U.S. Employees Working Remotely in Canada
Before the pandemic, working remotely was relatively limited. Today it is common for employees to work remotely, and many prefer it. Because of the risks of transmission of the COVID-19 virus, many employers require their employees to work remotely. In certain cases, employees are restricted to remote work sites in the U.S., but in other cases there are no restrictions, or the employee works outside the U.S. regardless of the employer’s expectations.
U.S. employees working remotely in Canada expose their employers to Canadian income taxes, Goods and Services Tax and payroll taxes. Employees may also have Canadian personal tax obligations.
Canadian Income Tax – Employer
U.S. employers with employees working remotely in Canada will be subject to Canadian income tax only if they have a permanent establishment in Canada as defined by the U.S.-Canada Income Tax Convention (the “Treaty”).
Where U.S. employees work remotely in Canada or where other business activities are conducted in Canada, the U.S. employer will have a Canadian income tax filing obligation regardless of whether it has a permanent establishment in Canada. U.S. corporations with Canadian business activities need to complete Canada Revenue Agency (“CRA”) Form T2, Corporation Income Tax Return. Where they do not have a permanent establishment in Canada, a U.S. corporate employer will not have a Canadian income tax liability but needs to include CRA Schedule 91, Information Concerning Claims for Treaty-Based Exemptions with CRA Form T2.
Permanent Establishment
A permanent establishment arises where there is a fixed place of business, which may include a home office, or where contracts are regularly concluded in Canada by employees present there, even if only temporarily.
A “services permanent establishment” may arise under the Treaty where employees of services businesses are present in Canada for more than 182 days in any twelve-month period and certain other thresholds are met. The services permanent establishment begins at the start of the period of more than 182 days, not when that threshold is exceeded. Other Treaty tests may also apply in the determination of whether a permanent establishment exists in Canada.
Goods and Services Tax and Harmonized Sales Tax
Goods and Services Tax (“GST”) is a 5% Canadian federal value-added tax on sale or exchange of most goods and services. GST applies to all applicable business activities and sales completed in Canada regardless of whether there is a permanent establishment in Canada. The seller is obligated to register with CRA and collect and remit the tax to them. Some exceptions exist for U.S. businesses where their Canadian customer provides evidence they are registered for GST. The registered seller may claim any GST paid as a credit against the amount otherwise required to be remitted. Only the ultimate consumer has a net liability for the tax.
The provinces of Ontario, New Brunswick, Newfoundland and Labrador, Nova Scotia and Prince Edward Island have “harmonized” their respective provincial sales taxes with the GST resulting in the Harmonized Sales Tax (“HST”). HST works identical to the GST but includes a provincial element. Except for Alberta, the other five provinces all have a provincial sales tax that operates like U.S. sales taxes.
Canadian Payroll Tax
U.S. employers with employees working remotely in Canada are required to collect and remit payroll taxes to CRA unless they qualify to not withhold under a Regulation 102 waiver (CRA Form R102-R, Regulation 102 Waiver Application). Employees who are not residents of Canada and are subject to Canadian withholding tax must obtain an Individual Tax Number with CRA Form T1261, Application for a CRA Individual Tax Number (ITN) for Non-Residents.
Canadian Income Tax – Employee
U.S. employees working remotely in Canada will not be taxable on their compensation earned from employment services rendered in Canada where they continue to be tax residents of the U.S. and they meet one of the following two exemptions under the Treaty:
- The employment income earned from services rendered in Canada is less than C$10,000, or
- The employee is present in Canada for less than 183 days in any twelve-month period and the employer does not have a permanent establishment in Canada
U.S. employees working remotely in Canada may become tax residents of Canada and be subject to Canadian tax on their worldwide income. Canadian tax residency can occur merely by having residential ties to Canada, which includes having a home in Canada that they live in, regardless of whether they own, lease or have no direct interest in the property. Where the U.S. employee is also a tax resident of the U.S., the Treaty’s “tie-breaker test” would apply to determine tax residency. Further detail on these “tie-breaker tests” can be found in our blog post discussing tax residency.
The substantial increase in remote work has implications for both U.S. employers and employees who may be working remotely in Canada. To ensure you are not exposing yourself or your business to unanticipated tax liabilities and that you are complying with the applicable tax law, you should consult professionals with expertise in cross-border tax. We can help you with that. Please contact us at your convenience.
