Tax & Trade Blog

On June 4, 2021, the Government of Canada published an Order Amending the Export Control List (the “Order”), changing the regulatory landscape for businesses that deal with controlled goods and technologies in Canada. While a seemingly minor update — set to come into force after July 23^rd, 2021 — this change actually has very far-reaching implications for firms looking to stay in compliance with these important rules!

One of the most hotly contested areas in trade litigation is the “value for duty” (“VFD”) of goods being imported to Canada. “Value for duty” is the base on which one calculates and pays duties and taxes. Canada Border Services Agency (“CBSA”) typically audits in this area with a view to increasing the VFD of the imported goods, increasing revenues.

In a recent Canadian International Trade Tribunal (the “CITT”) case, CBSA was forced to allow non-resident importer to use its ‘factory prices’ as the proper base for duties – which has potentially far-reaching implications for importers!

Canada Border Services Agency (“CBSA”) resets it “audit priority areas” twice a year. This sees CBSA designate certain tariff classification codes as CBSA’s priority areas for custom verifications (i.e., “audits”), which is based on program areas that the CBSA believes pose significant risks for non-compliance. The non-compliance risk is generally in tariff classification, valuation and origin of goods imported.

Right on schedule, CBSA has now released its July 2021 Trade Compliance Verifications, which update where CBSA started in January of this year.

The Canada Revenue Agency (“CRA”) has been rigorously challenging intermediaries in the financial services industry, categorizing their services as taxable promotional, advertisement or taxable administrative services (as opposed to treating them as GST/HST exempt financial services).

While this aggressive approach seems (at first blush) consistent with the definition of a “financial service” under 123(1) of the Excise Tax Act (“ETA”) (which exempts the “arranging for” processing of credit and debit card payments, while excluding from exemption “promotional or advertising services”), many have suggested that contrary:   that CRA was trying to pigeon-hole what these service providers do in order to find “taxable” services.

In the recent Zomaron Inc. v. The Queen case (“Zomaron”), the Tax Court of Canada (“TCC”) found against CRA, and concluded that the dominant element of the services being provided were “exempt” in nature, and that the promotional, advertisement or administrative elements of the services did not serve to disqualify from GST/HST exemption.

On July 7, 2021 the Canada Border Services Agency (the "CBSA") issued a Notice of Initiation of Investigation under the Special Import Measures Act ("SIMA") of alleged dumping of Oil Country Tubular Goods ("OCTG") imported from Austria. This investigation was prompted by a complaint filed by Canadian manufacturers of OCTG in Ontario and Alberta.

The goods under investigation are currently defined as

We said then: “An individual buying a run-down house, fixing it up, and living in it a while, and then selling for a tidy income tax exempt profit (the house being the individual’s principal residence) sounds like a recipe for success. [But repeat] that 21 times in a row, and you may have a different kettle of fish!”

Apparently, all you have to do is “repeat 2 times in a row” to be liable for income taxes on our profits, and uncollected GST/HST on your sales revenue!

The Canada Revenue Agency (“CRA”) has broad audit powers, allowing it to request any documents, records, and information from taxpayers and third parties under audit. The 2021 Federal Budget proposed an expansion (!) to these powers – allowing CRA to compel interview and answers from an owner-manager and any other employees of the business. The changes are aimed at making it easier for the CRA to get information and issue assessments, but those in the know predict real problems for unrepresented taxpayers and their employees! The worry is that CRA will have a single mindset heading into these interviews and will use them to simply gain ammunition for an Assessment.

On June 30, 2021 the Canada Border Services Agency (the "CBSA") issued a Notice of Initiation of Investigation under the Special Import Measures Act ("SIMA") of alleged dumping of Oil Country Tubular Goods ("OCTG") imported from Mexico. This investigation was prompted by a complaint filed by Canadian manufacturers of the products in Saskatchewan and Ontario.

The goods under investigation are currently defined as

Effective May 5, 2021, as a result of an anti-dumping investigation that began in December 2020, imports of items of Upholstered Domestic Seating originating in, or exported from, China or Vietnam will be subject to provisional anti-dumping duties of 206.36% for China, and 89.77% for Vietnam for imports where the exporter has not been issued a specific rate. Provisional countervailing duties of 89.54% for imports from China and 11.73% for imports from Vietnam are also applicable.

Keep reading for more about what anti-dumping duties are, and what will happen next with Upholstered Domestic Seating

In Budget 2021 the government of Canada proposed changes to the ITC Information Requirements which will generally make it easier for businesses to claim ITCs in two ways:

1. increasing the dollar thresholds of the ITC Information Requirements; and
2. expanding the definition of "intermediary" to include billing agents, such that a recipient can obtain the name and/or GST registration number of a billing agent rather than the underlying vendor in order to support an ITC claim.

Some details of these proposals, which are effective starting April 21, 2021, are set out below.

Canadians and travellers into Canada may be pleased to learn that Canadian border officials do not have unlimited powers to search the contents of their electronic devices when entering the country.

The Alberta Court of Appeal (ABCA) reached this conclusion last year in the case of R v Canfield (2020 ABCA 383), finding that the relevant search powers in the Customs Act were unconstitutional to the extent that they allowed for unlimited searches of personal electronic devices.  Recently, the Supreme Court of Canada (SCC) dismissed the application for leave to appeal Canfield, meaning that the ABCA’s decision stands.

Per our previous blog, the Government of Canada’s Fall Economic Update has announced new rules which will change the GST/HST registration and collection regime for short-term rental accommodation platforms (like AirBnb) and the underlying persons offering the accommodations to ensure GST/HST is properly collected on these supplies.  This article gives a high-level overview of the proposed changes—which will be especially important to anyone who rents out their property on these platforms!

Per our previous blog, the Government of Canada’s Fall Economic Update has announced new rules which will change the registration and collection regime for fulfillment warehouses (like Amazon) to ensure that vendors collect GST/HST on the final price paid for their goods when they are sold in Canada.  This article gives a high-level overview of these specific changes.

Quebec has special rules regarding the mandatory disclosure of “nominee agreements” (which are essentially the Quebec civil law equivalent of undisclosed agency agreements) where the agreement is made as part of a transaction or series of transactions that have “tax consequences”.

We previously blogged about a Tax Court of Canada (TCC) case on the tax status of credit card/payment processing services provided by Visa. In that case, the TCC held that Visa’s services constituted the supply of “administrative services” and were therefore excluded from the definition of a “financial service” in subsection 123(1) of the Excise Tax Act (ETA).

The Federal Court of Appeal (FCA) has now reversed the TCC decision, holding that Visa’s services were in fact exempt financial services.

On December 21, 2020, the CBSA initiated a dumping and subsidy investigation into certain upholstered domestic seating (“UDS”) from China and Vietnam under the Special Imports Measures Act (“SIMA”). In the Notice of Initiation of Investigations, the subject goods under investigation were described as follows:

In November 2020, the Canadian government introduced Bill C-11, the Digital Charter Implementation Act, 2020(DCIA). This long-awaited bill follows years of consultation and calls for reform and, if passed, would significantly overhaul Canada’s federal privacy laws.

The determination of whether a transaction is a ‘sham’ has been a longstanding issue in tax law, but one that has seemingly been the focus of a number of CRA projects across a number of different industries, including a current project in the international long-distance minutes business, where the CRA says that businesses are involved in the so-called carousel sham!

On Monday, November 30, 2020, the Government of Canada delivered its Fall Economic Update, entitled Supporting Canadians and Fighting COVID-19. As reported in the National Post, the Update will be particularly noteworthy for online businesses selling goods/services to Canadians, as it announced that the government would soon “force foreign digital vendors like Netflix and Amazon to collect sales taxes on a bevy of products and services sold to Canadians”.

The tax measures cover a variety of online services, from streaming platforms to short-term rental accommodations, and are expected to be in effect Canada-wide for GST/HST purposes by July 21, 2021.

Following the United Kingdom’s (“UK”) exit from the European Union earlier this year, Canada had agreed to allow its current free-trade agreement with the EU continue to apply to the UK.  That agreement is called the Comprehensive Economic and Trade Agreement (“CETA”), and Canada’s agreement to continue providing similar benefits to the UK was set to expire at the end of 2020.

Canada and the UK have now agreed on a new interim trade deal, titled the Canada-United Kingdom Trade Continuity Agreement (“TCA”).