Proceedings of the Standing Senate Committee on
National Finance
Issue 10 - Evidence - April 30, 2014
OTTAWA, Wednesday, April 30, 2014
The Standing Senate Committee on National Finance met this day at 1:47 p.m. to study the subject-matter of Bill C-31, An Act to implement certain provisions of the budget tabled in Parliament on February 11, 2014 and other measures.
Senator Joseph A. Day (Chair) in the chair.
[Translation]
The Chair: Honourable senators, this afternoon we continue our study on the subject-matter of Bill C-31, An Act to implement certain provisions of the budget tabled in Parliament on February 11, 2014 and other measures.
[English]
This is our second meeting on the subject matter of Bill C-31. Yesterday we did not have time to complete our review of Part 5, but we did have a chance to get started on Part 5. In the interest of bringing everybody up to speed, Part 5 is at page 72 of Bill C-31, but there is also a portion that is attached to the bill at Schedule 3, which appears in the English version at page 315.
[Translation]
The Chair: The page numbers are the same in the French version.
We are going to start with an explanation of the bill. We will then study Schedule 3.
[English]
From the Department of Finance Canada, we welcome back Brian Ernewein, General Director, Tax Policy Branch; Kevin Shoom, Senior Chief, International Taxation and Special Projects; and Ted Cook, Senior Legislative Chief, Tax Legislation.
Mr. Ernewein, last day you were very helpful in giving us a contextual overview of what this is all about and what the government is trying to achieve with this. I wonder, just for the interest of those who weren't here yesterday and especially our viewing audience, would you give us the contextual overview again? Then we will proceed to looking into the legislative provisions.
Brian Ernewein, General Director, Tax Policy Branch, Department of Finance Canada: I'm happy to do that. First, may I ask Mr. Cook to make one comment on yesterday's proceedings?
The Chair: Absolutely.
Ted Cook, Senior Legislative Chief, Tax Legislation, Department of Finance Canada: Thank you. We reviewed Part 1 of the bill yesterday. I just wanted to make one correction with respect to my explanation of one of the measures we talked about yesterday.
We talked about remittance thresholds for employer-source deductions and a measure to reduce the frequency of remittances for income tax, CPP and Employment Insurance premiums for small and medium-sized businesses. Yesterday, I indicated the thresholds were set based on employer payroll in prior years, and for the current thresholds, you would remit based on $15,000, for example, once per month.
However, those thresholds we discussed yesterday are not for payroll but for actual holding requirements. So, for example, the biggest threshold above which you would remit up to four times per month under the measure is $100,000 of average holdings per month, which equates to a payroll of roughly $4.2 million per year. The actual payroll associated is higher than I indicated yesterday.
I just wanted to clarify that for the committee.
The Chair: I remember we asked some questions on that, and we asked if that was a monthly salary. So it's a monthly deduction is what it is.
Mr. Cook: Exactly right. I think that was exactly the point you were getting to.
The Chair: Yes. Thank you. Are there any questions on that? Seeing no questions, thank you for that clarification. We appreciate that. We will now proceed to Part 5, FATCA and other agreements.
Mr. Ernewein: Thank you. I gave a presentation I hoped was brief yesterday — and I will make it even more brief today — trying to situate what the implementing legislation is seeking to implement and the backdrop to the agreement we have with the U.S. Indeed, this is about FATCA, the Foreign Account Tax Compliance Act, part of a U.S. act of Congress from 2010 scheduled to take effect in July this year.
If there were no other intervening events, FATCA itself would require non-U.S. financial institutions — in Canada's case, Canadian banks and other institutions — to sign agreements with the Internal Revenue Service under which those Canadian financial institutions would have to undertake due diligence; they would have to look through their customers and identify those who had apparent U.S. connections and report on those U.S. customers to the Internal Revenue Service.
If they identified U.S. persons among their clientele, they would be required to withhold 30 per cent on the payments of those account holders or to potentially close their accounts in the event of non-compliance. If a Canadian financial institution or any other country's financial institution decided not to enter into such an agreement with the IRS, they would be subject to a 30 per cent withholding tax on all payments made to it or its account holders who have a U.S. source.
That raised a number of concerns for Canada and for other countries. In Canada's case at least — although this is true for other countries as well — there was a concern about the consistency of such a U.S. law with Canadian privacy laws. Obviously, the potential application of the 30 per cent withholding tax would have been a problem. The possible requirement to close accounts was problematic both from a regulatory perspective as well as from a conflict-of-law issue; we have laws that require account opening in certain circumstances, and those would be in conflict with U.S. laws that could require them to be closed. Overall, there is just a high compliance burden with the potential application of these rules to all Canadian accounts, at least those above a certain dollar threshold.
So without an agreement of any sort or some alternative, FATCA would have been unilaterally imposed in Canada under U.S. law — or, effectively, Canadian financial institutions would have been subject to it or would have had problems if they failed to comply with it. So the Canadian government and other governments sought to convince the U.S. to try another approach. In particular, we and other countries suggested that it would be sensible to have reference to and rely upon the existence of provisions in our and other countries' tax treaties relating to exchange of information, which already facilitate the collection of information by our revenue authorities for possible access by our treaty partners, and of course vice versa.
After long negotiations, that is what the intergovernmental agreement that the budget implementation bill seeks to implement does. Under the intergovernmental agreement — I'm sure I'll fall into the parlance of IGA — Canadian financial institutions would be required to report on their account holders not to the IRS but to the Canada Revenue Agency under implementing legislation that's in the bill before you. The Canada Revenue Agency would then be able to rely on the existing exchange-of-information provisions in the Canada-U.S. treaty and the authority for the exchange of information under the existing provisions in the Income Tax Act to transmit that information to the U.S., to our treaty partner.
We believe the benefits relative to FATCA are several. There is no direct reporting by Canadian financial institutions to the IRS; any exchange of information would be subject to the safeguards protecting the use of that information under the Canada-U.S. treaty; it turns off the U.S. 30 per cent withholding tax; it eliminates the requirement for financial institutions to have to ever close accounts; and it includes a number of important exemptions, both for small financial institutions and for types of accounts, that reduce the compliance burden associated with the agreement.
Also, there are reciprocal benefits for Canada in terms of additional information being collected by the U.S. for Canada's revenue authorities.
Finally, I will say we think it's consistent with subsequent developments — that is, subsequent to the enactment of FATCA in 2010, at least — where G20 has taken the lead in trying to develop a common reporting standard for automatic exchange of information.
I think I've gone on almost as long as I did yesterday afternoon with that summary, but I'll stop there. Perhaps Mr. Cook can take a moment to talk about the operation of the implementing legislation, and then we will be in your hands.
Mr. Cook: Let us go over Part 5, the implementing legislation itself, which begins at clause 99 in Part 5. As we discussed yesterday, it would bring into effect the Canada-United States enhanced tax information exchange agreement implementation act. It's just a short act that has the IGA as a schedule to it that would implement the IGA into Canadian law. To the extent of any inconsistency between this act and the IGA as schedule, this would prevail over other Canadian law other than Part 18 of the Income Tax Act, which contains the domestic amendments to require Canadian financial institutions to undertake due diligence and report to CRA, which would then be exchanged with the U.S. under the Canada-U.S. tax treaty.
Section 5 of this new act would allow the Minister of National Revenue to make regulations as necessary for the purposes of the agreement, and there are certain publication requirements that the agreement be published in the Canada Gazette and any amendments to the agreement would be published. Its termination would also be published.
Clause 100 of the bill makes an amendment to section 162 of the Income Tax Act. It takes an existing penalty that applies where a person, with reason under the act, requests a Social Insurance Number and it is not provided, there is a penalty of $100. The same would apply now in respect of a U.S. federal Taxpayer Identification Number or TIN. Potentially a penalty of $100 could apply to an individual who does not supply a TIN where required.
Finally, clause 101 of the bill would implement a new Part XVIII to the Income Tax Act, which, as discussed, implements the due diligence and reporting requirements required under the IGA and requires financial institutions to undertake them under Canadian domestic law. It also provides requirements with respect to record keeping and kind of standard ancillary provisions. To a large extent, the operation of this part is keyed off the particular procedures that are required under the IGA itself.
The Chair: I'm looking in clause 99 at page 73 at section 2 of the new act that we're passing. The new act basically incorporates the intergovernmental agreement between the parties. It says "as amended from time to time." I read that to mean we are passing into the law of Canada the authority of the executive to make changes to this IGA from time to time and automatically, after publication pursuant to section 6, it will become part of the law of Canada, without going through the normal process of House of Commons and the Senate reviewing these changes. Am I reading that correctly?
Mr. Cook: The IGA itself, under its terms, provides for further agreement and modification to support the purposes of the IGA. In terms of implementing the IGA, there can be agreement between the two parties to further it. So within the context of the general rubric of the IGA, it can in fact be modified.
The Chair: And then pursuant to this section 2, whatever those amendments are will not go back through the normal process but will become law of Canada once gazetted?
Mr. Cook: It's within the framework of making the operation of the IGA operate as intended.
The Chair: On that issue, Senator Chaput?
Senator Chaput: Yes. Could you give me an example of what could be amended from time to time? Do you have anything in mind?
Mr. Ernewein: We'll take a moment to think of an example. The point I would like to add is that this does not supplant the need for legislative authority to give effect to the agreement. That is to say, if the legislation requires authority for the collection of information, requires financial institutions to collect the information, it would still have to be sourced in law. If the agreement undertook new obligations, we would still need to return to Parliament to pose those requirements under the law.
The Chair: What does "as amended from time to time" mean? I'd feel a lot better if that wasn't in there. It's section 2.
Mr. Ernewein: Excuse me, chair. We just sought clarification. You're talking about the reference in the heading to Annex II?
The Chair: What I'm looking at is clause 99 at page 73, section 2 of this new act that we are now passing which, in effect, adopts the intergovernmental agreement. But it says the agreement as attached hereto — you can look at it and say that's fine — but "as amended from time to time." We don't know what the amendments would be, but you're asking us in this legislation to approve that. That's the way I read that. Do you want to think about that one for a while?
Mr. Ernewein: Yes, please.
The Chair: I think it's pretty fundamental. I have a number of senators, based on your introduction, who would like to ask questions. I do want to let honourable senators know that Senator Mockler is at the top of my list because we left him hanging from yesterday. He's also from New Brunswick.
I believe Mr. Shoom will be going through the agreement, Schedule 3 at page 314 in some detail just to point out what is being achieved or what was agreed to. In fact, this has already been agreed to between Canada and the United States. With that caveat, if you want to hold your question until we get to the actual agreement that's fine, but I'll begin with Senator Mockler because that was from yesterday.
Senator Mockler: Thank you, Mr. Chair. To the officials, basically, the IRS considers that what you're asking us to accept would be used in view of people that would evade U.S. taxes, I believe. If that was the case, then they would include financial institutions with a local client base or with only low-value accounts, as well as certain investment funds and vehicles.
Is it the CRA, or could you provide the committee with how many people that would impact across Canada?
Mr. Ernewein: Forgive me but I will seek clarification for the question. You made reference to small financial institutions and those that have more than a 98 per cent client base. Your question is what sort of relief that would provide?
Senator Mockler: How many people would be impacted when implementing what you're asking us to accept? Do you have that number?
Mr. Ernewein: So it's not connected to the 98 per cent rule or the small financial institutions. Rather, it's about how many are affected?
Senator Mockler: Yes.
Mr. Ernewein: We don't know the answer to that, and it depends on a couple of factors. First of all, this applies to clients of Canadian financial institutions who are American residents or American taxpayers as U.S. citizens. We do not have — at least we haven't been able to identify — a certain number of those, but we gather there is something in the order of a million. It's at least commonly suggested there is something in the order of a million Canadian residents who are U.S. citizens. That seems to me an upper bound for potential Canadian residents that might be affected by this. There are also American residents, by our concept of the term, that might do business with Canadian financial institutions as well, but they're already required to be reported on under Canadian law and presumably are doing so.
Among the American citizens who are Canadian residents and whom this might affect, we can't give you a number as to how many that might be because the question will be whether or not they will be identified during the process. Maybe I'll put it differently. Sorry, I'll say it that way. One often doesn't produce evidence of citizenship while seeking to open a bank account. One provides evidence of residence, so citizenship may not arise. For that reason alone, they may be identified under the processes that are in place. However, it is possible that the Canadian financial institution may have what's known as a self-certification procedure asking the person to identify whether they are a U.S. tax resident, including a U.S. citizen, so that's a variable there.
Another possible variable, among several, is that it's at least possible for there to be an exemption for depository accounts of less than $50,000. It's possible that reporting may not be required in those circumstances either.
Finally, I'd made mention of it but hadn't drilled down. There is a broad exemption for registered government accounts, RRSPs, Registered Retirement Income Funds, Tax-Free Savings Accounts, Registered Education Savings Plans, et cetera, for which reporting is not required. The different slicing of persons that would potentially not be affected that could be American taxpayers but would potentially not be affected by this legislation is that group that are holding registered accounts. The Canada Revenue Agency is seeking to identify what potential numbers might be affected, but we at Finance, at least, have not been able to land on a number.
Senator Mockler: That group that could not be required to file at a point in time would be people probably living in Canada?
Mr. Ernewein: I think I'm understanding the question. Yes, American residents — it's not a question of citizenship — that really do live in the United States and identify themselves as such when dealing with a Canadian bank. Those people will probably already have been identified. The remainder are probably the citizen group. Yes, I think that is right.
Senator Mockler: That are living in Canada. An example could be dual citizenship. I will give an example like my wife. She has dual citizenship, so that means that she would have to file to the U.S.
Mr. Ernewein: Well, it is important to make the point that this agreement is not about substantive U.S. tax law. U.S. tax law requires filing by U.S. taxpayers, which includes U.S. citizens. This is a question of what those persons at financial institution may be required to identify, and it could be a U.S. citizen if they identify themselves as such and they're not dealing with an exempt account.
Senator Mockler: Thank you for the clarification.
Have the costs of reporting those requirements for Canadian financial institutions in relation to foreign accounts, tax compliance act, and the intergovernmental agreement been estimated? Do you have that?
Mr. Ernewein: The cost to financial institutions themselves?
Senator Mockler: Yes.
Mr. Ernewein: We have not. In the course of our discussions with financial institutions, as I mentioned briefly yesterday, we have been able to have those discussions throughout the negotiations because there has been a model agreement in the public domain that allowed us to get that reaction. They did suggest there were some very high compliance costs associated if they had to do FATCA. My understanding is they do believe those costs are moderated because of what we have done with the intergovernmental agreement before you, but they have not shared with me, or us, to our knowledge, their compliance costs.
Senator Mockler: With how many countries like Canada or other countries has the U.S. required this type of legislation?
Mr. Ernewein: Well, the FATCA legislation applies worldwide. The U.S. is certainly working diligently to try to negotiate agreements along the lines of what was signed between Canada and the United States with many countries. My understanding is they have signed 28 such agreements to date, and I think they suggested they have another 27 agreements in principle, so some 55, if I've got my math right, countries have signed or are in the process of getting close to signing.
Senator Mockler: For clarification, because the officials, Mr. Chair, have given information that a lot of Canadians were concerned about, and what I have seen in the last 24 hours has been right on, my last question is that most of those people that would be impacted upon would be border-town people, Canadians who were born in the U.S. and by the fact they were born in the U.S. were there for a couple of hours or a few days and coming back to Canada, automatically they are U.S. citizens.
Mr. Ernewein: I'm not sure I heard a question in that, but I think it probably is the case that there are a lot of Canadian residents who are American citizens by virtue of having a close connection to the U.S., and living on the border would be one great reason for having a close connection.
Senator Mockler: Thank you.
The Chair: I have on my list Senators Smith, Eaton, Callbeck, Buth and Chaput. Are they all with respect to the introductory remarks, or clauses 99 and 100, or would you like to wait until we hear from Mr. Shoom as to what's in the agreement?
Senator L. Smith: I would love to hear from Mr. Shoom about what's in the agreement. Senator Mockler was very precise in his questions and asked a lot of questions that I think many of us would like to know about. My questions were if you were able to give us an executive summary, because I did do some bed-time reading, and I started hallucinating by around page 335, the national news, and it was a fantastic experience. Could you give us a little summary from two perspectives: a Canadian citizen has U.S. interests, such as a condo or home, and a U.S. citizen who has made residency in Canada? Are you able to give us two profiles to explain this? It is fairly intricate in terms of what's in and what's out and what needs to be included. If you could help us through your explanation by focusing on those two types of examples, maybe that would be helpful.
Mr. Ernewein: To give you a quick answer to that question, for a Canadian citizen that has U.S. interests, and I think you gave the example of U.S. real property or that sort of example, I don't think there is much in this that bears upon that. This is about financial institutions and their reporting obligations, perhaps in either direction. It doesn't crop up in the sense of a Canadian citizen owning a U.S. vacation home or a U.S. person owning a Canadian vacation home. It's dealing with each other's financial institution.
Senator L. Smith: This is a financial institution with the IRS? This is what the objective is? Is the IRS hooking into Canadian financial institutions to make sure they're reporting their clients who have interest in U.S. properties or monies?
Mr. Ernewein: Essentially, that's right. It's about financial institutions as intermediaries reporting to a revenue authority about their clientele who, on our side of the fence, are U.S. persons or U.S. taxpayers and, on the other side of the fence, are Canadian taxpayers, doing business.
Senator L. Smith: Do we have any idea of the amount of money involved with the potential problem? I'm sure they wouldn't do this unless they perceived it as a problem.
Mr. Ernewein: I don't think we've had a sense of the revenue effect for the U.S. on this. When FATCA was introduced as part of the HIRE Act in 2010, their revenue estimate was $8 billion over a 10-year period worldwide. It wasn't Canada-centric. That was their revenue estimate for the impact of the legislation worldwide. We're not aware of there being an updated U.S. estimate since then, so that's all we have to share with you.
Senator L. Smith: It was mentioned yesterday that this, we felt, was the best deal we could get with the U.S. I think one of you said that. I'm wondering how the deal we got compares with the other 26 or 27 that were signed. Why is our deal better? Wouldn't all the deals be equivalent?
Mr. Ernewein: I mentioned their having a model agreement for other countries to consider, and they sought to cleave as closely as possible with all concerned to the model. We are helpful. We took a lot of the U.S.'s time in these negotiations to work through the issues because they were important to us and to Canadian financial institution and to Canadian taxpayers. As a result of that, I do like to think we had some influence not just in the agreement itself but also in terms of the development of the regulations under FATCA, which went through a few iterations during the course of our negotiations. That's one point.
The second point is that Annex II, the exemptions for specific accounts, it's hard to compare with other countries, because these are Canadian-specific accounts that we sought exemption for, but we're pleased by our ability and U.S. agreement to get an exemption for a broad range of registered accounts.
It's not the case today, but I recalled yesterday and brought with me the stat that over the course of time, with the introduction of Tax-Free Savings Accounts, over the course of the next 10 or 15 years, our estimates as of last year or a year or two ago is that 90 per cent of Canadian taxpayers will have the ability to have all of their savings in registered accounts. If you take that point, then over the course of time, 90 per cent of those accounts will not be subject to the obligations of FATCA, so we think that's important and meaningful.
Senator L. Smith: That was a distinguishing factor.
Mr. Ernewein: The exemptions for registered accounts, as well as the ability to sort of help influence, I will say, some of the changes are in the regulations themselves. What we achieved didn't manifest always in a different agreement that other countries got, but we have, through some of the work we have done with the U.S., got them thinking about some changes in the regulations that they were responsible for as well.
Senator Eaton: Just to follow up on my fellow senators' questions, it's almost a voluntary thing, is it not? If I go into a bank and I'm a dual citizen, I don't have to tell them I'm a dual citizen, do I? It's up to the bank to decide who they're going to go after. I mean, there are no particular flags.
Mr. Ernewein: That's a good question. It will depend to some extent on what procedures the financial institutions put in place. As I suggested earlier, yes, one doesn't generally walk in with one's passport or talk about citizenship status in opening a bank account. You go in with your driver's licence and your social insurance number, perhaps. In those circumstances, there won't be anything on the bank's records to indicate a U.S. connection, assuming your driver's licence shows a Canadian address and there is a Canadian social insurance number alongside it. So in those circumstances, there won't be anything to create a flag for the financial institution to have to follow up on.
It is possible under the legislation and under the procedures for financial institutions to seek self-certification, that is, rather than to take on the burden themselves of trying to figure out whether somebody is a U.S. person or not, they could instead ask the prospective customer to say whether they are or not. In those circumstances, you would be obligated to —
Senator Eaton: But there is nothing in the regulations or in the legislation now that says if I'm a dual citizen, I don't have to. It's not in the regulations that banks from now on, not even retroactively, will have to demand the status of your one or more citizenships.
The Chair: You may wish to talk about due diligence requirements.
Kevin Shoom, Senior Chief, International Taxation and Special Projects, Department of Finance Canada: The due diligence requirements — and this will get to the heart of what a client going into a financial institution will see and whether the financial institution will identify them as a reportable U.S. person or not — for pre-existing accounts, the financial institution will review the information that it has on file. For most account holders, that's going to be a review of electronically searchable information to see whether there are certain indicators of U.S. status.
For new account holders, they may do a similar procedure, or they may ask for a self-certification. They have to do one or the other. The self-certification would need to clearly indicate whether the account holder is a U.S. person, such as a U.S. resident or a U.S. citizen.
Senator Eaton: Or a dual citizen.
Mr. Shoom: It does not need to get at any other citizenship status. The idea here is to identify U.S. taxpayers, and so somebody who is a U.S. citizen would be a U.S. taxpayer.
Senator Eaton: If I'm a dual citizen, I still pay worldwide taxes on the other half of my citizenship.
Mr. Shoom: A dual citizen who is resident in Canada, as per the terms of the treaty, would first pay tax to Canada on their worldwide income. The U.S. would then have residual taxing rights on worldwide income. They could calculate tax, but they would have to provide a foreign tax credit for any tax paid in Canada.
Senator Eaton: For dual citizens. It's another thing than for a U.S. citizen in Canada.
Mr. Shoom: That gets to the question of what taxes they might have to pay. This is strictly about identifying people who may be U.S. taxpayers and passing on their account information to the IRS so that it can conduct further compliance work on these people if it deems it necessary. The determination of the actual tax liability would have to come at some later stage.
I would like to return to the question you asked earlier about whether this is voluntary or not. I don't think we should be giving the impression there is not much point to all this. A lot of the indicators that financial institutions will be looking at, things like address and telephone number, et cetera, those can be seen as fairly rigorous indicators of whether somebody is or is not a U.S. resident. I would think we could see this agreement as being a fairly robust attempt to identify U.S. residents.
Senator Eaton: It will be interesting, because when you think a lot of Canadians spend up to 180 days in the U.S. in property they own, they're going to have a lot of work determining who goes away for the winter, for 180 days, but that is not for this legislation.
Mr. Shoom: We've been cognizant of that, that you'll have students going to the United States to study, or snowbirds who are not United States citizens but do spend a fair bit of time in the U.S.
The Canada-U.S. tax treaty has provisions to deal with residency situations where somebody might look like they're resident in both Canada and the U.S., and it has tie-breaker rules so that under the treaty somebody will clearly be either a Canadian resident or a U.S. resident. People who would be in that situation, our understanding is that the CRA will be providing guidance that if under the treaty they are a Canadian resident, they should consider themselves to be a Canadian citizen for purposes of this agreement.
Senator Eaton: I feel it will be onerous for banks to follow up whether you are living there 180 or 190 days.
Mr. Shoom: The CRA is planning to provide clear instructions on how to deal with those kinds of situations and more streamlined procedures for dealing with situations like snowbirds.
Senator Eaton: There is something I don't understand, Mr. Shoom. We're not breaking Canadian privacy laws by the banks passing the information to the CRA, and then the CRA will give it to the IRS. How does filtering it through the CRA make it less invasive?
Mr. Ernewein: If I may return to that, we talked about this briefly yesterday, and I want to make it clear I'm not usurping the role or trying to take on the role of the Privacy Commissioner, but in terms of a legal analysis, my understanding is that the Privacy Act and PIPEDA are subject to other laws of Parliament. So it is open for Parliament to enact a law, as this bill seeks, to require Canadian financial institutions to collect information concerning the residence and, potentially, even citizenship of taxpayers.
In terms of the ability to transmit that information under the Canada-U.S. tax treaty, I would suggest there is existing authority for that. First of all, we have the treaty with the U.S. saying that it's possible and setting out what the safeguards are. We also have an exception in section 241 of our Income Tax Act today which is used in terms of sharing information under tax treaties.
That provision allows information that has been collected by the Canada Revenue Agency to be shared with our treaty partners and, indeed, our tax information exchange agreement partners. There are two parts: the standing authority that already exists to use our treaties for sharing information and new authority that this bill would seek to require the collection of that information by our Canadian financial institutions.
Senator Callbeck: Thank you again for being here. I want to ask about retroactivity. Yesterday, Senator Gerstein asked about that. He asked if you have the ability to go back in the account to what took place in 2010. Mr. Ernewein, you said that under the agreement there was no obligation to do any reporting back in that manner.
I want to ask a question to get it on the record, and it comes from emails that I'm receiving and I'm sure everybody in the committee is receiving. There is a concern out there by some people that they could end up with a big tax bill. A Canadian citizen gave up their American citizenship 20 years ago and opened a bank account here. Will they to be subject to these changes?
Mr. Ernewein: I'll start on the answer to that. If they've been successful, if I can put it that way, in relinquishing their U.S. citizenship, then they're no longer a U.S. taxpayer and they would not be required to report themselves as such. If they're a Canadian resident and not a U.S. citizen, they would not be subject to these rules.
Senator Callbeck: As I said, concern is being expressed in these emails that they may end up with back taxes for the last 20 years.
Mr. Ernewein: If I may add to that, I think there is a concern among those who are U.S. citizens that they haven't felt a very strong connection with the U.S. and some perhaps may be surprised at having an obligation to be compliant with U.S. law. I think that's a question of U.S. law.
I want to say first of all that by no stretch do I have any expertise on U.S. citizenship law, but I believe there were some circumstances in which people who thought they weren't U.S. citizens have been surprised to learn that in fact they are. That could be a dimension of the question as well.
Senator Callbeck: Thank you.
The Chair: Maybe two years ago, that issue was very prevalent, and we were getting a lot of emails on the tax situation and who should be paying taxes. We're not dealing with that here. It's raising the same issue because some people feel that the Internal Revenue Services in the U.S. gains more information through this legislation and that would bring up a lot of demand for filing of taxes by people who have never even taken out U.S. citizenship.
Mr. Ernewein: I think that's fair. It's never clear to me, because both issues have been overlapping, whether people's concerns have been with FATCA or with something called FBAR, which is a reporting requirement imposed on U.S. citizens having bank accounts outside the United States. There is a concern that reporting requirements that had been on the U.S. books for some time and that have really only been more effectively enforced more recently were triggering some of that same anxiety for people.
The Chair: I think you're right. I think that's what's happening. We're seeing through our emails that the public is confusing these two issues, the taxing issue and the privacy issue, if you like, the reporting of information by Canadian financial institutions of their financial information to the IRS through the Canada Revenue Agency or border security, sending the information down to them. That's the concern. It's difficult to draw the distinction between the two. The questions keep going from one over to the other.
Senator Buth: Can you explain to me how the U.S. IRS actually could require a Canadian institution to report this information if you didn't have this agreement?
Mr. Ernewein: Because of this agreement, it's an unresolved question. Let me put it that way. There have been at least two potential issues that FATCA on its own would have given rise to if something else hadn't been developed, such as this agreement. I mentioned both of them. One is a potential conflict with Canadian privacy laws. The Privacy Act prevents information from being collected and disclosed. It is subject to other laws of Canada's Parliament. I think there is a question as to whether a foreign law imposing the same obligation could have been read without conflict with our own privacy legislation. That was certainly a concern for our own financial institutions, if there were going to be conflict, whether it was going to be with U.S. law or Canadian law.
Senator Buth: But my question is, how can a law in another country be enacted essentially to require a Canadian institution to report?
Mr. Ernewein: Essentially, I'm acknowledging the question. I don't know that it was actually ever resolved as to whether or not it was possible to be in compliance with the Canadian Privacy Act and abide by the U.S. law requiring the transmission of information or an agreement with the IRS on the transmission of information or whether the banks or financial institutions generally in Canada would have had to say no to that sort of agreement with the Internal Revenue Service, in which case they themselves under the terms of FATCA would be subject to 30 per cent withholding essentially on all receipts that came to them from the U.S. The question didn't get answered, but neither answer was very satisfactory.
Senator Buth: Your comment on 30 per cent withholding on receipts that came from the U.S. —
Mr. Ernewein: May I ask you to repeat the question?
Senator Buth: You're talking about a withholding on receipts that come from the U.S. into Canada?
Mr. Ernewein: Yes. That is the sanction effectively that the U.S. has under its FATCA rules for foreign financial institutions, that is, non-U.S. financial institutions, that did not enter into the agreement with the Internal Revenue Service that FATCA contemplated.
Senator Buth: Is it because Canadian banks have U.S. operations that they can do this? I guess I'm having a hard time understanding how a foreign country can regulate what a Canadian bank does.
Mr. Ernewein: As a policy matter, we very much share that question, and certainly former Finance Minister Flaherty was very public about criticizing it on that basis. I guess the second part of that answer is that what we were seeking to do with the intergovernmental agreement was to work around that approach and come at it a different way on exchange of information and not the threat of withholding. The U.S. has always maintained that this is about information exchange and not about trying to collect tax, at least through the withholding tax mechanism. It's an exchange of information and taxpayer compliance, and I think what we've got in this intergovernmental agreement is more consistent with that stated purpose than FATCA itself or the approach FATCA put forward.
Senator Buth: What would have happened if we had not done this agreement, then? Let me ask another question. Are the banks supportive of this legislation?
Mr. Ernewein: Yes. That's my summary answer, and I'll give the same sort of elaboration as I did yesterday, which is that I don't think they're tickled by any of this. I think they believe, even in what we've done, that it will introduce compliance burdens for them and extra obligations for their clientele, but I think they are much more at peace, if I may put it that way, with this intergovernmental agreement and the approach it takes than with FATCA. Again, I'm hesitant to speak for them, but I have some confidence saying that I think they found FATCA essentially unworkable, and this was workable, although perhaps not what they would have designed for themselves.
Senator Buth: Maybe we need to hear from the banks.
The Chair: Just by coincidence, the Canadian Bankers Association will be meeting with us this evening. Not on this, but I'm sure we will be able to ask them questions.
Senator Buth: I have one other question. Are we doing something similar?
Mr. Ernewein: Two answers to that. Yes on both fronts. The first answer is that this agreement itself contemplates additional information coming from the U.S. to Canada. It is not as extensive as the information that we've agreed to provide the U.S. at the outset, but they will be adding to what they already provide us and have made a political commitment in the agreement to what I would call full reciprocity over time.
The second answer again is that, more broadly, I think the framework for of this intergovernmental agreement has been the inspiration for a commitment by G20 finance ministers and leaders to a broader, multilateral automatic exchange of information standard, what has been come to be known as the common reporting standard. That's under development, but as I say, G20 countries have committed to it.
[Translation]
The Chair: Senator Chaput, have you asked your questions?
Senator Chaput: Yes, thank you.
Senator Bellemare: I have a question that goes back to the points you have raised. Under Schedule 3, on page 315, in the "whereas" statements of the agreement, the fifth "whereas" says:
Whereas, FATCA has raised a number of issues, including that Canadian financial institutions may not be able to comply with certain aspects of FATCA due to domestic legal impediments;
Are there items in the agreement that address this "whereas" statement? If so, which ones? Could you comment on the domestic legal impediments mentioned in this statement?
[English]
Mr. Shoom: The question is about the domestic legal impediments and whether the agreement addresses those. The answer is yes, the domestic legal impediments that were raised chiefly were with respect to privacy and whether Canadian financial institutions, if they had to comply with the FATCA law directly, could do so in a way that was in conformity with Canadian privacy law.
As Brian indicated earlier, there was also the question of conformity with Canadian rules related to access to basic banking services. The FATCA law would appear to require in some cases that financial services be denied, and that was seen as one of the problematic aspects of it.
Both those issues are resolved with the agreement; under the agreement, there is no requirement for financial institutions to close accounts or to deny services, and also the agreement addresses the privacy issues because, as Brian discussed earlier, Canadian financial institutions will be reporting to the CRA and not the IRS under Canadian law, and any information exchanges between the CRA and the IRS would be pursuant to the Canada-U.S. tax treaty. There is a legal framework for those to occur.
[Translation]
Senator Bellemare: Those were domestic legal impediments. Are those the only ones? Are there any other ones? Are they the ones you just described?
Mr. Ernewein: Yes.
Senator Bellemare: Thank you very much for your answer.
[English]
The Chair: I think what we're all wrestling with — and Senator Buth has posed the same type of question — is that we're looking at the reach of U.S. law into Canada, and we're saying, "There are obstacles to that happening," but we're aiding and abetting them in finding another way around it by going through the exchange of information based on a tax treaty.
It seems like we're being asked to approve achieving in one manner something that the law prohibited in another matter. Normally the law condones that kind of thing — of achieving a result one way that you can't another.
I'm trying to boil this down to what the concerns are, but how would you react to that, Mr. Shoom?
Mr. Ernewein: May I react?
The Chair: Yes, please.
Mr. Ernewein: The answer to that is yes. I appreciate the sentiment people may have, and we may have been responsible for fostering it in our remarks — namely, that there was a bit of arm twisting going on here. We were presented at the outset with something that seemed unsatisfactory, and we have ended up with a bit of a compromise as a result.
If I've given that impression, I didn't mean to. This government and indeed preceding governments have been supportive of exchange of information for tax purposes and ensuring that everyone pays their fair share of tax.
I made mention earlier about tax information exchange agreements. This government, particularly, created for Canada the concept of a separate stand-alone exchange of information agreement on tax matters, and we've got 20-plus or -minus of those in place now since the 2007 Budget announced the policy on that.
As a principle, the idea of exchange of information is something that this and earlier governments all supported.
The problem with FATCA is that it did seem to — I should choose my words carefully — represent a bit of a bulldozer in terms of the U.S. imposing through unilateral action obligations on foreign financial institutions, including Canadian financial institutions, that had regulatory concerns as well as the conflict of law issues that we had. We do believe the objective they have is a valid one and is consistent with our own, and that there was a way to get to a result that made more sense. The intergovernmental agreement, which is just about exchange of information and not about enforcement of other taxes or applying their penalties, seemed to us sensible and worth advancing.
Finally, as a matter of pragmatism, I do make the point as well about us not being the only country involved in this; 28 countries, including Canada, have signed these agreements with the U.S., so it's not as though we necessarily would have been able to stand on our own and resist this. Finding a way forward seemed sensible for that reason as well.
Senator Hervieux-Payette: I want to remind our colleagues that when they sign for Visa cards with most of our Canadian banks, there is small print that says the information on their Visa card can be given to the American government, because Visa is an American company and Homeland Security has access to this information for anybody who owns a Visa that is operated in the United States. Whether you use your Visa in Canada, Europe or anywhere in the world — just to say where we're coming from, because this already exists.
Right now, I haven't seen any paragraph in this contract that says that if you have a bank account, the information will be available to other countries.
I would like to clarify one thing. I received a moving letter, which my colleague also received, from a Canadian senior who says they knew nothing about the FBAR form and now they owe the U.S. government $80,000 in these penalties alone. My understanding of the letter was that the person may have been the owner of some funds in the United States — some savings.
From what I understand, usually in the Income Tax Act, you are imposed outside of your country of the revenue made in that country. Even though you're telling us that we are imposed worldwide, we are not double imposing Canadians. If I make a small amount of money outside of Canada, it's being declared, and it's even more specific now with the new form from the CRA. And I make $10,000 a year outside of Canada, so I know how complicated it is, because I need to have formal papers from France and declare it. Then, of course, I pay the appropriate taxes in that country, but if after doing that there is a little amount left — let's say $2,000 in my case — and it's added to my income.
I was wondering, if that person owns these shares and made some benefit, would that person normally pay on the revenue of what they owned in different funds — would it be imposed for the revenue but not on the capital and you would not impose it again here.
That's where I have some concerns. That person came to Canada in 1976. That's quite some time ago. They acquired citizenship in 1995. I have no more detail than from three paragraphs.
If I look at the law here, in the agreement, the term "U.S. person" means a U.S. citizen or a resident individual. In Canada, do we use both or do we say just "resident" in the sense that we reside in this country for the majority of calendar days? We need to clarify that because we need to provide answers to these questions. I have to know, how can they be penalized unless the person had never declared profit on investments in the United States? I can understand in that case they might be in trouble. Normally, what is the actual situation before the law? When I look at the law, it seems you cannot be a resident of the United States, live for 20 years in Canada full time, work here and pay your income tax and still be treated as a U.S. citizen for income tax purposes. From the day that person became a Canadian citizen in 1995, does that person still owe anything to the American government?
The Chair: Mr. Ernewein, you're not here to give evidence on tax payable under the U.S. tax system or the Canadian tax system, and I know that Mr. Shoom will be getting to page 321 with respect to a U.S. person. I think there will be quite a bit of discussion on that issue when we get there, but apart from those two caveats, do you have any comments with respect to Senator Hervieux-Payette's point?
Mr. Ernewein: Thank you, chair. I can try to make a couple of reasonably quick comments.
There was a lot of information in the material provided. I think if I heard correctly you made a reference to FBAR. That's another issue. It's very much related to this in the sense that it's another U.S. tax compliance rule. Former Minister Flaherty spent a lot of time with the U.S. government — indeed officials spent a lot of time as well — because it struck us that the U.S. had ramped up its enforcement of FBAR in the last couple of years and that took many people by surprise. In terms of someone who's been exposed to penalties under FBAR, they should be trying to work with their tax adviser and talking to the U.S. IRS about those penalties.
As a very quick answer to your question, though, yes, we only tax on a residence basis; citizenship is not relevant for Canadian purposes. That's the case for most countries. The U.S. is the main exception in the world that taxes on both residence and citizenship, and that leads to a lot of complexity with FBAR and FATCA as well.
To answer one more point, yes, for us as residents if we earn income from a foreign jurisdiction that taxes that income, we tax on worldwide income but give a credit for that as well. So too does the U.S. under its citizenship regime, meaning if I'm a resident of Canada but a U.S. citizen that I pay my taxes to Canada, assuming it's Canadian income. Then I file my U.S. tax return, calculate my U.S. tax liability and claim a credit for Canadian tax. That often means that there isn't much U.S. tax payable after all is said and done, and that's yet another frustration for many taxpayers about U.S. citizen taxation. It puts them through a lot of compliance work when, as a resident of Canada, we have reasonably comprehensive taxation. There isn't really much room for U.S. tax to apply. I'll stop there.
Senator Hervieux-Payette: Thank you.
The Chair: Mr. Shoom, are you ready to take us through the schedule to give us a little bit of a flavour for this intergovernmental agreement, sometimes referred to as IGA?
Mr. Shoom: Certainly, senator. Just before getting into that, I will add to what Brian was saying. Following the interventions by former Minister Flaherty and officials, the IRS did introduce a streamlined program for U.S. non-resident citizens to get back into compliance if they essentially had been out of compliance because they were unaware that the U.S. taxed its citizens that were not resident, and they had very low or no tax outstanding over the last three years. It's difficult to know whether these provisions and relief would be applicable in a particular situation, but that is some relief that became available just over the last couple of years, basically following interventions from the Canadian government.
I will now go through the schedule that contains the intergovernmental agreement. I'll try to keep it at a fairly high level because there is a lot of material here and to go through it in great detail would take a lot more time than I think we have available to us today.
The Chair: We are at page 315 of the bill.
Mr. Shoom: On the agreement, which starts at page 315, broadly speaking the structure of the agreement includes three components. There are the articles of the agreement itself, and there are two annexes. The articles of the agreement essentially represent the agreement and the obligations between the two parties, the governments of Canada and the United States. Annex I to the agreement sets out the due diligence requirements that Canadian financial institutions are expected to follow in order to identify U.S. account holders. Both the articles of the agreement in Annex I are largely based on the model agreements that the U.S. Treasury has put out and would appear quite similar to what most other countries have signed. Annex II to the agreement, as Brian was saying earlier, is tailored to Canada's particular situation and contains Canada-specific exceptions to the types of financial institutions that are covered by the agreement and the types of financial accounts that are covered.
I'll start with the articles of the agreement. Article 1, which starts on page 316, contains definitions. I will not go through all of them but I'll mention a couple of them just to give a sense of how the agreement works. There are definitions starting in g) and following on from there for financial institution. It's obviously important to identify the types of entities that would be considered to be financial institutions and would thus have to undertake due diligence.
The approach taken in the agreement basically has a functional approach to defining financial institutions by describing what it is they do. It includes depository institutions, things like banks and credit unions and caisses populaires. It would include investment dealers, mutual funds, life insurance companies, trust companies. Those kinds of entities are covered by the various definitions.
I did want to pause here a moment because when we were looking at this and figuring out how it could work in Canada, we were concerned that this functional approach to defining who or what is covered could lead to uncertainty about whether particular entities are in or out. Given that one of the basic premises of the FATCA approach and the IGA approach was to look for parallels with anti-money laundering rules wherever possible, we looked to our own anti-money laundering rules set out in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the associated regulations, and to the way financial institutions are defined in that legislation.
We largely copied provisions from the PCMLTFA into the implementing legislation. Those can be found in the definition of listed financial institution in section 263(1). That way of identifying financial institutions is institutional. It's based on things like are you a bank under the Bank Act? Are you a trust and loan company under trust and loan company legislation? That's the way that financial institutions are identified for purposes of the agreement.
The next thing I'll mention is the types of financial accounts which are potentially reportable. There is a definition starting in s) and then some elaboration in subsequent parts of Article 1. They clarify that the kinds of accounts which would be included would be deposit accounts, accounts of investment dealers holding securities, investments in mutual funds, life insurance contracts that have an investment component and annuity contracts.
I'll now turn, on pages 320 and 321, to a couple of definitions, starting with the definitions of "U.S. person" and "specified U.S. person."
These identify the types of account holders that should be identified through the due diligence procedures. To come back to the question of Senator Hervieux-Payette, the term "U.S. person" means U.S. citizen or resident individual. That should be understood to mean that a U.S. resident would be a U.S. person. A U.S. citizen, no matter what country they are resident in, is considered a U.S. person for the purposes of this agreement as well.
"U.S. person" also includes U.S. trusts and U.S. corporations. The "specified U.S. person" definition narrows things by excluding things like publicly traded corporations.
The Chair: Maybe we should, for everyone who just needs a point of clarification as we're going along, just indicate, so we won't have to come back and get you to revisit some of these sections. Senator Hervieux-Payette is on my list. Did you have a question on what we've dealt with so far?
Senator Hervieux-Payette: No. I will have some at page 332 about the $50,000 accounts not required to be reviewed, identified or reported. When we arrive there I would like to have some information on this.
The Chair: Thank you. I have a question in relation to "resident individual." We've received some emails from people who are concerned that they could fall under "resident individual" being in the U.S. during the winter months. They're not permanent, full-time, all-the-time resident but are there for 150 days a year.
Mr. Shoom: This gets to an interesting question. Another way it has been expressed is what are the rules that apply for determining whether someone is a U.S. resident? Is it purely the rules in the Internal Revenue Code in the United States or does it extend to who would be a resident under the Canada-U.S. tax treaty?
In general, the U.S. residency rules, like perhaps our own rules as well, applied on their own might be broader than the rules that would apply under a treaty. Without the intervention of a treaty you could have situations where someone is resident in more than one country at the same time.
The treaty has rules to resolve those types of situations where somebody is resident under both countries' domestic laws. The CRA has signalled that, for purposes of implementing the agreement in Canada, it would expect that residence, as determined under the treaty, would apply.
For the snowbirds or students spending a significant amount of time in the United States but not so much that they would lose residency in Canada as per the treaty, they would not be considered to be residents of the U.S.
The Chair: Does the due diligence that's required by financial institutions in Canada to comply with this law that's being proposed require them to get advice with respect to U.S. tax law in determining the definitions of who might possibly fit under that term "U.S. person" in order to then disclose that information to Revenue Canada so they can pass it on to the IRS?
Mr. Shoom: That's a very good question, and I think the answer to that can be found in the definition of "U.S. reportable account," which is on page 320. That says that a U.S. reportable account is an account held by one or more specified U.S. persons, but then it goes on to clarify that that account will only be a U.S. reportable account if it is identified as a U.S. reportable account following the due diligence procedures in Annex I.
When we get to Annex I we will see that the due diligence procedures don't really, for the most part, run off of the definitions here that we've been looking at for "U.S. person" and "specified U.S. person." Instead they're looking at, for example, pre-existing individual accounts; they're looking at mechanical tests for indicia. If there is a U.S. address on file, maybe that person is a U.S. person. But then the financial institution would need to follow up with that individual to determine whether or not they are in fact a U.S. person.
The Chair: I'll wait until we get to that annex.
Senator Buth: Further to this, CRA's interpretation is that resident individual definition would be dealt with under the Canada-U.S. tax treaty. Is my understanding of that correct?
Mr. Shoom: That's correct. For purposes of determining whether somebody who looks like they might be resident in both Canada and the U.S. should be considered to be resident in the U.S. for purposes of this agreement, CRA has signalled that they would consider the treaty to be the approach to take. That is, if, under the treaty, somebody is not a resident in the U.S. because let's say under the tie-breaker rules they have closer connections to Canada, then they should not be considered to be a U.S. resident for purposes of this agreement, so they wouldn't become reportable.
Senator Buth: I'm not that familiar with conditions for snowbirds. Is there a time limit as to how long you can spend in the U.S. under the tax treaty?
Mr. Ernewein: To be clear, we're talking about substantive tax law. Certainly Canada has a rule that presumes people to be residents if they spend more than 180 days here, and so does the U.S. Stopping there, if you have less than that time in the U.S. you presumably don't have an issue there either. My vague recollection is that the U.S. has sort of an aggregate three-year average that they run as well.
The point is that the Canada-U.S. treaty steps in and says there is a so-called tie-breaker rule which runs off where your economic and personal connections are closest. If you are a Canadian resident, your driver's licence is here, your home is here, perhaps if you're spending time in the U.S. you have a second home there but your main residence is here and your family, et cetera, is here, as a very general matter that factual determination would put you in favour of being a Canadian resident, and that's what would matter.
The fact that you have, as Kevin will talk about when we get into Annex I, a U.S. phone number or U.S. address that you've supplied to your bank because you're spending four months in the United States might cause them to ask a question, but there is an answer to that question which, when provided, ends the inquiry.
Senator Buth: In answer to a lot of the emails that we're getting, is this going to apply to snowbirds? It depends, right?
Mr. Ernewein: It may cause the snowbird to get a question from their financial institution that they'll be required to answer. A further question is whether they will have to do this every year. Now I'm really scooping my colleague. We'll wait until we get there.
Senator Buth: We don't want to scoop your colleague.
The Chair: What you're asking us to adopt here as a law of Canada is that there is a term that uses the phrase "U.S. person." We go into this agreement to find the definition of "U.S. person," and it is a resident individual. A "U.S. person" is a resident individual, and it doesn't say, "according to the Canada-U.S. tax laws," it just says a "resident individual." That's what we're trying to get to now.
Maybe we should have clarification here. Rather than saying, "Trust us, this is going to be interpreted according to," why don't we say it's according to the Canada-U.S. tax treaty information exchange legislation?
Mr. Shoom: There are two answers to that. There is a general answer, but it doesn't apply to this particular situation. The general answer is that later on we'll get to a provision that says that any undefined terms take the meaning as per the law of the country applying the term. If the term is used in both tax law and non-tax law, then tax law would take precedence. In the case of Canada applying the agreement in general, Canadian interpretations would apply. That being said, we are in the definition of U.S. person and, at the end of the definition, it says that the subparagraph shall be interpreted in accordance with the U.S. Internal Revenue Code.
My understanding of how CRA is getting to its interpretive position is that their view is that the Canada-U.S. tax treaty should be understood to be part of the Internal Revenue Code because they would see that as sort of the overall body of U.S. tax law, which would include tax treaties. They would have a legal basis for the approach that they're taking, and they also have a pragmatic basis in that, since the whole purpose of this is for the IRS to have a sense of their taxpayers and have potentially more information on them to improve compliance, there really isn't much value in their getting information about people who, under the Canada-U.S. tax treaty, are not U.S. taxpayers.
The Chair: Well now. There is some disagreement on that point. There are some people that don't want to become U.S. taxpayers but feel they may become U.S. taxpayers as a result of this further information that's being sent out.
Mr. Shoom: Whether somebody is a taxpayer under U.S. law is not affected by this agreement.
The Chair: You are saying the exchange of the information that will be going to the IRS would not result or could not result in certain individuals becoming taxpayers or being required to become taxpayers in the United States as a result of this new information the IRS is getting?
Mr. Ernewein: Senator, I think the suggestion we're hearing is that this could cause some substantive change in a taxpayer's tax status; that is, it could make them resident for U.S. purposes. We don't think it's possible to have that effect. That's determined by each of our tax codes overlaid by the Canada-U.S. tax treaty, which determines, in the case of an individual that might be considered resident in both countries, where they actually are resident.
The second thing registering with us from your comment is that somehow this might convey to the U.S. the identity of somebody and thus raise the U.S. antenna, if I can call it that, to challenge them. Again, we think there is ability as we get through the annex that we're using the treaty definition of resident and, as long as that definition is properly applied, in the end, there is not an obligation to provide information to the U.S., not that we're facilitating the concealment of that information, but we think the agreement operates so as to not require the information to go for Canadian residents in the first place, putting apart U.S. citizens from the discussion.
The Chair: Mr. Ernewein, you understand that we're asking questions based on emails that we're receiving, so this question and answer period helps put some Canadians at ease, I hope, when they understand a little bit more thoroughly your explanation of what's here.
Mr. Ernewein: Absolutely. I'm sorry if I gave the wrong impression. That's certainly what the purpose of this is. I wanted to be direct in responding to what I understood to be the issues you were raising.
The Chair: Thank you. Mr. Shoom, we keep getting you off topic here.
Mr. Shoom: I think the original plan was that I take no more than 10 minutes. I think we've already missed that.
The Chair: I'll tell you when the 10 minutes starts.
Mr. Shoom: Moving on in Article 1, just to complete what I was talking about earlier, paragraph 2 of Article 1 contains the provision I was just referring to that says that any term not otherwise defined in the agreement shall have the meaning of the law of the applying party.
I'll move to Article 2 now, obligations to obtain and exchange information with respect to reportable —
The Chair: That is page 323?
Mr. Shoom: Yes. Sorry, I'll use page references from now on. We're on page 323, obligations to obtain and exchange information with respect to reportable accounts. The article sets out the information that Canada is expected to provide to the U.S. on U.S. reportable accounts, as well as the information that the U.S. is expected to provide to Canada on Canadian reportable accounts.
The Chair: Sorry. I'm going to have to interrupt you.
Senator Hervieux-Payette: On the reportable accounts, actually, are the banks reporting the profit? Let's say I have a bank that pays some interest, but they don't pay interest so they don't report it. If I had a bank account in Canada right now, they have to send me a form of the interest that this account would provide. It's obligatory right now for Canadians in Canada.
Mr. Shoom: An account holder at a Canadian financial institution that's receiving interest income, for a Canadian resident, then the bank would be obliged to provide a T5 slip. I believe there is a threshold of $50 of interest below which a slip is not required. Yes, the Canadian residents should be receiving a T5 slip. If the person is a non-resident and is receiving interest income, then they might get an NR4 slip. In either case, Canadian financial institutions should be sending information slips to their account holders. They would send copies of those slips to the Canada Revenue Agency as well.
Senator Hervieux-Payette: Thank you.
Mr. Shoom: To conclude on Article 2, this contains the two-way information exchange. As Brian noted, the obligations on the U.S. are not as extensive at this time as the obligations on Canada, but we will come to a provision later on in the agreement where the U.S. is committing to increase the amount of information that it provides to Canada.
Article 3 begins at the bottom of page 324, and it's called time and manner of exchange of information. The main provisions in that article that I wanted to flag would be, in paragraph 3, where it describes the timing, the phase-in for Canada's reporting obligations in the first year. Not all the information that's described in Article 2 needs to be reported. It's only starting in 2017 with respect to the reporting for 2016 that the full information described in Article 2 would need to be reported from Canada to the United States. There is no similar phase-in for the U.S.'s reporting obligations under Article 2.
The other provision that I wanted to flag was in paragraphs 6 and 7 of Article 3, on pages 325 and 326. Paragraph 6 establishes a requirement that the competent authorities in Canada and the U.S., essentially the CRA and the IRS, enter into an agreement setting out the procedures for the automatic exchange obligations, prescribing rules and procedures et cetera. This agreement will be the actual agreement for the mechanical exchange of information. It will be an agreement that is set up under the existing exchange of information provisions of the Canada-U.S. tax treaty, and it will be that specific agreement that will govern the mechanics of the information exchange, based on the principles set out in the agreement that we're looking at right now on paper. That will be a mechanical agreement, and the competent authorities already have the right to enter into these types of agreements on their own without external review. My understanding is these types of agreements are generally kept confidential as well.
Paragraph 7 states that all information exchange shall be subject to the confidentiality and other provisions provided for in the convention, including the provisions limiting the use of the information exchanged. This makes explicit the fact that the information that will be exchanged will be subject to the existing safeguards that are in the Canada-U.S. tax treaty. This is one of the advantages of the intergovernmental approach versus letting Canadian financial institutions report directly to the IRS, because this will ensure that there are limitations and restrictions and protections on what the U.S. can do with the information that would not be there if we had not entered into an agreement with the United States.
Article 4, which starts on page 326, is quite an important article. The first several paragraphs of Article 4 essentially set out the aspect of the agreement that the fact of having an agreement with the United States turns off the application of the U.S. FATCA legislative and regulatory provisions with respect to Canadian financial institutions and their account holders.
The provisions in Article 4 essentially state that because of the existence of the agreement between Canada and the U.S., the U.S. will not be expecting compliance with their own legislative and regulatory provisions within Canada. They will accept that Canadian financial institutions and account holders, by following Canadian laws and rules, are meeting the objectives they hoped to attain with their legislation but under the rubric of Canadian law.
The last part of Article 4, paragraph 7, which is on page 328, is called "Coordination of Definitions with U.S. Treasury Regulations." This provision allows the CRA, if it identifies provisions in the U.S. Treasury regulations that are more favourable than the provisions in the agreement,— that the CRA will have the option of applying those provisions in Canada.
Article 5 begins on page 328 is "Collaboration on Compliance and Enforcement." The key theme of this article is that if one country's tax administrator has concerns about the financial institutions in another country and whether they are properly complying with what they should be doing, that tax administrator should deal with those concerns by contacting the other country's tax administrator; they should not be going directly to the financial institution. So if the IRS has concerns about a Canadian financial institution, it should not be contacting the Canadian financial institution directly; it should be talking to the CRA, and then the Canada Revenue Agency can follow up to determine whether there is an issue and, if so, to try to get that Canadian financial institution into compliance.
Senator Hervieux-Payette: We hear often that our banks have the habit of putting many of their deposits or the money — or the cash or whatever — in countries other than Canada and the U.S. How will this be dealt with if they are in Barbados or other countries where the tax treatment is different than you're talking about?
Mr. Shoom: There are a couple of possible scenarios that could relate to that question. One would be that the account holder has an account in Canada, but the financial institution is doing some funding arrangement or something with a foreign affiliate in another jurisdiction. In that case, the account holder relationship would be in Canada and any later transaction with another jurisdiction wouldn't really be relevant; this would be strictly a Canadian situation.
Another possibility is that a client of a Canadian multinational is dealing directly with the foreign affiliate in the other jurisdiction — you used Barbados as an example — in which case the account holder relationship would be in Barbados, and this agreement wouldn't apply. Rather, whatever arrangement the United States has with Barbados would apply, because that would be seen as a Barbadian account.
Senator Hervieux-Payette: Okay, thank you.
Mr. Shoom: I'll move now to Article 6, "Mutual Commitment to Continue to Enhance the Effectiveness of Information Exchange and Transparency." This article contains several provisions relating to commitments to undertake future negotiations or future policy development, et cetera. Paragraph 1 is "Reciprocity," and this is where, as Brian was describing earlier, the United States government is committing to further improve its exchange-of-information relationship with Canada by seeking to adopt the ability to increase the information exchanges with Canada and to meet the same or equivalent level of information exchange as what it's expecting Canada to provide to the United States.
I think we use the word "equivalent" because we don't want to suggest it's going to be exactly the same, largely or entirely because Canada is not interested in getting information on Canadian citizens who reside abroad, since we tax on the basis of residence only.
Paragraph 2 is "Treatment of Passthru Payments and Gross Proceeds." This probably requires a moment to explain what a "passthru payment" is. As Brian was explaining earlier, the mechanism in the U.S. FATCA rules to encourage financial institutions in other countries to comply is a withholding tax that would apply on U.S. source payments. It could also apply under the so-called passthru payment provisions to non-U.S.-source payments that are considered to be attributable to a U.S. source.
What that means exactly is unclear. The U.S. has not yet defined officially what such a passthru payment would be. It's a fairly controversial provision of the U.S. FATCA rules because it could lead to withholding between non-U.S. entities and amounts being remitted to the U.S. Because it has been such a touchy point, it's something that the intergovernmental agreements are intending to turn off to the extent possible, and hopefully altogether.
The U.S. has already said they will not implement these passthru payment provisions before 2017 at the earliest, and the commitment is to engage in discussions to see how to deal with the issues associated with the provisions for passthru payment withholding. I expect this is an issue that not only Canada but countries worldwide will be interested in resolving with the United States over the next couple of years.
The third paragraph is "Development of Common Reporting and Exchange Model" and is again something that Brian was describing earlier. Canada has committed in this paragraph along with the United States to work together with the OECD to develop a common model for information exchange that would work in a similar manner as this type of agreement — that is, a commitment for countries to implement due diligence procedures on their own financial institutions and then information exchange happening on a government-to-government basis.
That process is already under way at the OECD. It has been endorsed by leaders and finance ministers at the G20 and leaders of the G8. I will stop there for Article 6.
The Chair: We have a bell ringing. We're determining just what it's about at the present time, but I may have to interrupt you again in a second.
A vote in the Senate will be taking place at eight minutes to four o'clock. We'll finish up long before that, because we're supposed to be finished at 15 minutes to four. Your 10 minutes is about to start here.
Mr. Shoom: Article 7 is essentially a most-favoured-nation clause that says that if the U.S. negotiates more favourable provisions under Article 4, which related largely to the phase-in of reporting requirements, or under Annex I, which has the due diligence requirements — if the U.S. negotiates more favourable terms with any other country, Canada will automatically have access to those.
Articles 8, 9 and 10 are procedural articles relating to dealing with differences of opinion and also specifying that if one of the parties wants to terminate the agreement, they need to give 12 months' notice in order to do so. It also says the consultations that were described in Article 6 should be completed prior to the end of 2016.
That concludes the articles. That would take us now to Annex I, which has the due diligence procedures on Canadian financial institutions. This begins on page 331. In section I of Annex I, the one thing I would mention is that paragraph C gives Canada the option of allowing Canadian financial institutions to rely on the procedures in the U.S. Treasury regulations as opposed to the procedures in Annex I. This is flexibility that would be helpful where the U.S. regulations provide some additional flexibility that Annex I itself does not have.
The Chair: I'm not sure I understood that. Could you explain how the U.S. Treasury rules provide more flexibility? We have an Annex I here, but is it in the case of a conflict? When would we rely on U.S. law again to help us understand what this Canadian law is all about?
Mr. Shoom: The U.S. Treasury regulations are quite large and very detailed. It's nice to avoid the complexity of that. This agreement is actually much simpler than the U.S. regulations, but it does lose some of the depth and nuances contained in those regulations. This provision would say that if there is some detailed aspect of the regulations that is actually seen as being more favourable, Canada has the option to bring that in.
The one example I can think of where Canadian financial institutions have said they might like to use this — and the CRA is amenable to that — is with respect to new individual accounts. We haven't gotten there yet, but it was described that the standard procedure for new individual accounts is that the financial institution should get a self-certification from the account holder. The U.S. has as an alternative that the new financial institution doesn't need to get a self-certification but can instead review the documentary evidence the client provides at account opening to see if there are indicators of being a U.S. person. Because of the provision we're talking about, that can actually be brought into the way the agreement is implemented in Canada.
The Chair: That allays some of the concerns in relation to what you might have to produce at a Canadian financial institution for the institution to be satisfied that it has performed its due diligence. Is that right?
Mr. Shoom: Yes. When we've spoken to financial institutions about this they've indicated that some of them want to take advantage of that. Others would probably want to have self-certification from account holders at account opening. It may depend on the size of the financial institution and its client base, the extent of sophistication of their account holders, that kind of thing.
The Chair: That is all to be worked out yet. That hasn't been determined?
Mr. Shoom: As I say, my understanding is that the CRA intends to provide Canadian financial institutions with that flexibility, and then it will be up to individual financial institutions whether to avail themselves of it.
The Chair: Thank you.
Mr. Shoom: Section II, which begins on page 332, has the due diligence procedures for pre-existing individual accounts. Part A of section II signals that personal accounts may be considered to be exempt based on the value of the accounts largely. The broadest thing in here is any account with a balance of under $50,000 can basically be exempt; it does not need to be reviewed certainly for a while and in some cases at all. There is also an exemption there that is available for any life insurance or annuity contract, depending on whether the laws of the jurisdictions effectively prevent the sale to residents of the U.S. Our understanding is that Canadian life insurance companies intend to take advantage of this and may be able to grandfather most if not all of their existing client base on that.
This provision is optional. Financial institutions will have the choice whether to take advantage of these thresholds or not.
Senator Hervieux-Payette: It says below $1 million, "Does Not Exceed $1,000,000 ('Lower Value Accounts')." I was trying to reconcile that $50,000, $250,000 and $1 million. The $1 million would again mean insurance contract, or how do you explain the $1 million? The rest I think I understand. It's not reported at all, period.
Mr. Shoom: In fact it's more than that. It's not reviewed. There are essentially three levels of accounts. There are the accounts below $50,000 or $250,000 for insurance contracts, which don't have to be reviewed at all. Between those thresholds and $1 million, they are called lower value accounts, as described in B. They are supposed to be reviewed, but the level of review is not as intense. Above $1 million, the high value accounts, there is a more rigorous examination of the accounts.
Senator Hervieux-Payette: Which means the banks may be exempted from reporting from $50,000 up to $250,000, and from $250,000 to $1 million would they have to file a small report to the U.S. — or not?
Mr. Shoom: The accounts below that threshold do not need to be reviewed at all to determine if they are U.S. reportable. None of those would turn out to be reportable. In the lower value accounts, which are the $250,000 up to $1 million, they are to be reviewed based on a search of electronically searchable information. Depending on what comes out of that search, those accounts could become reportable.
The Chair: We have about five minutes left for you to get through the rest of this agreement. Give us a good overview so we know what's in there.
Mr. Shoom: Well, I will not go through in detail what we're looking at in B. I will say at a summary level for the information that financial institutions look for, a lot of them would look like indicators of whether somebody was a U.S. resident or not potentially. Two indicators that would seem to relate to citizenship are identification as a U.S. citizen or unambiguous indication of a U.S. place of birth.
If a financial institution does find one of these indicators through an electronic search, the agreement says that it should treat the account as reportable unless it elects to attempt to clear the indicia. That's what the agreement says. In our implementing legislation, we have taken away the voluntary nature of that. This is contained in 265(5) of the implementing legislation, and it's making it clear that financial institutions attempt to clear the indicia. Clearing the indicia would mean contacting the client and giving the client the opportunity to provide the documentary evidence necessary to demonstrate that they are not in fact a U.S. person.
I'll move to part D of section II. These are the high value accounts procedures where the account balance is over $1 million. This involves an electronic records search, potentially a paper records search and a requirement to ask any relationship manager associated with the account about information they might have about the client's status. A relationship manager would be somebody who's giving a certain minimum level of personalized and customized service to the account holder, and the CRA intends to provide guidance to clarify who is and who is not a relationship manager.
I'll turn to page 338, the procedures for new individual accounts. These also have an exemption for certain accounts below a $50,000 threshold, which financial institutions may make use of. If they are not making use of that, they are required to get a self-certification at the time of account opening as to whether somebody is or is not a U.S. resident or U.S. citizen. As I was talking about earlier, some financial institutions may make use of the option of going to the procedures in the U.S. regulations so that rather than asking for self-certification, they will simply review the information they get at account opening to look for things like indicators described in the section on pre-existing accounts.
Starting on page 339, we have the due diligence procedures for pre-existing and new entity accounts. There are two objectives here. One is to identify entities that are U.S. entities, so a U.S. corporation, for example. The other is to identify entities that are not U.S. entities but are passive entities — entities being used to earn passive income — and the controlling persons of those entities are either U.S. residents or U.S. citizens. I will not go through the details, but this sets out the due diligence procedures for determining whether any accounts are reportable because of either of those two situations.
The Chair: This is a tremendous amount of detail for an accord between two countries, isn't it? I suppose the reason for that is that we were trying to get ourselves around another piece of legislation in the U.S., so it is in a lot of detail.
Mr. Shoom: Well, yes. This agreement, the way we had originally printed it, is 40-some pages long. The U.S. regulations, when first released, were over 500 pages long.
The Chair: Not going into any detail, then, for the rest of Annex I leading up to page 348. Regretfully our number one priority is to be in the Senate Chamber when the vote takes place, so we're going to have to adjourn shortly.
Could you give us, just in a few words, generally what is Annex II about, what Annex III is about? If it turns out that we need to ask you to come back, we will, but if we could read this on our own at night and understand it based on your overview, then we'll be in touch with you in that regard.
Mr. Shoom: Annex II, as I was saying earlier, is Canada-specific, identifying Canadian financial institutions and Canadian accounts that are exempt. Our sense is that our Annex II is more extensive than certainly any of the other Annex IIs that we've seen.
Moreover, a year or so ago the U.S. announced a different approach to negotiating agreements with countries: They were no longer going to negotiate highly tailored Annex IIs. It was fortunate or it's good that we were well enough advanced with the U.S. that we were able to get a detailed Annex II. That's one of the reasons we think we have a better deal than a lot of other countries.
The types of financial institutions that are exempt would include things like Canadian pension plans, labour-sponsored venture capital corporations and credit union centrals. There are also provisions that allow a full exemption for small deposit-taking institutions. If their assets are under $175 million they don't have to conduct any due diligence at all.
There is a somewhat broader partial exemption for financial institutions with a local client base. This would be a financial institution that's not part of a multinational group. If 98 per cent of its account base is with Canadian residents, then it does not have to review its Canadian resident account base; it just has to review its non-resident accounts. That effectively exempts all Canadian residents from being reviewed and thus potentially being reported on.
The last part of Annex II is excluded accounts. This is the part of the annex that has a long list of Canadian registered plans that are fully exempt and do not have to be reviewed at all.
The Chair: I see that at page 355.
Mr. Shoom: Yes. We're at page 355, and then over to 356 for some other exemptions for certain types of accounts, escrow accounts. For example, when an account is set up that is used solely for the payment of property taxes it would be exempt as well. That gets us to the end of the agreement.
The Chair: That's just at the end of your 10 minutes. That was excellent. Thank you to the three of you for helping us with this very technical information. We're going to be asked to vote on this, so it's important that we have some understanding, and your explanations have been helpful in that regard.
Mr. Ernewein, Mr. Shoom and Mr. Cook, all from the Department of Finance, thank you very much.
Colleagues, the next meeting on Bill C-31 will be next Tuesday. Tomorrow's meeting will be on the act but it will be witnesses as opposed to government officials. The meeting tonight is on the Main Estimates. We have a lot of things on the go.
When we come back, we will be dealing with Part 6, Division 6, and it's entitled "Members of Parliament Retiring Allowance Act," so you'll want to take a look at that one.
This meeting is now concluded.
(The committee adjourned.)