Developer cross-border tax: US capital, participating interest and the occasional US build

US capital arrives as debt or equity — the tax follows the label

US lenders and investors increasingly take mezzanine and preferred-equity positions in Canadian developments. The two structures produce very different Canadian tax results. Straight equity in a joint venture or limited partnership means the US investor's return is simply a share of the project's income. That income is taxed at the project level in the ordinary course. The investor also faces Canadian filing obligations if the arrangement amounts to carrying on business in Canada. Debt is where the more interesting mechanics live. Neither structure is inherently better for the developer. The choice usually reflects what the US party's own investors expect. Our job is making sure the Canadian tax result actually matches what everyone assumed it would be back at term sheet stage.

Participating debt interest is where the exemption stops

Since the treaty was updated, most cross-border interest is exempt from Canadian withholding tax. That applies whether a Canadian borrower and its US resident lender deal at arm's length or not. It's a real change from the blanket 25% that used to apply. That exemption has a specific carve-out for participating debt interest: interest computed by reference to revenue, profit, cash flow or a similar criterion, rather than a fixed rate. Development mezzanine loans are frequently written exactly that way, with a base coupon plus a share of project profit. That structure pulls the interest back into Canadian withholding rather than the general exemption. As at the time of writing, we read the interest definition in the loan agreement itself before assuming which regime applies. A single participation clause changes the answer for the whole facility. The withholding, where it applies, is generally the Canadian borrower's obligation to collect and remit. It's a real cash-flow item to budget for on every interest payment, not a cost that surfaces only when the lender complains about a shortfall.

A structuring point follows directly from this: a lender who wants profit participation but also wants the interest exemption to hold cannot have both. Negotiating which one matters more should happen before the term sheet is signed. That's far cheaper than restructuring a facility mid-construction, once the first payment has already gone out under the wrong assumption.

When a non-resident investor's equity is eventually sold

A US investor disposing of an interest in a Canadian partnership or corporation holding development property can trigger Canadian withholding. That withholding falls under section 116, a rule that catches investors who assumed their exposure ended when they signed the original subscription agreement. It applies because the underlying asset is real property situated in Canada. The clearance certificate process exists precisely to fix the withholding at the right amount, rather than a blanket rate. But it has to be initiated before closing, which means flagging it in the exit planning long before an investor actually wants out. A vendor caught without a certificate arranged in advance can find a purchaser or their lawyer withholding a much larger amount than the eventual tax actually owed. That's simply done to be safe.

The occasional US project

A Canadian development company that takes on a single project across the border faces the treaty's twelve-month permanent establishment threshold for a building site. That's much like any Canadian contractor working in the US. For a corporation, compared to an individual builder, the difference is that a US permanent establishment can also trigger the US branch profits tax. That comes on top of ordinary US corporate tax, and it's a second layer an individual filer never sees. State tax and contractor or developer licensing are set independently of the treaty and are checked project by project. Neither follows the federal permanent-establishment analysis, and both can apply even where the treaty says no US federal tax is owed. The full toolkit for coordinating both countries' filings sits on our cross-border tax services page. The domestic side of a project is covered on our developer tax services page.

Source: CRA — Dispositions of taxable Canadian property by non-residents.