Strategies is our News and Articles Library, a gateway to topics of interest to companies facing challenges in financing research and development activities. Strategies has a particular emphasis on R&D tax credit issues.
Strategies is published by Braithwaite Technology Consultants Inc. ©1998 to 2007. The material in this Library is intended for general information only and should not be relied on in individual cases. Laws may have changed since articles have been written. Professional advice should always be sought before any action is taken.
As indicated elsewhere in this newsletter, Revenue Canada has circulated a draft copy of their revised information circular (IC86-4R4) which elaborates on, and clarifies, a number of thorny issues respecting SR&ED claims. One of the thorniest has been the correct identification of testing and data gathering activities.
The testing issue was touched on briefly in our Fall 1997 issue of Strategies as it pertained to testing existing products to determine if they meet new regulatory requirements. Here we will attempt to contrast the issue of routine testing and routine data gathering, which are non-eligible activities, with those of testing or data gathering as support activities within an SR&ED project.
Distinguishing qualifying from routine testing
The draft revised IC states “Testing is a qualifying activity for an SR&ED project when commensurate with the needs, and directly in support of SR&ED. However, quality control, or routine testing of materials, devices, products or processes is an excluded activity.” It goes on to state “In the scientific method, a hypothesis is tested to attempt to (either) corroborate or reject it. Testing in this sense qualifies. Thus, testing of the scientific results or technological output, such as a new material, of an SR&ED project is eligible up to the point of the SR&ED project completion.” All other testing is not eligible.
Unfortunately, this description does little to help clarify the confusion. For example, if, in the process of routine development of a new product (Non-SR&ED work) the company performs routine testing of its component parts, such as motors or printed circuit boards, to ensure they meet their published specifications prior to using them, this activity is clearly not eligible. If however, the company has a qualifying SR&ED project and performs the same testing, this testing would be an eligible activity. It’s still routine work, but performed directly in support of the SR&ED project.
Not quite so clear is the following example. If the company performs testing of new materials as part of developing a new ink or paint formulation, does this qualify as eligible testing? The foregoing description would seem to indicate that it would, provided the company had formulated a hypothesis as to the correct ingredients, the component quantities, and their chemical and physical interactions in relation to desired product performance objectives such as drying time or viscosity. The same testing would (presumably) not qualify if performed in the course of simply attempting to test performance of a single ingredient prior to replacing a similar ingredient in an existing formulation. This approach implies the absence of a hypothesis and hence would be denied on that basis.
Another murky example can be found in agribusiness research. If a company decides to investigate various plant varieties by cloning particular ones with different characteristics, and testing them against desired objectives such as frost resistance, would this qualify as eligible or is this routine testing? It would appear this is routine, based on the above definition, because presumably the testing does not involve a hypothesis - or does it? Could it be argued the company put forth a hypothesis that certain characteristics in the plant variety were needed to achieve a specific frost resistance objective and that the testing was performed in support of this theory? To make the issue even murkier, could it be argued that the activities are simply routine data collection, or are they observation of a trial or experiment?
Distinguishing qualifying from routine data collection again the information circular states “data collection is a qualifying activity when commensurate with the needs, and directly in support of, SR&ED. However, routine data collection is excluded….”
The circular goes on to state “The analysis of large quantities of survey data can serve to search for scientific or technological advancement and to resolve scientific or technological uncertainty, even if the data were not specifically collected for the needs of the SR&ED project. In these cases, only activities associated with analysing the data would qualify, not the actual data collection”. It then carries on with four examples of routine data collection activities, including collecting baseline data to support routine development such as may be encountered in collecting physical property data; generally descriptive data and data collected from routine or standard repetitive procedures or processes, all of which are all ineligible.
The Strategy
Data collection and testing form a large part of many R&D projects. Indeed, observation and analysis of results of trials or experiments is considered to be a core SR&ED activity. In order to maximize your claim, make particular note in your documentation that the data being collected or the testing being performed is in direct support of your scientific or technological hypothesis. Be prepared to show why all the data collected or all the testing performed was necessary for your analysis to draw your scientific or technological conclusion.
Links
Prior to February 24, 1998 proxy based filers (filers claiming the 65% overhead factor) could only claim the cost of material consumed in SR&ED. Traditional based filers could claim all material costs that were incremental to the SR&ED activity.
This was confirmed in the Consoletex case. In this Tax Court case the definition of the word “consumed” was discussed by Judge Bowman. He considered whether experimental production of yarn that was later sold was consumed in SR&ED. He found that “it would put a strained interpretation on the word consumed to say that … yarn which is turned into product that is sold was consumed”. He did however, find that the yarn was an eligible expenditure in that it was an incremental cost. As Consoltex was not a proxy filer, Judge Bowman directed Revenue Canada to allow the claim for material that was sold, as an eligible SR&ED expenditure.
This gave an opening for companies to elected to not use the proxy method, and claim material sold to customers as SR&ED, where it improved their tax credit position. The department of Finance disliked this decision and moved in the February 1998 budget to block it for expenditures made after February 24, 1998. All materials consumed or transformed into another product during the course of an SR&ED project, are eligible for SR&ED tax credits. However, where the product is sold or later converted to commercial use, companies are required to repay the tax credit previously claimed. The amount of the repayment is based on the lesser of, the proceeds of disposition of the property, or the cost of SR&ED materials included in the property.
The Strategy
Companies will want to consider making a claim for experimental production materials, particularly when something goes wrong and the company cannot bill for the product. Also, there will be a cash flow advantage under this formula, in that the credit comes as the material is used, and is paid back after the product is sold. This advantage will occur when those two events take place sequentially, but in two different taxation years.
Links
In the past, companies making payments to non-arm’s length contractors, who performed SR&ED on their behalf, could claim SR&ED tax credits in respect of those expenditures. These rules have been changed. For example, now when a company makes non-arm’s length payments to an individual who is an independent contractor, or to a management company that renders SR&ED services, the rules restrict or eliminate the amount of the credit available. These rules also control whether the contractor, or the payer, may claim the credits.
Companies (payers) who make payments to non-arm’s length parties for SR&ED services rendered under contract no longer earn tax credits. The credit must be calculated by the party that is performing the services. The credit may then be claimed by either the party performing the services, or transferred to the payer.
To transfer the credit, the contractor must file an election form, accompanied by a legally binding director’s or administrator’s resolution. The form must be filed by the filing due date of the payer’s tax return, and before the notice of objection period runs out on the performer’s tax return, and before that same period for the first taxation year that ends at or after the payer’s taxation year.
Although time consuming, this system works well when it applies to the relationship between two larger companies. It does not work so well when one of the parties is unincorporated, or is a management company. Consider the following example. Tom is the son of the sole shareholder of XCO. Tom is not on the payroll of XCO, but bills XCO for his services. As Tom does not deal at arm’s length with XCO, the company cannot claim tax credits on the amount paid to him. Tom can claim credits, but is limited to his own cost in respect of the services. Because Tom is not incorporated, he cannot pay a salary to himself, and thus has no labour cost in respect of these services. Since there are no eligible costs, there is neither a claim for Tom nor any credits for XCO. The credits that could be claimed under the old rules are now unavailable.
The Strategy
Consider putting non-arm’s length subcontractors on the company payroll, to avoid the application of these new rules. Not only would the salary now constitute an eligible expenditure, it would also attract an additional 65% overhead allowance.
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In the past, Canadian companies making payments for SR&ED to foreign consultants, who came to Canada to perform their work, could claim SR&ED tax credits in respect of that work. Now, unless the foreign company is required to pay tax in Canada on that payment, by virtue of having a permanent establishment in Canada, the payment is no longer eligible for tax credits.
Payments to Non-Residents for SR&ED
by Bruce Braithwaite
In the past, Canadian companies making payments for SR&ED to foreign consultants, who came to Canada to perform their work, could claim SR&ED tax credits in respect of that work. Now, unless the foreign company is required to pay tax in Canada on that payment, by virtue of having a permanent establishment in Canada, the payment is no longer eligible for tax credits.
In order for a payment to a person or partnership to qualify for SR&ED tax credits, that person or partnership must be a taxable supplier in respect of that payment. Non-residents that do not carry on business in Canada through a permanent establishment are not considered taxable suppliers.
One example of a company that might be caught by these new rules, is a Canadian company that hires foreign-based contract programmers who come to Canada for a short period of time to work on a project. Another example is where a Canadian subsidiary of a US company brings US employees to Canada to work on an SR&ED project, and the US company charges their salaries back to the Canadian company. In both of these examples, these expenditures will not qualify for SR&ED tax credits.
The Strategy
When dealing with non-resident sub-contractors it is important to know their tax status in Canada. To establish SR&ED eligibility, consider putting non-resident contractors on your payroll to avoid the application of these rules.
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The Regulation that defines SR&ED allows that SR&ED encompasses basic research, applied research, and experimental development. It also includes in the definition of SR&ED support or linked work with respect to engineering, design, operations research, mathematical analysis, computer programming, data collection, testing and psychological research where the work is commensurate with the needs and directly in support of basic and applied research and experimental development.
Some taxpayers only undertake the support activities involved in an SR&ED project. Except for special rules designed to cover situations where the support activities are performed for a non-arms length party, a taxpayer who only undertakes support activities will not be considered to be doing SR&ED.
This analysis becomes more complicated when only a part of a project is being undertaken inside Canada. Revenue Canada’s position [19] is that a company must be undertaking either basic or applied research or experimental development in Canada before any support or linked activities will be eligible for SR&ED tax credits. Further it is their policy that only those linked activities performed in Canada will be eligible for the tax credits. This policy is based on the wording of Regulation 2900, the definition of SR&ED, as it applies to taxation years ending after December 2, 1992.
On a careful reading of Regulation 2900 as it read prior to the most recent amendments that are applicable to taxation years ending after December 2, 1992 there appears to be some room for interpreting that a taxpayer who performs only support activities may still be able to claim SR&ED incentives. We have been advised informally that Revenue Canada does not agree with our interpretation. Where amounts are significant, a court challenge might provide an interesting result.
The Strategy
Where R&D project tasks are divided up between separate companies, make sure that your company performs more than just linked activities.
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Third party payments are disbursements made to third parties, where the funds are to be used for financing SR&ED activities, where the recipient defines the work performed, and retains ownership to the technology developed. When a taxpayer makes a payment to a third party for SR&ED the amount of that payment is generally eligible for SR&ED tax credits if:
Where a taxpayer has to buy the resulting product to use it, or where others have access to unpublished or early results, the taxpayer would not be considered to be entitled to exploit the results for the purpose of this definition.
It also suggests in that paper that a taxpayer must be capable of backing up their claim with documentation.
There is some misconception as to the type of activities to which the “entitled to exploit the results test” is applied to. It should be noted that the test does not apply to SR&ED work undertaken by or on behalf of the taxpayer.
The Strategy
Companies who make these third party payments should insure that the contractual arrangement is such that they are entitled to exploit the results. In the event of audit a taxpayer should be ready to support this position to Revenue Canada. Proof of early access to results or actual use of results can aid in supporting entitlement.
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When a taxpayer contracts with another party to perform SR&ED on its behalf, the taxpayer can generally claim tax credits on the amount of payments made under that contract. The recipient of the payment can also claim tax credits, however, in calculating the amount of tax credit that it can claim, the recipient must first reduce the cost of its SR&ED by the amount of the contract payment received.
The Income Tax Act generally defines a contract payment to mean an amount paid or payable to a taxpayer, by a taxable supplier, a Canadian government, municipality or other Canadian public authority or a tax exempt person, in respect of the amount, for SR&ED, to the extent that it is performed for or on behalf of the payer.
Note that a contract payment must be made by a taxable supplier or a government unit within Canada. With some exceptions, a taxable supplier is defined to be an entity that is subject to taxation in Canada. A payment received from a foreign corporation that does not have a permanent establishment in Canada, or a foreign government, would not be considered a contract payment.
Note that non-arms length payments from taxable suppliers are not contract payments. They are subject to a whole different set of rules. (See Non-Arm’s Length Contract Payments)
Where a payment is received from a taxable supplier, it is often difficult to determine whether that payment is for SR&ED. A contract may be a simple one line purchase order, or even a handshake.
Revenue Canada’s position (Application Policy SR&ED 94-04) is that “the key element for determining an amount as a contract payment is whether the payer requested the contractor to perform SR&ED on behalf of the payer under the terms of the contract.” In looking for this key element, a number of factors are considered.
Is the contractor required to do specific SR&ED work? Does the contract use terminology like design, integrate, test, verify performance? Were there certain specifications to which the contractor had to comply in performing their tasks?
If the answer is yes to any of those questions, Revenue Canada takes that as an indication that a contract payment was made.
Or would the contractor have been entitled to payments only if the work had met the requirements of the contract, as to the work that was being performed? If the answer is yes to either of those questions, Revenue Canada takes that as an indication that a contract payment has not been made.
If the IP belongs exclusively to the person making the payment, then there is evidence that the payer is making a contract payment. Note that Revenue Canada discounts this test where the payer is the Crown, in that the Crown often does not take title to the intellectual property.
If the three tests described above do not provide strong evidence for or against a contract payment, Revenue Canada then looks to the nature of the contract. A contract for services provides evidence that a contract payment has been received. A contract for the sale of goods provides evidence to the contrary.
Many taxpayers do not make SR&ED tax credit claims where they have been paid for work that they have done. Other taxpayers do not claim tax credits on work done for them by another party. These two factors are largely irrelevant in determining claim eligibility. Where SR&ED activities are performed, review payments received and made, to determine whether they are contract payments.
There are two methods of determining the cost of SR&ED activities, the proxy method and the traditional method. Under either methodology a taxpayer can claim the cost of materials consumed in SR&ED activities. A traditional method filer can also claim the cost of materials transformed in SR&ED activities and the cost of material directly related to SR&ED that would not have been incurred if the SR&ED had not occurred.
Taxpayers and auditors have always had difficulty in determining material costs due to variances in interpretation. CRA recently posted an Application Policy (AP) on their web site which was to provide some clarity. Unfortunately, this policy is somewhat confusing in that it takes issue with itself in important areas.
The AP includes CRA’s position as to the meaning of the words “cost”, “materials”, “consumed” and “transformed”. It should be noted that these interpretations are provided by the CRA to give guidance to auditors and taxpayers. They do not have the force of law.
The word “cost” is defined to mean the laid down cost. For purchased items, this would include the invoice cost plus any duties, transportation, storage and other acquisition costs. If materials are manufactured by the claimant, the cost would also include the cost of direct labour and the applicable share of expenses properly chargeable to production overhead.
In CRA’s opinion the word materials refers to all the raw materials, substances or other items that compose the “body of a thing at a given moment in the SR&ED process”. In other words, the materials have to be incorporated into the subject of the SR&ED claim. CRA takes the position that energy costs and items such as cleaning products, CD’s or diskettes, and test tubes would generally be seen to be “supplies” and not materials that compose the body of a thing.
The word consumed in relation to a material is defined by CRA to refer to something that is absorbed, used up, or broken down into small pieces. As a result, materials such as a motor, which is incorporated into a commercial product or asset is not considered to be consumed. On the other hand, in a lab experiment, such things as enzymes or growth media would be considered to be consumed, because they are part of a thing that is made at some point in the SR&ED process.
As mentioned above, materials transformed in SR&ED activities are eligible costs only where a taxpayer calculates costs under the traditional method. CRA has defined transformed to refer to material that will not be consumed but rather be transformed into another material or thing which has some value either to the taxpayer or to another party. Examples given include nylon thread transformed into a carpet, or resins and dyes transformed into paint.
A recapture (reversal) of tax credits applies if a material has been transformed and then is subsequently sold or converted to commercial use. So if thread transformed into carpet as part of an SR&ED project earns tax credits, those tax credits are reversed in a later year if that carpet is sold.
Interpreting what is mean by “items that compose the body of a thing at a given moment in the SR&ED process” is difficult. In examples that appear at the end of the AP, CRA appears to contradict its own position in that it gives examples of certain situations where materials can include items that are not incorporated into the body of a thing. Now, instead of struggling with what is meant by materials, we will be struggling with what is meant by the phrase “incorporated into the body of a thing”.
The Strategy
Where the cost of materials is significant, some number crunching is required to determine whether the proxy or traditional method provides the greatest benefit. Try to fit into CRA’s definitions for consumed and transformed, but where amounts are significant consider what definitions the courts might apply.
Links
As indicated elsewhere in this newsletter, Revenue Canada has circulated a draft copy of their revised information circular (IC86-4R4) which elaborates on, and clarifies, a number of thorny issues respecting SR&ED claims. One of the thorniest has been the correct identification of testing and data gathering activities.
The testing issue was touched on briefly in our Fall 1997 issue of Strategies as it pertained to testing existing products to determine if they meet new regulatory requirements. Here we will attempt to contrast the issue of routine testing and routine data gathering, which are non-eligible activities, with those of testing or data gathering as support activities within an SR&ED project.
Distinguishing qualifying from routine testing
The draft revised IC states “Testing is a qualifying activity for an SR&ED project when commensurate with the needs, and directly in support of SR&ED. However, quality control, or routine testing of materials, devices, products or processes is an excluded activity.” It goes on to state “In the scientific method, a hypothesis is tested to attempt to (either) corroborate or reject it. Testing in this sense qualifies. Thus, testing of the scientific results or technological output, such as a new material, of an SR&ED project is eligible up to the point of the SR&ED project completion.” All other testing is not eligible.
Unfortunately, this description does little to help clarify the confusion. For example, if, in the process of routine development of a new product (Non-SR&ED work) the company performs routine testing of its component parts, such as motors or printed circuit boards, to ensure they meet their published specifications prior to using them, this activity is clearly not eligible. If however, the company has a qualifying SR&ED project and performs the same testing, this testing would be an eligible activity. It’s still routine work, but performed directly in support of the SR&ED project.
Not quite so clear is the following example. If the company performs testing of new materials as part of developing a new ink or paint formulation, does this qualify as eligible testing? The foregoing description would seem to indicate that it would, provided the company had formulated a hypothesis as to the correct ingredients, the component quantities, and their chemical and physical interactions in relation to desired product performance objectives such as drying time or viscosity. The same testing would (presumably) not qualify if performed in the course of simply attempting to test performance of a single ingredient prior to replacing a similar ingredient in an existing formulation. This approach implies the absence of a hypothesis and hence would be denied on that basis.
Another murky example can be found in agribusiness research. If a company decides to investigate various plant varieties by cloning particular ones with different characteristics, and testing them against desired objectives such as frost resistance, would this qualify as eligible or is this routine testing? It would appear this is routine, based on the above definition, because presumably the testing does not involve a hypothesis - or does it? Could it be argued the company put forth a hypothesis that certain characteristics in the plant variety were needed to achieve a specific frost resistance objective and that the testing was performed in support of this theory? To make the issue even murkier, could it be argued that the activities are simply routine data collection, or are they observation of a trial or experiment?
Distinguishing qualifying from routine data collection
Again the information circular states “data collection is a qualifying activity when commensurate with the needs, and directly in support of, SR&ED. However, routine data collection is excluded….”
The circular goes on to state “The analysis of large quantities of survey data can serve to search for scientific or technological advancement and to resolve scientific or technological uncertainty, even if the data were not specifically collected for the needs of the SR&ED project. In these cases, only activities associated with analysing the data would qualify, not the actual data collection”. It then carries on with four examples of routine data collection activities, including collecting baseline data to support routine development such as may be encountered in collecting physical property data; generally descriptive data and data collected from routine or standard repetitive procedures or processes, all of which are all ineligible.
The Strategy
Data collection and testing form a large part of many R&D projects. Indeed, observation and analysis of results of trials or experiments is considered to be a core SR&ED activity. In order to maximize your claim, make particular note in your documentation that the data being collected or the testing being performed is in direct support of your scientific or technological hypothesis. Be prepared to show why all the data collected or all the testing performed was necessary for your analysis to draw your scientific or technological conclusion.
Links
When filing an SR&ED tax credit claim with the Canada Revenue Agency (CRA) the work claimed is structured as a “projects”. The claimant defines the projects undertaken, and the activities within a project. An intuitive definition of a project is used, and boundary areas are subject to interpretation.
Project start and end dates are often difficult to determine. Eligibility of routine support activities for a project is frequently questioned. As well, large projects involving teams or multiple teams of researchers can be considered “over aggregated”. CRA has requested work be broken into more easily digestible units, each unit being an SR&ED project. Each of these issues presents considerable difficulties both for tax preparers and CRA auditors as each attempts to fairly assess the overall eligibility of work for tax credits. A fundamental problem is that industrial research projects can encompass a broader set of activities than CRA is able to support.
A steering committee composed of industry sector representatives and CRA have now released a consensus document describing the principles that will assist in the application of IC 86-4 as it relates to the definition of an SR&ED project. The primary reason for issuing this paper is to develop a common level of understanding so work is reviewed at a proper level of aggregation to avoid projects being broken down in such a way that ineligibility is inadvertently lost.
There are three criteria necessary for any project: scientific and/or technological advancement, uncertainty, and content. A project is considered to be a set of “interrelated activities that collectively are necessary for the attempt to achieve the specific advances(s) defined for the project, are required to overcome uncertainty, and are pursued through a systematic investigation by means of experiment or analysis performed by qualified individuals.”
While the above definition provides a clear starting point, the CRA document goes on to provide guiding principles in many difficult areas. Of particular importance to many claimants are the following:
The Strategy
Work on developing a process for identifying and tracking projects. Be prepared to discuss with CRA how you identify eligible SR&ED work and differentiate it from standard practice. In preparing your claim define projects at the highest level.
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An area of significant controversy as to whether an activity qualifies as SR&ED, is one where the activity involves meeting a regulatory requirement. Generally, testing to meet regulations only qualify when they are linked in as part of an SR&ED project. With limited exceptions, they do not of themselves meet the definition of SR&ED. Particularly they do not meet the technological advancement and uncertainty criteria that must be met before an activity would qualify as SR&ED. The Canada Revenue Agency (CRA) considered this issue in relation to testing activities undertaken to meet the requirements of the March 1993 New Substances Notification Regulations of CEPA. Their policy is that testing to meet these Regulations is eligible only where the testing is done to generate new knowledge by resolving scientific uncertainty in direct support of an SR&ED project. Further references to CRA policy on Regulatory Testing appear in parts 7.4 and 7.5 of Information Circular IC 86-4R3 (linked below) and in application policy number SR&ED 1996 - 02, dated January 16, 1996, Tests and studies required to meet in regulated industries (linked below).
The Strategy
Testing work, performed up to the point that there are still technological uncertainties to be resolved and where that testing is designed to resolve some or all of those uncertainties, is generally eligible. It is important therefore, during the course of an audit, to establish that testing to resolve technological uncertainties in relation to the new regulations, was performed.. If the taxpayer cannot establish this, the claim will be denied.
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In April 2000 the Auditor General released a report entitled CRA and Department of Finance - Handling Tax Credit Claims for SR&ED. This audit is a follows on the 1994 audit, and addresses the handling of the 16,000 retroactive (bulge claims) filed by taxpayers in that year. The audit also addressed the administration of the program, audit risk assessment procedures, and the impact of the program on the economy.
The Auditor General reported that:
In 1997 Finance and CRA undertook a joint study of the value of the program. The benefits of the program were found to be marginal. Versus over one billion dollars in cost to the fiscal purse, the net increase in Canada’s real income was found to be $20 to $50 million.
Large corporations (8% of claimants) earn about 85% of the assistance under this program. Most large company audits are not current.
The new definition of “project” (available on CRA’s web site) modifies the level of eligible work and could result in additional costs.
When claims are found to be ineligible, taxpayers are being allowed second reviews. This second review process is not publicised.
Financial institutions and telephone companies are challenging the disallowance of hundreds of millions of dollars of tax credit claims dating back to the mid 1980s.
The AG in Y2K
The Auditor General recommended that:
The Strategy
If you are unhappy with your audit result obtain professional advice as to whether the result was consistent with other audits. Consider asking for a second review.
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Not all SR&ED tax credit claims are reviewed. However, most first-time filers are reviewed so that Canada Revenue Agency staff can visit, explain the program, and evaluate the taxpayer’s level of compliance. Filers that have a history of compliance based on previous reviews, are less likely to be reviewed. When the reviewer does call, providing complete and timely information on all claim years under review is important to a successful review, and to reducing the time spent during reviews.
An SR&ED review has two parts, a financial review and a technical review. A Research and Technology Advisor, an individual with a scientific background, performs the technical review. The science report is passed to the Financial Reviewer, who uses it as a guideline in performing the cost review.
Technical Review
The Scientific Advisor has two essential tasks, which must be conducted for each project submitted, for each fiscal year. First, it is necessary to establish the eligibility of the project itself, and then the eligibility of the activities that make up the project. Secondly, working in an advisory capacity to the financial reviewer, conclusions must be made as to whether the labour and other costs claimed for the project are reasonable.
First, to establish eligibility it is necessary to meet three criteria. These criteria are familiar to most readers, but their importance cannot be over-emphasized, and the entire claim hinges on them. The criteria are: 1) technological advancement, 2) technological uncertainty, and 3) scientific content.
In discussing these criteria with the Science Advisor (SA) it is crucial that technical personnel most familiar with the project be available to lead the discussion. The SA is generally familiar with the field of work, and typically has several years of relevant industrial experience. Facility tours are beneficial to place the research in the context of the business, and bring in some perspective on the advancements made (or sought), the problems encountered, and the work done. Records of the tests conducted, prototypes made, and other evidence of the R&D will be reviewed.
The evidence must be sufficient not only to establish that the criteria for SR&ED are met, but also to show that the costs claimed are commensurate with the work being reviewed. Further, it must be demonstrated that the work was necessary for the SR&ED project described.
Science Advisors will generally discuss their opinions on specific projects and tasks within the projects. This is your opportunity to present new information in the event of disagreement. Subsequent meeting dates may be set to review further materials you gather as a result of these discussions, or information can be sent to Revenue Canada offices.
Once the SA is finished with the review, an internal Revenue Canada science report is written, which the Financial Reviewer uses as a guide to their portion of the review to make both financial and science adjustments. This report is available to you through the Financial Reviewer.
Financial Reviewer
The Financial Reviewer reviews your claim for compliance with a number of rules and regulations that are specific to SR&ED claims. The review is generally of the SR&ED aspects of your tax return only, and rarely encompasses a general company review.
The Financial Reviewer wishes to establish several factors which directly effect the value of your tax credit claim or the rate at which credits are earned. These include the ownership of the company, the prior year’s taxable income, correlation of claimed expenditures to eligible activity, that the costs as claimed are valid expenditures, whether the company received a contract payment or government grant, whether the company made or received a non-arm’s-length payment, whether the proxy amount is calculated correctly, whether any suppliers were non-taxable Canadian suppliers, and usage of capital equipment claimed.
Once the Financial Reviewer has completed the review, a letter is normally sent, which details any proposed adjustments, based on both financial and technical issues. You may again respond with further information, if you disagree with any adjustments but this MUST BE DONE within the time window specified in the letter. Otherwise the claim is processed per the letter and your only option at that point is a formal Notice of Objection.
The Strategy
Have the relevant information available to the reviewers when they arrive. Familiarize yourself with the special rules which apply to SR&ED claims. Your staff should be familiar with the claim, and prepared to discuss both costs and scientific eligibility issues. If the reviewers request additional information, provide it within a short time-frame to help expedite the review process. Professional advice is recommended in the organization of the required materials, and the presentation of your information.
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March 2006
I was asked if I have considered claiming tax credits for “SR&ED”. What is SR&ED?
It stands for “Scientific Research and Experimental Development”. It’s a government incentive program to encourage Canadian businesses to develop new or improved products or processes. The federal government pays out almost two billion dollars annually under this program. It is estimated that for every dollar paid, two dollars go unclaimed because companies are not aware of their eligibility.
Do I need to be some kind of research laboratory to qualify?
Scientific Research (whether Pure or Applied) is one of the activities the program supports: that’s the “SR”. But by far the larger share of the pay-outs of this program go to Experimental Development (the “ED”). If your work includes creating new products, or improving your old ones, you are performing product development. The key question is whether this development is experimental in nature.
I’m not sure I follow. Isn’t any development process “experimental”?
In a sense, yes. But what this program is trying to encourage is development that advances the technology base of Canadian businesses and makes them more competitive in the global marketplace. The work has to meet these criteria: it seeks a technological advance; it attempts to resolve a technological uncertainty; and, it involves systematic investigation by appropriately qualified people.
The last criterion is pretty clear. But what qualifies as a “technological advance”?
It’s more than building a better mousetrap: it’s something that creates knowledge that advances our understanding of some aspect of science or technology that goes beyond the standard practice in the field.
But any development involves uncertainty, and may fail. Doesn’t this make any development project eligible?
The key factor determining eligibility is the nature of the uncertainty, and the reasons for possible failure. Technological uncertainty means that whether the desired result can be achieved, or how to achieve it, is not known or cannot be determined from generally available knowledge or experience in that field of science or technology.
I wouldn’t call my product developers very systematic, but they always seem to come up with improvements anyway. Is that “systematic investigation” criterion important?
The belief is that true scientific and technological advances come about by methodical, planned investigation, not by random trial-and-error or luck. But in fact your developers may not be working quite as haphazardly as you (and even they) may think.
It appears we do indeed carry out what would be considered “experimental development”. Does this mean I can claim a credit on all my expenses?
You can only claim for “eligible SR&ED work”, work done to achieve a technological advance in your field of expertise. Other business activities, such as market research, sales promotion, quality control and other commercial production activities, as well as routine development using standard practice, would not be considered eligible.
We’re a small start-up company: until our development is complete, we have no taxable profits, just expenses. How will a tax-credit scheme help us?
If your business is a Canadian-controlled private corporation with less than $400,000 taxable income in the previous year, you may be eligible to receive a refundable investment tax credit (ITC) of 35% or more of your qualified SR&ED expenditures. You may receive it even if you have no taxable income.
I think I have a general idea of the program, but I’m sure it is more complicated when you get down to specifics. Is it a lot of work to claim these credits?
This was only intended to give you a very general overview of the SR&ED program — just enough to help you decide whether to consider claiming.
The Strategy
If you believe that you are eligible for making a claim, you should pursue the matter further. Visit the CRA website, or contact a knowledgeable consultant for more information.
Links
http://www.cra-arc.gc.ca/taxcredit/sred/menu-e.html [57]
March 2006
The federal government and many of the provincial governments provide incentives through the taxation system to individuals and companies that perform scientific research and experimental development (SR&ED) in Canada. These incentives take the form of tax credits, and accelerated or additional tax deductions for expenditures made on SR&ED.
Where SR&ED is conducted by in Canada, the expenditures are deductible as a regular business expense, and also generate substantial tax credits. These tax credits range from 20% of the expenditure, to almost 50%, in favourable circumstances. Often these credits are refundable (even if no taxes have been paid), and thus offer a critical source of funding for many companies.
SR&ED as a term is defined in the Income Tax Act. The term is defined to mean a systematic investigation or search carried out in a field of science or technology by means of experiment or analysis. A systematic search would normally encompass a process by which a hypothesis is formulated or a technological objective is set , a methodology is devised for testing whether the technological objective is met, the tests are performed, the results are observed, and conclusions are drawn. Systematic searches are often performed by skilled individuals who wear the white coats, but also can be performed by individuals in overalls on a shop floor. The qualification of the individuals to do the work, and the systematic search itself is often referred to as the technological content of a project.
SR&ED is defined to include basic research, applied research and experimental development. Experimental development is defined to be work undertaken for the purpose of achieving technological advancement for the purpose of creating new, or improving existing, materials, devices, products or processes. Work need not be revolutionary. Eligible work includes incremental improvements to existing technology.
Activities such as market research, sales promotion, quality control, routine testing, social science or humanities research, prospecting for natural resources, style changes, routine data collection and commercial production activities are not included in the definition of SR&ED.
A key part of assessing whether a project is an SR&ED project is whether it was undertaken for the purpose of achieving technological advance. A technological advance is generally understood to be the discovery by the taxpayer of technical knowledge that advances their understanding of scientific relations or technologies. The requirement for a discovery implies that there is an unknown or uncertainty of a technological nature at the beginning of a project which will be resolved through the systematic investigation process.
SR&ED activities are also defined to include support work or linked activities undertaken by or on behalf of a taxpayer with respect to engineering, design, operations research, mathematical analysis, computer programming, data collection, testing or psychological research, where the work is commensurate with the needs and directly in support of core scientific research and experimental development activities.
In 1994 the Auditor General reviewed the operations of the SR&ED program. Although somewhat dated, the report provides some incite into the type of activities being claimed. Included in the report on the review were lists of some projects that received tax incentives under this program. A few examples are summarized below:
The Strategy
The federal government provides more than one and a half billion dollars in funding towards claims made under the SR&ED tax credit program. It is estimated that there is almost three and a half billion dollars in funding that goes unclaimed, because companies are not aware of the program, or are not aware of the types of activities that are eligible for funding. All companies should review their activities to determine their eligibility under this program.
Links
Updated March 9, 2006
Ontario provides an innovation tax credit (the OITC). The credit is earned at a rate of 10% on current expenditures and 4% on capital expenditures for research and development carried out in Ontario. The credit is fully refundable, and companies can receive a refund even where they have no liability to pay Ontario corporate income tax. An Ontario tax return must be filed to claim the credit.
The rules have gone through a number of changes since their introduction. What appears below are the changes, and thier effective dates.
For Taxation Years Ending Prior to May 4, 1999
To be eligible for an OITC, for taxation years prior to May 4, 1999, the claimant had to be a small to medium-sized Canadian controlled private-corporation (CCPC). The federal taxable income of the claimant corporation and its taxable capital (for federal large corporations tax (LCT) purposes) in the preceding year could not exceed $200,000 and $10,000,000, respectively. Where a corporation exceeded these thresholds, the annual limit on qualifying expenditures was phased out on a graduated scale.
For Taxation Years Ending After May 4, 1999 and before 2003
he Ontario government made a number of changes to these rules that affected taxation years ending after May 4, 1999. Included in these changes was the extension of the availability of the OITC to all public and private companies. Prior to that date, foreign controlled and publicly controlled companies did not earn OITCs.
Prior to the change the phase out of the OITC started when a corporation’s taxable capital for federal LCT purposes exceeded $10,000,000. After the effective date the federal taxable capital for LCT purposes is no longer be a limiting factor. Corporations are eligible to claim the full OITC where they have up to $25,000,000 of taxable paid-up capital for Ontario capital tax purposes. The annual limit on qualifying expenditures is now subject to a phase-out when taxable paid-up capital is $50,000,000 or more.
These measures apply to taxation years ending after May 4, 1999 and the benefits are prorated for taxation years that straddle May 4, 1999.
Effective December 9, 2002
Effective December 9, 2002 associated non-resident corporations with no permanent establishment in Canada were required to be considered part of an associated group.
For Taxation Years Ends After December 31, 2002
Public and private corporations may claim the OITC.
In order to be eligible for the maximum OITC of $200,000 a corporation must have at least $2,000,000 of qualifying expenditures eligible for the OITC. For this purpose current expenditures are counted at 100% and capital expenditures are counted at 40%. Also, the Ontario taxable paid up capital of the corporation must be less than $25 million and federal taxable income in the preceding taxation year of the corporation must be less than $300,000. The maximum OITC is reduced to zero on a straight line basis for prior year federal taxable income levels of between $300,000 and $500,000 and prior year Ontario taxable paid up capital levels of between $25 million and $ 50 million.
Where the corporation is part of an associated group the federal taxable incomes and the Ontario taxable capital levels of all corporations in the group must be considered. Note, associated non-resident corporations with no permanent establishment in Canada must be considered in determining eligibility for the OITC. Special rules apply to credits unions and insurance companies.
For Taxation Years Ended After March 22, 2004
The federal goverment relaxed the associated rules for the purposes of determining the expenditure limit where two corporations are associated solely because they are both controlled by any two persons. Ontario adopted this same approach.
The Strategy
These changes added many foreign corporations and public companies to the list of eligible OITC claimants. All companies performing R&D in Ontario should consider the applicability of these tax credits to research projects that were underway on or after May 4, 1999.
Links
Web Sites
BC - http://www.rev.gov.bc.ca/itb/Bulletins/cit_007.pdf [65]
SK - http://www.gov.sk.ca/finance/taxation/rtrbulletin2002.pdf [66]
MB - http://www.gov.mb.ca/iedm/invest/busfacts/redev/research5.html [67]
ON - http://www.2ontario.com/facts/fact11.asp#2 [68]
PQ - http://www.investquebec.com/en/index.aspx?page=339 [69]
NB - http://www.gov.nb.ca/nbfirst/rd/credit.htm [70]
NS - http://www.gov.ns.ca/finance/taxpolicy/taxcredits/rd.aspl [71]
NL - http://www.gov.nf.ca/fin/scientific.html [72]
YK - http://www.economicdevelopment.gov.yk.ca/general/rdtaxcredit.html [73]
Tax Credit Forms
BC - T666 [74]
SK - Schedule 403 [75]
MB - Schedule 380 [76]
ON - Ontario Innovation Tax Credit (OITC) Claim Form [77]
PQ - Deduction Respecting Scientific Research and Experimental Development Expenditures
NB - Schedule 360 [84]
NS - Schedule 340 [85]
NL - Schedule 301 [86]
YK - Corporate form Schedule 442 [87]
Individual form Schedule 1232 [88]
This article has been moved to R&D Tax Incentive Rates Across Canada [89].
Where R&D is conducted in Canada, the expenditures are deductible as a regular business expense, and also generate substantial tax credits. These tax credits can represent from 20% of the expenditure, to almost 50% in favourable circumstances. Often these credits are refundable (even if no taxes have been paid), and thus offer a critical source of funding for many companies.
The large variability in the tax credit rates noted above comes from a number of factors. In essence, these factors all relate to policy decisions by Federal and Provincial tax authorities to increase incentives for smaller, Canadian controlled companies. Provincial incentives generally reward companies for only the work performed within that province. Provincial incentives are available in all provinces except P.E.I., Nunavut and Alberta.
The rate at which a specific company earns tax credits is calculated based primarily on the following factors:
Once the expenditures eligible for SR&ED tax credit are determined by Canada Revenue Agency reviewers, Provincial tax authorities generally accept these amounts. The product of the qualifying expenditures and the appropriate tax credit rate, governs the amount of the tax credit/refund. The mechanics of the process are a bit confusing at first, but not difficult to understand. Numerous rules have evolved over the long history of the program, and the various provinces provide credits in different manners. A summary of the credits for expenditures made in a province is given in the table presented below.
Starting first with the federal credits, they are earned at a rate of either 20% or 35% of the expenditures. The rate depends on the company’s prior year’s corporate group’s taxable income, and whether it is a Canadian controlled private corporation (CCPC) or not.
The federal tax credit rates can be summarized as follows:
| Company Status | Tax Credit Rate |
| CCPC, taxable income < $500,000 | 35%Z |
| Others | 20% |
A CCPC may earn a 35% tax credit on the first $2 million of expenditures, and 20% beyond this amount. Eligibility for the 35% rate in a given year is determined by the prior year taxable income. If a CCPC earns between $300,000 and $500,000, the $2 million expenditure limit is gradually reduced. Companies or associated company groups with taxable capital in excess of $15 million are not eligible for the 35% rate. Non-CCPC’s include any public companies, foreign owned ones, partnerships, and individual taxpayers.
Based on the detailed breakdown of costs allowed by the Canada Revenue Agency at the federal level, the provinces then apply their tax credits. Some provinces apply a flat credit rate to all expenditures for all companies. Quebec distinguish between CCPC’s and other companies. Quebec provides a generous incentive, but primarily only on the labour component of SR&ED. Further differences between provinces occur in the treatment of capital expenditures, the refundability of credits, and whether the tax credit is considered government assistance (affecting the credit earned at the Federal level), etc.
Be aware of the large variations in SR&ED tax credit and refundability due to company size (net income), and the location of research activities within Canada. In the planning of your research consider possible changes in corporate structure and research locations. Minor changes in your business plans may well result in substantially larger credits.
| Province | Rate | Refundable? | Available To? |
| New Brunswick | 15% | Yes | All Corporations |
| Newfoundland | 15% | Yes | All Corporations |
| Nova Scotia | 15% | Yes | All Corporations |
| Prince Edward Island | 00% | No | Not Available |
| Ontario[1 [124]] | 10% | Yes | See Note 1 [125] |
| Quebec [2 [126]] | 17.5% or 37.5% | Yes | See Note 2 [127] |
| Saskatchewan | 15% | No | All Corporations |
| Manitoba | 20% | No | All Corporations |
| British Columbia[3 [128]] | 10% | Yes | Smaller Corporations |
| Yukon Territory | 00% | Yes | Not available |
| Nunavut | 00% | No | Not available |
| Northwest Territories | 00% | No | Not available |
| Province | Small CCPC | Larger CCPC or non-CCPC | ||||
|---|---|---|---|---|---|---|
| Provincial credit | Federal credit [1 [129]] | Combined credit | Provincial credit | Federal credit [1 [130]] | Combined credit | |
| AB | 0% | 35.00% | 35.00% | 0% | 20% | 20% |
| BC | 10.00% | 35.00% | 41.50% | 10% | 18% | 28% |
| MB | 20.00% | 28.00% | 48.00% | 20% | 16% | 36% |
| NB | 15.00% | 29.75% | 44.75% | 15% | 17% | 32% |
| NL | 15.00% | 29.75% | 44.75% | 15% | 17% | 32% |
| NS | 15.00% | 29.75% | 44.75% | 15% | 17% | 32% |
| NU | 0% | 35.00% | 35.00% | 0% | 20.00% | 20.00% |
| ON [2 [131]] | 10.00% | 31.50% | 41.50% | 0% | 20% | 20% |
| PEI | 0% | 35.00% | 35.00% | 0% | 20% | 20% |
| PQ | 37.50% | 21.87% | 59.37% | 17.50% | 16.50% | 34% |
| SK | 15.00% | 29.75% | 44.75% | 15% | 17% | 32% |
January 2001 Updated March 2006
The Income Tax Act allows a company that incurs losses, to apply those losses to retroactively decrease the taxable income that it reported in any of the three prior years. This provision can allow a company to claim a refund of some prior years’ tax payments.
The level of taxable income of a Canadian controlled private corporation (CCPC) that meets a certain size test, affects its tax credit rate. In the past, certain CCPCs were able to retroactively increase their federal SR&ED tax credit rates for a particular year from 20% to 35%, by carrying back subsequent years’ losses. Some of these companies received substantial additional refunds of investment tax credits by doing this. The ability to raise the investment tax credit rate by applying loss carry backs was blocked for taxation years ending after 1996.
Companies that are CCPCs are eligible for an additional 15% credit, over and above the standard 20% rate on some of their SR&ED expenditures, if they meet a certain size test, and if the total of their and all associated companies’ combined taxable incomes in their last taxation year of the preceding calendar year, is not $500,000 or more. When determining taxable income for the purpose of the rules, a taxpayer is to ignore “specified future tax consequences”. The definition of specified future tax consequences includes the effect of loss carry backs.
CCPCs that follow a regular policy of calculating their taxable income within 180 days of year end, and paying wage bonuses to shareholder managers within that same time period, to keep income below $300,000, will generally not be affected by these rules. However, companies that wait beyond 180 days may find that when they calculate taxable income, they are over the threshold amount, and that their rate for the following year will be reduced from 35% to 20%, on all or part of their expenditures.
The Strategy
Calculate taxable income within a short period following your year-end. If you have taxable income over $300,000 consider paying bonuses within 180 days of year-end to reduce it. Consider the amount of anticipated SR&ED expenditures in the following year in making such a decsion.
In the article entitled Revised Guidelines for Software Development Projects, we discussed generally the technical guidelines of claims as related to software projects. In this article we will expand on one of the three necessary eligibility criteria, namely that of Technological Advancement. Subsection 248(1) of the Income Tax Act, states: “Scientific Research and Experimental Development means systematic investigation or search that is carried out in a field of Science or Technology by means of experiment or analysis and that is
(a) basic research, namely, work undertaken for the advancement of scientific knowledge without a specific practical application in view, (b)applied research, namely, work undertaken for the advancement of scientific knowledge with a specific application in view, or (c) experimental development, namely, work undertaken for the purpose of achieving technological advancement for the purpose of creating new, or improving existing, materials, devices, products or processes, including incremental improvements thereto, …”.
Each of the three components of the definition requires that a scientific or technological advancement must be sought. In general, an advancement is the discovery of new scientific or technological knowledge that increases (the taxpayer’s) understanding of scientific relations or technologies. It is important to note that simply creating new software products or processes is not, in and of itself, technological advancement. It is HOW (by what process) the advancement was achieved that is important. In this case, it must be through a process of experimentation or analysis where there is technological uncertainty. It is key to understand the difference.
In our experience, one area where software claims are denied, is because they have been submitted on the basis of having developed a new software product or a software product with new functionality or features. To make the case, they should have been submitted on the basis of achieving a technological advancement which was embodied in the new software product. It is up to the claimant to identify the difference. Fortunately, the new Information Circular (I.C. 97-1) provides some useful examples of technological advancements (which have been paraphrased below):
1. Development of a new approach to perform text searches in large distributed data bases. (Advances knowledge on text search methods).
2. Research into possible image compression approaches to solve a specific technological uncertainty. None were found. The claimant then developed, tested and discarded several compression algorithms. (Advances knowledge on compression approaches. Note this meets the criterion even though they failed).
3. Development of a set of methods for bridging multiple teleprocessing monitors and data base management system environments while ensuring data synchronization. (Advances knowledge of processing in a complex environment).
It also lists some examples which are NOT technological advancements as stated (again paraphrased):
1. Development of a new software product for a retail environment including algorithms for the calculation of various applicable taxes. (Improved product functionality, not technological advancement).
2. The claimant used a new operating system whose features represented technological advancement for the company compared to another operating system previously used. (Use of, or learning about existing technology is not an advancement).
3. Development of a new tape driver operating under UNIX. (Standard and routine programming for an experienced programmer).
4. Development of a new software system for computer aided instruction embodying innovative object oriented programming concepts and operating in a heterogeneous RISC workstation/PC environment. (On review of the claim, it was found that the development was achieved using industry available application programming tools. Additionally, the field of computer-aided instruction is in an ineligible field of the social sciences).
Since technological advancement is one of the MUST criteria, very carefully identify the advancements you are seeking so as to be sure they are not simply routine development, use of existing tools, improved product features or are activities in an ineligible field of work. Consider the advice of a knowledgeable consultant.
Revenue Canada will allow SR&ED claims where the taxpayer demonstrates three requisite criterion - technological advancement, uncertainty and content. If a project fails to satisfy one of these three criteria it will disqualify as SR&ED. In this article we identify issues related to technological content. We have discussed the other two criteria, namely uncertainty and advancement, on other pages in this web site.
The Income Tax Act defines SR&ED to embody, among other things, a systematic investigation or search in a field of science or technology by means of experiment or analysis. Revenue Canada takes this to mean that a valid SR&ED project must exhibit technological content. Further, the technological content requirement has three elements; a scientific or experimental methodology, documentation and the experience of personnel. The first two, methodology and documentation have been sanctioned by the courts. The third, experience of personnel, has yet to be tested in the courts.
Experimental or analytical methodology
Revenue Canada regards the methodology requirement to incorporate a systematic search or investigation involving the formulation of a theory or hypothesis, testing this hypothesis by experiment or analysis, and a statement of logical conclusions. The process of experimentation or analysis includes all activities that flow systematically from the definition of technological requirements to testing and documentation. According to Revenue Canada the following activities will qualify as SR&ED when they are necessary and sufficient in attempting to achieve technological advancement to resolve the technological uncertainty.
Documentation
Revenue Canada requires that documentation must be prepared on a contemporaneous basis to demonstrate that SR&ED activities have actually occurred. For example, the types of documentation they would expect to see on an audit of an information technology project would include:
Revenue Canada stated policy is that the appropriate detail and sophistication of documentation will depend on the size of the taxpayer’s organization and the magnitude of the claim. Smaller projects may have less documentation than larger projects, and smaller companies are to be given more leeway in these requirements. However, if there is no documentation or record to substantiate the project, the claim will be rejected.
Experience of Personnel
In order to meet the experience requirement Revenue Canada takes the position that the personnel responsible for directing theSR&ED project must have the professional (technical) skills or experience commensurate with the needs of the project.
Specific Software Issues
Software development involves a systematic process progressing from operational or system analysis, through functional specifications to technical specifications, programming, testing and debugging prior to commercial use. It could be argued that software development always meets the methodology element of the technological content criteria. However many claims are rejected because they do not shown or cannot show that the methodology was experimental or analytical in nature.
In order to support a valid claim, records should indicate that the work should show that the work differs from routine development. Evidence of differentiation between routine and experimental work is the existence of technological uncertainty toward which the work is addressed, and evidence that there have been iterative attempts to resolve this uncertainty.
Where a problem is resolved successfully on the first attempt, the activities are generally considered to be routine development. In such cases there is a greater need to substantiate an experimental or analytical methodology. Also, where an inexperienced developer might use an iterative process, their work would not qualify on the basis of inappropriate experience.
In additional, there can be audit issues where projects make use of powerful development environments and tools which can forego the need for formal development methodologies. This often leads to inadequate documentation of the SR&ED activities and hence the rejection of a claim. Even where experimentation is conducted using these development tools there is a risk that the work may be judged to be “blind trial and error”, and not involving a systematic investigation.
Revenue Canada generally takes the position that user interface development, adding new functionality, performance enhancement projects, porting or migrating to new platforms, or work on management information systems and projects that involve issues of scale will generally be considered in the nature of routine development. Where these types of projects involve qualifying work, it is useful to substantiate a claim at the time of an audit, with a formal development methodology, along with contemporaneously prepared documentation.
It would be prudent to ensure that appropriate documentary records are created. Revenue Canada expects to see such records as project plans, design review documents, project notebooks, evidence of major phases of the development showing the iterations, test plans and test results, and personnel time and activity records. Further these records must differentiate between SR&ED activities including the needed support activities and other non-eligible routineactivities. Other supporting evidence as necessary and appropriate may be accepted. Electronic versions are acceptable.
To have a valid SR&ED project claim, Revenue Canada looks for the existence of three criteria, Scientific or Technological Advancement, Scientific/ Technological Uncertainty and Scientific/ Technological Content.
Revenue Canada’s administrative guideline on software development, IC97-1, states “A scientific or technological uncertainty in software development arises when the solution, or method of arriving at the solution, is not readily apparent to appropriately skilled and experienced software developers after they have analyzed the problem using generally known software development techniques”.
It is important to understand the difference between technical uncertainty and technological uncertainty. Technical uncertainty, which will not meet the RCT criterion, can be any technical question that may be present if proper analysis of a problem has not been conducted, such as the non-existence of a functional specification, or perhaps a question on how to perform complex mathematical calculations. Both these issues can be resolved by proper technical analysis. In other words, there is nothing about the technology which renders these questions technologically uncertain. It is well known that computing technology can perform complex mathematical calculations. If the mathematical representation can be written, the computer can be programmed to execute it. Nor does the absence of a functional specification, in and of itself, imply a technological barrier exists. It simply implies some necessary analysis has not been performed. Note that these two simple examples exist at the level of the application not at the level of the technology.
A technological uncertainty, on the other hand, implies that once a technical analysis has been done (say a functional specification has been prepared or the mathematical equations have been written) and there is an uncertainty as to whether it is technologically feasible to achieve the objective, or it is unknown how it can be achieved using standard approaches, then we have a valid uncertainty for an SR&ED claim.
Several examples of technological uncertainty have been offered in IC 97-1. The first example speaks to an uncertainty by a data base development company that needed to achieve new high volume real time data availability and data base integrity objectives in their technology which their existing approach was unable to achieve. There was no standard approach known in the industry that the vendor could use to solve this problem.
Another example given is an uncertainty that was created by the unavailability of a commercial vendor’s proprietary information which was needed by the claimant to achieve an interprocess communications objective.
A third example cites an uncertainty about viable directory services for locating distributed data in a network of thousands of servers. There was uncertainty as to whether any approach could solve this problem.
IC 97-1 also gives several examples of uncertainties which do not meet the technological uncertainty criterion.
The first cites the claimant to be uncertain as to the nature of the user queries and this gives rise to an uncertainty as to a feasible design. This is not technological uncertainty but an uncertainty about a business process which, once resolved, would eliminate the technical question. If however, the claimant went on to define the nature of the queries and attempted a design based on this knowledge and subsequently discovered a technological problem to exist which on the surface was not resolvable based on standard knowledge available, then that would be eligible uncertainty.
A second example cites a claimant’s uncertainty as to whether some commercially available software technology will meet its own published specifications and this gives rise to an uncertainty by the claimant as to how to deal with this in their development project. This is a business risk and simple testing can resolve the technical question. If, however, the claimant then went on to attempt to resolve any existing shortcomings and discovered standard approaches would not work, that again would present eligible uncertainty.
A third example cites a highly complex mathematical calculation must be performed and the claimant is unsure whether they can do that. This speaks more to inexperience than it does to technological uncertainty. Again, if the claimant attempted a resolution and discovered they were not able to achieve the needed precision or speed using standard industry knowledge or approaches. This again would give rise to a valid uncertainty.
Note that the three examples of ineligible uncertainty as stated all might actually be eligible if presented later in the development process, that is, after the industry standard approach has been shown to fail.
Many development projects have both technical and technological uncertainties. Be careful not to jeopardize eligible project claims by inappropriate statements which speak to technical or business risks and not to technological risk.
The long awaited Science and Technology review for software development projects has been completed - and not much is different - save some new administrative guidelines [153]. Indeed, (RCT) took some pains to point out that after a thorough review of the Act, it was concluded that the existing legislation adequately covered software development. If there was a problem, it would be addressed through more thorough enforcement of existing rules - particularly the requirement for adequate documentation.
RCT in conjunction with the Canadian Advanced Technology Association (CATA) delivered a series of seminars across Canada to inform interested parties on the new guidelines. Members of Braithwaite attended several sessions in different venues.
The seminars followed a predictable agenda. First there was the usual material about Regulation 2900 highlighting the three necessary criteria - Scientific or Technological Advancement, Uncertainty and Content.
ADVANCEMENT - It was pointed out that the advancement criteria for software development could only be met if new knowledge was produced in fields of computer science or information technology. In other words, development of a new software product per se would not meet this criterion.
UNCERTAINTY - The uncertainty must be stated at the outset of the (SR&ED) project and the solution or method of arriving at the solution must not be readily apparent for knowledgeable practitioners. It is expected the claimant should know what is common knowledge in the field. System uncertainty was also discussed. It is eligible but must also create an advancement.
CONTENT - This criterion is met if the process by which the solution was arrived at shows evidence of a systematic search or investigation (for the advancement) by means of experiment or analysis performed by appropriately skilled people. The analysis must be theoretical analysis of a scientific or technological problem and not routine systems or requirements analysis.
This was followed by a presentation defining the SR&ED project. A SR&ED project starts at the point where the Uncertainty is defined and stops at the point where all steps to its resolution are known. A project also stops if the original technological objectives are aborted or changed.
A model was used to help define the differences between a SR&ED project and a business initiative. At the base is the field of Computer Science. The next level is Information Technology. On top of these two are three more layers - the business process, the firm and finally the commercial environment. Only projects meeting the three criteria in the bottom two layers will be considered.
There was also a clearer definition of the software Industry segments. These included shrink wrap software developers, custom application developers, systems integrators, software development as a part of another product and finally scientific/technical software. All of these, including MIS developments, may have eligible projects if they meet the three criteria. In other words, there are no excluded categories of eligible software development.
These new guidelines contain a lot of information and will provide the reader with some good insights. Review the new guidelines before filing a new claim, or before attending an audit meeting with RCT.
Since RCT has agreed the program still applies to software development projects, review all such projects for SR&ED content, with a view to filing a claim. Particularly important would be a review of software development done by financial institutions who did not claim during the moratorium period.
The Income Tax Act defines Scientific Research and Experimental Development (SR&ED) to include core work including basic research, applied research and experimental development and support work including as engineering, design, operations research, mathematical analysis, computer programming, data collection, testing or psychological research where the support work is commensurate with the needs and directly in support of the core work. One of the activities specifically excluded from the definition is work with respect to prospecting, exploring or drilling for, or producing, minerals, petroleum or natural gas.
CRA Application Policy 95-02 addresses how they will apply this exclusion to companies in oil & gas and mining industries. In this paper they attempt to define the boundary between SR&ED and work with respect to prospecting, exploring or drilling for, or producing, minerals, petroleum or natural gas.
CRA indicates in that paper that the legislative intent of the exclusion is to not include as SR&ED any work where costs qualify for Canadian exploration expense (CEE), Canadian development expense (CDE), foreign exploration and development expenses (FEDE) and Eligible depletion allowance (EDA) treatment. (CEE, CDE, FEDE and EDA are terms defined in the Income Tax Act.)
Support work that is undertaken for the purpose of prospecting, exploring, drilling for or producing minerals, petroleum or natural gas is not considered SR&ED. Support work that is commensurate with the needs and directly in support of core work is considered to be eligible.
Usually the boundary is fairly easy to determine. Work that meets the SR&ED criteria of technological uncertainty and technological advancement is likely to be carried out for the development and testing of new and improved techniques and processes, not for the purpose of prospecting, exploring, drilling for or producing minerals, petroleum or natural gas. Similarly work that is carried out for the purpose of prospecting, exploring, drilling for or producing minerals, petroleum or natural gas is likely to use techniques and processes that are standard practice in the industry and therefore do not involve technological uncertainty and technological advancement.
The Application Policy also addresses the treatment of field pilots and output from testing done to verify technological advancement in oil & gas and mining industries. These issues are treated essentially the same as pilot plants in other industries.
Field pilots will generally be non-commercial scale facilities in which new and improved processes are systematically investigated under conditions simulating full production. Construction and operation of a field pilot plant is eligible experimental development provided the principal purpose is to obtain engineering and other data on applications, conditions, interactions, relationships, equipment, environmental effects etc. for evaluation and development of the process.
Experimental development of equipment or processes in the Oil & Gas and Mining industries may also require development and testing in commercial field facilities. SR&ED treatment of costs related to production output from tests in commercial or pilot facilities is dependent on whether the output is sold and whether or not such sales constitute ineligible commercial activity. Factors that will determine commercial activity in the oil & gas industry include production levels and the number of wells involved. Commercial activity decisions and SR&ED cost allocations are determined on a case by case basis.
The Application Policy uses seven projects as examples to illustrate the application of SR&ED guidelines. Key questions addressed in the examples are:
- Does the work satisfy the three SR&ED criteria of technological uncertainty, technological advancement and technical content?
- Is the testing carried out in a field pilot or a commercial facility?
- Was the work undertaken purpose of prospecting, exploring, drilling for or producing minerals, petroleum or natural gas?
All of the work in project 1 was SR&ED, some in projects 2 and 3, and none in projects 4-7.
Project 1 was concerned with the development of an in situ cyclic steam stimulation process for oil recovery from the Athabasca oil sands. The test facility was a field pilot because it was not of commercial scale and its primary purpose was to investigate and develop the cyclic steam stimulation process. The limited number of injection, production, temperature monitoring, water source and water disposal wells was considered to be part of the research facility. Factors investigated included inter-well communication and interaction, heat and pressure distribution, heat sinks, vertical fracture formation, steam placement, shale breaks, steam rates, steam and water volumes, foam sealants, and formation heaving. All of the work in project 1 was SR&ED because it satisfied the three SR&ED criteria. The project did not fall under the provisions of paragraph 2900(1)(h) because the primary purpose was process development, not to increase oil production rate or recovery.
Project 2 was an unsuccessful multi-year investigation of the viability of a novel steam drive technique for enhanced oil recovery in the McMurray formation. Oil recovery during the course of the project was minimal. The test facility was a field pilot because it was not of commercial scale, oil recovery was minimal, and its primary purpose was to investigate and develop the steam drive process. Core activities were related to horizontal steam drive, producing vertical, steam injector slant and vertical, temperature observation and water disposal wells and to seismic work on the aforementioned wells. All core activity work was SR&ED because it satisfied the three SR&ED criteria. Core activities did not fall under the exclusions because the primary objective was to investigate the novel steam drive process, not to increase oil production or recovery. Non-core activities were related to property or lease evaluation rather than the experimentation process. Non-core activities were not SR&ED because they were routine (unrelated site and facilities preparation), fell under the exclusion provisions (core hole program, site seismic evaluation, and EM survey), or were not directly in support of the SR&ED work (gravel evaluation for road building).
Project 3 was concerned with development of a process for re-entering existing vertical wells to convert them to horizontal wells. Development of cutting tools, a cutting process, and drilling equipment to effect the re-entry and horizontal well conversion was SR&ED because it satisfied the three SR&ED criteria. Drilling of five horizontal wells in current producing wells was not SR&ED because the purpose was to increase the production rate and it therefore fell under the exclusion provisions.
Projects 4-7 were concerned with:
- Application of horizontal re-entry technology on existing wells to remedy high water production in wells drilled too close to the oil/water contact.
- Under-balanced drilling of horizontal sections to reduce well bore damage during drilling of a conventional well.
- Drilling and completing a horizontal well.
- Application of CO2 flooding to increase production in some producing wells and drilling of horizontal wells in a fractured reservoir.
None of the work was SR&ED because all involved application of techniques and technology that were standard industry practice. Therefore the work did not satisfy the technological advancement and uncertainty criteria. All of the work also fell under the exclusion provisions because the primary purpose was to produce petroleum or increase its production.
Where the boundary between eligible and ineligible work is not obvious, a careful analysis of the rules are required. Where the claimant can make a case for eligible work, the work should be claimed and the case should be made in the technical submission to CRA.
There are number of issues related specifically to filing SR&ED tax credit claims within the Machinery and Equipment Manufacturing Industry. CRA has prepared an application paper [159] that discusses some of these issues. The paper (IC 94-2) is intended to clarify what constitutes SR&ED within this industry. In practice, there are conceptual issues that are complex and do not lend themselves to simple definition. Some of these are:
Determining project eligibility for SR&ED tax credits
It is not relevant whether the equipment manufactured is sold, or transferred to production. This is important because people often start with the premise that SR&ED eligibility is limited to projects that experienced significant cost overruns, or which failed i.e. could not be sold or transferred to commercial production. CRA’s position is that “the subsequent commercial sale or use of the resulting product, device, or process, is not a factor when determining project eligibility, since it is not relevant to the intrinsic eligibility of this work” (CRA IC 94-2 s3). It is conceivable a project could be at or below budget in terms of cost and still qualify for SR&ED tax credits. The ultimate success of the project and the amount of money spent are indicators that may bear on deciding if the project met the requisite technical criteria, but they are not conclusive.
Keep an open mind. Do not limit thinking to only projects which experienced significant cost overruns, or which failed.
Determining the “envelope of SR&ED”
Only activities within the “envelope of SR&ED” potentially qualify for SR&ED tax credits. Defining the size of this envelope involves considering several factors. The beginning of a project typically occurs when the technological objectives are determined. Few companies will formally define a hypothesis and test it in the classic scientific model sense. CRA recognizes that intuitive thought can replace a formal hypothesis if there is a concept that can be formalized to form technical objectives (CRA IC 94-2 s2). The development cycle may involve several iterations of machine versions or components. Projects may stop and start again over time. Completing a project to arrive at a conclusion may require field-testing. This would typically be at or near the conclusion of the project.
Definition of the “envelope of SR&ED” requires careful thought. The size of a claim is dependent on the size of the envelope. Consider the boundaries of the envelope in defining the scope of your SR&ED project.
Start up production costs
SR&ED work must be distinguished from troubleshooting. CRA takes the position that “the work generally associated with trouble-shooting, debugging, and fine-tuning after the start-up of any new equipment, process, or technology…is ineligible” (CRA IC 94-2 s4.8). However, work done after the start up of new equipment may be directed towards resolving technological uncertainty. The work may be done with the goal of achieving advancement in technology. Where work on resolving technological uncertainty is done in a systematic manner for the purpose of achieving technological advancement, that work will likely be considered SR&ED.
Where start up is particularly problematic, there may be a case to be made that SR&ED work has commenced or is ongoing. Review the characteristics of production start up activities for the existence of technological advancement, uncertainty and content.
System Uncertainty
Clients in this industry sector often manufacture equipment that can be rationally viewed as made of a number of major components. Some of these components may be well understood by the client and their manufacture would not in and of themselves generate SR&ED tax credits. However the integration of these components may carry a major element of technological uncertainty; this may be called a system uncertainty. ” Identifying and assessing system uncertainty can be a very complex exercise. A high degree of technical experience and training is required” (CRA IC 94-2 s4.9).
Projects in the machinery and equipment industry may involve system uncertainty. The existence of system uncertainty can significantly expand the envelope of SR&ED.
The IRAP program is directed towards small and medium sized enterprises (SMEs) located in Canada, and is designed to assist in enhancing innovative capabilities. The program is an excellent source of advisory services, information and financial assistance to SMEs that are developing new products, processes or services. Assistance is provided to for profit businesses with less than 500 employees. IRAP is delivered by about 260 Industrial Technology Advisors (ITAs) who are located across Canada.
Specific aspects of the program are further described on the links presented below.
The StrategyGet to know your local ITA. They can be an excellent source of information about the areas of innovation that you are addressing. Consider IRAP funding when you are embarking on new innovation or pre-commercialization projects.
LinksMany of Canada’s banks have knowledge-based industry service groups.
As well as the banks, there are many of mid-markets lenders that provide specific types of funding. Two such lenders with experience in knowledge-based industries, particularly in making loans against the future receipt of SR&ED tax credit claims are:
Most Small and Medium Size Enterprise (SME) management, with rare exceptions, will need some form of outside assistance from time to time. In an effort to inform our readership about various assistance programs, we have featured a number of them in full length articles in previous issues of STRATEGIES. Here we repeat some of them and add new ones as a reference guide to what’s available.
The Business Development Bank of Canada [180] provides both financial and consulting help. Financing comes both as loans as well as venture capital. Call your local BDC office or 1-888-463-6232.
Canada Revenue Agency [181] administers the SR&ED tax credit program. This program provides financial assistance to companies performing R&D in Canada.
Canada Business Service Centres [182] provide information on both Federal and Provincial assistance programs.
Canadian Commercial Corporation [183] guarantees performance on export sales to foreign public sector buyers, such as the US Dept. of Defense, by acting as a prime contractor. Also provided, in conjunction with a local bank, is working capital for work-in-process for export sales. Call your regional office or head office in Ottawa at 613-995-2121.
The Canadian Technology Network [184] (CTN) is a joint initiative between Industry Canada and the National Research Council. It provides information on data, intelligence and services on technology and related business issues.
The Department of Foreign Affairs and International Trade [185] operates the Program for Export Market Development (PEMD). This program provides Canadian companies with annual sales between $250,000 and $10 million with financial assistance in development export markets.
Export Development Canada [186] provides assistance by insuring the receivables of foreign buyers. Contact them at 1-800-850-9626.
Human Resources Development Canada [187] provides targeted wage subsidies to employers hiring individuals having difficulty finding work. HRDC has entered into agreements with most provinces and territories to define how the Benefits and Measures would be delivered in each region. HDRC also sponsors a summer career placement programs [188], a youth employment subsidy program [189], and ON-SITE [190] is an industry-government partnership that assists Canadian organizations by providing educated professionals who gain career-building experience, skills and contacts.
Industry Canada [191] sponsors a number of programs including Technology Partnership Canada [192] which provides loans to develop technology oriented products with export potential for strategic industry sectors. Call 1-800-266-7531; e-mail them at tpc@ic.gc.ca [193]. Industry Canada also has a very large information resource data base called Strategis [194]. Included in Strategis is a list of federal government assistance programs for technology, innovation and licensing [195], and lists of provincial government assistance [196].
The Industrial Research Assistance Program [197] (IRAP) provides financial assistance in the form of grants for R&D projects. Most technical universities and colleges have representatives on staff.
The Intelligent Manufacturing Systems [198] research effort, operating under IMS Canada, is an international R&D effort involving the US, Japan, Canada, Europe, Australia and Switzerland focussed on developing advanced manufacturing technologies. Phone: 613-233-6845 or e-mail: amartel@imscanada.ca [199]
NSERC [200] supports a number of partnership programs [201] including the Idea to Innovation Program [202] which supports to accelerate the pre-competitive development of promising technology and promote its transfer to Canadian companies. The program supports research and development projects with recognized technology transfer potential by providing crucial assistance to university researchers in the early stages of technology validation and market connection.
Ontario Centres of Excellence [203] is designed to make connections between University research and Industry. Each Centre supports university research, develops partnerships, trains qualified graduate students with an industrial orientation, and transfers knowledge and technology to industry. The Centres include Materials and Manufacturing Ontario [204] (MMO), The Centre for Research in Earth and Space Technology [205] (CRESTech), Communication and Information Technology Ontario [206] (CITO), and
Photonics Research Ontario [207].
Ontario Exports Inc. [208] is the lead trade agency of the Ontario Government. By using experienced trade professionals it assists Ontario suppliers of goods and services in developing their export strategies for international markets.
Ontario Ministry of Economic Development Trade and Tourism [209] (MEDTT) supports the Centres of Excellence program in Ontario. Contact them as below.
The Ontario Ministry of Education and Training [210] sponsors the Job Connect Program [211] which will assist employers in reducing costs associated with training a new employee. Job Connect will register job vacancies and help employers find the right person for the job. The Ministry also sponsors the Summer Jobs Services Program [212] which provides a wage subsidy for students 15 to 24 years old (up to 29 for a person with a disability); not currently working for the employer applying for the subsidy (exception: students whose part-time jobs will be increased to full-time while participating in the Summer Jobs Service); and planning to return to school in the fall.
The Strategy
Review all your development efforts and consider obtaining appropriate help from one or more of the above assistance programs.
Links:
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[158] http://www.ccra-adrc.gc.ca/taxcredit/sred/publications/food-e.html
[159] http://www.cra-arc.gc.ca/taxcredit/sred/publications/softguide01-e.html
[160] http://www.cra-arc.gc.ca/E/pub/tp/ic94-2/ic94-2-e.html
[161] http://www.ccra-adrc.gc.ca/taxcredit/sred/publications/plant-e.html
[162] http://www.ccra-adrc.gc.ca/taxcredit/sred/publications/textile-e.html
[163] http://www.tvg.org/
[164] http://www.nrc-cnrc.gc.ca/main_e.html
[165] http://www.braithwaite.ca/nrc_precommercialization_assistance.htm
[166] http://irap-pari.nrc-cnrc.gc.ca/tip_e.html
[167] http://irap-pari.nrc-cnrc.gc.ca/advisoryservices_e.html
[168] http://irap-pari.nrc-cnrc.gc.ca/acrosscanada_e.html
[169] http://www.nrc-cnrc.gc.ca/contactIBP_e.html
[170] http://ctn-rct.nrc-cnrc.gc.ca/home_e.shtml
[171] http://cisti-icist.nrc-cnrc.gc.ca/
[172] http://irap-pari.nrc-cnrc.gc.ca/financialassistance_e.html
[173] http://irap-pari.nrc-cnrc.gc.ca/youthinitiatives_e.html
[174] http://www.royalbank.com/kbi/
[175] http://www2.cibc.com/english/business_services/kbb/index.html
[176] http://www4.bmo.com/business/0,4344,35490,00.html
[177] http://www.bdc.ca/default.htm
[178] mailto:pzilkey@fcbfinancial.ca
[179] mailto:gdalzell@tcecapital.com
[180] http://www.bdc.ca/flash.asp
[181] http://www.cra-arc.gc.ca/taxcredit/sred/menu-e.html
[182] http://www.canadabusiness.ca/gol/cbec/site.nsf
[183] http://www.ccc.ca/index.html
[184] http://ctn-rct.nrc-cnrc.gc.ca/home_e.shtml
[185] http://pemd-pdme.infoexport.gc.ca/pemd//menu-en.asp
[186] http://www.edc.ca/
[187] http://www.cbsc.org/ontario/english/search/display.cfm?Code=2028&coll=FE_FEDSBIS_E
[188] http://www.canadabusiness.ca/ontario/english/search/search.cfm?Keyword=summer career&SearchMethod=And
[189] http://www.cbsc.org/ontario/english/search/display.cfm?code=7079&Coll=ON_PROVBIS_E&Origin=Search
[190] http://www.cbsc.org/ontario/english/search/display.cfm?code=7079&Coll=ON_PROVBIS_E&Origin=Search#2. Special Incentives to Hire You
[191] http://www.ic.gc.ca/cmb/welcomeic.nsf/icPages/Programs#IC
[192] http://strategis.ic.gc.ca/SSG/tp00245e.html
[193] mailto:tpc@ic.gc.ca
[194] http://www.strategis.ic.gc.ca/ic_wp-pa.htm
[195] http://strategis.ic.gc.ca/sc_innov/tech/engdoc/1b1.html
[196] http://strategis.ic.gc.ca/epic/site/sof-sdf.nsf/en/h_so03325e.html
[197] http://www.braithwaite.ca/NRC IRAP.htm
[198] http://www.ims.org/
[199] mailto:amartel@imscanada.ca
[200] http://www.nserc.ca/index.htm
[201] http://www.nserc.ca/professors_e.asp?nav=profnav&lbi=toc_b
[202] http://www.nserc.ca/professors_e.asp?nav=profnav&lbi=b4
[203] http://www.oce-ontario.org/Pages/Home.aspx
[204] http://www.mmo.on.ca/about.htm
[205] http://www.oce-ontario.org/Pages/Home.aspx
[206] http://guide.opendns.com/?url=www.cito.ca&servfail
[207] http://www.pro.on.ca
[208] http://www.ontarioexportsinc.com/oei/redirect.jsp?page=English/About_OEI/Export_Programs_And_Services.html
[209] http://www.ontario-canada.com/ontcan/index.jsp
[210] http://www.edu.gov.on.ca/
[211] http://www.edu.gov.on.ca/eng/training/cepp/aboutjc.html
[212] http://www.edu.gov.on.ca/eng/document/brochure/summerjobs.html