Private Client 2020

1. CONNECTION FACTORS

   1.1 To what extent is domicile or habitual residence relevant in determining liability to taxation in your jurisdiction?

   Domicile is generally not relevant to the determination of an individual's Canadian tax liability. Rather, the rationale for imposing Canadian income taxes on individuals is based on the concept of tax residence in Canada (domicile and habitual residence, however, may be relevant in the context of Wills and family law matters).

   1.2 If domicile or habitual residence is relevant, how is it defined for taxation purposes?

   "Domicile" is not defined under the Income Tax Act (Canada) (the "Act") and the concept of habitual residence is only relevant insofar as an individual is resident in Canada for tax purposes. This latter concept is further discussed in questions 1.3 and 1.4, below.

   1.3 To what extent is residence relevant in determining liability to taxation in your jurisdiction?

   As noted, residence forms the basis for determining an individual's liability to pay income taxes in Canada.

   1.4 If residence is relevant, how is it defined for taxation purposes?

   Individuals are considered to be residents of Canada if they meet the common law test for Canadian tax residency. The most important common law consideration is whether individuals maintain residential ties to Canada. A dwelling place or places in Canada and a spouse and/or dependants who remain in Canada are indicative of residential ties to the country. Individuals who maintain a significant amount of personal property in Canada, who keep a Canadian driver's licence and maintain social and economic ties to the country may also be considered to have residential ties to Canada, but each case will turn on its own facts and circumstances. Where an individual is determined not to be factually residing in Canada pursuant to the common law test, he or she may still be deemed to be a resident of Canada pursuant to the Act. For instance, under subs. 250(1) of the Act, an individual sojourning in Canada for a total period of 183 days or more during a calendar year will be deemed to be a resident of Canada for the entire calendar year. In certain cases, a tax treaty between Canada and another country will be relevant to the determination of an individual's tax residence.

   1.5 To what extent is nationality relevant in determining liability to taxation in your jurisdiction?

   On its own, nationality is irrelevant in determining whether a person is liable to pay taxes in Canada. As noted in question 1.3 above, only residence is relevant in determining a person's annual income tax liability. However, if a taxpayer is deemed to be resident in two countries, one of which is Canada, "tie-breaker rules" under international tax treaties may apply to determine the taxpayer's country of residence. Although not a primary consideration, nationality may be a factor that is considered when applying such rules.

   1.6 If nationality is relevant, how is it defined for taxation purposes?

   Further to question 1.5, nationality is not relevant to the determination of a person's liability to pay Canadian income taxes and is not defined in the Act.

   1.7 What other connecting factors (if any) are relevant in determining a person's liability to tax in your jurisdiction?

   As residence forms the basis for determining whether a person will be liable to pay tax in Canada, the general connecting factors are those which would be applied to determine Canadian tax residence, as outlined in question 1.4, above.

2. GENERAL TAXATION REGIME

   2.1 What gift, estate or wealth taxes apply that are relevant to persons becoming established in your jurisdiction?

   There are no estate, gift and/or wealth taxes in Canada, only provincial probate taxes and capital gains taxes, as outlined in question 3.1, below. When capital assets are transferred by way of gift, any accrued gain generally becomes taxable to the donor of the gift, with some exceptions. On death, the deceased is deemed to have disposed of all capital assets and, again with certain significant exceptions, the gain on such deemed disposition is taxable to him or her.

   2.2 How and to what extent are persons who become established in your jurisdiction liable to income and capital gains tax?

   Under s. 3 of the Act, both federal and provincial income taxes are payable by all residents of Canada on their total worldwide income, from all recognised taxable sources. The concept of the tax residence for individuals is discussed in question 1.4, above.

   Under subs. 38(1) of the Act, taxable capital gains are generally assessed on the basis that half of the value of the gain is to be added to the taxpayer's taxable income in the year in which the gain is realised.

   2.3 What other direct taxes (if any) apply to persons who become established in your jurisdiction?

   Canadian provinces may only levy direct taxation, and do so most commonly in the form of income taxes imposed on persons. Under the Canada Pension Plan (Canada) and the Employment Insurance Act (Canada), individuals who work in Canada as employees are also required to make periodic pension and employment insurance contributions. These, along with federal and provincial income taxes, must be withheld and remitted by employers in the form of payroll deductions.

   Canadian municipalities also collect property taxes from taxpayers who own real property. The amount of property taxes payable in a year depends on the municipality's assessment of the property's value. The tax rates applicable to properties differ amongst provinces and municipalities. Land transfer tax also applies in certain provinces. In Ontario and British Columbia, purchases of real property in certain specified areas (for example, Greater Toronto, Metro Vancouver) by non-residents are subject to additional land transfer taxes. In British Columbia, a Speculation and Vacancy Tax is levied on owners of unoccupied residential properties in certain parts of the province. In general terms, the annual tax applies to owners that hold unoccupied properties in certain urban centres with higher rates applicable to foreign owners. This Speculation Tax is in addition to a similar surtax imposed by the city of Vancouver on owners of vacant homes.

   2.4 What indirect taxes (sales taxes/VAT and customs & excise duties) apply to persons becoming established in your jurisdiction?

   The federal government of Canada, under the Excise Tax Act (Canada) (the "ETA"), requires all merchants to collect a value-added tax of 5%, known as the Goods and Services Tax ("GST"), applicable to the supply of all goods and services in Canada, with the exception of goods and services that are either exempt or zero-rated. In the provinces of Ontario, Nova Scotia, Newfoundland, New Brunswick and Prince Edward Island, the GST is harmonised with provincial sales taxes of varying rates and collected by the Federal Government in the form of a Harmonized Sales Tax ("HST"), which functions in the same manner as the GST. The other provinces, other than Alberta, levy their own provincial sales taxes ("PST"), which vary in rates and application.

   Customs and excise taxes and duties apply to persons who are formally established in Canada at the time of importation of goods into the country. The Customs Act (Canada) and the Customs Tariff (Canada) outline the duties and tariffs that are applicable to different classes of goods entering the country. Under s. 212 of the ETA, every person who is liable under the Customs Act to pay duty on goods imported into Canada is also required to pay the GST applicable to the goods. These goods are also outlined in the list of tariff provisions set out in the schedule to the Customs Tariff.

   2.5 Are there any anti-avoidance taxation provisions that apply to the offshore arrangements of persons who have become established in your jurisdiction?

   Non-resident trust ("NRT") rules were enacted in June 2013 as amendments to s. 94 of the Act. These rules may apply to offshore trusts that have Canadian-resident contributors or beneficiaries. S. 94.1 of the Act also provides rules that apply to portfolio investments held by foreign investment entities ("FIEs"), while s. 94.2 of the Act contains rules regarding investments in non-resident commercial trusts by Canadian residents or other particular persons.

   Under the NRT rules, an offshore trust may be subject to taxation in Canada if a Canadian-resident taxpayer has, at any time, made a contribution to the trust, or if the trust has at least one Canadian-resident beneficiary and a "connected contributor". A "connected contributor" is, in general, an individual who was a Canadian-resident taxpayer at the time he or she made contributions to the trust or at any time in the preceding or subsequent 60 months. If an offshore trust is subject to the NRT rules, it will be deemed resident in Canada and liable to pay annual income taxes on the portion of its income that relates to contributions made by resident or "connected" contributors.

   The FIE rules generally apply to non-resident entities that hold portfolio investments and may, in certain circumstances, also apply to non-resident trusts. Beneficiaries of such arrangements may be subject to the annual payment of Canadian income taxes on the income generated by their investments that are held by the non-resident entity. The FIE rules may be applied in circumstances where Canadian-resident taxpayers hold an interest in a non-resident entity and one of the main reasons for holding the interest is to pay less tax than otherwise payable under the Act. For taxpayers who hold interests in certain non-resident commercial trusts, s. 94.2 of the Act may also deem them to hold a controlling interest in a controlled foreign affiliate (generally resulting in annual Canadian income taxation on an accrual basis) with regard to their beneficial interest in the non-resident trust.

   2.6 Is there any general anti-avoidance or anti-abuse rule to counteract tax...