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When the federal goods and services tax (“GST”) was introduced in 1991, “Seinfeld” was on the air and most consumer goods were purchased at brick and mortar stores. Fast forward to 2021 and puffy shirts can be purchased online from a retailer located anywhere in the world.
This article provides a high-level overview of the current Canadian sales tax landscape as it applies to non‑resident vendors of goods and summarizes proposed changes that are intended to be effective July 1, 2021.
The Different Sales Taxes and Rates
The different Canadian sales taxes and rates can be confusing for non‑resident businesses looking to expand into the Canadian market.
Canada imposes the federal GST and HST (explained below) on supplies of property or services “made in Canada” at rates varying between 5% and 15%, depending on the province in which the supply is made. The federal GST is applied at 5% and is imposed on most goods and services. This tax is usually paid by the recipient (e.g., purchaser) but collected and remitted to the taxing authority (the Canada Revenue Agency) by the supplier (e.g., vendor).
Most provinces at one point in time had their own provincial sales tax. Some provinces have harmonized their provincial sales tax with the GST to create the harmonized sales tax (“HST”) (i.e., Ontario, Newfoundland and Labrador, Prince Edward Island, New Brunswick, and Nova Scotia). Other provinces continue to have a separate provincial sales tax in addition to the GST (i.e., British Columbia, Saskatchewan, Manitoba, and Québec). One province (i.e., Alberta) and all three territories do not impose any provincial sales tax and only charge the GST. What results is five different taxing regimes. The HST is charged at 13% or 15%, depending on the province, and provincial sales tax is charged at rates between 6% and 9.975%.
GST or HST must also be paid by the importer of record at the Canadian port of entry when goods are imported into Canada. This tax is collected by the Canadian Border Services Agency at a rate of 5% on the value of the goods for customs purposes (which may be different than for transfer pricing purposes). If the goods are to be transported to a province that imposes the HST, the provincial component of the HST may also be collected at the Canadian port of entry (but only if the goods are not classified as commercial). If the importer of record is a GST/HST registrant, they may be eligible to recover this tax by claiming an input tax credit.
Requirement to Register and Collect Sales Tax
The first question that is often asked when a business looks to start selling goods into Canada is whether the business is required to register and collect sales tax.
Generally, a supplier is required to register for GST/HST if the supplier makes taxable supplies in Canada. The sale of tangible personal property (e.g., goods) is deemed to be “made in Canada” if the property is, or is to be, delivered or made available in Canada to the recipient of the supply. However, a supply of goods made by a non-resident person that is not registered for GST/HST will be deemed to be made outside of Canada and outside of the scope of the GST/HST as long as the supply is not made in the course of a business carried on in Canada. This exception applies notwithstanding that the goods are delivered or made available in Canada. However, new proposed legislation may apply instead of this exception to the general rule (discussed in the next section).
Whether a non-resident person is carrying on business in Canada for GST/HST purposes is a question of fact that depends on a number of factors including (but not limited to): the place where agents or employees of the non-resident are located; the place of delivery; the place of payment; the location of assets or inventory; where business contracts are made; and the location of bank accounts.
If selling goods to consumers in British Columbia, Saskatchewan, Manitoba, and/or Québec, the business also needs to consider whether it is required to register and collect provincial sales tax in those provinces in addition to registering and collecting the GST/HST. The provincial sales tax in these provinces are imposed pursuant to different legislation that, except for Québec, is significantly different than the GST/HST regime.
Businesses with an annual sales revenue below a certain threshold may not be required to register and collect sales tax, but this threshold is fairly low.
How the Proposed GST/HST Changes Affect Non-Resident Vendors of Goods
New proposed changes to the registration requirements for non-resident vendors were announced in November 2020. These rules may require a non-resident vendor to register to collect and remit GST/HST despite the fact that it is not carrying on business in Canada. If the new rules are enacted as currently drafted, they will generally apply when: (i) a non-resident vendor sells goods that are already located in a fulfillment warehouse in Canada, or shipped from a place in Canada, to a purchaser in Canada; (ii) those sales are made directly by the non-resident vendor and not through a distribution platform operator (different rules may apply instead); and (iii) the total value of such sales are expected to exceed $30,000 over a 12‑month period.
If a non-resident vendor is required to register under the new rules, it will be required to collect and remit GST/HST on all supplies made in Canada (not just to consumers). However, the non-resident vendor would be eligible to claim input tax credits in relation to GST/HST paid on inputs used in its commercial activities, such as GST on the importation of the goods paid at the port of entry (as discussed above).
The current Canadian sales tax landscape can be difficult to navigate and proposed measures increase its complexity. Please contact a member of the Miller Thomson LLP Sales, Commodity and Indirect Tax Group if you would like to discuss how Canadian sales tax may apply to your business operations.