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KPMG LLP Submission in Response to Joint Finance Canada – Canada Revenue Agency Consultation Improving the Scientific Research and Experimental Development Tax Incentives:
Submission to the Department Of Finance and
Canada Revenue Agency:
Improving Scientific Research and Experimental Development Tax Incentives
November 30, 2007
Submission to the Department Of Finance and Canada Revenue Agency:
Improving Scientific Research and Experimental Development Tax Incentives
Thank you for this opportunity to provide input regarding the questions set out in the consultation paper "Tax Incentives for Scientific Research and Experimental Development" on how to enhance private sector investment in research and development (R&D) through improvements to the scientific research and experimental development program (SR&ED).
The Canadian SR&ED program is considered to be one of the best in the world. However, the government cannot stand still in this ever-competitive global economy, and it is vital that the Department of Finance and the CRA (Government) make critical changes to the program that reflect the needs of businesses to be successful in this current economic climate. The SR&ED program is vital to the ongoing success of our Canadian economy and is a primary driver of innovation and change.
KPMG LLP, one of the largest accounting firms in Canada with over 5,000 employees and 33 offices across the country, provides auditing, tax and advisory services to numerous individuals and companies. Our client base includes large and small multinational companies as well as small and medium-sized enterprises (SMEs) operating in Canada.
KPMG LLP is the Canadian member firm affiliated with KPMG International, a global network of professional firms providing Audit, Tax, and Advisory services. Member firms operate in 148 countries and have more than 113,000 professionals working around the world.
KPMG in Canada has been involved with the SR&ED program since its inception, but began to specialize in this area in 1993 by creating multidisciplinary teams of engineers, scientists and tax specialists to assist our clients. Within our SR&ED practice, we have over 110 dedicated staff, 70 of which are engineers and scientists, who have prepared thousands of claims for clients in a variety of industries. Through this work, we have gained significant experience in SR&ED and have learned a great deal about the impact of the SR&ED program and the behaviour of R&D claimants. Similarly, we interact regularly with the Canada Revenue Agency's (CRA) SR&ED science and financial staff. This experience has given KPMG unique insight into the effectiveness of the CRA's administration of the program.
In order to assist KPMG with its response to the joint consultation process being undertaken by the Department of Finance and the CRA, KPMG held various seminars across the country to gather input from various constituents. The feedback was consistent from coast to coast, and many of the themes have been highlighted in this paper.
In addition, KPMG conducted an e-Survey that consisted of 22 multiple choice questions that covered many aspects of the SR&ED program and its administration. A copy of the results of this e-Survey has been included with this submission.
These activities were supplemented by internal discussions among KPMG's SR&ED Tax practice leadership group and one-on-one discussions with R&D performers.
This submission is based on the information and feedback obtained from these various stakeholders.
How do the SR&ED tax incentives affect the performance of R&D in Canada, and how can they contribute to increasing private sector investment in R&D?
Among the specific areas that stakeholders may want to address are:
- the role the SR&ED tax incentives play in the R&D investment decisions of Canada's R&D performers; and
- how multinationals make decisions on the location of R&D activities, and how SR&ED tax incentives, and R&D tax incentives offered by other countries, play into that decision.
Canada provides one of the best R&D incentive programs in the world. It is less complex than incremental systems; provides tax credits as opposed to super R&D deductions; and has a refundability component for SMEs that are Canadian-controlled. While other nations may rank ahead of Canada based on measuring tools such as the B-Index, this measurement does not take into account the number of claimants and total dollars granted in relation to Gross Domestic Product (GDP). Accounting for these items, Canada's program would rank even higher in the world rankings, surpassing nations such as Spain and Mexico.
Based on our experience, as well as the views obtained from our connections with industry, we can unequivocally state that SR&ED incentives are a significant factor in influencing the R&D investment decisions made by Canada's R&D performers as well as those made by multinationals contemplating locating their R&D activities in Canada. The program offers benefits that can help to reduce the cost of doing business, mitigates the risk associated with undertaking new developments, and impacts the worldwide financial results of these companies. We would also like to draw your attention to a recent Austrlian Report entitled "How R&D Tax Assistance Influences Company Behaviour" analyzing and surveying some of the questions raised in your consultation paper.
In response to the questions noted above, we have the following specific comments:
This category of companies will not survive in the marketplace if they do not develop or create new products and processes, and thus they are less likely to rely on the availability of R&D incentives. Nevertheless, we have noted a rise in SR&ED activities once the R&D performers begin to understand the SR&ED program. As these companies acquire confidence in the program, we have noted increases in technical staff recruitment, acquisition of new equipment, and risk-taking on newer technology that would not have been undertaken without this federal incentive. Unfortunately, the increase in R&D investment by these companies is rather slow due to uncertainty regarding the level of eligibility. In addition, there appears to be a direct link between R&D investment and the ability to receive a refund for the investment tax credits (ITC) earned. Companies that are not taxable or eligible to earn refundable ITCs take longer to increase their investment in R&D.
The SR&ED incentives offered to these companies encourage the performance of R&D, knowing that the risk associated with new development activities will be partially mitigated by obtaining federal government incentives. In addition, the SR&ED program creates an environment that allows these organizations to be financially competitive on a global basis. Our experience has shown that many multinational companies have located their development activities in Canada to take advantage of these opportunities.
However, where a company is not eligible to earn refundable ITCs or is not in a taxable position, the benefits of the program become severely restricted. These companies may not see the value of participating in the program, and may opt out entirely given that there is no immediate benefit to their organization. In some cases, companies may move their operations to other jurisdictions.
SMEs that are eligible to earn refundable ITCs have a better opportunity to take advantage of the funding available under the SR&ED program, with the exception of certain restrictions with the expenditure limit. However, for large projects (e.g., R&D centres or new plants with unproven technology) carried out by multinationals, we believe that the lack of refundability limits the ability of Canada to attract new investment. These companies are lured to other countries that offer cash and other incentives up front in order to attract multinationals. Interestingly, while these other jurisdictions' R&D benefits may not be as lucrative as the Canadian incentives, this is greatly offset with the immediate funding of projects through other means. Fortunately for Canada, some provinces such as Nova Scotia and Quebec have been able to attract investors by offering refundable provincial ITCs.
Multinationals carry out R&D projects around the world. Many Canadian executives of subsidiaries of multinationals have stated that the Canadian incentives have allowed them to attract new R&D investments to Canada. This has created growth opportunities for these companies and better paying jobs for Canadians. However, executives also point out that they often lose investment proposals to other jurisdictions because of the lack of refundability with the Federal SR&ED incentive. Many of these large R&D projects take years to develop, with substantial sums of money being invested up front. However, having access to refundable ITCs would mitigate some of the risks being undertaken by these companies, as well as provide additional cash that can be put towards enhancing and developing new technologies.
Another deterrent to attracting new investment to Canada that we have noted is the perception that these companies do not receive enough support from the CRA on eligibility issues. In the opinion of many executives, this is caused by the CRA's usual role as auditor as opposed to incentive program administrator. This has resulted in delays in getting the investments underway and puts more pressure on provincial authorities to fill the gap through such measures as upfront cash incentives.
Are there features of the SR&ED tax incentives that impede the growth of small and medium-sized innovative Canadian companies, and how?
Input is solicited on whether and in what way the legislated rules governing the SR&ED tax incentives create barriers to the growth of small and medium sized innovative Canadian companies, and on how firms currently manage the constraints.
Based on the information that we have obtained, it would appear the rules governing the SR&ED tax incentives do create barriers, both perceived and real, to the growth of Canadian SMEs. Our comments are outlined below:
The ability to earn refundable ITCs is partially determined by the taxable income and capital of a company and any other entities to which it is associated. The annual determination of eligibility using these tests often causes concern for claimants, and, by extension, adds complexity to the process. Further, these tests appear to reward companies with no income and punish those that have gained some degree of operational success and cash flow. The federal government should consider the following additional suggestions that may mitigate the issues surrounding the size-based test:
Currently, expenditures incurred by Canadian-controlled private corporations (CCPCs) in excess of their expenditure limit earn ITCs at a rate of 20%, as compared to 35% on expenditures up to their expenditure limit. Of the ITCs earned on these excess expenditures, only 40% are refundable. We believe that Government should consider removing this limitation on refundability, as it adds another layer of uncertainty and complicates the system. We further believe that it will not come at a significant financial cost, as it simply accelerates the use of these ITCs at a time that companies need funding the most, in particular, the battered manufacturing sector which exports the majority of its goods to the U.S. and abroad. For some companies, this change will generate more R&D investments as they will have the benefit of additional cash inflow.
The present legislation requires ITCs utilized in a particular year to be added to a company's taxable income, and thus taxed in a subsequent year. This approach may disqualify companies from accessing high rate refundable ITCs, as it causes taxable income to exceed the allowable threshold for refundability. Given that many countries around the world do not tax the R&D incentives they provide, we believe that Canada should follow suit and not tax the federal and provincial incentives. If the government is not in favour of this recommendation, it should consider excluding the ITCs from the income eligibility calculations for refundability. Under this second approach, the amounts would still be taxable, but simply would not enter into the determination of eligibility for refundable ITCs in a subsequent taxation year.
In addition to the size-based test, companies must also be CCPCs in order to earn refundable ITCs. We recommend that Government revisit whether this test is appropriate in today's marketplace. It would appear that it is not in line with one of the stated purposes of the program, which is to create jobs and attract foreign investment. The status of a corporation does not influence this, other than negatively, in that non-CCPCs are not entitled to benefits of refundable ITCs. Furthermore, those companies which cannot proceed without venture capital financing may only be able to obtain financing through the public markets. Punishing these companies for doing this is not appropriate and does not provide a level playing field.
We recommend that Government consider permitting refundability for all companies up to the present expenditure limit. This will remove complexity from the system and allow small non-CCPCs to enjoy the benefits of the program, something that they may not have now. Some provinces already permit full refundability, no matter the status, for SR&ED that is performed within the province.
The expenditure limit has remained at $2,000,000 since its inception. This limit has not been adjusted for inflation, yet there have been several adjustments to the small business limit. We recommend an increase to the expenditure limit to at least $4,000,000.
Various issues surrounding project eligibility are of significant concern for many claimants, which impacts their continued growth and decisions to invest in new technologies.
While the majority of claims filed with the CRA fall in the category of experimental development, there is a bias against SMEs conducting SR&ED in low-tech industries. Very often these activities are viewed as routine, which causes a great deal of uncertainty and dispute for claimants. Another tendency on the part of the CRA is to divide the project into activities so as to use the so-called "bubble approach" to reviewing a claim. Under this approach, the CRA looks to deny large portions of the claim, despite the fact that the denied activities relate to support activities without which the project's success would be unachievable.
We believe the root cause of this problem may lie with the fact that the definition of what constitutes eligible experimental development is set out in CRA's publications rather than the Income Tax Act itself. While we are not advocating the introduction of complex legislation to define what constitutes "experimental development", we believe serious consideration should be given to elaborating on the existing definition of "experimental development and supporting activities".
The rules set out in the guidelines appear to be inconsistent from one industry to another, and they are apparently subject to the personal interpretation of the individuals administering the program. Some rules are too vague or subjective, leaving a wide spectrum of interpretation. This causes a great amount of uncertainty within the program and impacts whether claimants are comfortable proceeding with a claim.
Perhaps one reason for this consistency issue is the CRA reviewer's lack of continuity on files. Currently, turnover at CRA in some locations is quite high, which impacts claimants in several ways. For example, we have often found that CRA staff are new to the program and do not fully understand the technical rules.
In order to address these concerns, we recommend that the existing guidelines be reviewed in order to help ensure there is more consistency both across industries and across the country. We also recommend that steps be taken to ensure that CRA staff receive more training before they are placed in the field.
The relationship between claimants and the CRA has tended to become more strained over the past few years. Taxpayers and their representatives are no longer entitled to speak to CRA Head Office on complex emerging issues where the local help is inadequate. In addition, we believe that the dissolution of the Partnership Committee has further limited the voice of industry and isolated the CRA from the views of the community.
We recommend that the CRA look to re-establish its relationships with industry. The Partnership Committee or a similar body should be re-established and the channels of communication should be re-opened. Open dialogue between taxpayers and CRA is vital to a successful program.
How could more private sector R&D be leveraged?
Stakeholders may wish to comment on, for example:
- whether the structure of the SR&ED tax incentives could be improved to encourage more private-sector R&D in a cost-effective manner; and
- how the SR&ED tax incentives could best support public-private R&D collaborations, as highlighted in the S&T Strategy.
As indicated by the B-index and METR rankings, Canada is one of the top nations in the world that encourages SR&ED to be conducted within its' borders. However, without the incentives offered by the SR&ED program, Canada's position would be severely downgraded. This can be seen quite clearly from the METR rankings, where the ITC drives Canada to its position as one of the premier nations in which to conduct R&D. These incentives make Canada an appealing place to do R&D, and directly lead to increased investment. That being said, we believe that certain low-cost structural changes to the SR&ED program will allow Canada to generate additional R&D investment.
Many argue that full refundability is the best solution; however, we acknowledge that this initiative may be viewed as being too costly. For this reason, KPMG would like to submit the following possible alternatives:
Not all companies that earn ITCs are in a position to utilize them given the refundability discussion outlined earlier. Consideration could be given to allow companies to flow unutilized ITC's to their shareholders or sister companies.
For certain industries or projects that are of national interest (e.g., biotechnology), the federal government could allow full refundability, even for a limited period of time, to continue encouraging investments within these sectors.
Consider allowing companies to redeem some portion of their unused tax credits by selling them directly to the federal government at a discounted rate, e.g., 80% of the ITC value. Once sold, the election cannot be revoked. Selling the credits directly to the government at a discounted rate as opposed to selling them to a third party will enable the government to administer the process effectively and prevent abuse of the system by groups that finance ITCs. This proposal is very similar to a now-defunct rule that existed in the Quebec Income Tax Act that allowed a taxapayer to sell its losses at a discounted rate in order to pay its capital tax. It is also our understanding that the U.K. has introduced a similar measure that has been well-received and is working effectively.
Establish an organization that will purchase the ITCs at a discounted rate, or alternatively, loan funds by mortgaging the ITCs. This can be established through private sector financing in partnership with the federal government. In order to maintain the integrity of the system, this organization must work closely with the CRA.
Under the Canadian tax system, ITCs are treated as a reduction of taxes payable. The netting of credits against taxes payable by a Canadian subsidiary of a foreign parent could result in the dilution or recapturing of the benefits at the parent level, due to local tax laws. This treatment effectively offsets the benefits obtained through R&D investment in Canada.
As a solution, we propose that the claimant be allowed to use the ITCs similar to a grant with the offset of other levies such as payroll deductions, goods and services tax, etc. This would allow the companies to record the benefits for accounting purposes above the EBITDA line. This alternative can be accomplished without any additional federal government expenditure by giving the taxpayer the option to deduct the ITCs either against taxes payable or against other levies.
Currently, provincial ITCs are viewed as government assistance for federal purposes. The federal government should consider not taxing these amounts and invite their provincial counterparts to do the same. This will inject new money into the system as the value of the ITCs earned will increase, thereby encouraging further investment in R&D.
To encourage cross-border R&D investment, the federal government should consider changing the qualifying corporation rules for refundability. For instance, under the current rules, where a U.S. based SME invests money in an R&D intensive project and controls the Canadian corporation (i.e., 50% + 1%), refundability is denied. If the refundability is made available for a company where a non-resident person owns, say, 55% of the shareholdings, such a corporation shall be deemed to be a CCPC for the purposes of refundability. We believe that this change alone will bring significant cross-border collaboration, since more venture capital funds and banks will be willing to invest in such Canadian ventures.
The federal government should consider allowing large non-refundable claimants that subcontract their R&D work to have the R&D treated as having been performed by the subcontractor that is the SME. In such a case, this would allow the SME to earn ITCs. This change will generate significant collaboration among SMEs and large corporations, generating jobs and knowledge.
Currently, a significant amount of R&D is done in Canadian universities and other not-for-profit entities. The federal government should consider giving additional ITCs to companies that partner with these types of organizations. This will help to drive development work in these entities and increase the number of collaborations taking place. A program similar to the Ontario Business Research Institute tax credit could be used as a model.
Consider allowing partnerships to allocate R&D ITCs to limited partners. Currently, businesses operating through limited partnerships are prevented from receiving R&D incentives earned by these partnerships. This discourages R&D activities in limited partnership situations.
One of the purposes of the program is to create jobs in Canada. It seems inconsistent that ITCs be denied for work done by Canadian resident employees of Canadian companies that perform SR&ED activities in support of a Canadian projects outside of Canada. Specifically, the wages earned by those performing the R&D are being taxed in Canada in most instances, yet the amounts are not eligible for ITCs. The federal government should consider allowing ITCs with respect to this work and could use the Australian system as an example of how to structure it effectively.
Given the improvements already implemented or under study, how could administration of the SR&ED tax incentives be further improved and their complexity reduced?
Consistent with the Government's commitments in Budget 2007 to reduce the paper burden and the tax compliance burden on businesses, comments are welcome on:
- whether there are provisions of the program that are difficult to access; how severe such difficulties are; and what effect they have on the compliance burden, or on the amount of support the firm receives;
- whether the CRA processes claims consistently and what the CRA can do to strengthen the level of consistency of the SR&ED claim review process;
- whether there are areas of complexity within the program where the Government could improve/simplify the process for claimants while ensuring that the program is delivered as intended and that fiscal integrity of the program is maintained; and
- how the Government can improve the way in which information about the program is provided, better improve the services provided, and ensure that businesses are aware of the program.
As a general observation, the CRA faces a mounting task: the SR&ED program is growing at a rapid rate while staffing levels have not expanded to handle the increased volume. While the CRA has improved its internal processes by introducing better risk management tools, more work needs to be done to improve the administration of the program. Despite these challenges, we believe the CRA is doing everything within its control to improve the program, but it is the system which is failing to deliver the program as expected.
Improvements to the administration of the program can be centred around the following core areas:
2) Management and Communication;
3) Accountability and Redress; and
A recent Annual Report to Parliament states that the CRA's mission is to administer tax, benefits and related programs, and to ensure compliance on behalf of governments across Canada, thereby contributing to the ongoing economic and social well-being of Canadians. The CRA is the primary tax collector for the Government of Canada, and its predominate responsibility is to protect Canada's revenue base.
While no one denies that it is the CRA's duty to maintain the fiscal integrity of the program, the CRA has also committed to deliver the program in a consistent and fair manner. Following the Vancouver conference, the CRA committed to treat SR&ED as an incentive program, and indeed changed its internal structure, so that the SR&ED directorate ceased reporting to the compliance directorate both at the Head Office and local offices levels.
There is growing evidence that the culture is shifting back to where it was before the Vancouver conference. Since the shift is more prevalent in some offices than others, this creates assessing inconsistencies both at an office and individual assessor level.
Issues arising from the cultural shift and our related recommendations are as follows:
- We are beginning to see companies which previously prepared their own claims coming to see tax preparers for assistance. They are telling us that they cannot handle the CRA audit, as they have become too onerous and time consuming. In addition, the CRA is becoming unrealistic with some of its demands with respect to the format and content of technical reports, breaking down R&D into minute activities to deny eligibility and requesting taxpayers to maintain more documentation than is normally maintained and required by business. This goes against CRA's policy of not having to create specific documentation systems to comply with the SR&ED program requirements. We recommend the federal government examine this area and come up with solutions to address these issues.
- The CRA should implement a policy whereby they must provide specific reasons or a rational for decisions that are made to disallow expenditures and activities. While some reviewers do provide such information, we have noted many who do not. We recommend that the CRA be held to the same standards as taxpayers providing reasons for disallowance and referencing their rationale back to the legislation and published documents.
We are seeing evidence of lack of control at the local office level and lack of communication between Head Office and local offices. Here are some examples of this behaviour:
- CRA Science Advisors in many instances, are challenging the claimant on matters that are covered in the technical submissions, suggesting that they may not have had time to adequately review the report prior to visiting the claimant. This can be addressed by hiring additional resources or adopting a better risk-based approach.
- Certain reviewers do not always follow published positions posted on the CRA website. As taxpayers rely on these publications when preparing their submissions, we suggest that it is inappropriate for certain reviewers to deviate from the CRA's published guidance papers.
- Currently, there appear to be no limits as to the amount of time an assessor can spend on completing large files. Perhaps the federal government should consider introducing controls in this area in order to improve the turnaround time and processing of refunds.
- The CRA should recognize that professional advisors are partnering with them to help expand the reach of the program. On numerous occasions we have been present in CRA reviews where we believe the CRA representative has inappropriately commented that the company should not be using an advisor.
According to the Taxpayer Bill of Rights published in July 2007, every taxpayer is expected to be treated fairly and have the CRA make fair and impartial decisions in accordance with the law. Similarly, it has a right to an impartial review either at the assessment level or at the Appeals level. Issues have arisen in the following areas:
- The second review of claims is now left to the discretion of the Assistant Director.
- Approaching a supervisor or Assistant Director to voice concerns is not effective, as in most cases the supervisor or Assistant Director protect the position taken by the reviewer and very few seem willing to hear representations from taxpayers.
- The Notice of Objection process appears to be no longer effective, in that the Appeals Officer seeks advice from the SR&ED Program directorate in Head Office in deciding whether or not to allow the Appeal. We believe that this undermines objectivity and independence at the Appeals stage.
Although the CRA is trying to improve consistency, its current systems and shortage of resources are creating major obstacles. Examples where we have noted inconsistencies include:
- Assessors who do not follow the CRA's published positions;
- High staff turnover, and junior staff who do not necessarily understand the program and need to be better trained;
- Inconsistent requirements on the form and contents of the technical reports that need to be submitted;
- Some CRA offices lack experience in certain areas and may inappropriately disallow claims as a result. They may be reluctant to seek advice or assistance and quite often, Head Office advice is not available to assist;
- The role of industry experts does not appear to have helped to reduce inconsistencies, as CRA technical advisors often do not seem to follow the experts' advice;
- Lack of centralized control on emerging eligibility issues; and
- Inability of companies, advisors and local district tax offices to contact Head Office to resolve contentious issues due to the departure of many experienced SR&ED personnel.
Even though this submission identifies areas of administration that require improvements, we would be remiss if we did not mention certain aspects of the administration program that are functioning well, such as:
- The new risk management policies and processes adopted by the CRA are a step in the right direction. Once fully operational, low risk files should be assessed in a quicker and efficient manner, thereby freeing the CRA up to focus on high risk files that require more attention;
- The CRA holds regular information sessions to explain the program to new claimants. This is an important activity as it helps to expand the program;
We thank you for the opportunity to provide our views and the views of the many companies that rely on the program. Should you have any questions regarding the comments included in this submission, please contact Alan Katiya, National SR&ED Practice Leader (telephone: 514-840-2133).
KPMG SR&ED Practice Leaders
This submission was prepared with the input from the following SR&ED practice leaders in our various offices:
National Practice Leader
1. http://www.industry.gov.au/content/itrinternet/cmscontent.cfm?objectid=4DDA6FFB-F590-211C-8C5BA60F94DFFFBB&indexPages=/content/azindex.cfm,/content/azindex.cfm?keyword=r%26d%20tax%20concession [Return]