Income Tax Act

Marginal note:Non-resident’s taxable income in Canada

• 115 (1) For the purposes of this Act, the taxable income earned in Canada for a taxation year of a person who at no time in the year is resident in Canada is the amount, if any, by which the amount that would be the non-resident person’s income for the year under section 3 if

  • (a) the non-resident person had no income other than

    • (i) incomes from the duties of offices and employments performed by the non-resident person in Canada and, if the person was resident in Canada at the time the person performed the duties, outside Canada,

    • (ii) incomes from businesses carried on by the non-resident person in Canada which, in the case of the Canadian banking business of an authorized foreign bank, is, subject to this Part, the profit from that business computed using the bank’s branch financial statements (within the meaning assigned by subsection 20.2(1),

    • (iii) taxable capital gains from dispositions described in paragraph 115(1)(b),

    • (iii.1) the amount by which the amount required by paragraph 59(3.2)(c) to be included in computing the non-resident person’s income for the year exceeds any portion of that amount that was included in computing the non-resident person’s income from a business carried on by the non-resident person in Canada,

    • (iii.2) amounts required by section 13 to be included in computing the non-resident person’s income for the year in respect of dispositions of properties to the extent that those amounts were not included in computing the non-resident person’s income from a business carried on by the non-resident person in Canada,

    • (iii.21) the total of all amounts, each of which is an amount included under subparagraph 56(1)(r)(v) or section 56.3 in computing the non-resident person’s income for the year,

    • (iii.3) in any case where, in the year, the non-resident person carried on a business in Canada described in any of paragraphs (a) to (g) of the definition principal-business corporation in subsection 66(15), all amounts in respect of a Canadian resource property that would be required to be included in computing the non-resident person’s income for the year under this Part if the non-resident person were resident in Canada at any time in the year, to the extent that those amounts are not included in computing the non-resident person’s income by virtue of subparagraph 115(1)(a)(ii) or 115(1)(a)(iii.1),

    • (iv) the amount, if any, by which any amount required by subsection 106(2) to be included in computing the non-resident person’s income for the year as proceeds of the disposition of an income interest in a trust resident in Canada exceeds the amount in respect of that income interest that would, if the non-resident person had been resident in Canada throughout the year, be deductible under subsection 106(1) in computing the non-resident person’s income for the year,

    • (iv.1) the amount, if any, by which any amount required by subsection 96(1.2) to be included in computing the non-resident person’s income for the year as proceeds of the disposition of a right to a share of the income or loss under an agreement referred to in paragraph 96(1.1)(a) exceeds the amount in respect of that right that would, if the non-resident person had been resident in Canada throughout the year, be deductible under subsection 96(1.3) in computing the non-resident person’s income for the year,

    • (v) in the case of a non-resident person described in subsection 115(2), the total determined under paragraph 115(2)(e) in respect of the non-resident person,

    • (vi) the amount that would have been required to be included in computing the non-resident person’s income in respect of a life insurance policy in Canada by virtue of subsection 148(1) or 148(1.1) if the non-resident person had been resident in Canada throughout the year, and

    • (vii) in the case of an authorized foreign bank, the amount claimed by the bank to the extent that the inclusion of the amount in income

      • (A) increases any amount deductible by the bank under subsection 126(1) for the year, and

      • (B) does not increase an amount deductible by the bank under section 127 for the year,

  • (b) the only taxable capital gains and allowable capital losses referred to in paragraph 3(b) were taxable capital gains and allowable capital losses from dispositions, other than dispositions deemed under subsection 218.3(2), of taxable Canadian properties (other than treaty-protected properties), and

  • (b.1) [Repealed, 2001, c. 17, s. 90(4)]

  • (c) the only losses for the year referred to in paragraph 3(d) were losses from duties of an office or employment performed by the person in Canada and businesses (other than treaty-protected businesses) carried on by the person in Canada and allowable business investment losses in respect of property any gain from the disposition of which would, because of this subsection, be included in computing the person’s taxable income earned in Canada,

  exceeds the total of

  • (d) the deductions permitted by subsection 111(1) and, to the extent that they relate to amounts included in computing the amount determined under any of paragraphs (a) to (c), the deductions permitted by any of paragraphs 110(1)(d) to (d.2) and (f) and subsection 110.1(1),

  • (e) the deductions permitted by any of subsections 112(1) and (2) and 138(6) in respect of a dividend received by the non-resident person, to the extent that the dividend is included in computing the non-resident person’s taxable income earned in Canada for the year,

  • (e.1) the deduction permitted by subsection (4.1), and

  • (f) where all or substantially all of the non-resident person’s income for the year is included in computing the non-resident person’s taxable income earned in Canada for the year, such of the other deductions permitted for the purpose of computing taxable income as may reasonably be considered wholly applicable.

• Marginal note:Idem

  (2) Where, in a taxation year, a non-resident person was

  • (a) a student in full-time attendance at an educational institution in Canada that is a university, college or other educational institution providing courses at a post-secondary school level in Canada,

  • (b) a student attending, or a teacher teaching at, an educational institution outside Canada that is a university, college or other educational institution providing courses at a post-secondary school level, who in any preceding taxation year ceased to be resident in Canada in the course of or subsequent to moving to attend or to teach at the institution,

  • (b.1) an individual who in any preceding taxation year ceased to be resident in Canada in the course of or subsequent to moving to carry on research or any similar work under a grant received by the individual to enable the individual to carry on the research or work,

  • (c) an individual

    • (i) who had, in any previous year, ceased to be resident in Canada,

    • (ii) who received, in the taxation year, salary or wages or other remuneration in respect of an office or employment that was paid to the individual directly or indirectly by a person resident in Canada, and

    • (iii) who was, under an agreement or a convention with one or more countries that has the force of law in Canada, entitled to an exemption from an income tax otherwise payable in any of those countries in respect of the salary or wages or other remuneration, or

  • (c.1) a person who received in the year an amount, under a contract, that was or will be deductible in computing the income of a taxpayer subject to tax under this Part and the amount can, irrespective of when the contract was entered into or the form or legal effect of the contract, reasonably be regarded as having been received, in whole or in part,

    • (i) as consideration or partial consideration for entering into a contract of service or an agreement to perform a service where any such service is to be performed in Canada, or for undertaking not to enter into such a contract or agreement with another party, or

    • (ii) as remuneration or partial remuneration from the duties of an office or employment or as compensation or partial compensation for services to be performed in Canada,

  the following rules apply:

  • (d) for the purposes of subsection 2(3) the non-resident person shall be deemed to have been employed in Canada in the year,

  • (e) for the purposes of subparagraph 115(1)(a)(v), the total determined under this paragraph in respect of the non-resident person is the total of

    • (i) any remuneration in respect of an office or employment that was paid to the non-resident person directly or indirectly by a person resident in Canada and was received by the non-resident person in the year, except to the extent that the remuneration is attributable to the duties of an office or employment performed by the non-resident person anywhere outside Canada and

      • (A) is subject to an income or profits tax imposed by the government of a country other than Canada, or

      • (B) is paid in connection with the selling of property, the negotiating of contracts or the rendering of services for the non-resident person’s employer, or a foreign affiliate of the employer, or any other person with whom the employer does not deal at arm’s length, in the ordinary course of a business carried on by the employer, that foreign affiliate or that person,

    • (ii) amounts that would be required by paragraph 56(1)(n) or 56(1)(o) to be included in computing the non-resident person’s income for the year if the non-resident person were resident in Canada throughout the year and the reference in the applicable paragraph to “received by the taxpayer in the year” were read as a reference to “received by the taxpayer in the year from a source in Canada”,

    • (iii) [Repealed, 1994, c. 7, Sch. VII, s. 5(2)]

    • (iv) amounts that would be required by paragraph 56(1)(q) to be included in computing the non-resident person’s income for the year if the non-resident person were resident in Canada throughout the year, and

    • (v) amounts described in paragraph 115(2)(c.1) received by the non-resident person in the year, except to the extent that they are otherwise required to be included in computing the non-resident person’s taxable income earned in Canada for the year, and

  • (f) there may be deducted in computing the taxable income of the non-resident person for the year the amount that would be deductible in computing the non-resident person’s income for the year by virtue of section 62 if

    • (i) the definition eligible relocation in subsection 248(1) were read without reference to subparagraph (a)(i) of that definition, and

    • (ii) the amounts described in subparagraph 62(1)(c)(ii) were the amounts described in subparagraph (e)(ii) of this subsection.

    • (iii) [Repealed, 1999, c. 22, s. 29(4)].

• Marginal note:Non-resident actors

  (2.1) Notwithstanding subsection (1), where a non-resident person is liable to tax under subsection 212(5.1), or would if this Act were read without reference to subsection 212(5.2) be so liable, in respect of an amount paid, credited or provided in a particular taxation year, the amount shall not be included in computing the non-resident person’s taxable income earned in Canada for any taxation year unless a valid election is made under subsection 216.1(1) in respect of the non-resident person for the particular year.

• Marginal note:Deferred payment by actor’s corporation

  (2.2) Where a corporation is liable to tax under subsection 212(5.1) in respect of a corporation payment (within the meaning assigned by subsection 212(5.2)) made in a taxation year in respect of an actor and, in a subsequent year, the corporation makes an actor payment (within the meaning assigned by subsection 212(5.2)) to or for the benefit of the actor, the amount of the actor payment is not deductible in computing the income of the corporation for any taxation year and is not included in computing the taxable income earned in Canada of the actor for any taxation year.

• Marginal note:Non-resident persons  —  2010 Olympic and Paralympic Winter Games

  (2.3) Notwithstanding subsection (1), no amount is to be included in computing the taxable income earned in Canada for any taxation year of a non-resident person, in respect of any amount paid or payable to that person in respect of activities performed in Canada by that person in connection with the 2010 Olympic Winter Games or the 2010 Paralympic Winter Games, after 2009 and before April 2010, if that person is

  • (a) an athlete who represents a country other than Canada;

  • (b) a member of an officially registered support staff associated with a team from a country other than Canada;

  • (c) a person who serves as a games official;

  • (d) the International Olympic Committee;

  • (e) the International Paralympic Committee;

  • (f) an international sports federation that is a member of the General Association of International Sports Federations;

  • (g) an accredited foreign media organization; or

  • (h) an individual, other than a trust, who is an employee, an officer or a member of a person described in any one or more of paragraphs (a) to (g), or who provides services under contract with one or more persons described in those paragraphs.

• Marginal note:Non-resident employed as aircraft pilot

  (3) For the purpose of applying subparagraph (1)(a)(i) to a non-resident person employed as an aircraft pilot, income of the non-resident person that is attributable to a flight (including a leg of a flight) and paid directly or indirectly by a person resident in Canada is attributable to duties performed in Canada in the following proportions:

  • (a) all of the income attributable to the flight if the flight departs from a location in Canada and arrives at a location in Canada;

  • (b) one-half of the income attributable to the flight if the flight departs from a location in Canada and arrives at a location outside Canada;

  • (c) one-half of the income attributable to the flight if the flight departs from a location outside Canada and arrives at a location in Canada; and

  • (d) none of the income attributable to the flight if the flight departs from a location outside Canada and arrives at a location outside Canada.

• Marginal note:Non-resident’s income from Canadian resource property

  (4) Where a non-resident person ceases at any particular time in a taxation year to carry on such of the businesses described in any of paragraphs (a) to (g) of the definition principal business corporation in subsection 66(15) as were carried on by the non-resident person immediately before that time at one or more fixed places of business in Canada and either does not commence after that time and during the year to carry on any business so described at a fixed place of business in Canada or disposes of Canadian resource property at any time in the year during which the non-resident person was not carrying on any business so described at a fixed place of business in Canada, the following rules apply:

  • (a) the taxation year of the non-resident person that would otherwise have included the particular time shall be deemed to have ended at that time and a new taxation year shall be deemed to have commenced immediately thereafter;

  • (b) the non-resident person or any partnership of which the non-resident person was a member immediately after the particular time shall be deemed, for the purpose only of computing the non-resident person’s income earned in Canada for the taxation year that is deemed to have ended, to have disposed immediately before the particular time of each Canadian resource property that was owned by the non-resident person or by the partnership immediately after the particular time and to have received therefor immediately before the particular time proceeds of disposition equal to the fair market value thereof at the particular time; and

  • (c) the non-resident person or any partnership of which the non-resident person was a member immediately after the particular time shall be deemed, for the purpose only of computing the non-resident person’s income earned in Canada for a taxation year commencing after the particular time, to have reacquired immediately after the particular time, at a cost equal to the amount deemed by paragraph 115(4)(b) to have been received by the non-resident person or the partnership as the proceeds of disposition therefor, each property deemed by that paragraph to have been disposed of.

• Marginal note:Foreign resource pool expenses

  (4.1) Where a taxpayer ceases at any time after February 27, 2000 to be resident in Canada, a particular taxation year of the taxpayer ends after that time and the taxpayer was non-resident throughout the period (in this subsection referred to as the “non-resident period”) that begins at that time and ends at the end of the particular year,

  • (a) in computing the taxpayer’s taxable income earned in Canada for the particular year, there may be deducted each amount that would be permitted to be deducted in computing the taxpayer’s income for the particular year under subsection 66(4) or 66.21(4) if

    • (i) subsection 66(4) were read without reference to the words “who is resident throughout a taxation year in Canada” and as if the amount determined under subparagraph 66(4)(b)(ii) were nil, and

    • (ii) subsection 66.21(4) were read without reference to the words “throughout which the taxpayer is resident in Canada” and as if the amounts determined under subparagraph 66.21(4)(a)(ii) and paragraph 66.21(4)(b) were nil; and

  • (b) an amount deducted under this subsection in computing the taxpayer’s taxable income earned in Canada for the particular year is deemed, for the purpose of applying subsection 66(4) or 66.21(4), as the case may be, to a subsequent taxation year, to have been deducted in computing the taxpayer’s income for the particular year.

• Interpretation of partnership

  (5) For the purposes of subsection 115(4), partnership does not include a prescribed partnership.

• Marginal note:Application of s. 138(12)

  (6) The definitions in subsection 138(12) apply to this section.