A German corporation ("SEPPA") engaged a Swedish consulting firm ("McKinsey") to do consulting work for a Canadian affiliate of SEPPA ("SEPH"). SEPPA paid the fee of McKinsey (which included a somewhat arbitrary mark-up of exactly 10% to cover McKinsey's expenses) without Regulation 105 withholding, and was reimbursed by SEPH. SEPH remitted 15% of the amount of its reimbursement to the federal government as Regulation 105 withholding.
Boyle, J. found that SEPPA could not be assessed (except as described below) by CRA for failure to withhold under Regulation 105 given that the Regulation 105 tax had been remitted by SEPH. Boyle, J. noted (at para. 22) that s. 153(1) of the Act is clear that the person paying for services of a non-resident is to "remit that amount to the Receiver General on account of the payee's tax for the year", and that it "would defy logic to conclude that the payee for whose credit the remitted amount is held by the CRA is an intermediary in the payment chain [i.e., SEPPA] and not the non-resident service provider [i.e. McKinsey]." Here McKinsey was the only non-resident providing any services in Canada.
As there was a withholding tax remittance on account of the services of McKinsey, this in effect was an additional payment to McKinsey that was subject to Regulation 105 withholding (together with a penalty under s. 227(8)).
Although a reimbursement of McKinsey for actual out-of-pocket expenses would not have been subject to Regulation 105 withholding, here the exact 10% addition for expenses instead represented an adjustment to a single price for an all-inclusive bundled contract.