Fiducie Financière Satoma v. The Queen

Fiducie Financière Satoma v. The Queen
Court (s) Database
Tax Court of Canada Judgments
Date
2017-06-01
Neutral citation
2017 TCC 84
File numbers
2014-3800(IT)G
Judges and Taxing Officers
Lucie Lamarre
Subjects
Income Tax Act
Decision Content
Docket: 2014-3800(IT)G
BETWEEN:
FIDUCIE FINANCIÈRE SATOMA
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
Appeals heard on October 27 and 28, 2016, at Montréal, Quebec.
Before: The Honourable Madam Justice Lamarre, Associate Chief Justice
Appearances:
Counsel for the Appellant:
Vincent Dionne
Wilfrid Lefebvre
Counsel for the Respondent:
Natalie Goulard
Sara Jahanbakhsh
JUDGMENT
The appeals from the assessments issued under the Income Tax Act for the 2005, 2006 and 2007 taxation years are dismissed, with costs in favour of the respondent.
The parties may, if they wish, make submissions regarding the costs, which must be submitted within 30 days of the signing of the judgment; otherwise, the respondent will be entitled to costs in accordance with Tariff B of the Tax Court of Canada Rules (General Procedure).
Signed at Ottawa, Canada, this 1st day of June 2017.
“Lucie Lamarre”
Associate Chief Justice Lamarre
Translation certified true
on this 31st day of January 2018.
François Brunet, Revisor
Citation: 2017 TCC 84
Date: 20170601
Docket: 2014-3800(IT)G
BETWEEN:
FIDUCIE FINANCIÈRE SATOMA
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Associate Chief Justice Lamarre
[1] Fiducie financière Satoma (the Appellant or Fiducie Satoma) is appealing from assessments issued by the Canada Revenue Agency (CRA) for the 2005, 2006, and 2007 taxation years.
[2] The assessments under appeal are based on the CRA’s application of the General Anti-Avoidance Rule (GAAR) set out in section 245 of the Income Tax Act (ITA),[1] in response to the tax planning orchestrated by the appellant’s advisors, whereby the application of subsection 75(2) of the ITA (a specific anti-avoidance rule) was voluntarily triggered.
[3] More specifically, at issue is the payment to the appellant of dividends totalling $6,250,100 by 9163-9682 Québec Inc. (9163) during the years at issue.
[4] The appellant did not redistribute those dividends to its beneficiaries. Consequently, the appellant should normally have been taxed on the funds received from 9163 during the years at issue.
[5] However, under subsection 75(2) of the ITA, those dividends were attributed to one of the appellant’s beneficiaries, 9134­1024 Québec Inc. (9134), on a tax-free basis for Fiducie Satoma and, as will be seen further on, for its other beneficiaries as well.
[6] In a partial agreed statement of facts filed as Exhibit A-1, the parties related all the transactions that were conducted to transfer the total amount of $6,250,100 to the appellant, which is the amount at issue here. This partial agreement of facts is attached to these reasons in Appendix 1. A simplified diagram of the structure set up (Appendix II) is also included after the partial agreement to help explain the issue.
[7] Applying subsection 75(2) of the ITA, 9134, which had included the dividends in its income, was able to claim the deduction under subsection 112(1) of the ITA for intercorporate dividends (applying subsections 104(13) and 104(19) of the ITA), thereby bringing the taxable income from those dividends to zero.
[8] Through that strategy, the appellant was able to retain the full amount of the dividends received tax-free and that amount could not be taxed if it were eventually distributed to the beneficiaries.
[9] The evidence showed that those funds initially came from Gennium produits pharmaceutiques Inc. (Gennium), whose shares were held by Louis Pilon and Fiducie familiale Louis Pilon. Gennium is a corporation that specialized in generic drug distribution.
[10] Louis Pilon wanted to use Gennium’s profits to expand his activities to include drug manufacturing.
[11] From the start, the intention was to completely separate Gennium’s distribution activities from the manufacturing activities, given the high risk of litigation in that field.
[12] Fiducie Satoma, the appellant, was created with the intent that, as a trust, it would invest the funds from Gennium in new corporations to be created for drug manufacturing activities. By investing through Fiducie Satoma, the goal was to shield the assets from any potential lawsuits from creditors.
[13] Mr. Pilon explained that he gave his tax advisor, François Proulx, a mandate to set up an organizational structure to be able to transfer funds from Gennium to the new entities to be created, while minimizing the tax payable and ensuring the protection of assets.
[14] Thus, although Fiducie familiale Louis Pilon already existed, Mr. Proulx initiated the tax planning to transfer the profits from Gennium to another trust, Fiducie Satoma, on a tax-free basis. Fiducie Satoma then invested the majority of those funds in corporations created for drug manufacturing.
[15] It is worth noting here that all the plan was based on the creation of a reversionary trust (Fiducie Satoma) (which Fiducie familiale Louis Pilon was not) with the intention of voluntarily triggering the application of subsection 75(2) of the ITA. Under this provision of the ITA the trust income must be attributed to the person who transferred the property to the trust if the property can revert to that person or if it can be transferred to a person of his or her choice. This is an attribution rule that stipulates that any income resulting from the transferred property and from any property substituted therefor is deemed to belong to the person who transferred the property to the trust.
[16] If we carefully analyze the tax plan, Gennium distributed dividends to Fiducie familiale Louis Pilon (which, I repeat, is not, itself, a reversionary trust to which subsection 75(2) of the ITA would apply).
[17] Fiducie familiale Louis Pilon distributed those dividends, in the year they were received, to 9134, one of its beneficiaries, which had not engaged in any commercial activity since 2005. Fiducie familiale Louis Pilon then used the deduction under subsection 104(6) of the ITA, such that it did not have to pay tax on those dividends.
[18] In turn, 9134 included those dividends in its income, in accordance with subsection 104(13) of the ITA, but claimed the deduction for intercorporate dividends in subsection 112(1) of the ITA, by applying subsection 104(19) of the ITA, which allows the beneficiary to process the income, based on the nature of the income, on behalf of the trust (dividend income).
[19] The appellant created 9134, which is also its beneficiary. Louis Pilon is 9134’s only shareholder.
[20] Corporation 9134 then gave the appellant a gift of $100, which the appellant used to acquire Class F shares from 9163 (another corporation with no commercial activities)—the shares from 9163 becoming the substituted property. This gift triggered the application of subsection 75(2) of the ITA, such that all income from the substituted property (dividends on shares held by the appellant in 9163) had to be attributed, for tax purposes, to 9134 (the person who transferred the property without consideration while retaining the right of reversion, as a beneficiary.)
[21] The corporation 9134 then contributed to 9163’s capital by paying, as a contributed surplus, the funds from the dividends it received from Fiducie familiale Louis Pilon.
[22] The corporation 9163 then paid those funds to the appellant as dividends.
[23] The appellant did not have to include those dividends in its income because, under subsection 75(2) of the ITA, 9134 had to include them in its income. That corporation claimed the deduction for dividends in subsection 112(1) of the ITA and therefore did not pay any tax on those amounts.
[24] The result of the transactions described above (paragraphs 17 to 21) was that 9134 was stripped of its assets in favour of the appellant, without paying any tax.
[25] The appellant subsequently invested $4,575,000 in shares of various companies to engage in drug manufacturing activities (4273702 Canada Inc. (427)—which in turn, invested in Jamp Pharma Corporation (JAMP) and Nutralife—and Technologie & Services RX Inc. (RX)).
[26] To date, the appellant has not made any payments to the beneficiaries.
[27] It is not disputed that the appellant is a reversionary trust and that the conditions have been met for the application of subsection 75(2) of the ITA.
[28] It is also important to note that when a trust’s income did not become payable to a beneficiary during the year (as is the case here where no funds were actually paid to any of the appellant’s beneficiaries), it accumulates in the trust for the beneficiaries. Normally, this income is taxable in the trust and any subsequent distribution of this accumulated income will be deemed a non-taxable distribution of the trust’s capital (Marc Cuerrier, “L’impôt des fiducies”, Revue de planification fiscale et successorale, 1996, vol. 18, no 4, 802-872). (Tab 23 of the Respondent’s book of authorities).
[29] If this income is taxable in the hands of the person who transferred the property to the trust with a right of reversion, by applying subsection 75(2) of the ITA, the CRA does not consider this amount taxable in the hands of the trust’s beneficiary if the trust subsequently redistributes this revenue. This is explained by the fact that the income was already included in the income of the person who, under subsection 75(2) of the ITA, is deemed to have earned the income and that income is therefore considered part of the trust’s capital (CRA Views, Taxnet Pro, document 9411115 - Attribution). (Tab 7 of the Appellant’s book of authorities).
[30] However, it should be noted that subsection 75(2) does not expressly provide that the income attributed in this way to the person who transferred the property is deemed not to be income for the trust, as is the case for other provisions of the ITA that deal with attribution rules (see, for example, section 74.1 of the ITA, that pertains to attribution rules in the case of a transfer between spouses or common-law partners). However, the CRA confirmed in its Tax Interpretation Bulletin, IT-369R, that any income to which subsection 75(2) of the ITA applies is not deemed to be the beneficiary’s revenue (Brenda L. Crockett, “Subsection 75(2): The Spoiler” in “Personal Tax Planning” (2005) 53:3 Canadian Tax Journal 831. “Subsection 75(2): The Spoiler” in “Personal Tax Planning” (2005) 53:3 Canadian Tax Journal 806. (Tab 25, page 11 of 21) of the Respondent’s book of authorities).
[31] Paragraph 10 of Interpretation Bulletin 369R states that an amount which has been attributed to a person under subsection 75(2) is normally to be excluded from the income of a beneficiary of the trust to whom it was paid or payable in the year, and from the income of the trust where it was not paid or payable to the beneficiary of the trust.
[32] Moreover, the Federal Court of Appeal ruled in Sommerer v. Canada, 2012 FCA 207, [2014] 1 FCR 379, at paragraph 55, that nothing in subsection 75(2) contemplates an outcome involving the attribution of the same gain to more than one person. The Court of Appeal added: “This double application of subsection 75(2) cannot be avoided by a discretionary use of subsection 75(2), because it is not a discretionary provision. It applies automatically to every situation it describes.”
[33] In this context, the CRA did not tax Fiducie Satoma (the appellant) on the dividend income in accordance with the tax rules applicable to trusts, but, instead, decided to invoke the GAAR to include the dividend income attributed to 9134 in the appellant’s income, in spite of the fact that, in its Interpretation Bulletin, it took the position of avoiding double taxation.
[34] According to the CRA, the intentional use of subsection 75(2) to attribute dividend income to a corporation which claims a dividend deduction under subsection 112(1) of the ITA, resulting in neither the trust nor its beneficiaries being taxed on the dividend income, constitutes tax avoidance within the meaning of subsection 245(2) of the ITA (Maria Elena Hoffstein and Michelle Lee, “Revisiting the Attribution Rules” 2012 Ontario Tax Conference, Toronto, Canadian Tax Foundation, 2012) 9 : 1-40). (Tab 28, page 27 of 44 of the Respondent’s book of authorities).
[35] According to the respondent, the appellant obtained a clear tax benefit by completely avoiding all forms of taxation. The respondent claims that this benefit is the result of a series of transactions leading to a clear abuse of subsections 75(2) and 112(1) of the ITA and therefore the GAAR should be applied.
[36] According to the appellant, this case does not involve a tax benefit at this stage. The appellant submits that the tax benefit will only be obtained if it distributes the untaxed funds to its beneficiaries, more specifically, if the funds are distributed to a beneficiary who is an individual.
[37] The appellant is not disputing that, if there were a tax benefit, it would be the result of a series of transactions leading to avoidance.
[38] However, the appellant submits that it is not reasonable to consider that this series of transactions entailed an abuse of subsections 75(2) and 112(1) of the ITA.
Analysis [39] At issue is whether or not the GAAR should be applied.
[40] In the words of the Supreme Court of Canada in Canada Trustco Mortgage Co. v. Canada, [2005] 2 SCR 601, 2005 SCC 54, at paragraph 16, “The GAAR draws a line between legitimate tax minimization and abusive tax avoidance. The line is far from bright. The GAAR’s purpose is to deny the tax benefits of certain arrangements that comply with a literal interpretation of the provisions of the Act, but amount to an abuse of the provisions of the Act.”
[41] Thus, in response to the appellant’s argument that it simply applied the provisions of subsections 75(2) and 112(1) of the ITA and therefore complied with the law, i.e. the provisions of the ITA, the respondent argues that the tax plan carried out crossed the line into tax avoidance.
[42] The appellant submits that by invoking the GAAR, the respondent is indirectly doing what it cannot do directly, as it is taxing two taxpayers on the same amount, which is contrary to the doctrine propounded by the Federal Court of Appeal in Sommerer, above. Given that 9134 already included the dividend amount distributed to the appellant in its income, it submits that the respondent cannot include that income in the appellant’s income a second time.
[43] The Supreme Court of Canada has responded to that argument, for instance, in Copthorne Holdings Ltd. v. Canada, [2011] 3 SCR 721, 2011 SCC 63 at paragraph 66: “The GAAR is a legal mechanism whereby Parliament has conferred on the court the unusual duty of going behind the words of the legislation to determine the object, spirit or purpose of the provision or provisions relied upon by the taxpayer. While the taxpayer’s transactions will be in strict compliance with the text of the relevant provisions relied upon, they may not necessarily be in accord with their object, spirit or purpose.”
[44] I would add that the GAAR was not at issue in Sommerer, above.
[45] However, the application of the GAAR is a remedy of last resort (Copthorne, paragraph 66), which is why a rigorous analysis, as provided for in section 245 of the ITA, is necessary.
[46] As stated in Trustco, at paragraph 17, the application of the GAAR involves three steps. The first step is to determine whether there is a “tax benefit” arising from a “transaction” under s. 245(1) and (2) of the ITA. The second step is to determine whether the transaction is an avoidance transaction under s. 245(3), in the sense of not being “arranged primarily for bona fide purposes other than to obtain the tax benefit”. The third step is to determine whether the avoidance transaction is abusive under s. 245(4). The burden is on the taxpayer to rebut the first two conditions and on the respondent to show that the third condition is not (Trustco, paragraph 66).
Tax benefit [47] The phrase “tax benefit” is defined in subsection 245(1) of the ITA as follows:
“tax benefit” means a reduction, avoidance or deferral of tax or other amount payable under this Act or an increase in a refund of tax or other amount under this Act. It includes a reduction, avoidance or deferral of tax or other amount that would be payable under this Act but for a tax treaty or an increase in a refund of tax or other amount under this Act as a result of a tax treaty;
[48] The issue of whether there is a tax benefit is a question of fact (Trustco, paragraph 19). If the tax benefit is not clearly established, it will be established by comparison with an alternative arrangement. In all cases, it must be determined whether the taxpayer reduced, avoided or deferred tax payable under the under the ITA (Trustco, paragraph 20).
[49] In comparing the taxpayer’s situation with the situation that would have resulted from an alternative arrangement, the latter must be one that might reasonably have been carried out but for the existence of the tax benefit (Copthorne, paragraph 35).
[50] In this case, the respondent submits that the tax benefit is obvious because the appellant received $6,250,100 in tax-free dividends through the voluntary application of the specific anti-avoidance rule in subsection 75(2) of the ITA.
[51] As for the appellant, it submits that there is no tax benefit, as long as the appellant does not distribute the funds to its beneficiaries. On the basis of the comments of Justice Rothstein, of the Federal Court of Appeal at the time, in OSFC Holdings Ltd. v. Canada, [2002] 2 FCR 288, 2001 FCA 260, at paragraph 42, the appellant argues that even if all the transactions that were carried out were part of a plan through which a person could potentially obtain a tax benefit, those transactions entail no tax benefit for that person if the person was not involved in the series of transactions.
[52] According to the appellant, there is, at most, a potential tax benefit, in that the appellant could choose to distribute the funds to its beneficiaries, who are individuals that would receive those funds on a tax-free basis. However, this type of benefit would not exist if the trust chose to distribute those funds to its beneficiaries that are corporations because shareholders of those corporations would pay the tax when they received dividends from those corporations.
[53] Thus, as the appellant argues, there might never be any distribution to individual shareholders and that no one would obtain an actual tax benefit. Moreover, the appellant points out that no funds have been distributed to the beneficiaries to date. Rather, the appellant invested in the underlying corporations that were created to engage in commercial activities not engaged in by Gennium.
[54] The appellant also submits that it could have achieved the same result by returning the dividends received to 9134, which could have either invested the funds in the trust or invested them directly in 427 and RX. In that case, the CRA would not have invoked the GAAR because the appellant would have distributed the funds to one of its beneficiaries.
[55] Another possibility presented by the appellant was that 9134 could just as well have made a much larger donation instead of going through 9163, or simply made a donation to Fiducie familiale Louis Pilon, so that the latter would itself invest in the new corporations that were created, 427 and RX. It submits that such cases would involve a contribution to the appellant’s capital or Fiducie familiale Louis Pilon’s capital, and that the CRA would not have deemed those amounts to be taxable for that trust.
[56] In my opinion, none of those examples hold water.
[57] The evidence shows that Mr. Pilon wanted to add a trust to the organizational chart to protect his assets.
[58] However, Fiducie familiale Louis Pilon already existed for that purpose. In spite of everything, the decision was made to create a new trust (Fiducie Satoma, the appellant) in order to take advantage of a reversionary trust to make use of the anti-avoidance rule provided for in subsection 75(2).
[59] It is clear that this new trust was created to reduce to zero the tax impact of transferring funds from Gennium to the assets of this new trust. The new trust could then dispose of them as it chose. It could invest in the new corporations to be created to manufacture drugs, but it could also distribute the funds to its beneficiaries on a tax-free basis for the beneficiaries.
[60] Were it not for the need to go through a trust, it is true that Gennium could have transferred the money into other corporations without any tax consequences, which would not have been a problem. Indeed, under the integration theory, the ITA allows intercorporate dividends to be paid on a tax-free basis until they leave the hands of the corporation and are paid to shareholders who are not corporations and who will pay the tax at that time (Paul Bleiwas and John Hutson, Taxation of Private Corporations and Their Shareholders, 4th ed., Toronto, Canadian Tax Foundation, 2010, « Theory of integration », p. 2:4).
[61] From the moment the decision is made to withdraw the money from the companies’ regime, the income belonging to an individual—including a trust, which is deemed to be an individual with respect to the trust’s property under subsection 104(2) of the ITA—that comes from a corporation must be taxed in the hands of that individual[2].
[62] If it is the trust that receives the income from the corporation, it can claim a special deduction under subsection 104(6) for any income it attributes and that will be payable in the year to its beneficiaries, who will there be taxed on that income. If that income has not become payable to the beneficiaries in the year, it will accumulate in the trust and will be taxable in the trust. Any subsequent distribution to the beneficiaries of that accumulated income will be deemed a non-taxable distribution of the trust’s capital.
[63] In this case, subsection 75(2) of the ITA was used so that neither the appellant nor its beneficiaries would pay tax on those dividends if the funds were eventually distributed because those amounts were, in a sense, capitalized in Fiducie Satoma by the attribution of income to 9134 without that corporation receiving or being entitled to those dividends.
[64] As soon as subsection 75(2) was applied, regardless of how the trust used the funds (whether it invested them in the corporations being operated, retained them or distributed them to its beneficiaries), tax was no longer payable by either the trust or its beneficiaries at that stage of operations.
[65] The fact that the trust could eventually decide to attribute those funds to the beneficiary corporations instead of to an individual, and that the shareholders of those corporations would then have to pay tax on the dividends they received, in no way changes the tax benefit received by the appellant.
[66] On the one hand, whether the appellant does or does not pay tax on the dividends received from 9163, in all cases, an individual who is a shareholder of a beneficiary corporation within the meaning of the ITA must pay tax on dividends received from that corporation, unless those dividends are non-taxable under specific provisions of the ITA.
[67] On the other hand, the appellant’s argument is based on the fact that there can be no question of stripping a corporation’s funds from their source, as long as those funds have not actually been distributed to the corporation’s own beneficiaries who are individuals. The problem with this reasoning is that it is unrealistic to think that once the dividends were capitalized in the trust, the trust would redistribute them to the beneficiary corporations controlled by individuals who are also beneficiaries of the trust. Why take that course of action if those dividends could be distributed directly to individual beneficiaries without paying tax? It is clear to me that those funds will never be paid to the beneficiary corporations. It is also clear that although no funds have been distributed to date, the trust can pay the capitalized amounts to the individuals who are its beneficiaries at any time.
[68] That is why the appellant’s argument that the tax benefit cannot be invoked until the trust pays the funds to its beneficiaries does not hold water. The tax benefit was triggered as soon as subsection 75(2) was applied, by the decision of 9134’s sole shareholder to strip the corporation’s assets by going through 9163, which he indirectly controls, to capitalize them in Fiducie Satoma.
[69] This situation differs from that in OSFC, to which the appellant refers. In that case, OFSC had to intervene in the series of transactions (by acquiring an interest in a partnership to be able to benefit from its losses) to obtain a tax benefit.
[70] The beneficiaries did not have to do anything else. All transactions were conducted according to the tax plan, such that neither the trust nor its beneficiaries would be taxed once taxation for those amounts was attributed to another person (in this case, 9134) which itself claimed the deduction under subsection 112(1) to avoid paying tax.
[71] As for the appellant’s arguments that a different course of action could have achieved the same result, as shown by the examples provided, they do not change my conclusion.
[72] On the one hand, as the Federal Court of Appeal pointed out in Perrault v. The Queen, [1979] 1 F.C. 155, page 163, cited by the appellant, the tax obligation must be determined in the context of what was actually done and not on the basis of various other methods that could have allowed the appellant to avoid being taxed.
[73] On the other hand, the examples given of cases where funds were invested directly in a corporation, instead of going through a trust, are not valid comparisons. The tax system differs depending on whether the transactions are between corporations or with individuals (including trusts). Once the evidence shows that the trust was an essential part of the plan, it cannot be shown that the result would have been the same without the use of a trust. A valid comparison could have been an investment made directly by Fiducie familiale Louis Pilon, without paying the dividends received from Gennium to 9134. In that case, the results would not have been the same since that family trust would have been taxed on the dividends it did not distribute to its beneficiaries, as it was not a reversionary trust.
[74] Finally, in the examples that involved 9134 simply donating the amounts in question either to Fiducie familiale Louis Pilon or to Fiducie Satoma, without going through 9163, or reinvesting the funds in Fiducie Satoma after the trust returned the funds, subsection 75(2) would not have applied. In such cases, it is 9134’s sole shareholder, Louis Pilon, who would most likely have been taxed on the shareholder benefits, under section 15 of the ITA, if a transfer were made to either of the trusts of which he was a beneficiary. Therefore, no comparison can be made with another arrangement that could have reasonably been used were it not for the tax benefit, as the Supreme Court of Canada did in Copthorne, above, at paragraph 35. It is not reasonable to think that this other arrangement proposed by the appellant could have been seriously considered, given the taxation in the hands of Louis Pilon that such a transfer of funds in the trusts of which he was a beneficiary would entail under section 15 of the ITA.
[75] In my opinion, it is therefore clear that the primary goal of the proposed plan, from the moment subsection 75(2) was engaged, was to avoid the payment of any tax by the trust and any beneficiary of the trust. In all cases, I consider that a tax benefit within the meaning of subsection 245(1) of the ITA.
Series of transactions resulting in a tax benefit: avoidance transaction [76] The appellant is not disputing that a series of transactions was conducted for the purpose of obtaining a tax benefit (to the extent that I find that a tax benefit exists), and that this is therefore an avoidance transaction within the meaning of subsection 245(3) of the ITA.
Abusive tax avoidance [77] Under subsection 245(4) of the ITA, a taxpayer will be denied a tax benefit resulting from an avoidance transaction when the transaction directly or indirectly involves an abusive application of the provisions of the ITA. It is the respondent’s burden to prove that on the balance of probabilities.
[78] The Supreme Court of Canada propounded the appropriate procedure in Trustco, at paragraphs 44 to 62.
[79] The first task is to interpret the provisions giving rise to the tax benefit to determine their object, spirit and purpose. The next task is to determine whether the avoidance transaction promotes or frustrates that purpose. There will be an abuse if the taxpayer relies on specific provisions of the ITA in order to achieve an outcome that those provisions seek to prevent.
[80] Moreover, an abuse may also result from an arrangement that circumvents the application of anti-avoidance rules, in a manner that is contrary to the object, spirit or purpose of those provisions. (Trustco, paragraph 44-45).
[81] In that case, the tax benefit is a result of the application of subsection 75(2) and 112(1) of the ITA. The first provision is an attribution rule and the second is a so-called integration rule.
[82] Thus, according to paragraph 57 of the respondent’s written argument, by triggering subsection 75(2) of the ITA, and attributing the taxable dividends to a corporation that could benefit from subsection 112(1) of the ITA, the appellant received Gennium’s surpluses in the form of dividends totalling $6,250,100 without paying any tax on that amount.
[83] I will therefore first analyze the object, spirit and purpose of the provisions in question. Second, I will examine the question of whether there was an abusive application of those provisions.
1) The object, spirit and purpose of subsections 75(2) and 112(1) of the ITA [84] For this, it is necessary to determine the intention of the legislator by considering the language, context and purpose of those provisions (Lipson v. Canada, [2009] 1 SCR 3, 2009 SCC 1, paragraph 26, which references Trustco, paragraph 42, and Placer Dome Canada Ltd. v. Ontario (Minister of Finance), [2006] 1 SCR 715, 2006 SCC 20, paras. 21-23).
The language [85] As to the wording of subsection 75(2), it attributes a trust’s income, losses, taxable capital gains and allowable capital losses from property it received (or property substituted therefor), to the originator of that donation. This is an attribution rule that automatically applies when the conditions set out in that provision are met.
[86] In this case, there is no dispute that all the conditions required under subsection 75 (2) were met. They are as follows:
1) Fiducie Satoma resides in Canada.
2) It was created on December 22, 2005 (after 1934).
3). It holds “property,” $100 that it received from 9134 under the terms of a donation agreement.
4) The property comes from a person, i.e. corporation 9134.
5) The appellant used this $100 to subscribe to 100 Class F shares of the capital stock of the corporation 9163. Those shares represent the “property substituted” for the initial donation of $100.
6) Because Fiducie Satoma’s trust document stipulates that 9134 is its beneficiary, there is a possibility that the substituted property could revert to 9134, the originator of the donation.
[87] Those conditions being satisfied, they resulted in the attribution to 9134 of dividend income generated by the Class F shares of 9163’s capital stock paid to Fiducie Satoma, without the dividends actually being paid to 9134.
[88] Specifically, each time 9163 declared and paid its shareholder (the appellant) dividends, which totalled $6,250,100 over the years at issue, they were also attributed to 9134 for tax purposes.
[89] Moreover, it is trite law that the person to whom income must be attributed under subsection 75(2) can be either an individual or a corporation such as 9134, according to the definition of “person” found in subsection 248(1) of the ITA.
[90] Also, even if subsection 75(2) automatically applies, the language of this provision must be consulted with respect to the GAAR analysis. The Supreme Court of Canada made the following comments in Copthorne, in paragraph 88:
88 In any GAAR case the text of the provisions at issue will not literally preclude a tax benefit the taxpayer seeks by entering into the transaction or series. This is not surprising. If the tax benefit of the transaction or series was prohibited by the text, on reassessing the taxpayer, the Minister would only have to rely on the text and not resort to the GAAR. However, this does not mean that the text is irrelevant. In a GAAR assessment the text is considered to see if it sheds light on what the provision was intended to do.
[91] As to subsection 112(1) of the ITA, it provides that, where a corporation in a taxation year has received a taxable dividend from “a taxable Canadian corporation [. . .] or a corporation resident in Canada [. . .] and controlled by it,” an amount equal to the dividend may be deducted from the income of the receiving corporation for the year for the purpose of computing its taxable income.
[92] The result of the application of these two provisions is that 9134 included all the dividend income, totalling $6,250,100, but did not pay tax on that income in the light of the deduction under 112(1). Fiducie Satoma was not taxed on those dividends in the light of the application of subsection 75(2), though it retained at its disposal the entire amount generated by those dividends.
Context [93] That part of the analysis examines other provisions of the ITA that are related to the one in issue. The Supreme Court made the following comments in Copthorne, in paragraph 91:
91 The consideration of context involves an examination of other sections of the Act, as well as permissible extrinsic aids (Trustco, in paragraph 55). However, not every other section of the Act will be relevant in understanding the context of the provision at issue. Rather, relevant provisions are related “because they are grouped together” or because they “work together to give effect to a plausible and coherent plan” (R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 361 and 364).
[94] I agree with the respondent that the relevant context in this case includes the ITA regime with respect to the taxation of trusts and corporations.
[95] I have already explained hereinabove how the trust taxation regime works. To summarize, in general, the trust is taxable under the rules applicable to individuals because it is deemed to be an individual under subsection 104(2) of the ITA. That being said, if the trust’s income becomes payable to its beneficiaries during the year, the trust can remove it from its income for tax purposes and that income will then be taxable in the hands of its beneficiaries, under subsections 104(6) and 104(13) of the ITA. If that is not the case, the trust is taxed on that income, and any subsequent distribution to its beneficiaries will be considered a non-taxable distribution of the trust’s capital.
[96] As to of the corporate tax regime, the corporation will first be taxed on its income and the shareholder who receives a dividend from that corporation will also be taxed on that dividend.
[97] If the dividend is paid to an individual, the ITA provides for an integration arrangement. The dividend will first be grossed up and the grossed-up dividend will be included in the shareholder’s income. The shareholder will then be entitled to a dividend tax credit as compensation for the tax already paid by the corporation. This system was established to ensure that the combined tax paid by the corporation and the shareholder on the corporation’s income is equal to what would have been paid if the income had been earned by the shareholder directly (Paul Bleiwas and John Hutson, Taxation of Private Corporations and Their Shareholders, above, “Theory of Integration”, at p. 2:4). (Tab 24 of the Respondent’s book of authorities).
[98] To avoid double taxation of the same income, intercorporate dividends are subject to the deduction provided for in subsection 112(1) of the ITA (Report of the Technical Committee on Business Taxation (Mintz Committee Report on Business Taxation), December 1997, section 7.8: “The Inter-corporate Dividend Deduction” (Tab 27 of the Respondent’s book of authorities).
[99] According to the integration theory, the dividend will only be taxable at the very end of the process, when the individual receives this amount. It can therefore be said that subsection 112(1) is necessary to allow a Canadian corporation to distribute its income to its shareholders without double taxation in the case of intermediary corporations, assuming, of course, that all the conditions in section 112 are met.
Object [100] This step “seeks to ascertain what outcome Parliament intended a provision or provisions to achieve, amidst the myriad of purposes promoted by the Act.” (Copthorne, paragraph 113)
[101] Subsection 75(2) finds its origin in subsection 32(3) of the Income War Tax Act) (IWTA), which was introduced in 1936. This new subsection read as follows:
[translation] When a person transfers property to a trust and stipulates that the trust corpus must revert either to the donor or to individuals that he or she can designate at a later date, or when a trust stipulates that, during the life of the donor, the property in the trust cannot be disposed of or otherwise processed without written or other consent from the donor, that person may still be subject to tax on the income generated by the property transferred to the trust or the property substituted therefor, as if the transfer had not been made. (S.C. 1936, ch. 38, section 13) (See the respondent’s written arguments, page 22, paragraph 84.
[102] In paragraph 85 of its written arguments, the respondent explains the development of this section as follows:
85. [translation] In 1948, subsection 32(3) of the IWTA was amended and became subsection 22(2) of the Act, which, in turn, became the current subsection 75(2) in 1970. Since 1948, subsection 22(2), which became 75(2), has undergone certain amendments, specifically to include capital gains and losses and to clarify certain terms. Overall, aside from those amendments, the structure and wording of the subsection have remained the same since 1948.32
32 Brenda L. Crockett, “Subsection 75(2): The Spoiler” in “Personal Tax Planning”) (2009) vol. 53 No. 3, Canadian Tax Journal, 806-820, p. 2).
[103] In Sommerer, above, the Federal Court of Appeal made the following comments regarding subsection 75(2): “subsection 75(2) generally is intended to ensure that a taxpayer cannot avoid the income tax consequences of the use or disposition of property by transferring it to another person in trust while retaining a right of reversion or a right of disposition with respect to the property or property for which it may be substituted. A common example of the application of subsection 75(2) is the settlement of a trust where the settlor is also a beneficiary with an immediate or contingent right to a distribution of the trust property. In that situation, and in many other situations contemplated by paragraphs 75(2)(a) and (b), subsection 75(2) achieves its intended purpose.” (paragraph 48).
[104] Subsection 75(2) is a specific anti-avoidance section of the ITA, which provides that the transfer of property to a trust by a potential beneficiary will attribute income,