To ensure compliance with the U.S. Treasury Department regulations, we inform you that any tax advice that may be contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or applicable state or local tax law provisions or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.

Has your Canadian business expanded into the U.S.? Do you have dealings with U.S. customers? If so, have you considered the U.S. tax implications? It’s important that you do. Canadians – both individuals and corporations – can end up with a U.S. tax liability if they carry on a trade or business in the U.S. Even if U.S. taxes are not owing, there may be U.S. filing requirements which must be met on a timely basis. And if these requirements are not met, significant penalties may apply.

In this bulletin, we’ll discuss the U.S. tax liability and filing requirements that can arise for Canadians (individuals and corporations) who are considered to be carrying on business in the U.S. Note that this bulletin does not cover issues that need to be considered by Canadian partnerships and trusts doing business in the U.S. – contact your BDO advisor for assistance in these situations.

U.S. basis of taxation

Under U.S. domestic tax law, a non-resident – whether an individual or corporation – is subject to U.S. federal tax if they have income that is “effectively connected with the conduct of a trade or business within the United States”. This is an ongoing test, which means that if you carry on a trade or business in the U.S. at any time in the year, you will be subject to U.S. tax for that particular taxation year. This is similar to the Canadian domestic tax law that taxes non-residents of Canada on any income they earn from carrying on a business in Canada.

Are you carrying on a trade or business in the U.S.?

If you operate a business in Canada and have dealings with U.S. customers, you may be considered to be carrying on business in the U.S. Whether or not this is the case will depend on the facts of your involvement with U.S. customers. The level of activity required for “trade or business” status in the U.S. is relatively low. The following situations could mean that you are subject to U.S. tax, with some possible exceptions noted:

• If you make sales into the U.S. market, you may have a U.S. trade or business. If, however, you are merely accepting unsolicited purchase orders from U.S. customers, you probably will not be considered to be carrying on business in the U.S.
• If you ship goods to the U.S. and title to the items passes in the U.S., you will likely be considered to have a U.S. trade or business.
• The activities of your employees or agents may cause you to have a U.S. trade or business. For example, you may be considered to have a U.S. trade or business if your employees or agents travel regularly to the U.S. to make sales calls or if your employees or agents are doing marketing, demonstrating goods, or soliciting orders in the U.S. However, you will not likely have a trade or business from passive solicitation in the U.S. through mail order catalogues, or casual or infrequent trips to the U.S. by your employees.
• If you (or your employees) perform personal services in the U.S., you are considered to be carrying on a U.S. trade or business. For example, if you go to the U.S. on consulting contracts and work at customer sites, you will be considered to have a U.S. trade or business. Note, certain exceptions may apply.
• If your technicians travel to the U.S. on a regular basis to help clients with installations, training, or servicing products, you may have a U.S. trade or business. However, such staff would have to be involved in selling products or negotiating additional services (in other words, generating income for you).

It’s important to recognize when you start to have business connections with the U.S. because as soon as you do, you may be subject to U.S. tax, or at least U.S. filing requirements.

Effectively Connected Income

If you are engaged in a U.S. trade or business, you will be taxed at graduated rates on a net basis on income that is effectively connected with the conduct of that U.S. trade or business. Effectively connected income generally includes business income and salaries attributable to services performed in the U.S. You will be allowed to claim deductions to reduce effectively connected income, but only to the extent that the deductions are connected with that income. Note that special tests are applied to determine whether investment income from U.S. sources is treated as effectively connected income.

If you have a trade or business in the U.S., certain types of foreign-source income could also be considered effectively connected with the U.S. trade or business. For example, if certain conditions are met, royalties received for the use of intangible property outside the U.S. could be treated as effectively connected income where the royalties are from the active conduct of a U.S. trade or business. Similarly, income from the sale of inventory in a foreign country could be treated as effectively connected income, if the sale is made from the U.S.

Also note that as a Canadian, gains or losses earned on the disposition of U.S. real property are considered effectively connected to the U.S., even if you are not considered to be engaged in a U.S. trade or business.

The benefits of the Canada-U.S. tax treaty

If you have income that is effectively connected with a U.S. trade or business, you may not be liable for U.S. federal tax, due to relief provided under the Canada-U.S. tax treaty. However, you will still have U.S. filing requirements. Under the treaty, Canadian residents are only taxable in the U.S. on their U.S. business profits if they carry on their business in the U.S. through a U.S. permanent establishment (“PE” for a corporation; “fixed base” for an individual).

What is a PE?

A PE is basically a fixed place of business through which a non-resident carries on a business. Examples of a PE include:

• a place of management,
• a branch,
• an office,
• a factory, and
• a place of extraction of natural resources, such as a mine.

You will also be considered to have a U.S. PE if a person acting on your behalf in the U.S. regularly has the authority to conclude contracts in your name. For example, if an employee of a Canadian company travels to a U.S. trade show annually and makes sales there, the Canadian company could be considered to have a U.S. PE by virtue of the employee’s general authority to conclude contracts (including the ability to negotiate prices, and not simply by using a fixed price list) at the annual trade show.

Activities that do not give rise to a U.S. PE

Under the treaty, certain fixed places of business are not considered a U.S. PE if used solely for specified activities. Examples of these activities include:

• the use of facilities, for storage, display, or delivery of goods or merchandise,
• the maintenance of a stock of goods or merchandise for storage, display and delivery or for processing by another person,
• the purchase of goods in the U.S.,
• the collection of information in the U.S., and
• advertising, supplying information or scientific research done in the U.S. that is preparatory or secondary to the business.

As well, if you use a U.S. broker, general commission agent, or any other independent agent, you will not be considered to have a PE in the U.S., as long as the broker or agent is acting in the ordinary course of their own business.

You need to consider your presence and level of activity in the U.S. to determine whether you have a PE there. If you do, you will be taxable in the U.S. with respect to the income attributable to that PE. Review your circumstances with your BDO tax advisor to determine whether or not you have a PE in the U.S.

Note that there is not a specific definition of “fixed base” in the treaty. Court case decisions, however, have interpreted a “fixed base” to mean essentially the same as a permanent establishment.

U.S. filing requirements

Treaty-based filing positions

If you have income that is effectively connected with a U.S. trade or business, you must file U.S. tax returns, even if you do not have a U.S. permanent establishment and are therefore not subject to U.S. federal income tax.

In the case of a Canadian corporation, Form 1120-F must be filed to disclose U.S. source income, together with Form 8833 to claim relief under the Canada-U.S. tax treaty from taxation on income from U.S. activities because the corporation does not have a U.S. PE. If you are a Canadian individual, you must file Form 1040NR and attach Form 8833 disclosing that you are claiming relief under the treaty from taxation on income from your U.S. activities because you do not have a fixed base in the U.S. Note that it is necessary to indicate on Form 8833 the appropriate provision of the Canada-U.S. tax treaty whereby your income from your U.S. activities is not taxable in the U.S.

If you are uncertain as to whether you have income from carrying on a business in the U.S., you should consider filing a U.S. return to protect yourself from penalties for failure to file and disclose a treaty-based filing position.

U.S. Permanent Establishment

If it is determined you have a U.S. permanent establishment, the income that is attributable to the U.S. permanent establishment is subject to U.S. tax and therefore no treaty relief is available. Corporations with a U.S. PE must file Form 1120F, and individuals with a fixed base in the U.S. must file Form 1040NR.

Taxpayers with U.S. permanent establishments can generally claim foreign tax credits on their Canadian tax returns for U.S. income tax that is paid on their U.S. source income. As Canadian residents are taxable on their worldwide income for Canadian tax purposes, U.S. effectively connected income will be taxed in both Canada and the U.S. However, by claiming a foreign tax credit for the U.S. tax paid against your Canadian income tax, you can generally avoid any double taxation on the U.S. effectively connected income.

Deadlines

For Canadian corporations with a PE in the U.S., the original deadline for filing a U.S. income tax return for a particular year is the 15th day of the 3rd month following the end of the fiscal year of the business. For example, for calendar year businesses, the deadline would be March 15th of the following year. This deadline also applies for Canadian corporations that do not have a PE in the U.S., but have a place of business in the U.S. The deadline for Canadian corporations simply holding real estate in the U.S. is the 15th day of the 6th month following the end of the fiscal year of the business.

For individuals, the original deadline for filing the return for a particular year is the 15th day of the 6th month following the end of the calendar year – June 15th. Note, however, if an individual has income subject to U.S. withholding at source (for example, employment income), the filing deadline is April 15th of the following year.

Penalties

If you file late, but no tax is owing because of the treaty exemption, no interest and penalties will apply if a second filing deadline is met. For corporations, this second filing deadline is 18 months after the original due date. For individuals, this deadline is 16 months after the original due date for the return. For example, as an individual, where your 2004 return was originally due June 15, 2005, the final deadline for filing is 16 months after this date or October 15, 2006 (extended to October 16th in 2006, as October 15th falls on a weekend). In either case, if these second deadlines are missed, penalties may apply even if no tax is payable.

Individuals who miss the second deadline for filing returns will be denied personal exemptions and deductions on their return. In effect, you will be taxed on gross business income. If you claim a treaty exemption to eliminate the tax at that time, you may be charged a $1,000 non-disclosure penalty for each item of income. Similar rules apply to corporations. If your corporation files later than the second deadline, it will be taxed on gross business income. If a treaty exemption is then claimed to eliminate the tax, a penalty for non-disclosure of $10,000 may be charged for each item of income. Note that temporary regulations may allow later filings in very restricted circumstances. Contact your BDO advisor for further information on the application of these rules.

U.S. taxpayer identification

Forms 1120-F, 1040NR and 8833 all require a U.S. taxpayer identification number.

For individuals, a U.S. taxpayer identification number can be either:

• a U.S. Social Security Number (SSN), which is the U.S. equivalent of a Social Insurance Number, or
• an Individual Taxpayer Identification Number (ITIN).

Only individuals who have U.S. immigration status are entitled to an SSN. For those individuals not eligible for an SSN, an ITIN will be required. To obtain an ITIN, you must file Form W-7 and proof of your identity and foreign status, along with your original completed tax return. Once Form W-7 has been processed, the Internal Revenue Service (IRS) will assign an ITIN to the return and process the return. If you do not have a return filing requirement, but meet one of the exceptions for obtaining an ITIN (for example, individuals subject to certain tax treaty benefits or third party reporting or withholding), you will be required to file specific documentation instead of a tax return. Your BDO advisor can assist you with this process.

For corporations, the taxpayer identification number is the Employer Identification Number (EIN). To obtain an EIN, a Canadian corporation must file Form SS-4 with the IRS.

U.S. state taxation

You may also have U.S. state income tax issues. You could be liable for state income taxes even if you do not have a PE in the U.S. The states are not bound by the Canada-U.S. tax treaty and therefore have the power to impose income tax even when the income is otherwise exempt by virtue of a provision in the Canada-U.S. tax treaty. Most U.S. states impose income tax on companies that carry on business in their state. The basis of state taxation varies; some states base their tax calculation on U.S. federal taxable income, whereas other states impose tax on Canadian companies that do business in the state, even if there is no PE. Many states impose income tax using a “nexus standard”. In other words, the taxpayer has some connection to the state, which is often a more encompassing concept than a PE. For example, New York State requires a company that has a nexus with the state to file tax returns and pay tax on the portion of worldwide taxable income of the company that is allocated to New York State. Although the amount of tax may be small, there are penalties for not filing the return.

In addition, sales and other state tax should not be overlooked. If you make sales into a state, you need to determine whether there is a requirement to collect and remit sales tax in that state. Other state taxes which may apply are often calculated based on activity in the state, such as the Michigan Single Business Tax which is calculated primarily as a percentage of revenue. You also need to consider franchise tax (similar to Canadian provincial capital tax), city or municipal sales tax, property taxes, industry specific taxes and possibly others. In addition, a Canadian company carrying on business in a U.S. state must generally register with the state in which it carries on business. There may be a registration fee or other legal or administrative requirements.

It’s also important to remember that each state has its own filing requirements and deadlines that may differ from the U.S. federal requirements and deadlines. Your BDO advisor can help you determine whether you have any state tax liabilities and what your filing requirements might be.

Other considerations for CCPCs

When a Canadian-controlled private corporation (CCPC) carries on business in the U.S. through a PE, any income derived from that PE will not qualify for the small business deduction. As well, where services are rendered in the U.S., income derived from the provision of those services will not be eligible for the small business deduction, even if the CCPC does not have a PE in the U.S. As a result, such income will be taxed at the high corporate tax rate in Canada.

Alternatively, you may consider running the U.S. business in a U.S. subsidiary of the CCPC. However, it will then be important to consider the impact on the CCPC’s status as a small business corporation. This is important if the shareholders of the CCPC want to use their $500,000 capital gains exemption or if they want to set up an income splitting plan. A CCPC may not meet all of the tests required in order to be a small business corporation if it holds a U.S. subsidiary, as these shares are a non-qualifying asset. This problem may be avoided by setting up another Canadian corporation to hold the shares of the U.S. company, rather than having the U.S. company set-up as a subsidiary of the CCPC. Planning ahead is important for CCPCs doing business in the U.S. Consult your BDO advisor to determine the best strategy for your business.

Summary

If you have business operations in the U.S., you could be liable for a myriad of different taxes. And there are a number of considerations to make in order to determine the appropriate filing requirements. Whether you are liable for U.S. federal income taxes on income from your business operations will depend on whether you are carrying on a trade or business in the U.S. through a U.S. permanent establishment. Even if you determine that you are not liable for U.S. federal income taxes, you may still have U.S. filing obligations. Also remember that state income taxes may be determined on a different basis, and filing requirements can vary depending on the state.

If you have business dealings in the U.S. or are thinking about expanding to the U.S., contact your BDO advisor to discuss your U.S. tax obligations.