Bill C-48 (Historical)

Technical Tax Amendments Act, 2012

An Act to amend the Income Tax Act, the Excise Tax Act, the Federal-Provincial Fiscal Arrangements Act, the First Nations Goods and Services Tax Act and related legislation

Part 1 of this enactment implements, in accordance with proposals announced in the March 4, 2010 Budget and released for comment on August 27, 2010, amendments to the provisions of the Income Tax Act governing the taxation of non-resident trusts and their beneficiaries and of Canadian taxpayers who hold interests in offshore investment fund property.
Parts 2 and 3 implement various technical amendments in respect of the Income Tax Act and the Income Tax Regulations relating to the taxation of Canadian multinational corporations with foreign affiliates. The amendments in Part 2 are based on draft proposals released on December 18, 2009. Among other things, Part 2 includes the amendments to the foreign affiliate surplus rules in the Income Tax Regulations that are consequential to the foreign affiliate changes to the Income Tax Act announced in the March 19, 2007 Budget. The amendments in Part 3 are based on draft proposals released on August 19, 2011. Among other things, Part 3 includes revisions to the measures proposed in a package of draft legislation released on February 27, 2004 dealing primarily with reorganizations of, and distributions from, foreign affiliates.
Part 4 deals with provisions of the Income Tax Act that are not amended in Parts 1, 2, 3 or 5 in which the following private law concepts are used: right and interest, real and personal property, life estate and remainder interest, tangible and intangible property and joint and several liability. It enacts amendments, released for comments on July 16, 2010, to ensure that those provisions are bijural, in other words, that they reflect both the common law and the civil law in both linguistic versions. Similar amendments are made in Parts 1, 2, 3 and 5 to ensure that any provision of the Act enacted or amended by those Parts are also bijural.
Part 5 implements a number of income tax measures proposed in the March 4, 2010 Budget and released for comment on May 7, 2010 and August 27, 2010. Most notably, it enacts amendments
(a) relating to specified leasing property;
(b) to provide that conversions of specified investment flow-through (SIFT) trusts and partnerships into corporations are subject to the same loss utilization restrictions as are transactions between corporations;
(c) to prevent foreign tax credit generators; and
(d) implementing a regime for information reporting of tax avoidance transactions.
Part 5 also implements certain income tax measures that were previously announced. Most notably, it enacts amendments announced
(a) on January 27, 2009, relating to the Apprenticeship Completion Grant;
(b) on May 3, 2010, to clarify that computers continue to be eligible for the Atlantic investment tax credit;
(c) on July 16, 2010, relating to technical changes to the Income Tax Act which include amendments relating to the income tax treatment of restrictive covenants;
(d) on August 27, 2010, relating to the introduction of the Fairness for the Self-Employed Act;
(e) on November 5, 2010 and October 31, 2011, relating to technical changes to the Income Tax Act;
(f) on December 16, 2010, relating to changes to the income tax rules concerning real estate investment trusts; and
(g) on March 16, 2011, relating to the deductibility of contingent amounts, withholding tax applicable to certain interest payments made to non-residents, and certain life insurance corporation reserves.
Finally, Part 5 implements certain further technical income tax measures. Most notably, it enacts amendments relating to
(a) labour-sponsored venture capital corporations;
(b) the allocation of income of airline corporations; and
(c) the tax treatment of shares owned by short-term residents.
Part 6 amends the Excise Tax Act to implement technical and housekeeping amendments that include relieving the goods and services tax and the harmonized sales tax on the administrative service of collecting and distributing the levy on blank media imposed under the Copyright Act announced on October 31, 2011.
Part 7 amends the Federal-Provincial Fiscal Arrangements Act to clarify, for greater certainty, the authority of the Minister of Finance and of the Minister of National Revenue to amend administration agreements if the change in question is explicitly contemplated by the language of the agreement and to confirm any amendments that may have been made to those agreements. Part 7 also amends the Federal-Provincial Fiscal Arrangements Act and the First Nations Goods and Services Tax Act to enable the First Nations goods and services tax, imposed under a tax administration agreement between the federal government and an Aboriginal government, to be administered through a provincial administration system, if the province also administers the federal goods and services tax.
Part 8 contains coordinating amendments in respect of those provisions of the Income Tax Act that are amended by this Act and also by the Jobs and Growth Act, 2012 or that need coordination with the Pooled Registered Pension Plans Act.

Technical Tax Amendments Act, 2012

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I would like to ask a brief question. I realize that the hon. member was not here during the last Parliament or the previous ones.

I agree with him when he says that it is not possible to study all the elements of such a large and complex bill and vote on it with full knowledge.

We have already said that we would vote in favour of this bill, but the underlying problem is that we waited 10 or 12 years for all the technical elements to be put together as a law.

First, can the hon. member confirm that his party wants to have regular updates of the various technical elements of the Income Tax Act and other taxation acts put together as a law?

If so, I would like to know why his party, which was in government prior to 2006, did nothing during the last four, five or six years of its mandate?

I see that as a problem because, while the Conservatives have not done anything about this and have let things get worse, the Liberal government that preceded them did not do anything either during the five or six years it was in power.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I appreciate the question, albeit it is somewhat misguided.

At the end of the day, we have to realize that it is not just one or two years. We also have to have amendments that are being proposed. We have to put it in the context of what kind of technical amendments have to be made. The last time the Liberal government did, it would have been in 2000-01, around that period of time, I believe. It would have been three or four years. Maybe the member can stand in his place and say exactly how many technical amendments were there. There is a need for us to be able to consult, to work together, and so forth. At the end of the day, if there was a need, I suspect that need would have been met.

It does not have to happen every year. That is why I indicated in my comments that a lot depends on what are the technical amendments.

What I am suggesting is that the technical amendments that we have before us today in the 900-plus pages of this bill are far too excessive. That was acknowledged back in 2009 from our public accounts. The Auditor General of Canada made that announcement. For example, from what I understand, back in 2003 the Auditor General of Canada did not say to bring in the legislation right then. The demand would not have been there. I suspect Jack Layton might have said something had that been the case, but it likely was not the case. We have to put it in the perspective of time. Today is far too long. Ten years is too long, not only because it is 10 years, but because there are so many technical amendments. Most of those technical amendments could have been made back in 2009. That is the reason the government is wrong in terms of bringing in a huge 900-plus page bill today.

The government should have drafted maybe a 400-page bill back in 2009. Then today we would only be dealing with a 300-page or a 400-page bill. It should have been broken down into other bills. Some of those bills could have been brought in earlier. That is what we would have ultimately argued.

At the end of the day, at least we have it here today. Let us get the bill passed and sent to committee. Canadians have been waiting far too long to see these technical changes that should have been put in place five, six, or seven years ago.

[Frank Valeriote, Liberal, Guelph, ON]

Mr. Speaker, my hon. colleague from Winnipeg North spoke of fairness. One of the things I found in a lot of the government's omnibus budgets is tax credits that are available only to people who actually have income. We know that in order to enjoy a tax deduction, people have to have income to deduct it from.

A lot of these tax credits should be available to those who do not have income. In fact, those who need it the most are those who do not have income.

I wonder if the member would talk about the lack of fairness in tax deductions or tax credits when they are not designated as refundable tax credits.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, that is a good question.

We could cite the example of volunteer firefighters and others, many of whom were not eligible to receive any of the benefit because it was a credit as opposed to a deduction. If the government was trying to send a message through government taxation policy, it missed the mark back then.

There are so many opportunities for government to have an impact if the desire is there to assist and to make a difference. It can be done through all sorts of tax incentives, tax credits, tax deductions, and so forth. When we talked about the budget bill, there was a huge fundamental flaw in that legislation. It did not allow for individuals who did not have the income to receive the tax benefit individuals who were more well off received. That is why there was a valid argument, and the Liberals made that argument, that there should have been a tax rebate, a refundable tax credit, for those individuals.

[François Choquette, NDP, Drummond, QC]

Mr. Speaker, I would like to add one very important thing to what my colleague said, concerning tax avoidance and tax havens. It is important to note that a small effort has been made in the fight against tax avoidance and against all kinds of tax evasion. Still, it is only a tiny step. The government must work much harder to prevent the loss of this money that could be used for much better purposes, such as social programs. It is not right to slash old age security and raise the age of eligibility to 67, while still tolerating tax evasion.

I would like to hear my colleague's comments on the fact that the government must work harder to prevent tax evasion.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, measures could be taken to get individuals paying a fairer share of tax. That, I think, is what the member is trying to highlight, the fact that Canadians as a whole do not mind paying taxes as long as they believe they are paying a fair share and everyone is contributing. The government has to make a decision whether or not it supports that concept.

[The Deputy Speaker, NDP, Joe Comartin]

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Charlesbourg—Haute-Saint-Charles, Employment Insurance; the hon. member for Malpeque, Food Safety.

[François Choquette, NDP, Drummond, QC]

Mr. Speaker, I am pleased to rise today to speak to Bill C-48, An Act to amend the Income Tax Act, the Excise Tax Act, the Federal-Provincial Fiscal Arrangements Act, the First Nations Goods and Services Tax Act and related legislation.

First of all, I would like to say that I will be sharing my time with my colleague from Manicouagan.

As I mentioned earlier and as many of my colleagues in the House of Commons have said today, this bill is very big. The bill is huge, and with nearly 1,000 pages, it is the size of a very thick brick. It is a bill that dates from 2001 and to which no amendments of this scale have been made.

This bill is so big because previous governments had been dragging their feet, because they did not do their job and because they took too long to bring the bill to the table. Because they did not do their job properly, today we are faced with a huge bill, a bill that we might call an omnibus bill.

However, this bill does not compare to the horrible omnibus bills C-38 and C-45, which covered a range of different items such as the environment, the economy and old age security. Those were really bad bills. It was with good reason that they were called “Trojan horses”. Those omnibus bills were horrible, “monster” bills.

This omnibus bill is acceptable as it deals only with income tax legislation. However, the problem is that the bill is so huge that it is practically impossible to study it carefully within the timeframe we have been given. The Conservative government must be much more attentive and efficient in bringing forward their bills on a more regular basis, which would allow us to have time to study the amendments to these bills.

In this regard, Auditor General Sheila Fraser stated in the report she tabled in the fall of 2009:

No income tax technical bill has been passed since 2001. Although the government has said that an annual technical bill of routine housekeeping amendments to the Act is desirable, this has not happened. As a result, the Department of Finance Canada has a backlog of at least 400 technical amendments that have not been enacted, including 250 “comfort letters” dating back to 1998, recommending changes that have not been legislated.

This has been dragging on since 1998.

If proposed technical changes are not tabled regularly, the volume of amendments becomes difficult for taxpayers, tax practitioners, and parliamentarians to absorb when they are grouped into a large package.

As I mentioned, that is what happened. The Conservatives have wasted time since coming to power, and now we have a hefty, 1,000-page omnibus bill. Of course I am neither an expert or a tax practitioner. However, as parliamentarians, it is important that we study bills with as much rigour as possible and within a reasonable amount of time. Unfortunately, we will not have the opportunity to do so with this bill.

Another point I would like to address is tax avoidance. Bill C-48 is a first step towards fighting tax evasion. However, the Conservative government is talking out of both sides of its mouth. On the one hand, it is taking a small step to prevent tax avoidance; on the other hand, it is signing bilateral agreements with countries that flaunt basic tax rules and are even tax havens. This government is not taking this seriously.

A number of my NDP colleagues sit on the finance committee. They heard some very interesting things from Brigitte Alepin, a very well-known tax expert. She has written two books that are reference works for anyone interested in fighting tax evasion and tax havens.

The first book is called Ces riches qui ne paient pas d'impôt. I recommend that all members of the House read it, particularly the Conservatives, since the work on tax evasion in Bill C-48 was not done properly. This excellent book, which was published in 2003, describes all the pernicious ways people use on a regular basis to avoid paying taxes, whether it be by deferring their taxes for ever or by inventing a rather questionable foundation.There are bona fide foundations but others can be very questionable. Clearly, there are also all sorts of subsidies.

I am going to talk about various issues but these are the choices that have to be made with a bill such as Bill C-48. The environment is very important and, right now, the government is shamelessly providing billions of dollars in subsidies to the oil and gas industries. They are even providing coal subsidies. I am not talking about tax evasion here but about subsidies that make the tax roll unfair and inequitable.

Ms. Alepin describes the three basic principles that are very important to a sound taxation system: the system must be simple, effective and fair. That is very important. However, right now, the Conservatives do not have a simple, effective and fair tax system, far from it. I mentioned a few aspects. I would like to read a short summary of Ms. Alepin's latest book, La crise fiscale qui vient, which is very interesting. If my colleagues have not read this wonderful book, I recommend that they all do so, particularly my Conservative colleagues since they did not do their work on the fight against tax evasion properly. This is what the book summary says:

The author identifies the signs of the impending fiscal crisis, which has already begun in most western economies. She provides a simple and enlightening description of the new conditions that exacerbate this crisis: the increased number of charitable foundations [I spoke about this earlier], the development of electronic commerce, the increasing use of tax havens [I also spoke about this], the competition between states to attract large corporations, etc. Although current governments seem to have given up on dealing with this crisis [and the Conservative government is a good example], Brigitte Alepin shows that there are solutions to this problem. She also shows how tax measures can help to reduce greenhouse gas emissions, among other things.

That is why I referred just now to tax measures and environmental measures. My colleagues also said that we could promote tax measures to favour, say, renovations. We had the ecoENERGY Retrofit--Homes program for energy efficient houses. Such programs are very good from the tax point of view. They are straightforward and keep the economy moving. It is the same thing here. When we have a government that stands up and earnestly tries to prevent tax evasion, and wants to invest in good things that benefit our economy and our planet and are good for our children and for future generations, we can make fairer and more enlightened choices.

To sum up, Brigitte Alepin is truly a tax expert. She has written other books, like Ces riches qui ne paient pas d'impôt about rich people who pay no taxes. The summary I have just read you is taken from La crise fiscale qui vient, about the looming fiscal crisis. I advise everyone to read these books, and of course to invite Ms. Alepin once again before the Standing Committee on Finance, because she has a lot of useful things to say.

In closing, it is very important when embarking on such reforms to do so quickly, so that there is not too much work to be done, so that it is not impossible to do it, and above all, to make enlightened choices that will be the right ones for future generations.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I would like to thank my colleague for his comments. I do have a specific question with respect to compliance, which is a key aspect in maintaining the integrity of our tax system.

What does my colleague think of the fact that this government has not provided for a time frame to enable people to comply with the technical changes being made in the tax system? What does he think of this oversight?

Moreover, since compliance could have an impact on tax evasion, would that be necessary in his view?

[François Choquette, NDP, Drummond, QC]

Mr. Speaker, I wish to thank my hon. colleague from Saint-Lambert for her excellent comment. Indeed, if there had been a time frame, we might not have had to deal with a doorstop of some 1,000 pages. It is almost impossible for the Standing Committee on Finance to consider all the changes in a reasonable and careful manner.

All members of this House were elected to work carefully and thoroughly. It is very important that we be given the tools to do so. When omnibus bills with hundreds of pages are introduced, like Bill C-38 and Bill C-45, we are prevented from doing our job. Yet it is very important that this work be done carefully.

I wish to thank my hon. colleague for pointing out that work to prevent tax evasion has unfortunately not been done on the other side. This is just one small step. It is not a serious one. We have to work much harder and make choices in order to carry out a tax reform that reflects our priorities. Instead of making old age security at age 67 a priority we should be focused on increasing the guaranteed income supplement, and on the environment, in order to offer a better tomorrow for future generations.

[Lise St-Denis, Liberal, Saint-Maurice—Champlain, QC]

Mr. Speaker, in his presentation, my colleague primarily condemned tax evasion. What measures does he and his party propose to deal with this issue?

[François Choquette, NDP, Drummond, QC]

Mr. Speaker, I thank the hon. member for her question.

Several measures could be proposed. I am not an expert in finance, but I know that the Standing Committee on Finance is examining the issue. In fact, many colleagues of mine have recently held meetings on this issue. The Leader of the Opposition and member for Outremont attended these events and he delivered a speech.

We support the fight against tax evasion. That job must be done seriously and rely on various approaches. Concrete measures can be taken, such as those that I mentioned and that Ms. Alepin proposed. That is also the choice of a political party and government. As a government in waiting, the NDP will make sure to respect seniors and to leave a healthier environment to future generations.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, the hon. member for Drummond is absolutely right in stressing the issue of tax evasion. Incidentally, the tax measures passed by the federal government often have an impact at the provincial level. Indeed, for harmonization purposes, provincial governments must often, for better or worse, adopt similar measures, which can greatly promote tax evasion.

Could my colleague comment on this issue faced by the provinces?

[François Choquette, NDP, Drummond, QC]

Mr. Speaker, I thank the hon. member for Beauport—Limoilou for his comments.

That is very important indeed. I am just going to give an example. Recently, the Conservative Prime Minister refused to attend interprovincial meetings with provincial premiers. That is not the way to act if we want to promote co-operation, or if we want to find out the needs of the provinces. By contrast, an NDP Prime Minister will attend interprovincial meetings. We will be there to co-operate with the provinces in order to have a tax system that will be beneficial to all.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, I will begin the New Year by addressing some notions that are, to say the least, tiresome, since they are associated with the ins and outs of the Canadian tax system. The spirit of plurality that should inform remarks made in this House and my constant concern to highlight the ethnic diversity of this country encourage me to present these comments, which deal with Bill C-48, from a perspective of exposing white-collar crime, tax avoidance schemes and corporate tax evasion on aboriginal lands.

At the risk of repeating myself, I did teach for one semester at the Cégep in Sept-Îles. My course was on legal and administrative aspects of aboriginal organizations. I have therefore gone very deeply into the subject, which I was teaching at the time at the college level, and I have decided to bring that knowledge up to date. Within the course, one section dealt essentially with white-collar crime, and the ways organized crime has found to interfere in the management and economic operations specific to Indian reserves. I think it is timely to share this information with all Canadians.

The Conservatives must already be telling themselves that they addressed this idea in Bill C-27. However, they are on the wrong track, because the people behind this economic malfeasance and who work on the fringes of Indian reserves in Canada are most often, in fact, non-aboriginal. They are foreign elements. They are financiers, lobbyists, people with special interests who prowl around the reserves and work on the fringes because of the special schemes relating to income and other taxes, among other things.

That is why these financiers propose phoney corporate vehicles, which are mere fronts. The most common method is to exploit a few willing Indians on a reserve. The corporate vehicle is developed with a very special capital structure. From that point, the rules respecting income and other taxes come into play. We have to address this reality when we talk about tax evasion on the reserves in 2013.

If we consider this interference in the context of economic expansion in our communities, it is related to the successive announcements about such matters as the development of natural resources in remote communities, but it is also related to economic growth. I have already indicated in the past that the people who live on Indian reserves across the country have been compelled over the last 150 years to develop what is designed to be a parallel economy, not “parallel” in the pejorative sense, but because it meets special requirements, responding to a way of life and to adversity.

The aboriginal communities in Canada have long been ignored in the development of economic growth measures as proposed by the various governments, even in 2013. These communities have been left behind, and for a long time, many communities, if not nearly all the Indian reserves in Canada, have gone without.

Over the last 50 years, there has been an expansion, with the development of special schemes and alternative measures. There has been a genuine expansion. Economic conditions in some communities are very good. This is not true of most Indian reserves, but some communities are fairly well provided for with respect to their economic basis. This interference by harmful elements and criminal elements has been accentuated with this growth in the economic strength of Indian reserves.

The concerted efforts of tax authorities, combined with joint investigations carried out by specialized police units in Canada, have in fact highlighted the real mark left by embezzlement on the part of organized cells of shady operators, on the fringes of the aboriginal communities in Canada.

I said there are special tax rules for Indian reserves. Nonetheless, it took a few years for promoters from outside the communities to find compliant actors, among other things, on Indian reserves.

To set up these business vehicles, which are dubious, to say the least, it still takes a token member of the community. Often, these people are well placed and visible within the communities, but there also has to be a form of compliance on the part of both the federal and the provincial government authorities.

At one point, when I worked for my band council, I submitted this problem to the Indian affairs representative who travelled there. I was told quite brusquely that this did not fall within their mandate and I should approach some other authorities to resolve that kind of problem. In other words, they turned a deaf ear. I concluded as follows: there was compliance and blinkers had been very carefully placed on the representatives of government agencies at both the federal and provincial levels. This is a known fact.

When I taught that course, I based what I said on information compiled by information agencies here, agencies of Canada. So this was a well documented problem. When we talk about tax havens, we think of foreign destinations, but this type of scheme operates and is observed right here in Canada. We cannot ignore this.

On the subject of the compliance that existed, I would say that the various governments engaged in cherry-picking. In other words, they take a different view of operations in communities that are more docile or are relatively supportive of the policies of a particular government.

Other communities, some of whose representatives come to testify before the committee fairly regularly, support the existing government policies. In those communities, the schemes run by shady operators, organized crime or white-collar crime will be given free rein, even though that is not how it looks at first glance. These kinds of operations will be allowed to go on in certain more docile communities that toe the line promulgated by the government authorities.

The New Democrats believe this kind of tax avoidance and tax evasion has to be combatted, while at the same time preserving the integrity of our tax system. We support the changes this bill makes, and particularly those aimed at reducing tax avoidance.

I indicated that measures like the ones in Bill C-27 will make us look at our own community leaders and members as negative influences and the only ones responsible for tax avoidance and obvious financial wrongdoing, and this is a mistake. This is false in most cases, based on what has been proven. Studies and wiretaps from undercover operations and intelligence agencies in Canada indicate that these negative influences are located outside of the community. These include businesspeople as well as people involved in organized crime. Biker gangs have also expressed interest.

Furthermore, it is important to understand that most native reserves are located in isolated communities in the north. Verifications are done by financial institutions. However, based on my own experience and my own reality, other auditors and people in a position to shed some light on these kinds of economic activities and wrongdoings take very little interest in the development of and the realities facing communities above the 52nd parallel. That is why these kinds of wrongdoings can persist.

Make no mistake, in most cases, the expertise comes primarily from people who are outside of the community. Legal and judicial advisors have developed economic and financial schemes. They also develop share capital and divide this phony share capital in such a way that puts all voting shares in the hands of one individual or group. Everything is calculated very carefully. The same goes for imposing shotgun clauses.

Since I have studied corporate law at the post-graduate level, I am in a position to dissect share capital and to see it for what it really is. On the face of it, a business can call itself aboriginal, even though that technically may not be the case. A business might be owned by aboriginal interests on paper, but when we really look at how the share capital is divided up, we quickly see that the power is held by individuals outside of the community.

I submit this respectfully.