certified mail, require that any person provide, within such reasonable time as is stipulated in the notice,
354. Subparagraph 233.4(1)(c)(ii) of the Act is replaced by the following:
(ii) of which a non-resident corporation or trust is a foreign affiliate at any time in the fiscal period.
355. (1) Paragraph (b) of the definition “gifting arrangement” in subsection 237.1(1) of the Act is replaced by the following:
(b) incur a limited-recourse debt, determined under subsection 143.2(6.1), that can reasonably be considered to relate to a gift to a qualified donee or a monetary contribution referred to in subsection 127(4.1);
(2) Subsection (1) applies in respect of gifts and monetary contributions made after 6:00 p.m. (Eastern Standard Time) on December 5, 2003.
356. (1) The Act is amended by adding the following after section 237.2:
Marginal note:Definitions
237.3 (1) The following definitions apply in this section.
“advisor”
« conseiller »
“advisor”, in respect of a transaction or series of transactions, means each person who provides, directly or indirectly in any manner whatever, any contractual protection in respect of the transaction or series, or any assistance or advice with respect to creating, developing, planning, organizing or implementing the transaction or series, to another person (including any person who enters into the transaction for the benefit of another person).
“avoidance transaction”
« opération d’évitement »
“avoidance transaction” has the meaning assigned by subsection 245(3).
“confidential protection”
« droit à la confidentialité »
“confidential protection”, in respect of a transaction or series of transactions, means anything that prohibits the disclosure to any person or to the Minister of the details or structure of the transaction or series under which a tax benefit results, or would result but for section 245, but for greater certainty, the disclaiming or restricting of an advisor’s liability shall not be considered confidential protection if it does not prohibit the disclosure of the details or structure of the transaction or series.
“contractual protection”
« protection contractuelle »
“contractual protection”, in respect of a transaction or series of transactions, means
(a) any form of insurance (other than standard professional liability insurance) or other protection, including, without limiting the generality of the foregoing, an indemnity, compensation or a guarantee that, either immediately or in the future and either absolutely or contingently,
(i) protects a person against a failure of the transaction or series to achieve any tax benefit from the transaction or series, or
(ii) pays for or reimburses any expense, fee, tax, interest, penalty or similar amount that may be incurred by a person in the course of a dispute in respect of a tax benefit from the transaction or series; and
(b) any form of undertaking provided by a promoter, or by any person who does not deal at arm’s length with a promoter, that provides, either immediately or in the future and either absolutely or contingently, assistance, directly or indirectly in any manner whatever, to a person in the course of a dispute in respect of a tax benefit from the transaction or series.
“fee”
« honoraires »
“fee”, in respect of a transaction or series of transactions, means any consideration that is, or could be, received or receivable, directly or indirectly in any manner whatever, by an advisor or a promoter, or any person who does not deal at arm’s length with an advisor or promoter, for
(a) providing advice or an opinion with respect to the transaction or series;
(b) creating, developing, planning, organizing or implementing the transaction or series;
(c) promoting or selling an arrangement, plan or scheme that includes, or relates to, the transaction or series;
(d) preparing documents supporting the transaction or series, including tax returns or any information returns to be filed under this Act; or
(e) providing contractual protection.
“person”
« personne »
“person” includes a partnership.
“promoter”
« promoteur »
“promoter”, in respect of a transaction or series of transactions, means each person who
(a) promotes or sells (whether as principal or agent and whether directly or indirectly) an arrangement, plan or scheme (referred to in this definition as an “arrangement”), if it may reasonably be considered that the arrangement includes or relates to the transaction or series;
(b) makes a statement or representation (whether as principal or agent and whether directly or indirectly) that a tax benefit could result from an arrangement, if it may reasonably be considered that
(i) the statement or representation was made in furtherance of the promoting or selling of the arrangement, and
(ii) the arrangement includes or relates to the transaction or series; or
(c) accepts (whether as principal or agent and whether directly or indirectly) consideration in respect of an arrangement referred to in paragraph (a) or (b).
“reportable transaction”
« opération à déclarer »
“reportable transaction”, at any time, means an avoidance transaction that is entered into by or for the benefit of a person, and each transaction that is part of a series of transactions that includes the avoidance transaction, if at the time any two of the following paragraphs apply in respect of the avoidance transaction or series:
(a) an advisor or a promoter, or any person who does not deal at arm’s length with the advisor or promoter, has or had an entitlement, either immediately or in the future and either absolutely or contingently, to a fee that to any extent
(i) is based on the amount of a tax benefit that results, or would result but for section 245, from the avoidance transaction or series,
(ii) is contingent upon the obtaining of a tax benefit that results, or would result but for section 245, from the avoidance transaction or series, or may be refunded, recovered or reduced, in any manner whatever, based upon the failure of the person to obtain a tax benefit from the avoidance transaction or series, or
(iii) is attributable to the number of persons
(A) who participate in the avoidance transaction or series, or in a similar avoidance transaction or series, or
(B) who have been provided access to advice or an opinion given by the advisor or promoter regarding the tax consequences from the avoidance transaction or series, or from a similar avoidance transaction or series;
(b) an advisor or promoter in respect of the avoidance transaction or series, or any person who does not deal at arm’s length with the advisor or promoter, obtains or obtained confidential protection in respect of the avoidance transaction or series,
(i) in the case of an advisor, from a person to whom the advisor has provided any assistance or advice with respect to the avoidance transaction or series under the terms of an engagement of the advisor by that person to provide such assistance or advice, or
(ii) in the case of a promoter, from a person
(A) to whom an arrangement, plan or scheme has been promoted or sold in the circumstances described in paragraph (a) of the definition “promoter”,
(B) to whom a statement or representation described in paragraph (b) of the definition “promoter” has been made, or
(C) from whom consideration described in paragraph (c) of the definition “promoter” has been received; or
(c) either
(i) the person (in this subparagraph referred to as the “particular person”), another person who entered into the avoidance transaction for the benefit of the particular person or any other person who does not deal at arm’s length with the particular person or with a person who entered into the avoidance transaction for the benefit of the particular person, has or had contractual protection in respect of the avoidance transaction or series, otherwise than as a result of a fee described in paragraph (a), or
(ii) an advisor or promoter in respect of the avoidance transaction or series, or any person who does not deal at arm’s length with the advisor or promoter, has or had contractual protection in respect of the avoidance transaction or series, otherwise than as a result of a fee described in paragraph (a).
“solicitor-client privilege”
« privilège des communications entre client et avocat »
“solicitor-client privilege” has the meaning assigned by subsection 232(1).
“tax benefit”
« avantage fiscal »
“tax benefit” has the meaning assigned by subsection 245(1).
“transaction”
« opération »
“transaction” has the meaning assigned by subsection 245(1).
Marginal note:Application
(2) An information return in prescribed form and containing prescribed information in respect of a reportable transaction must be filed with the Minister by
(a) every person for whom a tax benefit results, or would result but for section 245, from the reportable transaction, from any other reportable transaction that is part of a series of transactions that includes the reportable transaction or from the series of transactions;
(b) every person who has entered into, for the benefit of a person described in paragraph (a), an avoidance transaction that is a reportable transaction;
(c) every advisor or promoter in respect of the reportable transaction, or in respect of any other transaction that is part of a series of transactions that includes the reportable transaction, who is or was entitled, either immediately or in the future and either absolutely or contingently, to a fee in respect of any of those transactions that is
(i) described in paragraph (a) of the definition “reportable transaction” in subsection (1), or
(ii) in respect of contractual protection provided in circumstances described in paragraph (c) of the definition “reportable transaction” in subsection (1); and
(d) every person who is not dealing at arm’s length with an advisor or promoter in respect of the reportable transaction and who is or was entitled, either immediately or in the future and either absolutely or contingently, to a fee that is referred to in paragraph (c).
Marginal note:Clarification of reporting transactions in series
(3) For greater certainty, and subject to subsection (11), if subsection (2) applies to a person in respect of each reportable transaction that is part of a series of transactions that includes an avoidance transaction, the filing of a prescribed form by the person that reports each transaction in the series is deemed to satisfy the obligation of the person under subsection (2) in respect of each transaction so reported.
Marginal note:Application
(4) For the purpose of subsection (2), if any person is required to file an information return in respect of a reportable transaction under that subsection, the filing by any such person of an information return with full and accurate disclosure in prescribed form in respect of the transaction is deemed to have been made by each person to whom subsection (2) applies in respect of the transaction.
Marginal note:Time for filing return
(5) An information return required by subsection (2) to be filed by a person for a reportable transaction is to be filed with the Minister on or before June 30 of the calendar year following the calendar year in which the transaction first became a reportable transaction in respect of the person.
Marginal note:Tax benefits disallowed
(6) Notwithstanding subsection 245(4), subsection 245(2) is deemed to apply at any time to any reportable transaction in respect of a person described in paragraph (2)(a) in relation to the reportable transaction if, at that time,
(a) the obligation under subsection (2) of the person in respect of the reportable transaction, or any other reportable transaction that is part of a series of transactions that includes the reportable transaction, has not been satisfied;
(b) a person is liable to a penalty under subsection (8) in respect of the reportable transaction or any other reportable transaction that is part of a series of transactions that includes the reportable transaction; and
(c) the penalty under subsection (8) or interest on the penalty has not been paid, or has been paid but an amount on account of the penalty or interest has been repaid under subsection 164(1.1) or applied under subsection 164(2).
Marginal note:Assessments
(7) Notwithstanding subsections 152(4) to (5), the Minister may make any assessments, determinations and redeterminations that are necessary to give effect to subsection (8).
Marginal note:Penalty
(8) Every person who fails to file an information return in respect of a reportable transaction as required under subsection (2) on or before the day required under subsection (5) is liable to a penalty equal to the total of each amount that is a fee to which an advisor or a promoter (or any person who does not deal at arm’s length with the advisor or the promoter) in respect of the reportable transaction is or was entitled, either immediately or in the future and either absolutely or contingently, to receive in respect of the reportable transaction, any transaction that is part of the series of transactions that includes the reportable transaction or the series of transactions that includes the reportable transaction, if the fee is
(a) described in paragraph (a) of the definition “reportable transaction” in subsection (1); or
(b) in respect of contractual protection provided in circumstances described in paragraph (c) of the definition “reportable transaction” in subsection (1).
Marginal note:Joint and several liability
(9) If more than one person is liable to a penalty under subsection (8) in respect of a reportable transaction, each of those persons are jointly and severally, or solidarily, liable to pay the penalty.
Marginal note:Joint and several liability — special cases
(10) Notwithstanding subsections (8) and (9), the liability of an advisor or a promoter, or a person with whom the advisor or promoter does not deal at arm’s length, to a penalty under those subsections in respect of a reportable transaction shall not exceed the total of each amount that is a fee referred to in subsection (8) to which that advisor or promoter, or a person with whom the advisor or promoter does not deal at arm’s length, is or was entitled, either immediately or in the future and either absolutely or contingently, to receive in respect of the reportable transaction.
Marginal note:Due diligence
(11) A person required to file an information return in respect of a reportable transaction is not liable for a penalty under subsection (8) if the person has exercised the degree of care, diligence and skill to prevent the failure to file that a reasonably prudent person would have exercised in comparable circumstances.
Marginal note:Reporting not an admission
(12) The filing of an information return under this section by a person in respect of a reportable transaction is not an admission by the person that
(a) section 245 applies in respect of any transaction; or
(b) any transaction is part of a series of transactions.
Marginal note:Application of sections 231 to 231.3
(13) Without restricting the generality of sections 231 to 231.3, even if a return of income has not been filed by a taxpayer under section 150 for the taxation year of the taxpayer in which a tax benefit results, or would result but for section 245, from a reportable transaction, sections 231 to 231.3 apply, with such modifications as the circumstances require, for the purpose of permitting the Minister to verify or ascertain any information in respect of that transaction.
Marginal note:Tax shelters and flow-through shares
(14) For the purpose of this section, a reportable transaction does not include a transaction that is, or is part of a series of transactions that includes,
(a) the acquisition of a tax shelter for which an information return has been filed with the Minister under subsection 237.1(7); or
(b) the issuance of a flow-through share for which an information return has been filed with the Minister under subsection 66(12.68).
Marginal note:Tax shelters and flow-through shares — penalty
(15) Notwithstanding subsection (8), the amount of the penalty, if any, that applies on a person under that subsection in respect of a reportable transaction shall not exceed the amount determined by the formula
A – B
where
- A
- is the amount of the penalty imposed on the person under subsection (8), determined without reference to this subsection; and
- B
- is
(a) if the reportable transaction is the acquisition of a tax shelter, the amount of the penalty, if any, that applies on the person under subsection 237.1(7.4) in respect of the tax shelter,
(b) if the reportable transaction is the issuance of a flow-through share, the amount of the penalty, if any, that applies on the person under subsection 66(12.74) in respect of the issuance of the flow-through share, and
(c) in any other case, nil.
Marginal note:Anti-avoidance
(16) Subsection (14) does not apply to a reportable transaction if it is reasonable, having regard to all of the circumstances, to conclude that one of the main reasons for the acquisition of a tax shelter, or the issuance of a flow-through share, is to avoid the application of this section.
Marginal note:Solicitor-client privilege
(17) For greater certainty, for the purpose of this section, a lawyer who is an advisor in respect of a reportable transaction is not required to disclose in an information return in respect of the transaction any information in respect of which the lawyer, on reasonable grounds, believes that a client of the lawyer has solicitor-client privilege.
(2) Subsection (1) applies in respect of avoidance transactions that are entered into after 2010 or that are part of a series of transactions that began before 2011 and is completed after 2010, except that, in its application to an avoidance transaction that is part of a series that began before 2011, the definition “confidential protection” in subsection 237.3(1) of the Act, as enacted by subsection (1), is to be read as follows:
- “confidential protection”
“confidential protection”, in respect of a transaction or series of transactions, means anything that prohibits the disclosure to any person or to the Minister of the details or structure of the transaction or series under which a tax benefit results, or would result but for section 245, but does not include a prohibition on disclosure that relates to an agreement entered into before March 4, 2010 between an advisor and his or her client for the provision of accounting, legal or similar tax advisory services, and for greater certainty, the disclaiming or restricting of an advisor’s liability shall not be considered confidential protection if it does not prohibit the disclosure of the details or structure of the transaction or series.
(3) If the filing of an information return under section 237.3 of the Act, as enacted by subsection (1), would be required before July 1, 2012, the information return is deemed to be filed before that day if it is filed before the day that is 120 days after the day on which this Act receives royal assent.
- Date modified: