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There is no clear definition of “carrying on business in Canada” in the Canadian Income Tax Act. Historically, the deciding factors in determining where a business was carried on included the origin of the contract and the place where the profit-making activities arose. In determining where such activities arose, the courts have looked to factors such as where the services were performed, location of employees, location of bank accounts, the existence of an office, etc.
The Canadian Revenue Agency (CRA) has developed a list of 12 factors to consider when determining whether a non-resident is carrying on business in Canada for the purposes of Canadian sales tax:
Although the threshold for carrying on business in Canada is relatively low, the US-Canada Tax Treaty provides relief to an American where a business is not carried on through a “permanent establishment” in Canada.
If there is no “permanent establishment” in Canada, then generally the US entity will not be taxable in Canada, even though they are still required to file a Canadian tax return.
In 2010-0381951E5, the CRA indicated that the determination of the existence of a permanent establishment is a question of fact, and stated that Article 5 of the OECD Model Tax Convention provides the appropriate framework for the determination of whether a permanent establishment exists.
Where a Canadian permanent establishment exists, the US entity will be taxed in Canada on the business profits attributable to that permanent establishment.
Contact us for a free consultation regarding your Canadian Corporate Taxes situation:
UHY Victor LLP Canada U.S. Tax Team
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