Cases
Anson v. HMRC, [2015] UKSC 44
In rejecting the Commissioners' argument that article 3(2) of the 1975 U.K-U.S. Convention required the term "sources" as used in article 23 thereof to be given the meaning which it bore under U.K tax law, Lord Reed stated (at para. 100):
[A]rticle 23(3) explains how the source of profits or income is to be determined for the purposes of article 23, and that explanation is unrelated to the source doctrine of UK tax law.
See summary under Art. 24.
Attorney General of Canada v. Kubicek Estate, 97 DTC 5454, Docket: A-671-96 (FCA)
The Court found that a "gain" for purposes of Article XIII, paragraph 9 of the Canada-U.S. Convention was a gain determined for purposes of s. 40(1) of the Act, i.e., a gain determined with reference to the period after December 31, 1971, rather than with reference to the total period of ownership (in this case, since 1967). MacGuigan J.A. noted (at p. 5456) that "the Convention does not require that there be a definition in the domestic legislation but only that the meaning of the term in question can be derived from it".
Thiel v. Federal Commissioner of Taxation, 90 A.TC 4717 (HC of A.)
In January and May 1984 the taxpayer, who was a resident of Switzerland, paid $150,000 to acquire six units in the Energy Research Group Unit Trust, in November 1984 he sold his six units to Energy Research Group Australia Ltd. for $300,000 to be satisfied by the issuance to him of 600,000 ordinary shares of that company, and in 1985, following a listing of the shares on the Australian Stock Exchange, he sold 252,000 of his shares for $566,307. The majority found that the taxpayer's activities constituted an "enterprise" for purposes of Article 7 of the Australia-Switzerland Convention regardless whether they constitued an isolated adventure or the recurring conduct of a business. Accordingly, the profits of this enterprise were exempt from taxation under the Income Tax Assessment Act 1936 (Australia).
Rutenberg v. MNR, 79 DTC 5394, [1979] CTC 459 (FCA)
Canadian real estate dealings of the U.S.-resident taxpayer were held not to be activities of a U.S. enterprise, since the initiative in the development and management of the ventures was left largely to a real estate broker and dealer in the Montreal area.
Administrative Policy
31 January 1992 T.I. (Tax Window, No. 13, p. 23, ¶1610)
Because a partnership is not a "company" for purposes of the Canada-U.S. Convention, a partnership of two corporations will not be eligible for the reduced withholding tax rate on dividends of 10% for a company owning at least 10% of the voting shares of the payor.
1992 A.P.F.F. Annual Conference, Q. 12 (January - February 1993 Access Letter, p. 54)
Conventions are legally binding in Canada from the time they are enacted.
6 January 1992 T.I. (Tax Window, No. 15, p. 14, ¶1679)
If a Norwegian limited partnership which has no Canadian partners qualifies as a resident of Norway for purposes of the Canada-Norway Income Tax Convention, rental payments derived from the use of moveable property in Canada will be treated as business profits provided that the income is taxed in the partnership. If the income of the limited partnership is taxed in the hands of the Norwegian partners, it will be a question of fact whether or not the partners are carrying on a business and whether that business is being carried on in Canada through a permanent establishment. Where a partner of the Norwegian limited partnership is a resident of a country other than Norway or Canada, the articles of the appropriate tax convention will apply.
27 September 1991 T.I. (Tax Window, No. 10, p. 23, ¶1483)
As "individual" is not defined in the Canada-Barbados Convention and as A.XVI(5) requires reference to domestic law for undefined words, "individual" includes a trust.
31 July 1991 T.I. (Tax Window, No. 7, p. 22, ¶1378)
The term "arm's length" in subparagraph 4(a) of Article XI of the Canada-Netherlands Convention must be given the meaning it has for purposes of the Income Tax Act. Accordingly, a borrower who is "related" to the lender within the meaning of s. 251 will not be dealing at arm's length for purposes of the Convention.