Foreign Exchange Tax Treatment:
Planning For International Transactions
in Volatile Currency Markets
Taxation of Corporate Finance and Financial Structures
June 5, 2012
Steve Suarez
Overview
I.
Characterization of F/X gains and losses
II.
Recognition (timing) of F/X gains and losses
III. Calculation of F/X gains and losses
IV. Functional Currency Rules
V.
2
Special Circumstances
Characterization of F/X Gains and
Losses
• Capital or income characterization under the Income Tax Act
(Canada) ("ITA")
•
Income treatment: 100% inclusion/deduction rate
•
Capital treatment: 50% inclusion rate; losses vs capital gains only
• Characterization of F/X gains and losses important to
determine relevant inclusion/deduction rate
• To determine characterization of F/X gains and losses, look at
the character of:
3
•
underlying asset;
•
underlying liability; or
•
underlying transaction
A. Assets
• F/X gains or losses on sale of capital property are
capital gains or losses
• F/X gains or losses on sale of property in the course
of carrying on a business are on income account
(e.g., inventory)
• Same income treatment applies to isolated transactions (i.e., "adventure
in the nature of trade")
4
B. Liabilities
• Characterization of F/X gains or losses depends on
characterization of underlying liability
• F/X gains and losses on borrowed money depends
on use of borrowed funds
• If debt relates to purchases made in the course of business operations
(i.e. accounts payable), F/X gains or losses on the debt will be on
income account
• Same treatment applies to "adventures in the nature of the trade"
• If debt relates to acquisition of capital asset, F/X gains or losses on the
debt will be on capital account
5
B. Liabilities (cont'd)
• Exception if borrowed money forms part of "fixed working
capital" or "permanent" capital of taxpayer
•
F/X gain or loss on capital account regardless of use of borrowed funds
• Exception: s. 20.3 weak currency debt
• Whether borrowed funds are part of a taxpayer's fixed working
capital or permanent capital depends on all circumstances:
6
•
Can draws and repayments be linked to day-to-day income-earning activities?
(may indicate income treatment)
•
Would the taxpayer be undercapitalized absent borrowed funds? (may indicate
capital treatment)
•
Term of borrowing? Strong presumption that a long-term loan is part of
permanent capital even if proceeds used to acquire current assets
C. Derivatives and Hedging Transactions
• F/X gains or losses from a derivative transaction are generally
on income account, unless derivative is used for hedging
purposes
•
Exception for "speculators" under CRA's administrative positions = choice, but
consistency required
• If a derivative transaction is used for hedging purposes,
characterization of F/X gains or losses depends on character of
underlying property or liability to which the hedge relates
7
•
F/X gain or loss on a derivative used to hedge F/X risk on a current asset (i.e.
accounts receivable or inventory) is normally on income account
•
F/X gain or loss on a derivative used to hedge F/X risk on capital property is on
capital account
C. Derivatives and Hedging Transactions
(Cont'd)
8
•
Sometimes unclear whether a transaction constitutes a hedge for
income tax purposes
•
Courts have indicated that for a transaction to constitute a hedge,
there must be:
•
an intent for the transaction to operation as a hedge of a particular item; and
•
a substantial correlation in amount between the transaction and that item.
•
If primary purpose of a transaction is not to hedge F/X risk on a
property or liability, transaction will probably not constitute a hedge
for income tax purposes even if transaction has the effect of offsetting
F/X gains or losses on that property or liability
•
CRA is of the view that whether an activity constitutes hedging
depends on "sufficient inter-connection" or "integration" with
underlying transaction
Saskferco Products v. The Queen1
Hedge
F/X
Gain
F/X
Loss
Bank
US $
Revenue
US $
loan
Saskferco
US Plant
US $
Capital/FX Loss
on loan
FX Income on
Revenues
Canada US
Cdn $ depreciates; taxpayer offsets F/X loss on debt repayment vs. F/S revenue
gain, by translating US $ revenue at Cdn $ F/X rate at date of borrowing
91. 2007 DTC 1183; aff'd, 2008 DTC 6698
C. Derivatives and Hedging Transactions
(Cont'd)
• A class of similar properties may be treated as one property for
hedging purposes
• Also not essential that the hedge provides a complete offset of
F/X fluctuations
• For example, CRA stated that forward contracts of a taxpayer
were properly considered hedges of taxpayer's accounts
receivable even if:
•
forward contracts were not each linked to particular receivables; and
•
forward contracts may not have provided 100% protection from exposure to
foreign currency fluctuations
• In this situation, it was clear that the purpose of entering into
the forward contracts was to hedge a significant portion of the
taxpayer's foreign currency fluctuations on the receivables
10
C. Derivatives and Hedging Transactions
(Cont'd)
CRA Documents 2009-0345921I7, April 15, 2010 and 2010-0355871I7,
April 21, 2010, set out CRA administrative policies on hedges
•
in order to create a hedge, a forward contract must be linked in some
way to a transaction (purchase, sale, debt repayment)
•
you can't hedge a property or a liability, or a balance sheet item
•
the party to the forward should directly possess the underlying item
that relates to the transaction being hedged (not a related party)
•
without sufficient linkage to a capital transaction, a hedging
instrument will be on income account
•
you can't hedge a balance sheet exposure
•
the use of hedge accounting does not govern tax treatment
11
Overview
I.
Characterization of F/X gains and losses
II.
Recognition (timing) of F/X gains and losses
III. Calculation of F/X gains and losses
IV. Functional Currency Rules
V.
12
Special Circumstances
II. Recognition (Timing) of F/X Gains and
Losses
• The time at which an F/X gain or loss is recognized
and calculated for income tax purposes depends on
whether the F/X gain or loss is on income or capital
account
13
A. Gains and Losses on Income Account
• General principle is that a taxpayer must compute
business income so as to provide "an accurate
picture of the taxpayer's profit for a given year"
• Any method may be chosen as long as it is not inconsistent with the
ITA, case law principles and well-established business principles
• Determination of profit for income tax purposes is a
question of law
• Accounting rules cannot be substituted for, and do not determine, the
legal interpretation of profit
14
A. Gains and Losses on Income Account
(Cont'd)
• ITA is silent on when F/X gains and losses on income account
are recognized
• Courts have not required taxpayers to follow one particular
method of recognition, but only to choose a method that
provides an "accurate picture" of profit
•
•
•
15
F/X gains or losses on income account in respect of assets or liabilities may be
recognized either:
• on an accrual basis (year-end mark to market); or
• on a settlement basis (when finally settled)
Taxpayers must be consistent from year to year in the method chosen
Consistency between accounting and tax reporting will usually be considered by
CRA but is not required in every case
A. Gains and Losses on Income Account
(Cont'd)
• F/X gains and losses on a derivative that hedges a
current asset or liability are generally recognized in
the same manner as the gains and losses on the
asset or liability hedged
• For example, if a taxpayer uses the accrual method
to recognize an F/X gain or loss on accounts
receivable at year-end, an F/X gain or loss on a
hedge related to those accounts receivable should
also be recognized at year-end
16
B. Gains and Losses on Capital Account
• F/X gains and losses on capital account are recognized only:
•
at the time of disposition of underlying capital property; and
•
at the time of settlement of underlying capital liability
• Not necessary to convert foreign currency to Canadian dollars
to recognize an F/X gain or loss
17
•
For example, a disposition of property valued in foreign currency may given rise
to an F/X gain or loss even if the proceeds of disposition of the property are
reinvested in an asset in the same or another foreign currency
•
With respect to debt on capital account, the recognition of an F/X gain or loss
does not depend on whether the borrower actually converts an amount of
Canadian dollars into foreign currency to repay the debt
B. Gains and Losses on Capital Account
(Cont'd)
• Difficulties in determining if there is a disposition of
an asset or settlement of a liability
• Changes in terms of a share or debt may or may not result in a
disposition of that share or settlement of that debt
• Significance or magnitude of changes will generally determine if there is
a disposition of a share or settlement of a debt
18
B. Gains and Losses on Capital Account
(Cont'd)
• CRA takes the position that no disposition arises if foreign
currency term deposits, GICs, and other similar deposits on
capital account are moved from one form of deposit to another
as long as:
•
funds continue to be viewed as on deposit; and
•
funds are not converted into another currency or used to purchase a negotiable
instrument or other asset
• CRA also takes the position that F/X gains and losses on
negotiable investments are realized when those investments
mature or are otherwise disposed of
•
19
Whether or not the funds are used to purchase similar securities not relevant
B. Gains and Losses on Capital Account
(Cont'd)
• With respect to debt on capital account, an F/X gain
or loss is generally recognized at the time of
settlement
• CRA considers that an F/X gain or loss is also
recognized when:
• a foreign currency deposit is converted at maturity into another foreign
currency
• a debt is assumed by another party as partial consideration for assets
purchased
• a foreign-currency denominated debt is converted into common shares
20
B. Gains and Losses on Capital Account
(Cont'd)
• Special rule in ITA dealing with F/X losses on
acquisitions of control
• Generally applies to acquisitions of control after March 7, 2008
• Applies only to foreign currency debt (and not other liabilities such as
derivatives) the repayment of which would have generated a capital
gain/loss
• Requires any inherent F/X loss on debt to be realized
by a corporation debtor on acquisition of control
• Corporation debtor can also elect to realize any
accrued F/X gain on debt on an acquisition of control
21
B. Gains and Losses on Capital Account
(Cont'd)
Revised s.39(2), Aug. 19, 2011 amendments
• now applies only to foreign currency debts: all F/X gains and
losses on dispositions of capital property now subsumed
within s.39(1)
• as a result, F/X gains and losses of an issuer on the redemption
of shares will no longer result in the recognition of capital
gains or losses (e.g., MacMillan Bloedel Ltd., 99 DTC 5454
(FCA))
• some concern whether revised s.39(2) encompasses F/X hedge
contracts or swaps on capital account: see CBA-CICA Joint
Committee on Taxation submission of October 19, 2011
22
Overview
I.
Characterization of F/X gains and losses
II.
Recognition (timing) of F/X gains and losses
III. Calculation of F/X gains and losses
IV. Functional Currency Rules
V.
23
Special Circumstances
III Calculation of F/X Gains and Losses
• General rule is that amounts must be computed in
Canadian dollars (subject to application of functional
currency rules)
• Exchange rate to be used in the noon rate quoted by
the Bank of Canada or "such other rate as is
acceptable to the Minister"
• CRA has sanctioned the use of alternate exchange rates in appropriate
circumstances
• For example, the CRA takes the position that an alternate rate could be
acceptable if a taxpayer has many transactions in a specified period of
time and wants to use an average exchange rate for that period
24
III. Calculation of F/X Gains and Losses
(Cont'd)
• F/X gain or loss usually recognized at same time, and has same
character, as any inherent gain or loss on the underlying
property or liability
• Thus, many F/X gains or losses are generally subsumed within
calculation of overall gain or loss on the property
• When a gain or loss is partly attributable to gain or loss in
value of property (expressed in foreign currency) and partly
attributable to an F/X fluctuation, it is not necessary to partition
the gain or loss between the two as Canadian tax liability is
generally (but not always) unaffected
25
III. Calculation of F/X Gains and Losses
(Cont'd)
• General calculation rule: an F/X gain or loss is
computed as the difference between:
• the amount paid or received on the disposition or settlement of liability
multiplied by exchange rate as of the disposition date or settlement
date; and
• the original cost or amount of the asset or liability multiplied by
exchange rate as of the acquisition date or creation date
• Same approach for determining F/X gains and losses
on related hedge transactions
26
III. Calculation of F/X Gains and Losses
(Cont'd)
• Main exception to generally calculation rule: F/X gains or
losses on current account (i.e., accounts receivable, accounts
payable, inventory, etc.) when taxpayer uses accrual method
• Those F/X gains and losses are computed as the difference
between:
27
•
the amount accrued multiplied by exchange rate as of tax year-end (or when the
asset or liability is disposed of or settled, the amount received or paid on
disposition or settlement multiplied by exchange rate on disposition date or
settlement date); and
•
the amount accrued multiplied by exchange rate on date the asset was acquired
or the liability arose (or the date of the most recent year-end accrual if the
amount remains outstanding over a tax year-end)
III. Calculation of F/X Gains and Losses
(Cont'd)
• Example 1
• Cost of property: US $100
• Proceeds of disposition: US $90
• F/X rate on acquisition date: US $1 = C $1
• F/X rate on disposition date: US $1 = C $1
Loss of C $10 (not attributable to F/X) computed as follows:
(US $90 x C $1) – (US $100 x C $1) = (C $10)
28
III. Calculation of F/X Gains and Losses
(Cont'd)
• Example 2
• Cost of property: US $100
• Proceeds of disposition: US $100
• F/X rate on acquisition date: US $1 = C $1
• F/X rate on disposition date: US $1 = C $1.20
Gain of C$20 (attributable to F/X) computed as follows:
(US $100 x C $1.20) – (US $100 x C $1) = (C $20)
29
III. Calculation of F/X Gains and Losses
(Cont'd)
• Example 3
• Cost of property: US $100
• Proceeds of disposition: US $90
• F/X rate on acquisition date: US $1 = C $1
• F/X rate on disposition date: US $1 = C $1.20
Gain of C $8 computed as follows:
(US $90 x C $1.20) – (US $100 x C $1) = (C $8)
30
III. Calculation of F/X Gains and Losses
(Cont'd)
• Example 4
• On January 1, 2009, Canco issues a US$100 denominated debt
• On the same date, Canco enters into a currency swap transaction (the
"hedge") under which it agrees to deliver C $130 in exchange for US
$100 on maturity date of debt
• The debt matures on January 1, 2010
• F/X rate on issuance date: US $1 = C $ 1.30
• F/X rate on maturity date: US $1 = C $1.40
31
III. Calculation of F/X Gains and Losses
(Cont'd)
• Example 4 (cont'd)
• F/X loss on the debt is offset by a corresponding F/X gain on the hedge
• F/X loss of C $10 on debt (liability) computed as follows:
(U.S. $100 x C$1.40 – (US $100 x C$1.30) = C $10
C$ amount at settlement (C $140) – C$ amount at inception (C
$130)
• F/X gain of C $10 on the hedge computed as follows:
(US $100 x C $1.40 – (C $130) = C $10
C$ amount received (C $140) – C$ delivered (C $130)
• Economically, no aggregate gain or loss arises
32
III. Calculation of F/X Gains and Losses
(Cont'd)
• Example 4 (cont'd)
• Assuming F/X rate on January 1, 2010 (maturity date) is
US $ 1 = C $ 1.20
• Again, economically, no aggregate gain or loss arises
• F/X loss on the hedge is offset by a corresponding F/X gain on the debt
•
•
33
F/X gain of C $10 on debt (liability) computed as follows:
(US $100 x C $1.20 – (US $100 x C $1.30) = (C $10)
C$ amount on settlement (C $120) – C$ amount at inception
$130)
F/X loss of C $10 on the hedge computed as follows:
(US $100 x C $1.20 – (C $130) = (C $10)
C$ amount received (C $120) – C$ delivered (C $130)
(C
Overview
I.
Characterization of F/X gains and losses
II.
Recognition (timing) of F/X gains and losses
III. Calculation of F/X gains and losses
IV. Functional Currency Rules
V.
34
Special Circumstances
IV.
Functional Currency Rules
• General rule is that Canadian tax results (i.e.,
income, taxable income and tax payable) must be
computed in C$
• If a foreign currency amount is relevant in determining Canadian tax
results, it must be converted to C$
• The conversion is made using the relevant currency exchange rate
quoted by the Bank of Canada at noon on the date on which the foreign
currency amount arose
• However, Canadian-resident corporations can elect
to use a foreign currency in some circumstances
35
IV. Functional Currency Rules (Cont'd)
• Conditions for foreign functional currency reporting:
• the corporation is resident in Canada throughout the particular year;
• the corporation elected in prescribed form and filed the election at least
6 months before the end of the particular year;
• in its first taxation year for which it makes the election, the corporation
has a "qualifying currency" that is the primary currency in which the
corporation maintains its books for financial reporting purposes:
• A "qualifying currency" means US$, € Euro, ₤ Pound sterling, AUD$
or other "prescribed currency"
• the corporation has not filed another functional currency election; and
• a revocation of the election by the corporation does not apply to the
year.
36
IV. Functional Currency Rules (Cont'd)
• The election is available for taxation years beginning
on or after December 14, 2007
• A corporation's elected functional currency
continues to be the corporation's functional
currency in all taxation years subsequent to the
corporation's first functional currency reporting
year, subject to the filing of a revocation
37
IV. Functional Currency Rules (Cont'd)
• Main consequences of the election:
• Canadian tax results for a year are determined using the elected
functional currency
• References to amounts expressed in C$ in the ITA are read as
references to amounts expressed in the corporation's elected functional
currency
• However, regardless of election, any taxes payable
by the electing corporation must be paid in C$
• Amount of tax payable must be converted to C$ using the relevant
exchange rate for the day on which these amounts are due (i.e., rate
quoted by the Bank of Canada at noon on that day or other rate
acceptable to CRA)
38
IV. Functional Currency Rules (Cont'd)
• Revocation of election by electing corporation possible
•
Notice of revocation must be filed in prescribed form
• Revocation will apply to every taxation year that begins on or
after the day that is 6 months after the day on which the
revocation is filed
• Revocation cannot be made in the taxpayer's first functional
currency year
• Where a revocation is filed and becomes effective, a
corporation reverts back to Canadian currency tax reporting
•
39
There are exceptions that may place the corporation back in the functional
currency regime upon a winding-up of the taxpayer into its parent corporation or
upon its amalgamation with another corporation
Overview
I.
Characterization of F/X gains and losses
II.
Recognition (timing) of F/X gains and losses
III. Calculation of F/X gains and losses
IV. Functional Currency Rules
V.
40
Special Circumstances
V. Special Circumstances
• CRA takes the position that F/X losses in respect of capital
property may be deferred or denied under the stop-loss rules in
the ITA
• Stop-loss rules generally apply to losses realized on a
disposition of capital property between related, affiliated or
otherwise connected parties
• More particularly, specific stop-loss rules apply to:
41
•
Loss from disposition of related-party debt
•
Loss from settlement of debt where new debt is issued
•
Loss from disposition of shares of a controlled corporation
•
Loss from the disposition of certain foreign affiliate shares or partnership
interests
•
Loss on the repurchase or redemption of shares of affiliated corporation, etc.
V. Special Circumstances
Examples where F/X losses could be denied using the stoploss rules:
• Disposition of related-party debt
•
Applies where transferor, transferee and debtor are related to each other
•
A F/X loss accrued on such a debt may be deemed by the CRA to be nil in the
hands of the transferor
• Debt-for-debt exchange
•
•
42
Applies where the debtor settles a debt at a loss and in consideration for the
settlement, the debtor settles new debt to repay older debt
• This rule applies to a debt that is a "commercial obligation", which is
generally defined as a debt obligation the interest on which is deductible in
computing income
A F/X loss on a debt that would otherwise have been realized on settlement may
be denied by the CRA
V. Special Circumstances
•
Certain rollover rules in the ITA could be used to defer the recognition
of F/X accrued gains on a transfer of a foreign-currency-denominated
asset
•
CRA has generally recognized that no F/X gain (or loss) will be realized
where a particular rollover provision applies
•
Thus, an accrued F/X gain (or loss) on a foreign-currencydenominated asset could be deferred using a tax-free rollover: see for
example CRA document 2011-0395771R3, April 15, 2011
•
Rollover provisions in the ITA include:
43
•
Section 51: rollover of a convertible instrument held on capital account in exchange for
shares of the issuer
•
Section 85(1): rollover of property transferred by a person to a corporation for consideration
that includes shares of the corporation
•
Section 85(2): rollover of property from a corporation to a partnership
•
Section 86: rollover on a share exchange made in the course of a reorganization of capital
VI. Special Circumstances
• CRA document 2010-0381061I7 – Non-resident Shareholder's
Loan (Dec. 6, 2010)
• Example illustrating the importance of mitigating F/X risks to
optimize cash flows and resulting tax attributes
• How does a non-resident compute its refund of withholding tax
where a loan is made in a foreign currency and there has been
a fluctuation in the value of the currency vis-à-vis the Canadian
dollar between the time the loan was made and the time the
loan is repaid?
44
VI. Special Circumstances
• Facts
• Canco loans its NR shareholder, Foreignco, US $1M when the C$
equivalent of the loan at that time is $1.2M
• The amount of the loan is deemed to be a dividend paid by Canco; thus,
it is subject to Canadian withholding tax at a 25% rate (i.e., 25% x C
$1.2M = C $300,000)
• Canco remits the amount of withholding tax to the Receiver General on
behalf of Foreignco
45
VI. Special Circumstances
• Facts (Cont'd)
• Foreignco eventually repays the entire loan in US$ to Canco when C$
equivalent of the loan is $1.1M
• Thus due to C$ appreciation, the C$ value of the receivable relative to
US$ has declined
• Foreignco files an application to have the withholding tax (i.e.,
$300,000) previously remitted by Canco refunded
46
VI. Special Circumstances
• Based on subsection 227(6.1), CRA stated that the amount of
the refund was $275,000 not $300,000
•
•
•
47
Subsection 227(6.1) provides that a refund of withholding tax in respect of a nonresident shareholder loan is the lesser of:
• The amount of withholding tax paid to the Receiver General in respect of the
loan (i.e., $300,000); and
• The amount of withholding tax that would be payable to the Receiver
General at the time the loan was repaid (i.e., 25% x $1.1M = $275,000)
Amount of refund is therefore less than the amount remitted due to foreign
exchange fluctuations between the time the loan was made and the time the loan
was repaid
From a policy perspective, conclusion appears correct since Canco will have an
F/X loss of C $100,000 upon repayment
Questions?
Thank You!
48
Bibliography
• Leading Articles
• Robert A. Kopstein and Janette Y. Pantry, “Foreign Exchange Issues,”
2003 British Columbia Tax Conference (Vancouver: Canadian Tax
Foundation, 2003), 3:1-88
• Eric Bretsen and Heather Kerr, "Tax Planning for Foreign Currency“,
2009 Tax Conference (Toronto: Canadian Tax Conference, 2010),
35:1-44
• James W. Murdoch and Mark A. Babour, "Foreign Exchange", 2010
Ontario Tax Conference (Toronto, Canadian Tax Foundation, 2010),
12:1-19
• Hugh G. Chasmar, "Foreign Exchange Gains and Losses: Recent
Developments", 2006 Tax Conference (Toronto: Canadian Tax
Foundation, 2007), 12:1-22
49
Bibliography (Cont'd)
• Leading Cases
50
•
Salada Foods Ltd. v. R., [1974] C.T.C. 201 (F.C.T.D.)
•
Shell Canada v. R., [1999] 4 C.T.C. 313 (S.C.C.)
•
Gifford v. R., [2004] 2 C.T.C. 1 (S.C.C.)
•
Columbia Records of Canada Ltd., v. M.N.R., [1971] C.T.C. 839 (F.C.T.D.)
•
Saskferco Products ULC v. R., 2008 FCA 297 (F.C.A.)
•
Echo Bay Mines Ltd. v. Canada, [1992] 2 C.T.C. 182 (F.C.T.D.)
•
Imperial Oil Ltd. v. R., [2007] 1 C.T.C. 41 (S.C.C.)
•
Gaynor v. M.N.R., [1991] 1 C.T.C. 470 (F.C.A.)
•
Ethicon Sutures Ltd. v. R., [1985] 2 C.T.C. 6 (F.C.T.D.)
Bibliography (Cont'd)
•
51
Important CRA Views of Interest
•
CRA document 9427166 (Sept 18, 1995)
•
Interpretation Bulletin IT-95R, "Foreign Exchange Gains and Losses" (Dec. 16, 1980)
•
Interpretation Bulletin IT-346R, "Commodity Futures and Certain Commodities" (Nov. 20, 1978)
•
CRA ruling 2007-0255401R3 (2008)
•
Income Tax Technical News No. 38 (Sept. 22, 2008)
•
CRA document 2006-0178661E5 (Mar. 9, 2007)
•
CRA document 2002-01600807 (Apr. 16, 2003), as amended by CRA document 2003-0019667 (June 27,
2003
•
CRA document 2007-0234001E5 (Oct. 22, 2007)
•
CRA document 2001-0083135 (June 27, 2001)
•
CRA document 2007-0242861M4 (Aug. 8, 2007)
•
CRA document 2010-0367611I7 (Oct. 12, 2010)
•
CRA document 2010-0355871I7 (Apr. 21, 2010)
•
CRA document 2009-0345921I7 (Apr. 15, 2010)