Exchange of Notes

Exchange of Notes

I

Washington, D.C.

September 26, 1980

Sir,

I have the honour to refer to the Convention between Canada and the United States of America with Respect to Taxes on Income and on Capital, signed today, and to confirm certain understandings reached between the two Governments with respect to the Convention.

  1. In French, the term “société“ also means a “corporation” within the meaning of Canadian law.
  2. The competent authorities of each of the Contracting States shall review the procedures and requirements for an organization of the other Contracting State to establish its status as a religious, scientific, literary, educational or charitable organization entitled to exemption under paragraph 1 of Article XXI (Exempt organizations), or as an eligible recipient of the charitable contributions or gifts referred to in paragraphs 5 and 6 of Article XXI, with a view to avoiding duplicate application by such organizations to the administering agencies of both Contracting States. If a Contracting State determines that the other Contracting State maintains procedures to determine such status and rules for qualification that are compatible with such procedures and rules of the first-mentioned Contracting State, it is contemplated that such first-mentioned Contracting State shall accept the certification of the administering agency of the other Contracting State as to such status for the purpose of making the necessary determinations under paragraphs 1, 5 and 6 of Article XXI.

It is further agreed that the term “family”, as used in paragraphs 5 and 6 of Article XXI, means an individual’s brothers and sisters (whether by whole or half-blood, or by adoption), spouse, ancestors, lineal descendants and adopted descendants.

  1. It is the position of Canada that the so-called “unitary apportionment” method used by certain states of the United States to allocate income to United States offices or subsidiaries of Canadian companies results in inequitable taxation and imposes excessive administrative burdens on Canadian companies doing business in those states. Under that method the profit of a Canadian company on its United States business is not determined on the basis of arm’s-length relations but is derived from a formula taking account of the income of the Canadian company and its worldwide subsidiaries as well as the assets, payroll and sales of all such companies. For a Canadian multinational company with many subsidiaries in different countries to have to submit its books and records for all of these companies to a state of the United States imposes a costly burden. It is understood that the Senate of the United States has not consented to any limitation on the taxing jurisdiction of the states by a treaty and that a provision which would have restricted the use of unitary apportionment in the case of United Kingdom corporations was recently rejected by the Senate. Canada continues to be concerned about this issue as it affects Canadian multinationals. If an acceptable provision on this subject can be devised, the United States agrees to reopen discussions with Canada on this subject.
  2. I have the honour to propose to you that the present Note and your reply thereto shall constitute an Agreement between our two Governments on these matters.

[5.] Accept, Sir, the assurances of my highest consideration.

Allan J. MacEachen

Deputy Prime Minister and

Minister of Finance of Canada

The Honourable G. William Miller

Secretary of the Treasury

Washington, D.C.

II

[Washington]

September 26, 1980

Sir:

I have the honor to acknowledge receipt of your note of September 26, 1980, which reads as follows:

[see I]

I confirm these understandings on behalf of the Government of the United States of America. These understandings constitute an Agreement between our two Governments on this matter, which will enter into force on the date of entry into force of the Convention between the Government of the United States of America and the Government of Canada with Respect to Taxes on Income and on Capital which was signed today.

Accept, Sir, the renewed assurances of my highest consideration.

  1. William Miller

Secretary of the Treasury

The Honorable Allan J. MacEachen

Deputy Prime Minister and

Minister of Finance of Canada