Where a s. 116 certificate is issued respecting a disposition of taxable Canadian property (that is not treaty-protected property) by a partnership with numerous non-resident partners, and all Canadian taxes owing on the resulting taxable capital gain have been paid, is no Part I tax considered to be payable by the non-residents for the purposes of s. 150(5)(b), such that the disposition will be an “excluded disposition”?
CRA indicated that non-resident taxpayers are required under s. 150 to file a Canadian tax return if inter alia Part 1 “tax is payable” for the year, being the amount payable before deducting any amounts paid on account of tax, such as instalments or withholding. This interpretation applies to “tax is payable” in ss. 150(1), 150(1.1), and (respecting the definition of “excluded disposition”) 150(5)(b). Therefore, even if a s. 116 certificate has been issued indicating that all Part 1 tax has been paid, there would be no excluded disposition.