In consideration for a lump sum, a non-resident in a Treaty country (NRco) granted an arm’s length Canadian company (Canco) the exclusive right to distribute its product in Canada, with Canco agreeing not to acquire or sell competitive products. The Directorate found that the lump sum was not a royalty on general principles and not subject to withholding under s. 212(1)(d) - but that the exclusivity of the distributorship right granted by NRco was a “restrictive covenant,” so that the lump sum would be subject to Part XIII tax under ss. 56.4(2) and 212(1)(i).
However, turning to the Treaty, the Directorate stated:
To the extent the Upfront Payment is subject to Part XIII tax under subparagraphs 212(1)(d)(i), 212(1)(d)(iv) or paragraph 212(1)(i), the Upfront Payment should be exempt from Canadian withholding tax under Article VII … .
A substantially similar definition of the term “royalties” [to that in the Treaty] is found in Article 12 of the Model Convention … .
Paragraph 10.1 of the OECD commentary (the “OECD Commentary”) on Article 12 of the Model Tax Convention states that payments made in consideration for obtaining the exclusive distribution rights of a product in a given territory do not constitute royalties within the meaning of the Model Tax Convention as they are not made in consideration for the use of, or the right to use, an element of property included in the definition. We are in agreement… .