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A-17-80
The Queen (Appellant) v.
Associates Corporation of North America (Respondent)
Court of Appeal, Urie and Ryan JJ. and MacKay D.J.-Toronto, March 12, 1980.
Income tax — Non-residents — Guarantee fees — Canada- U.S. Tax Convention — Guarantee fees in issue taxable by virtue of s. 214(15)(a) of the Income Tax Act except for the fact of those fees falling within the term "industrial and commercial profits" exempted from Canadian tax by Article I of the Convention — Definition of "interest" cannot be unilat erally expanded by Canada, except for purposes of domestic law, to embrace income that is not interest at all — Income Tax Act, S.C. 1970-71-72, c. 63, s. 214(15)(a) — The Cana- da-United States of America Tax Convention Act, 1943, S.C. 1943-44, c. 21, Article I.
INCOME tax appeal. COUNSEL:
John R. Power, Q.C. and G. Jorre for
appellant.
B. Verchere and S. Kerr for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Verchere & Eddy, Toronto, for respondent.
The following are the reasons for judgment delivered orally in English by
URIE J.: It will not be necessary to call upon you, Mr. Verchere.
Despite the able submissions of appellant's counsel, we have not been persuaded that the learned Trial Judge [supra page 377] erred in finding that the assessments for tax against the respondent ought, in the circumstances of this case, to be vacated. There is no question that if it were not for the Canada-U.S. Tax Convention the guarantee fees here in issue would, by virtue of section 214(15)(a) of the Income Tax Act, S.C. 1970-71-72, c. 63, be subject to tax. It is also beyond doubt that if it were not for that section guarantee fees would fall within the term "indus-
trial and commercial profits" exempted from Canadian tax by virtue of Article I of the Convention.
While undoubtedly for the purpose of its domes tic tax law Canada could enlarge the definition of "interest" to include guarantee fees, as the learned Trial Judge held, the definition could not be "uni- laterally expanded by Canada to embrace income that is not interest at all."
In saying this, we expressly refrain from any finding that a "deeming" provision in the domestic tax law might not, in other circumstances, be embraced by the provisions of international conventions.
Accordingly, the appeal will be dismissed with costs.
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RYAN J. concurred.
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MACKAY D.J. concurred.
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