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222 V O L . 7 5 P A R T 2 M A R C H 2 0 1 7 THE ADVOCATE in the event of wind up or liquidation, these assets are vested in the band, tribal council or group of bands. An entity is considered to be controlled by a band, tribal council or group of bands other than a tribal council if: • the band, tribal council, group of bands or individual members of the band, tribal council or group of bands, appoint or elect a majority of the members of the governing body of the entity (e.g., directors); and • the entity is required by legislation, by-laws, or an operating agreement, to submit to the band, tribal council or group of bands, its operating budget and where applicable, its capital budget for review and approval. 36. Ibid. 37. Supra note 25. 38. Supra note 35. 39. Supra note 24. 40. “Band management activities” are defined in CRA, GST/HST Technical Information Bulletin B-039, “GST/HST Administrative Policy – Application of the GST/HST to Indians” (June 2013) as: activities or programs undertaken by a band or bandempowered entity that are not commercial activities for which they would otherwise be entitled to claim input tax credits. In determining whether the acquisition of a supply is for band management, the output of the activity or program will be the determining factor, as opposed to the objectives of the activity or program. For example, a band’s objective may be to provide employment and training to band members. To achieve this objective, the band may form a commercial enterprise which will provide on-the-job training and also create employment. Although the band’s objective is to train persons, the output is a commercial activity for which there is an entitlement to input tax credits. As a result, supplies acquired for use in this band program are not considered to have been acquired for use in band management activities unless the band is not required to be registered and thus not eligible for input tax credits (i.e., a small supplier). 41. Paragraph 132(1)(b). 42. Subsection 123(1) defines “permanent establishment” in respect of a particular person to mean: (a) a fixed place of business of the particular person, including (a) i(i) a place of management, a branch, an office, a factory or a workshop, and (a) (ii) a mine, an oil or gas well, a quarry, timberland or any other place of extraction of natural resources, through which the particular person makes supplies, or (b) a fixed place of business of another person (other than a broker, general commission agent or other independent agent acting in the ordinary course of business) who is acting in Canada on behalf of the particular person and through whom the particular person makes supplies in the ordinary course of business. 43. Subsection 132(2). 44. Supra note 42. 45. Subsection 132(3). 46. A “research service” is a service that involves “a diligent and systematic inquiry or investigation into a subject in order to discover or revise facts, theories, applications, laws, etc”; however, a research service “does not include any work … that might be undertaken or performed as a result of the plans and recommendations which may follow the inquiries and investigations performed in the course of rendering the research service”. See CRA, GST/HST Policy Statement P-173, “Meaning of the Phrase ‘Establishing a Business Venture in Canada’” (March 1, 1995). 47. An “advisory service” refers to a service of “giving an opinion, or counsel, or of recommending a plan or course of action. Thus an advisory service may address business, management, marketing, data processing, public relations or other issues or problems faced by the client”. However, an advisory service is “not considered to include any work that might be undertaken or performed as a result of the plans or recommendations accepted by the client or the advice provided to the client”. See CRA, GST/HST Memorandum 4.5.3, “Export – Services and Intellectual Property” (June 1998) at para 41. 48. A “consulting service” refers to a service of providing information, instruction or expert advice and is rendered by a consultant related to a field of specialized knowledge or training. See CRA interpretation cited in Invera Inc v The Queen, 2005 TCC 72 at para 10. 49. As set out in CRA, GST/HST Memorandum 4.5.3, “Export – Services and Intellectual Property” (June 1998) at para 41, a “professional service” is generally defined in terms of the individual providing the service. “If the person making the supply of the service is other than an individual, for example, a partnership or a corporation, the CRA will consider the status of the individual professional or professionals assigned to provide the service in determining whether the service is a professional service.” A “professional service” refers to “a service provided by an individual whose vocation or occupation requires special, usually advanced, education and skills”. For this purpose “the individual providing the service may be a member of a professional association, a professional corporation or a similar body, which is recognized by a statute in at least one province or territory or by one federal body, and which enforces standards of professional practice as well as a code of ethics. However, a professional service will be considered to include the services provided by articling or other students and support staff, to the extent that their services are intended to assist the professional in the provision of the professional’s service and are undertaken under the supervision of the professional.” Finally, “the duties and labour performed in the provision of the professional service must be related to the vocation or occupation of the individual.” 50. The legal service may continue to be zero-rated up to the moment when the non-resident becomes a resident of Canada. See ibid at para 28. 51. Section 9 of Part V of Schedule VI of the Excise Tax Act. 52. The legal service may continue to be zero-rated up to the moment when the non-resident establishes a business venture in Canada. See CRA, GST/HST Policy Statement P-173, “Meaning of the Phrase ‘Establishing a Business Venture in Canada’” (March 1, 1995), which focuses on those situations where services are “intended to assist the (non-resident) person in … establishing a business venture in


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