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Canadian taxes cannot be deferred when a branch structure is elected, but foreign losses are deductible against Canadian-source income.When foreign operations are conducted through a subsidiary, the income earned by the subsidiary is generally not subject to taxation in Canada until profits are remitted to Canadian shareholders in the form of dividends or until the Canadian corporation disposes of its foreign subsidiary.ESL raised concerns about this strategy with management.In particular, ESL noted that it would be risky and unwise for the Company to pursue additional borrowings on onerous terms to fund a new, untested strategy.The branch tax is a proxy for the withholding tax that would have been on dividends if the branch’s business had been carried out through a subsidiary.Non-resident corporations incorporated as principal-business corporations (PBC) in Canada have access to special tax incentives, such as flow-through shares and the Canadian Exploration Expense and Canadian Development Expense.“As a result, Sears Canada is winding down its operations and shopping is no longer available online,” the company recently announced. Eddie Lampert, the chairman and chief executive officer of Hoffman Estates, Illinois (Chicago) based Sears Holding Corporation and of Bay Harbor, Florida (Miami) based ESL Investments, the largest shareholder in Sears Canada, said in a statement that “ESL was not informed in advance that Sears Canada intended to seek protection under a CCAA filing, and was extremely unhappy with that decision.” Moreover, he noted, “ESL believes that the liquidation of Sears Canada was not a foregone conclusion and that a less risky strategy, while not without its own difficulties, could have avoided the unfortunate conclusion.” Sears Canada’s audited financial statements reflected its falling fortunes, with a net aggregate loss of 7.7 million in the three years from fiscal 2014 through fiscal 2016, inclusive.

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Non-residents doing business in Canada through permanent establishments (such as a branches) rather than as separate legal entities pay income taxes on the income attributed to the business they conduct in Canada.In addition, a branch tax is imposed on non-resident corporations’ after-tax source income that has not been reinvested in Canada.The statutory branch tax rate is 25%, but it can be reduced by tax treaties.Foreign investors doing business in Canada through a separate legal entity (such as a subsidiary) are considered to be Canadian residents and are taxed as such.Income tax is applied to these investors’ worldwide income, and appropriate relief is provided for taxes paid in other countries if the subsidiary also carries out business abroad.

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