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Review from Webinar Day 3 (09.10 - 09.15 EAT)

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Review from Webinar Day 3 (09.10 - 09.15 EAT)

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·      Main rule
·      Exceptions
·      Indirect transfer of ownership (source rules) : UN vs OECD
·      Problems?

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NB: 10 Crore = 1 million

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22,000 Cr Vodafone Tax Battle | Finshots

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This is the place to be if you're trying to participate in a live poll

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Session 2: Employment Income (10.00 - 10.45 EAT)

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Session 2: Employment Income (10.00 - 10.45 EAT)

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Speakers: Premkumar Baldewsing and Paul de Haan

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Session 3: Update: BEPS and Digital Economy (11.00 - 11.45 EAT)

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Session 3: Update: BEPS and Digital Economy (11.00 - 11.45 EAT)

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Speakers: Anna Gunn, Premkumar Baldewsing, Paul de Haan

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Session 4: Summary of Take Aways and Follow Up Actions (12.00 - 12.45 EAT)

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Session 4: Summary of Take Aways and Follow Up Actions (12.00 - 12.45 EAT)

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https://www.tax-platform.org/sites/pct/files/publications/PCT_Toolkit_The_Taxation_of_Offshore_Indirect_Transfers.pdf

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Docket: A-252-08 Citation: 2009 FCA 57 CORAM: DÉCARY J.A. BLAIS J.A. SHARLOW J.A. BETWEEN: HER MAJESTY THE QUEEN Appellant and PRÉVOST CAR INC. Respondent
Heard at Toronto, Ontario , on February 17, 2009.

Judgment delivered at Ottawa, Ontario , on February 26, 2009.

REASONS FOR JUDGMENT BY: DÉCARY J.A.

CONCURRED IN BY: BLAIS J.A.
Date: 20090226 Docket: A-252-08 Citation: 2009 FCA 57 CORAM: DÉCARY J.A. BLAIS J.A. SHARLOW J.A. BETWEEN: HER MAJESTY THE QUEEN Appellant and PRÉVOST CAR INC. Respondent REASONS FOR JUDGMENT DÉCARY J.A.
[1] At issue in this appeal is the interpretation of the terms "beneficial owner", "bénéficiaire effectif", in Article 10(2) of the Convention Between Canada and the Kingdom of the Netherlands for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, S.C. 1986, c. 48, Schedule 1, as amended (the "Tax Treaty"). The Tax Treaty came into force on November 27, 1986 and was based on the Organization for Economic Cooperation and Development ("OECD") Model Tax Convention on Income and on Capital 1977 ("Model Convention").

[3] Should Prévost Holding be found to be the beneficial owner, the rate of withholding tax by virtue of subsections 212(1) and 215(1) of the Income Tax Act and in accordance with Article 10 of the Tax Treaty would be 5%. Should Volvo and Henlys be found to be the beneficial owners, subsection 215( c) of the Act would have required Prévost to withhold 25% (reduced to 15% in the case of the dividend paid to Volvo because of the Canada-Sweden Tax Treaty and 10% in the case of the dividend paid to Henlys because of the Canada-U.K. Tax Treaty).

[4] In a judgment cited as 2008 TCC 231, the Associate Chief Justice Rip (as he then was) found that the beneficial owner was Prévost Holding.
Interpretation of "beneficial owner" in Article 10(2) of the Tax Treaty
[8] It is common ground that there is no settled definition of "beneficial ownership" (or in French, "bénéficiaire effectif") in the Model Convention, in the Tax Treaty or in the Canadian Income Tax Act. In his search for the meaning of these terms, the Judge closely examined their ordinary meaning, their technical meaning and the meaning they might have in common law, in Québec's civil law, in Dutch law and in international law. He relied, inter alia, on the OECD Commentary for Article 10(2) of the Model Convention and on OECD documents issued subsequently to the 1977 Commentary, i.e. the OECD Conduit Companies Report adopted by the OECD Council on November 27, 1986 and the amendments made in 2003 by the OECD to its 1977 Commentary. He also had the benefit of expert evidence.

[9] I pause here to observe that counsel for both sides agree that the Judge was entitled to rely on subsequent documents issued by the OECD in order to interpret the Model Convention. I share their view. It is true that this Court, in , 2006 DTC 3307 at 3320, it does not appear that such a view was in the mind of this Court when it dismissed the appeal from the Bench, CUDD Pressure Control Inc. v. The Queen, 98 DTC 6630, at 6635, qualified the relevance of the 1977 Commentary as being "somewhat suspect" in the search of the intention of the drafters of a Convention signed thirty-five years earlier, in 1942, but there was no Model Convention in 1942 and in any event McDonald J.A., in concurring reasons, went on to recognize that OECD Commentaries "can provide some assistance" as the 1942 Convention follows the same general principles as the 1972 OECD Model. To the extent that it might be said that a contrary view was expressed by the Tax Court in MIL (Investments) 2007 FCA 236.

[10] The worldwide recognition of the provisions of the Model Convention and their incorporation into a majority of bilateral conventions have made the Commentaries on the provisions of the OECD Model a widely-accepted guide to the interpretation and application of the provisions of existing bilateral conventions (see Crown Forest Industries Ltd. v. Canada, [1995] 2 S.C.R. 802; Klaus Vogel, " Klaus Vogel on Double Taxation Conventions " 3rd ed. (The Hague: Kluwer Law International, 1997) at 43. In the case at bar, Article 10(2) of the Tax Treaty is mirrored on Article 10(2) of the Model Convention.

Where an agency or mandate exists or the property is in the name of a nominee, one looks to find on whose behalf the agent or mandatary is acting or for whom the nominee has lent his or her name. When corporate entities are concerned, one does not pierce the corporate veil unless the corporation is a conduit for another person and has absolutely no discretion as to the use or application of funds put through it as conduit, or has agreed to act on someone else's behalf pursuant to that person's instructions without any right to do other than what that person instructs it, for example, a stockbroker who is the registered owner of the shares it holds for clients.
Who is the "beneficial owner" in the case at bar
"Robert Décary"

Pierre Blais J.A."

K. Sharlow J.A."
FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: HER MAJESTY THE QUEEN v. PRÉVOST CAR INC.

DATE OF HEARING: February 17, 2009

REASONS FOR JUDGMENT BY: DÉCARY J.A.

CONCURRED IN BY: BLAIS J.A.

February 26, 2009

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Docket: A-252-08 Citation: 2009 FCA 57 CORAM: DÉCARY J.A. BLAIS J.A. SHARLOW J.A. BETWEEN: HER MAJESTY THE QUEEN Appellant and PRÉVOST CAR INC. Respondent Heard at Toronto, Ontario , on February 17, 2009. Judgment delivered at Ottawa, Ontario , on February 26, 2009. REASONS FOR JUDGMENT BY: DÉCARY J.A.

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Canada v. Alta Energy Luxembourg S.A.R.L. - SCC Cases

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This page contains a form to search the Supreme Court of Canada case information database. You can search by the SCC 5-digit case number, by name or word in the style of cause, or by file number from the appeal court.

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VodafoneIndia_ Repercussions Of Retrospective Tax Amendments In India — In Light Of Cairn And Vodafone, (Jun