In this section taken from Courrier de l’économie, our journalists answer questions from our readers.
I know that ETFs of US securities are considered Canadian securities for tax purposes. I would like to know if, in the eyes of the CRA, CDRs (Canadian Depositary Receipts) are considered investments in Canadian securities or US securities.
Complex question.
First, what is a CDR (or CCAE, for its French acronym)? CIBC explains. Canadian Depositary Receipts represent shares of global companies traded in Canadian dollars on a Canadian stock exchange. Like owning a stock directly, they are traded on an exchange, pay dividends and allow for voting rights. One advantage is that they offer fractional ownership, which can be a fraction of the actual, sometimes high, price of the underlying stock.
“They are distinguished by their integrated nominal exchange rate risk coverage that eliminates the effect of exchange rate fluctuations between the global asset currency and the Canadian dollar. In other words, the return depends only on the behavior of the underlying stocks,” the institution adds. The coverage of exchange rate fluctuations is done using a ratio that is automatically corrected every day and which modulates the number of underlying stocks.
CCAEs do not have ongoing management fees. Instead, CIBC collects a commission derived from the trades it executes to maintain the currency hedge.
An expert’s answer
To return to our reader’s question, we contacted Natalie Hotte, head of practice in risk management and knowledge in taxation at the Centre québécois de formation en fiscalité, a partner of Raymond Chabot Grant Thornton.
“The items mentioned here have completely different rules and laws. In short, you have to establish the legal nature of the product in the country where the law applies. For example, for the T1135, it is the Canadian Tax Act. For its part, the Canadian foreign stock certificate is subject to the foreign property rules, because it is a share of a foreign company.”
An exchange-traded fund (ETF) of American stocks, on the other hand, is a Canadian security. “We’re talking about a Canadian trust that holds foreign assets.”
“For U.S. inheritance tax, U.S. law applies. And to our knowledge, the Internal Revenue Service, the IRS, has not given an interpretation [relativement aux CCAE]. So we have a doubt.” In other words, the uncertainty remains: is the CCAE a property located in Canada or in the United States for the purposes of American estate tax?
The tax and financial planning expert is careful to add that she is not specialized in American taxation. However, she invites us not to confuse the CCAE with a similar existing product, the American Depositary Receipt (ADR). “They are similar products in their design, but they have different financial objectives.”
“So even though the IRS confirmed that ADRs were not considered property [situés aux États-Unis] “For U.S. estate tax purposes, according to CIBC, the institution that designed the CDRs, there doesn’t appear to be any confirmation. So it’s a question that remains uncertain for that purpose,” she said.
As for the IRS…
Experts cite CIBC, which emphasizes that the application of U.S. estate tax to CDR holders depends on each individual’s situation and that it does not provide tax advice.
Mme Hotte adds that, in its interpretation relating to ADRs, the IRS made extensive reference to the underlying assets. Therefore, when in doubt, it might be appropriate to consider that a CDR, with its underlying in US shares, is a US a situs property. Form T1135 in Canada would therefore be required for a taxpayer resident in Canada and whose cost of the CDRs (added to that of other specified foreign property) exceeds $100,000.
As for the dividend paid by these American companies, it is subject to withholding tax by the IRS. The withholding tax rate applied will generally be 15% if the interest held in a US company is less than 10%. But under the tax treaty between Canada and the United States, Canadian holders benefit from a tax credit on the dividend thus withheld in order to avoid double taxation.
Please note that US dividends received in tax-advantaged accounts such as RRSPs and RRIFs are not subject to this withholding tax. However, this is not the case for TFSAs, TFSAPPs or RESPs.
For their part, the capital gain or loss realized will be subject to the same tax treatment as that resulting from the sale of a Canadian share.
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