INCOME TAX |
Non-Residents |
General Electric Capital Equipment Finance Inc. v. Canada
T-1641-90
Rouleau J.
30/8/00
8 pp.
Action to determine whether plaintiff properly assessed for failure to withhold tax--Plaintiff Canadian corporation formerly carrying on business under name International Harvester Credit Corporation of Canada Limited (IHCC)--IHCC financing sales in Canada of International Harvester products--In course of raising capital for financing purposes, IHCC issued subordinated promissory notes in 1977, 1979, 1980 and 1980 respectively to non-residents--Notes originally maturing in 1982, 1984, 1985 and 1985 respectively, but dates extended--IHCC paying interest on notes without payment of withholding tax from respective dates of issue--In 1984 IHCC paying withholding tax in accordance with notices of assessment--By agreements dated February 18, 1985 notes sold to Netherlands corporation--Interest payable so as to result in holder receiving, after application of any withholding tax, net return equal to rate of interest set forth on face of note--On December 18, 1986 IHCC sold to Genelcan Limited--In 1989, Minister of National Revenue assessing plaintiff for amount of $419,069 on grounds plaintiff failed to withhold, remit 15% non-resident tax--Under Income Tax Act, s. 212(1) interest payable by resident of Canada to non-resident subject generally to withholding tax at rate of 25% --However, pursuant to exemption in s. 212(1)(b)(vii), interest payable by resident of Canada to arm's length non-resident pursuant to obligation entered into after June 23, 1975, and with term of greater than five years, exempt from withholding tax--Action dismissed--Effect of February 18, 1985 agreements to change interest rate, manner of calculating interest rate, parties, maturity date of each note--Only reasonable conclusion that changes to obligations and to notes underlying them constituting creation of new obligation within meaning of that term as used in s. 212(1)(b)--Indebtedness of plaintiff to Netherlands purchaser not one pursuant to which issuer not obliged to pay more than 25% of principal amount of obligation within five years of issue date--Exception in s. 212(1)(b) not applicable since sale of notes to Netherlands corporation creating new obligation in respect of each of notes in so far as more than 25% of principal amount of each obligation becoming payable within five years from February 18, 1985--Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 212(1)(b)(vii).