n-98-23.pdf

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# Part III - Administrative, Procedural, and Miscellaneous

Taxation of Social Security Benefits Under U. S. - Canada Income Tax
Treaty

## Notice 98-23

This notice provides guidance, in a question and answer
format, regarding recent changes to the taxation of cross-border
social security benefits under the Convention Between the United
States of America and Canada With Respect to Taxes on Income and
on Capital Signed at Washington on September 26, 1980 as Amended
by the Protocols Signed on June 14, 1983, March 28, 1984, March
17, 1995, and July 29, 1997 (the "Treaty") . For an overview of
the changes, see Section I of this notice. For rules that apply
to U.S. residents who receive Canadian social security benefits,
see Section II. For rules that apply to Canadian residents who
receive U.S. social security benefits, see Section III. For
information concerning the Paperwork Reduction Act, see Section
IV. For drafting information, see Section V.

### I. OVERVIEW OF CHANGES

Paragraph 5 of Article XVIII of the Treaty provides rules
that govern the taxation of U.S. social security benefits paid to
Canadian residents and Canadian social security benefits paid to
U.S. residents. These rules were extensively revised by the
protocol signed on March 17, 1995 (the "1995 Protocol") and again
by the protocol signed on July 29, 1997 (the "1997 Protocol") .

Under the Treaty prior to amendment by the 1995 Protocol,
each country had the exclusive right to tax social security

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benefits paid to its residents by the other country. The 1995
Protocol changed from a residence-based system to a source-based
system, effective January 1, 1996. Under the 1995 Protocol, the
country that paid benefits to residents of the other country had
the exclusive right to tax the benefits.

The 1997 Protocol returned to a residence-based system under
which social security benefits are taxable exclusively in the
country where the recipient resides. The changes made by the
1997 Protocol are generally retroactive to January 1, 1996.
However, benefits paid during 1996 and 1997 will not be subject
to a higher rate of tax than was imposed under the 1995 Protocol.
In addition, as explained below, individuals who received
benefits during 1996 and 1997 that would be subject to a lower
rate of tax under the 1997 Protocol may be eligible for refunds.
II. U. S. RESIDENTS WHO RECEIVE CANADIAN BENEFITS
WHICH CANADIAN BENEFITS ARE COVERED?

The changes made by the 1997 Protocol affect the taxation of
Old Age Security (OAS) pensions and Canada/Quebec Pension Plan
(CPP/QPP) benefits.

HOW WERE MY BENEFITS TAXED DURING 1996 AND 1997?

Under the old rules (that is, the 1995 Protocol), Canadian
social security benefits paid to U.S. residents during 1996 and
1997 were subject to a 25-percent Canadian withholding tax.
However, Canada permitted U.S. recipients of Canadian benefits to
file Canadian tax returns and pay tax at regular graduated rates
on their net income. As a result, some U.S. recipients of

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Canadian social security benefits may have paid little or no
Canadian tax on their benefits.

HOW WILL MY BENEFITS BE TAXED UNDER THE NEW RULES?

Under the new rules (that is, the 1997 Protocol), Canadian
social security benefits paid to U.S. residents generally will be
taxable, if at all, only by the United States. The benefits will
be taxed at graduated rates on a net basis as if they were
benefits paid under the U.S. Social Security Act. Thus, under
section 86 of the Internal Revenue Code, the portion of the
benefits that is taxable will depend on each recipient's income
level. For more information on the rules that apply to benefits
paid under the U.S. Social Security Act, see IRS Publication 915
(Social Security Benefits and Equivalent Railroad Retirement
Benefits) .

WHEN DO THE NEW RULES TAKE EFFECT?

The new rules must be applied to benefits received during
1998 and future years. For 1996 and 1997, a U.S. resident who
received Canadian social security benefits may choose to be taxed
in the United States under the new rules or to remain taxable in
Canada under the old rules.

WILL I HAVE TO PAY ANY ADDITIONAL TAX FOR 1996 OR 1997?

The United States and Canada have agreed that taxpayers'
1996 and 1997 benefits will not be subject to an increased rate
of tax solely as a result of the 1997 Protocol. Therefore, U.S.
recipients of Canadian social security benefits during 1996 or
1997 should not have to pay any additional tax unless there is

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some other factor that alters their tax liability.
AM I ENTITLED TO A REFUND OF CANADIAN TAX?

U.S. residents who received Canadian social security
benefits during 1996 and 1997 on which Canadian tax was paid may
be entitled to refunds. Taxpayers should calculate the amount of
U. S. tax, if any, they would have been required to pay for 1996
and 1997 under the new rules. If this amount is less than the
amount of Canadian tax paid, they generally are entitled to a
refund of the Canadian tax. However, they will be required to
report the benefits on U.S. returns (see below) and pay any U. S.
tax that would be due.

WHAT SHOULD I DO TO OBTAIN MY REFUND?

During February 1998, Revenue Canada mailed letters to U.S.
residents who received Canadian social security benefits during
1996 and 1997. Recipients of such letters should follow the
instructions provided in the letter and submit the attached
Election Form to Revenue Canada if they elect to be taxed in the
United States. Revenue Canada will process the Election Forms
and issue checks in the appropriate amount. Revenue Canada will
notify the Internal Revenue Service of the Canadian benefits paid
to the affected individuals and the amounts of the refunds
issued.

Taxpayers who did not receive a letter, but believe they are
entitled to a refund of Canadian tax, should contact Revenue
Canada by calling 1-800-661-7896, by sending a fax to 613-941-
6905, or by writing to the International Tax Services Office,

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2204 Walkley Road, Ottawa, Ontario K1A 1A8. Under the 1997
Protocol, taxpayers must apply for any refund of Canadian tax on
or before December 16, 2000, which is three years from the date
the 1997 Protocol entered into force.

CAN I REVOKE MY ELECTION TO BE TAXED IN THE UNITED STATES INSTEAD
OF CANADA?

A taxpayer who receives a refund of Canadian tax may later
determine that the amount of U. S. tax owed for 1996 and 1997
under the new rules is greater than the amount of Canadian tax
that was originally paid. In this case, the taxpayer may contact
Revenue Canada on or before December 16, 2000 to revoke the
election and repay the Canadian tax. Revenue Canada will then
advise the Internal Revenue Service that the taxpayer has revoked
the election to be taxed in the United States.

HOW SHOULD I REPORT BENEFITS FOR 1996 AND 1997 ON MY TAX RETURNS?

Taxpayers who are not applying for refunds from Revenue
Canada should not report the Canadian social security benefits
received during 1996 and 1997 on U. S. federal income tax returns
for 1996 and 1997. Taxpayers who are applying for refunds should
report the benefits on U. S. returns as if the benefits had been
paid under the U. S. Social Security Act. For more information on
how to report benefits paid under the U. S. Social Security Act,
see IRS Publication 915 (Social Security Benefits and Equivalent
Railroad Retirement Benefits) .

Taxpayers who apply for refunds and have not yet filed a
1996 or 1997 U.S. tax return must report the Canadian benefits on

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a 1996 or 1997 (as the case may be) U.S. tax return. Such a U.S.
return must be filed even if a U.S. return would not otherwise be
required and even if no U. S. tax is due. Taxpayers who were not
previously required to file U.S. returns will be required to do
so as a result of their election to be taxable in the United
States. At the top of their return, taxpayers should print or
type the caption "CANADIAN TREATY -- SOCIAL SECURITY."

Taxpayers who have already filed returns for 1996 and 1997
should file amended returns after they have received their refund
checks from Revenue Canada and pay any U. S. tax that may be due.
Interest and penalties generally will not be imposed if the
additional U.S. tax (if any) is paid by April 15, 1999. At the
top of their amended return, taxpayers should print or type the
caption "CANADIAN TREATY -- SOCIAL SECURITY."

Taxpayers will not be entitled to any foreign tax credit for
the Canadian tax that will be refunded.

HOW SHOULD I REPORT BENEFITS FOR 1998 AND FUTURE YEARS ON MY TAX
RETURNS ?

Canadian social security benefits received during 1998 and
future years should be reported as if they were paid under the
U. S. Social Security Act. For more information on how to report
benefits paid under the U.S. Social Security Act, see IRS
Publication 915 (Social Security Benefits and Equivalent Railroad
Retirement Benefits) .

III. CANADIAN RESIDENTS WHO RECEIVE U.S. BENEFITS

WHICH U. S. BENEFITS ARE COVERED?

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The changes made by the 1997 Protocol affect the taxation of
monthly benefits under title II of the Social Security Act and
tier 1 railroad retirement benefits.

HOW WERE MY BENEFITS TAXED DURING 1996 AND 1997?

Under the old rules (that is, the 1995 Protocol), U.S.
social security benefits paid to Canadian residents during 1996
and 1997 were subject to a 25.5-percent U. S. withholding tax.
This was a final payment of tax. Canadian recipients of U.S.
social security benefits, regardless of their level of income,
could not elect to be taxed in the United States on a net basis
at graduated rates.

HOW WILL MY BENEFITS BE TAXED UNDER THE NEW RULES?

Under the new rules (that is, the 1997 Protocol), U.S.
social security benefits paid to Canadian residents generally
will be taxable only by Canada. An amount equal to 85 percent of
the benefits that are received will be subject to Canadian tax on
a net basis as if the benefits were paid under the Canadian
Pension Plan.

WHEN DO THE NEW RULES TAKE EFFECT?

The new rules must be applied to benefits received during
1998 and future years. For 1996 and 1997, Revenue Canada will
determine whether it is more beneficial for taxpayers to be taxed
in Canada under the new rules or to remain taxable in the United
States under the old rules. More information is provided below.
WILL I HAVE TO PAY ANY ADDITIONAL TAX FOR 1996 OR 1997?

The United States and Canada have agreed that taxpayers'

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1996 and 1997 benefits will not be subject to an increased rate
of tax solely as a result of the 1997 Protocol. Therefore,
Canadian recipients of U.S. social security benefits during 1996
or 1997 should not have to pay any additional tax unless there is
some other factor that alters their tax liability.
AM I ENTITLED TO A REFUND OF U.S. TAX?

Canadian residents who received U. S. social security
benefits during 1996 or 1997 on which U. S. tax was paid may be
entitled to a refund. Revenue Canada will calculate the amount
of Canadian tax, if any, that would have been due for 1996 and
1997 under the new rules. If this amount is less than the amount
of U.S. tax paid, the taxpayer generally will be entitled to a
refund of the excess amount. Revenue Canada will notify
taxpayers who are entitled to refunds.

WHAT SHOULD I DO TO OBTAIN MY REFUND?

Taxpayers who believe they are entitled to a refund should
not claim a refund from the Internal Revenue Service at this
time. Revenue Canada has set up procedures for determining which
Canadian residents are entitled to refunds. Revenue Canada will
apply for and obtain the refunds from the Internal Revenue
Service on behalf of the affected individuals and will issue
checks to them as soon as possible in the appropriate amount.
IV. PAPERWORK REDUCTION ACT

The collections of information contained in this notice have
been reviewed and approved by the Office of Management and Budget
in accordance with the Paperwork Reduction Act (44 U.S.C. 3507)

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under control number 1545-1602.

An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless the
collection of information displays a valid control number.

The collections of information in this notice are in
Sections II and III. This information is required to implement
the 1997 Protocol. This information will be used to determine
the amounts of refunds of U. S. tax to which certain Canadian
residents are entitled and to notify the Internal Revenue Service
as to the amounts of refunds of Canadian tax paid to certain U.S.
residents. The collections of information are mandatory. The
likely respondents are individuals.

The estimated total annual reporting burden is 25,000 hours.
The estimated annual burden per respondent varies from .25
hours to 1 hour, depending on individual circumstances, with an
estimated average of .5 hours. The estimated number of
respondents is 50,000.

The estimated annual frequency of responses is one time.
Books or records relating to a collection of information
must be retained as long as their contents may become material in
the administration of any internal revenue law. Generally tax
returns and tax return information are confidential, as required
by 26 U.S.C. 6103.

#### V. DRAFTING INFORMATION

The principal authors of this notice are M. Grace Fleeman of
the Office of Associate Chief Counsel (International) and

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Margaret M. Gavaghan of the Office of the Assistant Commissioner
(International) . For further information regarding this notice,
contact Ms. Gavaghan on (202) 874-1550 (not a toll-free call) .