A U.S.-incorporated resident of the U.S. for Treaty purposes (“Non-Resident Corporation”), whose shares were 50% owned by a non-resident artist whom it represented, presented various shows in Canadian provinces, and received a share of the revenues from the promoter. For each show, it (through its employees) had to install the stage, lights, sound system, etc. on the day of the show, and used an number of trailer trucks to transport the stage equipment. The tasks listed were performed by employees of Non-Resident Corporation.
After finding that Non-Resident Corporation did not have a fixed place of business at the various arenas where the shows were mounted, the Directorate then considered whether this result was altered by Reg. 400(2)(e), stating:
[I]n order to deem a permanent establishment in a province or jurisdiction for the purposes of paragraph 400(2)(e) …, generally the equipment or machinery must be used either for a period of more than 30 consecutive days per site or project or for a period of more than 90 cumulative days within a 12-month period for all projects. Since … the Non-Resident Corporation used the concert equipment in each of the provinces where performances were produced for a period of less than 30 consecutive days and throughout Canada for a period of less than 90 cumulative days, we are of the view that it is not deemed to have a permanent establishment in any of the provinces … .