Regulation 105 Waivers Examples

Example A

Facts:
1) Current services in Canada, during this project:

• Services provided to major US studio B as director of photography at production site D in Toronto. The contract is from June 1, 2008 to December 16, 2008 (199 days).

2) No previous services in Canada.
3) No services in Canada anticipated in the future.
4) Total stay in Canada during the period = 199 days.

Waiver determination

Under the Guidelines for Treaty-Based Waivers Involving Regulation 105 Withholding, a waiver would not be granted since the total stay in Canada during the current contract is 199 days.

Under the Regulation 105 BTS Waiver Guidelines, a waiver would not be granted, as the applicant's total stay in Canada during the current contract is 199 days.

Example B

Facts:
1) Current services in Canada during this project:

• Services provided to major US studio B as an independent producer at production site D in Toronto. The contract is from September 11, 2008 to February 27, 2009 (170 days).
• Confirmed days out of Canada are from December 24, 2008 to January 3, 2009 (11 days).

2) Previous services in Canada:

• Services provided to major US studio P, through a loan-out corporation, as a producer at production site G in Toronto for a contract from January 7, 2007 to March 31, 2007 (85 days).
• Services provided for major US studio F as an independent producer at production site S in Saskatoon for a contract from July 2, 2006 to September 30, 2006 (91 days).

3) No services in Canada anticipated in the future.
4) Total stay in Canada during the period (170 − 11 + 85 + 91) = 335 days .

Waiver determination

Under the Guidelines for Treaty-Based Waivers Involving Regulation 105 Withholding, a waiver would not be granted since the total stay in Canada during the period is 335 days.
Under the Regulation 105 BTS Waiver Guidelines, a waiver would be granted because:

• the applicant's stay in Canada is less than 180 days under the current contract;
• services are performed at identifiably different production sites; and previous and current projects are not related; and
• services are not repetitive (the applicant has provided services at different geographic locations).

Example C

Facts:
1) Current services in Canada during this project:

• Services provided to major US and studio P as an independent director at production site A in Vancouver. The contract is from September 1, 2008 to February 6, 2009 (159 days).

2) Previous services in Canada:

• Services provided to major US studio P, through a loan-out corporation, as a director at production site B in Vancouver for a contract from January 7, 2007 to March 31, 2007 (85 days).

3) No services in Canada are anticipated in the future.
4) Total stay in Canada during the period (159 + 85) = 244 days .
5) The current project is not a continuation of the previous project of major US studio P.
6) Services for each project are provided under a separate contract with major US studio P.

Waiver determination

Under the Guidelines for Treaty-Based Waivers Involving Regulation 105 Withholding, a waiver would not be granted since the total stay in Canada during the period is 244 days.
Under the Regulation 105 BTS Waiver Guidelines, a waiver would be granted because:

• the applicant's stay in Canada is less than 180 days under the current contract;
• services are performed at identifiably different production sites, and previous and current projects are not related; and
• services are not repetitive (the Applicant has not provided services in the same geographic location in three or more previous calendar years).

Example D

Facts:
1) Current services in Canada during this project:

• Services provided to major US studio P as an independent artistic director at production site A in Vancouver. The contract is from August 1, 2008 to December 22, 2008 (144 days).

2) Previous services in Canada:

• Services provided to major US studio J, through a loan-out corporation, as an artistic director at production site A in Vancouver for a contract from January 7, 2007 to March 31, 2007 (85 days).
• Services provided to major US studio K, as an independent artistic director at production site A in Vancouver for a contract from July 2, 2006 to September 30, 2006 (91 days).
• Services provided to major US studio K, as an independent artistic director at production site A in Vancouver for a contract from October 15, 2006 to January 23, 2007 (99 days).

3) No services are anticipated in the future.
4) Total stay in Canada during the period (144 + 85 + 91 + 99) = 419 days .

Waiver determination

Under the Guidelines for Treaty-Based Waivers Involving Regulation 105 Withholding, a waiver would not be granted since the total stay in Canada during the period is 419 days.

Under the Regulation 105 BTS Waiver Guidelines, it could be determined that:

• the applicant's stay in Canada is less than 180 days under the current contract; and
• the services are all performed at the same production site but the previous and current projects are not related.

However, a waiver would not be granted because:

• the services are repetitive (the applicant has provided services in same geographic location in more than three previous calendars years).

Example E

Facts:
1) Current services in Canada, during this project:

• Services provided to major US studio Q as a director of photography at production site A in Vancouver for a contract from September 11, 2008 to February 27, 2009 (170 days).
• confirmed days out of Canada are from December 24, 2008 to January 3, 2009 (11 days).

2) Previous services in Canada:

• Services provided to major US studio Q, through a loan-out corporation, as a director of photography at production site A in Vancouver. The contract was from January 7, 2007 to April 30, 2007 (115 days).
• Services provided to major US studio M as an independent director of photography at production site A in Vancouver. The contract was from June 1, 2006 to September 30, 2006 (122 days).

3) No services in Canada anticipated in the future.
4) Total stay in Canada during the period (170 - 11 + 115 + 122) = 396 days .
5) The current project is not a continuation of the previous project of major US studio Q and the services during each project are provided under a separate contract with major US studio Q.

Waiver determination

Under the Guidelines for Treaty-Based Waivers Involving Regulation 105 Withholding, a waiver would not be granted since the total stay in Canada during the period is 396 days.

Under the Regulation 105 BTS Waiver Guidelines, a waiver would be granted because:

• the applicant's stay in Canada is less than 180 days under the current contract;
• services are all performed at the same production site but the previous and current projects are not related; and
• services are not repetitive (the applicant has not provided services in the same geographic location in three or more previous calendar years).

Example F

Facts:
1) The individual will provide services as a producer for subsidiary R on numerous films for major US studio Q at production site A in Vancouver. The BTS individual was retained from January 1, 2007 to June 30, 2009.
2) Current services in Canada during this project:

• contract period September 11, 2008 to February 27, 2009 (170 days);
• confirmed days out of Canada: December 24, 2008 to January 3, 2009 (11 days).

3) Previous services in Canada:

• Services provided to subsidiary S of major US studio Q at production site A in Vancouver. The contract was from January 7, 2007 to March 31, 2007 (85 days).

4) No services in Canada anticipated in the future.
5) The services for this project and the previous project are provided under the same contract with major US studio Q.
6) Total stay in Canada during the period (170 − 11 + 85) = 244 days .

Waiver determination

Under the Guidelines for Treaty-Based Waivers Involving Regulation 105 Withholding, a waiver would not be granted since the total stay in Canada during the period is 244 days.

Under the Regulation 105 BTS Waiver Guidelines, it could be determined that:

• the applicant's stay in Canada is less than 180 days under the current contract; and
• the services are not considered repetitive.

However, a waiver would not be granted because:

• the services are not performed at different production sites and the previous and current projects are related because the applicant is under contract with one studio for both projects.

Example G

Facts:
1) Current services in Canada during this project:

• Services provided to major US studio X as a casting director at production site M in Toronto. The contract period is from March 31, 2008 to September 30, 2008 (175 days).

2) Previous services in Canada:

• Services provided to major US studio F at production site M in Toronto. The contract was from May 11, 2007 to July 10, 2007 (61 days).
• Services provided to major US studio M at production site L in Montreal. The contract was from October 9, 2006 to December 10, 2006 (63 days).
• Services provided to major US studio M at production site C in Calgary. The contract was from May 1, 2006, to August 16, 2006 (108 days).

3) No services in Canada anticipated in the future.
4) Total days present in Canada during the period (175 + 61 + 63 + 108) = 407 days .

Waiver determination

Under the Guidelines for Treaty-Based Waivers Involving Regulation 105 Withholding, a waiver would not be granted since the total stay in Canada during the period is 407 days.

Under the Regulation 105 BTS Waiver Guidelines, a waiver would be granted because:

• the applicant's stay in Canada is less than 180 days under the current contract;
• Services are performed at identifiably different production sites and previous and current projects are not related; and
• services are not repetitive (the applicant has provided services at different geographic locations).

Example H

Facts:
1) Current services in Canada, during this project:

• Services provided to major US studio P as an independent artistic director at production site A in Vancouver. The contract is from August 1, 2008 to December 22, 2008 (143 days).

2) Previous services in Canada:

• Services provided to major US studio J, through a loan-out corporation as an artistic director at production site B in Vancouver. The contract was from January 7, 2007 to March 31, 2007 (85 days).
• Services provided to major US studio K as an independent artistic director at production site C in Vancouver. The contract was from July 2, 2006 to September 30, 2006 (91 days).
• Services provided to major US studio K as an independent artistic director at production site D in Vancouver. The contract was from October 15, 2005 to January 23, 2006 (99 days).

3) No services in Canada are anticipated in the future.
4) Total stay in Canada during the period (143 + 85 + 91 + 99) = 418 days .

Waiver determination

Under the Guidelines for Treaty-Based Waivers Involving Regulation 105 Withholding, a waiver would not be granted since the total stay in Canada during the period is 418 days.

Under the Regulation 105 BTS Waiver Guidelines, it can be determined that:

• the applicant's stay in Canada is less than 180 days in the current contract; and
• the services are performed at different production sites. The previous and current projects are not related.

However, a waiver would not be granted because:

• the services are repetitive (the services were all performed in the same geographic location, Vancouver, and they occurred in most years).

Example I

Facts:
1) Current services in Canada, during this project:

• Services provided to major US studio P as an independent artistic director, at production site A in Vancouver. The contract is from August 1, 2008 to December 22, 2008 (143 days).

2) Previous services in Canada:

• Services provided to major US studio J, through a loan-out corporation, as an artistic director at production site B in Vancouver. The contract period was from January 6, 2005 to April 16, 2005 (101 days).
• Services provided to major US studio K as an independent artistic director at production site C in Vancouver. The contract period was from July 2, 2002 to September 15, 2002 (76 days).
• Services provided to major US studio K as an independent artistic director at production site D in Vancouver. The contract was from October 30, 1999 to January 23, 2000 (84 days).

3) No services in Canada are anticipated in the future.
4) Total days present in Canada during the period (143 + 101) = 244 days . The number of days of service performed in 2001 and 1998/1999 are excluded because they are not within the period.

Waiver determination

Under the Guidelines for Treaty-Based Waivers Involving Regulation 105 Withholding, a waiver would not be granted since the total stay in Canada during the period is 244 days.

Under the Regulation 105 BTS Waiver Guidelines, a waiver would be granted because:

• the applicant's stay in Canada is less than 180 days under the current contract;
• the services are performed at different production sites and previous and current projects are not related; and
• the services are not repetitive (while the services were all performed at production sites in the metropolitan area of Vancouver in three previous years, it could not be said that the services occurred in most years).