Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.
Principal Issues: General comments on whether Indians Bands can be considered public bodies performing a function of government.
Position:
Reasons:
June 28, 2000
Small & Medium Enterprises Division HEADQUARTERS Audit Directorate Karen Power, CA Compliance Programs Branch (613) 957-8953
Attention: Diana Favel 2000-001254
Indians Bands as Public Bodies Performing a Function of Government
Further to our recent meeting (Albert/Power/Favel/Mott) we are writing to clarify the Agency's position regarding whether Indian Bands may be considered public bodies performing a function of government in Canada for purposes of paragraph 149(1)(c) of the Income Tax Act (the "Act").
Previously, the Agency would only consider an Indian Band as a public body performing a function of government when one of the following conditions are met:
- the Band had passed by-laws under both sections 81 and 83 of the Indian Act; or
- the Band had reached an advanced stage of development as was formerly required by section 83 of the Indian Act.
More recently, the Agency has taken the position that Bands that do not meet either of these requirements can be considered on a case-by-case basis to determine whether the band performs a function of government such as negotiating and implementing Treaty Land Entitlements.
The following are situations which the Agency would consider to be functions of Government:
1. Health Services Transfer Agreements, between Her Majesty the Queen in Right of Canada and the Indian Band. These agreements provide for the transfer of control of health programs and services and associated resources, from the Minister of Health to the Indian Band.
2. The Indian Band is providing elementary and secondary education in band operated schools.
3. The Band has been involved in the negotiation of a settlement agreement with Canada and will continue to be involved in the administration and implementation of the settlement agreement.
4. The Band has entered into an arrangement with Canada to assume responsibility for the delivery of programs and services such as land management, social and economic development programs and capital infrastructure.
We trust that these comments will be of assistance.
John Oulton
for Director
Business and Publications Division
Income Tax Rulings Directorate
Policy and Legislation Branch