10 January 1995 Ministerial Letter 9433468 - INDIANS WILLIAMS GUIDELINE EXEMPT STATUS

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.

Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.

ADM'S OFFICE (3) ADM 941729

RETURN TO RULINGS, ROOM 303, MET. BLDG.

AUTHOR
SUBJECT OR CORPORATE FILE

January 10, 1995

XXXXXXXXXX

Dear XXXXXXXXXX:

I am writing in response to your letter of December 9, 1994, concerning the Indian Act Exemption for Employment Income Guidelines which were issued in June 1994. You have asked for clarification of some comments which were made in my November 18, 1994, memorandum to Mr. J. Purda, Director, Winnipeg District Office, regarding the phrase "employer is resident on a reserve" for purposes of the Guidelines. In particular, you have requested confirmation of your views of criteria which, in any given situation, would satisfy this definition.

It is a question of fact as to whether an organization is "resident on a reserve" so I cannot provide conclusive comments on the general criteria which you have provided in your letter. A review of all of the facts surrounding a situation including the minutes of boards of directors meetings and resolutions or by-laws passed thereat would be required to conclusively resolve this question of fact. This would best be resolved on a case by case basis by a District Office.

As stated in the Guidelines, an employer is resident on a reserve if "the reserve is the place where the central management and control over the employer organization is actually located. The central management and control of an organization is usually considered to be exercised by the group that performs the function of a board of directors of the organization. However, it may be that the real management and control of an organization is exercised by some other person or group. Generally, management and control is exercised at the principal place of business but it is recognized that this function may be legitimately exercised in a place other than the principal administrative office of the organization." Where an organization which would otherwise not be considered to be resident on a reserve is asserting that it satisfies the definition because it holds its board of directors meetings on a reserve, it should generally be considered to satisfy the definition where management and control over the organization is legitimately exercised during those meetings. The location of the residence of the individual board members is not a determining factor. In addition, in our view, the fact that the board of directors meetings are held on different reserves would not, in and by itself, cause an organization to not be considered resident on a reserve.

Though I cannot provide the confirmation which you have requested, I trust that I have explained the Department's position.

Yours sincerely,
Denis Lefebvre
Interim Assistant Deputy Minister
Policy and Legislation Branch

Roberta Albert
957-2100
December 30, 1994