We are writing in response to your emails of August 18 and September 17, 2009, in which you asked for our views
regarding the tax exemption provided by paragraph 149(1)(l) of the Income Tax Act (the “Act”) . We also
acknowledge our telephone conversations regarding this issue (Erskine/XXXXXXXXXX ).
Specifically, you have asked the following questions:
(i) Can an organization that qualifies for an exemption from tax under paragraph 149(1)(l) of the Act compete
against taxable entities?
(ii) Can an organization earn a profit and continue to be exempt from tax under paragraph 149(1)(l) of the Act? Can
an organization intentionally earn a profit, and still be exempt from tax under 149(1)(l), as long as that profit is used
solely for the purpose of supporting its objectives?
(iii) Is it possible for an organization to incorporate under Part III of the Ontario Corporations Act, but not qualify
for the exemption from tax provided under paragraph 149(1)(l) of the Act?
(iv) Does the Canada Revenue Agency (“CRA”) maintain a list of organizations that qualify as non-profit
organizations for purposes of provincial legislation, but do not qualify for the tax exemption provided under
paragraph 149(1)(l) of the Act?
(v) The recent Tax Court of Canada decision, BBM Canada v. The Queen, 2008 DTC 4129 (“BBM”) concluded
that an entity described in paragraph 149(1)(l) of the Act may conduct commercial activity but must conduct this
activity at cost. If the XXXXXXXXXX provided a commercial procurement contract to an organization, and the
organization generated a profit from this activity, would the organization be able to qualify for the tax exemption
provided under paragraph 149(1)(l) of the Act?
If the above questions relate to a specific taxpayer and either a completed transaction or an ongoing situation, you
should submit all relevant facts and documentation to the appropriate Tax Services Office (“TSO”) for their views.
A list of TSOs is available on the “Contact Us” page of the CRA website, http://www.cra-arc.gc.ca. Although we
cannot comment on any specific situation, we are prepared to provide the following general comments, which may
be of assistance.
Our Comments
(i) Paragraph 149(1)(l) of the Act.
Paragraph 149(1)(l) of the Act provides an exemption from tax for the income of organizations that meet all of the
conditions set out in that provision. Among other criteria, the organization is required to be organized and operated
for “any other purpose except profit”; consequently, it is common to refer to organizations qualifying for this tax
exemption as “non-profit organizations”. However, the term “non-profit organization” does not have a specific
meaning for income tax purposes-the Act does not define or use the term “non-profit organization”. For purposes of
this letter we will refer to an organization that qualifies for the tax exemption provided by paragraph 149(1)(l) as a
“149(1)(l) entity”.
Paragraph 149(1)(l) of the Act provides an exemption from income tax for the income of
“...a club, society or association that, in the opinion of the Minister, was not a charity within the meaning assigned
by subsection 149.1(1) and that was organized and operated exclusively for social welfare, civic improvement,
pleasure or recreation or for any other purpose except profit, no part of the income of which was payable to, or was
otherwise available for the personal benefit of, any proprietor, member or shareholder thereof unless the proprietor,
member or shareholder was a club, society or association the primary purpose and function of which was the
promotion of amateur athletics in Canada;”