U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

99–119

" SENATE ! 104TH CONGRESS

1st Session

TREATY DOC.

1995

104–4

A REVISED PROTOCOL AMENDING THE 1980

TAX CONVENTION WITH CANADA

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

A REVISED PROTOCOL AMENDING THE CONVENTION BETWEEN

THE UNITED STATES AND CANADA WITH RESPECT TO TAXES

ON INCOME AND ON CAPITAL SIGNED AT WASHINGTON ON

SEPTEMBER 26, 1980, AS AMENDED BY THE PROTOCOLS SIGNED

ON JUNE 14, 1983 AND MARCH 28, 1984

APRIL 24, 1995.—Protocol was read the first time and, together with the

accompanying papers, referred to the Committee on Foreign Relations

and ordered to be printed for the use of the Senate

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, April 24, 1995.

To the Senate of the United States:

I transmit herewith for Senate advice and consent to ratification,

a revised Protocol Amending the Convention Between the United

States of America and Canada with Respect to Taxes on Income

and on Capital Signed at Washington on September 26, 1980, as

Amended by the Protocols Signed on June 14, 1983, and March 28,

1984. This revised Protocol was signed at Washington on March 17,

1995. Also transmitted for the information of the Senate is the report of the Department of State with respect to the revised Protocol. The principal provisions of the Protocol, as well as the reasons

for the technical amendments made in the revised Protocol, are explained in that document.

It is my desire that revised Protocol transmitted herewith be considered in place of the Protocol to the Income Tax Convention with

Canada signed at Washington on August 31, 1994, which was

transmitted to the Senate with my message dated September 14,

1994, and which is now pending in the Committee on Foreign Relations. I desire, therefore, to withdraw from the Senate the Protocol

signed in August 1994.

I recommend that the Senate give early and favorable consideration to the revised Protocol and give its advice and consent to ratification.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE,

Washington, April 12, 1995.

THE PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you, with a view

to its transmission to the Senate for advice and consent to ratification, a revised Protocol Amending the Convention between the

United States and Canada with Respect to Taxes on Income and

on Capital signed at Washington on September 26, 1980, as

amended by the Protocols signed on June 14, 1983 and March 28,

1984. The revised Protocol would replace the Protocol to the Convention between the United States and Canada signed at Washington on August 31, 1994, which was transmitted to the Senate with

a message from the President dated September 14, 1994, and

which is now pending in the Committee on Foreign Relations. The

Protocol makes a number of amendments to the Convention. The

most significant amendments are described below, in the order in

which they appear in the Protocol. The revised Protocol makes

technical changes intended to clarify the operation of some of the

death tax provisions and to ensure that certain rules for entry into

force operate properly.

The Convention currently provides for adjustments to related

party transactions to reflect the amounts of income and expense

that would have been reported in unrelated party transactions. It

also provides for the other Contracting State to make correlative

adjustments. However, unlike most of the United States tax treaties, the present Convention requires the State making the first adjustment to withdraw it if the initial adjustment has not been reported to the other Contracting State within six years of the year

to which the first adjustment relates. This has created a potential

for abuse. The Protocol will remove the obligation of the first-mentioned State to withdraw its adjustment in those circumstances.

The Protocol also reduces the withholding rates charged by one

country on payments of certain classes of dividends, interest and

royalties to residents of the other country. The withholding rate on

dividends is reduced from 10 to 5 percent, phased in over two

years, for a corporate shareholder that owns at least 10 percent of

the voting stock of the paying company and is the beneficial owner

of the dividends. The Protocol adds, in what has become established U.S. tax treaty policy, a rule to ensure that dividends paid

by non-taxable ‘‘conduit’’ entities, such as U.S.-regulated investment companies (RICs) and real estate investment trusts (REITs),
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will not receive unjustified treaty benefits. In addition, the small

individual shareholder benefits for REITs will be allowed to the estate of such an individual for up to five years.

The general withholding rate on interest will be reduced from 15

to 10 percent. The exemption in the present treaty for interest on

trade credits will be broadened to include not only interest received

by the seller but also interest received by other holders of trade

credits. Real estate mortgage investment conduit (REMIC) excess

inclusions will be taxable by the United States at full statutory

rates. Most classes of royalties, including software royalties, will be

exempt from withholding by the country in which the royalty

arises.

Social security benefits, under the Protocol, are subject to tax

only in the country making the payment. This change reflects U.S.

tax treaty policy.

The scope of the non-discrimination article is broadened to include all national-level taxes in both Contracting States. Under the

present Convention, the non-discrimination provisions are limited,

with respect to taxes imposed by Canada, to taxes imposed under

the Canadian Income Tax Act.

The Protocol strengthens levels of cooperation between the tax

authorities of the Contracting States. It provides that the Contracting States may, by mutual agreement, implement an arbitration

procedure for the resolution of disputes under the Convention. The

Protocol also adds a detailed set of rules under which each State

will assist the other in the collection of its taxes.

The information exchange provision is also broadened to include

all national taxes. With respect to Canadian taxes, the present

Convention covers only taxes imposed under the Income Tax Act

and any national taxes on estates and gifts. The Protocol also provides for consultation and, if appropriate, renegotiation (subject to

the usual ratification procedures) where future domestic legislation

materially conflicts with treaty provisions.

The present Convention has no general anti-treaty-shopping

rules. The comprehensive ‘‘limitations on benefits’’ provisions add

to the treaty by the Protocol are, at Canada’s request, primarily

unilateral. These provisions protect the United States against use

of the treaty by ‘‘treaty shoppers’’ seeking to gain unintended U.S.

treaty benefits through Canada.

The Protocol adds rules to the Convention concerning taxation at

death. The United States and Canada have different methods for

imposing taxation at death. The United States imposes an estate

tax, while Canada imposes an income tax on certain gains deemed

realized at death. The Protocol contains many provisions which reduce the impact of taxes imposed at death by one Contracting State

on residents of the other. First, the Protocol provides a limited U.S.

estate tax waiver for small estates of Canadian resident decedents.

Second, it provides a pro rata unified credit by the United States

for estates of Canadian resident decedents. Third, it allows a limited U.S. ‘‘marital credit’’ for estates of Canadian resident decedents and of Canadian-citizen decedents resident in the United

States. Fourth, the Protocol allows a credit against U.S. estate tax

for Canadian income tax on certain income, profits, and gains realized in the year of death and on certain gains deemed realized at
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death by Canadian residents, and vice versa. Fifth, certain U.S.

‘‘qualified domestic trusts’’ would be allowed to qualify as Canadian

spousal trusts for purposes of Canadian law. Finally, relief would

be provided for certain cross-border charitable bequests. The revised Protocol clarifies certain aspects of the computation and coordination of these provisions concerning taxation at death.

The Protocol requires the appropriate authorities of the Contracting States to consult within three years of its entry into force regarding further reductions in withholding rates and the application

of the anti-treaty-shopping rules. The appropriate authorities are

instructed to consult after three years regarding implementation of

the arbitration procedure. The Protocol enters into force upon the

exchange of instruments of ratification.

A technical memorandum explaining in detail the provisions of

the revised Protocol will be prepared by the Department of the

Treasury and will be submitted separately to the Senate Committee on Foreign Relations.

The Department of the Treasury and the Department of State cooperated in the negotiation of the revised Protocol. It has the full

approval of both Departments.

Respectfully submitted,

PETER TARNOFF.
(1)
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