Canada: Residence not a prohibited ground of treaty discrimination

International Tax Review is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Canada: Residence not a prohibited ground of treaty discrimination

A recent decision of Canada's Federal Court of Appeal considered the non-discrimination provision of the Canada-UK Tax Convention finding that it did not apply because the Canadian domestic legislation in question discriminated based on residency rather than nationality.

The Federal Court of Appeal confirmed that Canada is not prohibited under the treaty from discriminating against taxpayers based on their residency.

In Saipem UK Limited v The Queen, the taxpayer, a non-resident of Canada, claimed deductions in computing its taxable income for purposes of the Canadian Income Tax Act, from activities carried on by it in Canada through a permanent establishment (PE) within the meaning of the treaty. The deductions related to certain non-capital losses from business activities carried on in Canada by a corporation, SEI, that at all material times was related to the taxpayer within the meaning of the act and that was wound up into the taxpayer. The Minister of National Revenue denied the deductions on the basis that the Act required each of the taxpayer and SEI to be a Canadian corporation as defined in the act, and that definition required each corporation to be resident in Canada and either (i) incorporated in Canada, or (ii) resident in Canada throughout the period that began on June 18 1971.

Article 22(1) of the treaty prohibits discrimination on the basis of nationality, and the taxpayer asserted that the provision of the act restricting the deduction to Canadian corporations violated its rights as a UK national, and for purposes of the treaty, to non-discriminatory treatment guaranteed by Article 22. In early 2011, the Tax Court of Canada rejected the taxpayer's position.

Janette Pantry & Rebecca Levi

Blake, Cassels & Graydon

Tel: +1 416 863 2400

Fax: +1 416 863 2653

Website: www.blakes.com

more across site & bottom lb ros

More from across our site

Just one member objected to the multilateral convention on amount A, citing concerns over amount B
Jaime Carey wishes to broaden the IBA’s visibility in Africa and Asia during his tenure
Baker McKenzie’s survey of 600 corporate counsel also found that global employee mobility issues were a key driver of tax controversy
Ken Kies has been named as assistant secretary for tax policy; in other news, Baker McKenzie has boosted its US tax practice with a double hire
The increasing sophistication of India’s taxation system has led to complexity across tax treaty benefits, permanent establishments, transfer pricing and more, say Sanjay Sanghvi and Ujjval Gangwal of Khaitan & Co
Multinationals will continue to shift profits out of Slovakia to EU member states despite pillar two’s implementation, according to the report
The firm’s final report outlined new mandatory staff training designed to enhance ethical conduct; meanwhile former PwC Australia partner Wayne Plummer has been cleared of wrongdoing
Goods and services key to Africa’s tax revenue; electronic exemptions come to Europe; UK private school VAT challenge reaches High Court
The private client practice joining Withers comprises eight lawyers, three paralegals and additional staff members
Overall tax revenues grew by over 10% in 2024 when discounting the 'distorted' Apple payout, the Irish government said
Gift this article