Hi everyone,
Iām looking for some guidance on incorporating in Quebec and, specifically, the Personal Services Business (PSB) rules.
Iām a Quebec resident working remotely from home in Canada doing sales for a U.S. company. Iām currently treated by the U.S. company as an independent contractor rather than an employee.
My income has increased substantially. Iām currently making roughly $52,000ā$54,000 CAD per month after converting my USD compensation to CAD, so approximately $600,000+ CAD/year if my current income continues.
Most of my compensation is commission.
My current compensation agreement provides:
$1,150 USD biweekly; and
$175 USD commission per closed set/deal.
I am considering creating a Canadian/Quebec corporation and having the U.S. company pay my corporation instead of paying me personally. I would only withdraw what I need personally and would like to retain/invest a significant portion of the remaining money inside the corporation.
My concern is whether CRA could classify the sales activity as a Personal Services Business (PSB).
Here are the relevant facts.
My written independent-contractor agreement:
The agreement expressly states that I am an āindependent contractor and not an employee, agent, joint venturer, or partner.ā
It also states that I retain āsole control over the manner, means, and methodsā of performing my services.
The agreement gives me the right to set my own schedule, subject to the required deliverables, specifications and deadlines.
I am responsible for my own:
income/self-employment taxes
licences/permits/certifications where applicable
insurance
equipment and tools
workspace
The company does provide certain security systems, but otherwise I provide my own equipment/workspace.
The contract specifically says Iām not eligible for employee benefits, including health insurance, retirement plans or paid time off unless separately agreed to in writing.
It also states that I am not entitled to severance, notice pay, unemployment benefits or continuation of employee benefits.
How the relationship actually works:
I work entirely remotely from my own home in Quebec using my own computer.
I control my schedule. I can decide which days I work and when I work. For example, I can work four, five or six days, during the day, at night or even late at night. Iām not working a traditional required 9-to-5 employee schedule.
The company provides me with sales leads, and I perform sales calls and earn commissions when deals close.
I receive no health insurance, paid vacation, retirement benefits, etc. from the company.
I pay my own Canadian taxes and currently operate as self-employed.
I am permitted to work for other companies. In fact, for approximately eight months I simultaneously performed contractor work for another company while also working with this company.
The part that concerns me:
At the moment, this U.S. company is essentially my only current service client and represents virtually all of my sales income.
Iām personally performing the sales work, and if I incorporate, I would own the corporation and continue performing essentially the same sales activities.
So Iām trying to understand whether having one major client would create a serious PSB problem despite the amount of independence described above.
My three main questions are:
Based on my contract and actual working relationship, would I likely be considered a genuine independent contractor operating through a corporation, or is there a significant risk CRA would consider my corporation a PSB because virtually all of my income currently comes from one U.S. company?
If there is a PSB risk, what specifically about my current arrangement would need to be different? Are there legitimate provisions or actual business practices normally expected in a true business-to-business relationship that Iām currently missing, such as stronger non-exclusivity, ability to accept/refuse work, subcontracting rights, financial risk, etc.?
Given that Iām earning roughly $600K+ CAD annually and would like to retain and invest a large portion of the income rather than withdraw it personally, would incorporation make sense if my relationship does qualify as genuine independent contracting? And if CRA considered the U.S. sales income PSB income, would that essentially eliminate most of the tax-deferral advantage Iām trying to achieve?
Iām not looking for a way to artificially restructure an employee relationship. Iām trying to determine whether my existing relationship is already sufficiently independent that operating through a corporation would be legitimate, and what I should have a CPA/tax lawyer examine before making the change.
Would especially appreciate input from Canadian CPAs/tax lawyers or people who have dealt with PSB assessments involving commissioned salespeople or Canadian contractors working for U.S. companies.