Quebec has special rules regarding the mandatory disclosure of “nominee agreements” (which are essentially the Quebec civil law equivalent of undisclosed agency agreements) where the agreement is made as part of a transaction or series of transactions that have “tax consequences”.
These rules were first mentioned in the March 21, 2019 Quebec Budget. Further details were announced on May 17, 2019, when the Quebec Ministry of Finance released Information Bulletin 2019-5 outlining three measures to counter aggressive tax planning, effective immediately. Subsequently, Quebec enacted Bill 42 which, among other things, amended Quebec’s Taxation Act (the “Act”) to set out this disclosure requirement as follows:
1079.8.6.4. A taxpayer who is a party to a nominee contract entered into in the course of a transaction having tax consequences under this Act or who is a member of a partnership that is a party to such a contract shall, in an information return sent to the Minister under separate cover by registered mail and in the prescribed form, disclose the contract and the transaction to the Minister on or before the 90th day after the date on which the contract was entered into….
The terms “nominee contract” or “nominee agreement” are not defined in the Act. Under Quebec civil law, “nominee agreements” are legal agreements that allow one party (the principal) to grant a mandate to another party (the nominee) to act on its behalf, without disclosing this agency relationship to third parties (so that the nominee appears to be acting on his or her own account).
Nominee agreements must now be disclosed to Revenu Quebec by filing the prescribed Form TP-1079.PN (Disclosure of a Nominee Agreement) which requires disclosure of, among other things, the following information:
- the date of the nominee agreement;
- the identity of the parties to the nominee agreement;
- a full description of the facts of the transaction or series of transactions to which the nominee agreement relates; and
- the identity of any person or entity for which such transaction or series of transactions have tax consequences.
The form must be accompanied by a copy of the nominee agreement, and it must be filed no later than 90 days after the date of the agreement.
Disclosure is only required by one of the parties to the nominee agreement, as disclosure by one party will be deemed to have been made by the other party or parties as well.
If the parties fail to file the prescribed form, they will be jointly liable for a $1,000 penalty, plus an additional $100 penalty per day after the filing deadline, to a maximum of $5,000. In addition, if the prescribed form is not filed, the normal reassessment period is suspended in respect of the transactions entered into in connection with the nominee agreement.
Parties to an undisclosed agency/nominee agreement with potential tax consequences in Quebec would do well to seek tax advice to ensure they are meeting their disclosure obligations.
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