As a general rule, when a nonresident of Canada receives a payment from a Canadian-based pension plan, including a registered pension plan (i.e. a normal company pension plan), a registered retirement savings plan (”RRSP”), or a Registered Retirement Income Fund (“RRIF”), Canada imposes a 25% tax under Part XIII of the Income Tax Act.
However, many of Canada’s tax treaties provide a reduced rate in the case of a “periodic pension payment”, usually at 15%[1].
But, when is a pension payment “periodic” for this purpose? I know of no tax treaty that defines “periodic pension payment”. If one were to look at the natural meaning of the words, it could lead to the conclusion that if a Canadian expat was a beneficiary of a RRSP, he or she could, for example, empty it out by taking 1/12 every month over a period of a year, and each payment would qualify.
However, since the 1980s, Canada has had a statute known as the Income Tax Conventions Interpretation Act (“ITCIA”). The rules in the ITCIA can apply to the application of Part XIII tax to amounts paid after June 23, 1983.
Under Section 5 of the ITCIA, various terms are defined for the purposes of Canada’s tax conventions.
In particular, “periodic pension payment” is defined as follows:
“periodic pension payment” means, in respect of payments that arise in Canada, a pension payment other than
(a)a lump sum payment, or a payment that can reasonably be considered to be an instalment of a lump sum amount, under a registered pension plan,
(b)a payment before maturity, or a payment in full or partial commutation of the retirement income, under a registered retirement savings plan,
(c)a payment at any time in a calendar year under a registered retirement income fund, where the total of all payments (other than the specified portion of each such payment) made under the fund at or before that time and in the year exceeds the total of
(i)the amount that would be the greater of
(A)twice the amount that, if the value of C in the definition “minimum amount” in subsection 146.3(1) of the Income Tax Act were nil, would be the minimum amount under the fund for the year, and
(B)10% of the fair market value of the property (other than annuity contracts that, at the beginning of the year, are not described in paragraph (b.1) of the definition “qualified investment” in subsection 146.3(1) of the Income Tax Act) held in connection with the fund at the beginning of the year
if all property transferred in the year and before that time to the carrier of the fund as consideration for the carrier’s undertaking to make payments under the fund had been so transferred immediately before the beginning of the year and if the definition “minimum amount” in subsection 146.3(1) of the Income Tax Act applied with respect to all registered retirement income funds, and
(ii)the total of all amounts each of which is an annual or more frequent periodic payment under an annuity contract that is a qualified investment, as defined in subsection 146.3(1) of the Income Tax Act, (other than an annuity contract the fair market value of which is taken into account under clause (i)(B)) held by a trust governed by the fund that was paid into the trust in the year and before that time, or
(d)a payment to a recipient at any time in a calendar year under an arrangement, other than a plan or fund referred to in paragraphs (a) to (c), where
(i)the payment is not
(A)one of a series of annual or more frequent payments to be made over the lifetime of the recipient or over a period of at least 10 years,
(B)one of a series of annual or more frequent payments each of which is contingent on the recipient continuing to suffer from a physical or mental impairment, or
(C)a payment to which the recipient is entitled as a consequence of the death of an individual who was in receipt of periodic pension payments under the arrangement, and that is made under a guarantee that a minimum number of payments will be made in respect of the individual, or
(ii)at the time the payment is made, it can reasonably be concluded that
(A)the total amount of payments (other than excluded payments) under the arrangement to the recipient in the year will exceed twice the total amount of payments (other than excluded payments) made under the arrangement to the recipient in the immediately preceding year, otherwise than because of the fact that payments commenced to be made to the recipient in the preceding year and were made for a period of less than twelve months in that year, or
(B)the total amount of payments (other than excluded payments) under the arrangement to the recipient in the year will exceed twice the total amount of payments (other than excluded payments) to be made under the arrangement to the recipient in any subsequent year, otherwise than because of the termination of the series of payments or the reduction in the amount of payments to be made after the death of any individual,
and, for the purposes of this subparagraph, “excluded payment” means a payment that is neither a periodic payment nor a payment described in any of clauses (i)(A) to (C).”
The definition is somewhat difficult to navigate in many cases, but the key points are as follows:
- A “lump-sum” payment will not qualify,
- Payments out of a RRIF in any year beyond the greater of 10% of the opening year value and twice the “minimum amount” under the RRIF Regulations, will not qualify (NB-since the “minimum amount” for the year a RRIF is established is deemed to be NIL, no amount will qualify in that year), and
- Payments out of a RRSP or other plan will not qualify if they are not from either a life annuity or a fixed term annuity of at least a ten year period.
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In the case of a retiree moving abroad, a common strategy would be to convert the plan to a RRIF, if it is not already one, and withdraw the maximum amount allowed every year. Based on Regulation 7308(4), this would generally mean 10% of opening plan value until age 70, and increasing amounts for subsequent year (for example, 11.64% for an annuitant who is 75).
[1] In fact, under Canada’s tax treaty with the UK, the payment is completely exempt from Canadian tax.
ABOUT THE AUTHOR OF THIS ARTICLE
Michael I. Atlas, CPA,CA,CPA(ILL),TEP
Michael Atlas is one of the most prominent international tax experts in Canada. He advises accounting and law firms all across Canada, as well as select private clients (corporate and personal) worldwide. He can be reached by phone (416.860.9175) or email (matlas@TaxCA.com).
