Date:
20130905
Dockets: A-463-12
A-346-12
Citation: 2013 FCA 200
CORAM: BLAIS
C.J.
SHARLOW
J.A.
WEBB
J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
THOMAS O'DWYER
Respondent
REASONS FOR JUDGMENT
WEBB J.A.
[1]
The
Crown is appealing the order of Justice Bocock of the Tax Court of Canada (TCC)
striking the Crown’s reply to Thomas O’Dwyer’s appeal from the assessment of
the penalty under the Income Tax Act,
R.S.C. 1985, c. 1 (5th Supp.),
(Act) and his subsequent judgment allowing Thomas O’Dwyer’s appeal (2012 TCC
261 and Supplementary Order and Judgment dated October 12, 2012). For the
reasons that follow, I would dismiss both appeals.
[2]
Thomas
O’Dwyer was assessed a penalty under subsection 237.1(7.4) of the Act in the
amount of $2,352,500 in relation to certain transactions that occurred in 2006.
Accrued interest was also assessed in the amount of $485,312.34. Subsection
237.1(7.4) of the Act provides for the assessment of a penalty if a person
sells, issues, or accepts consideration in respect of a tax shelter before the
Minister has issued an identification number for such tax shelter.
[3]
Thomas
O’Dwyer appealed the assessment of the penalty to the TCC. The Crown filed a reply.
Thomas O’Dwyer then brought a motion in the TCC to have the reply struck. As
noted above, this motion was granted and the Crown has appealed to this Court.
[4]
The
criticisms of the reply can be described as follows:
(a)
the
reply does not clearly identify what property is alleged to be the tax shelter;
(b)
assuming
that the facts as alleged in the reply are true, these facts are not sufficient
to find that there was a tax shelter; and
(c)
the
role that Thomas O’Dwyer is alleged to have played is not clear.
Statutory Provisions
[5]
The
penalty was imposed under subsection 237.1(7.4) of the Act. The relevant parts
of this subsection, in 2006, were as follows:
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237.1(7.4) Every person who …
whether as a principal or as an agent, sells, issues or accepts consideration
in respect of a tax shelter before the Minister has issued an identification
number for the tax shelter is liable to a penalty equal to the greater of
(a) $500, and
(b) 25% of the total of all
amounts each of which is the consideration received or receivable from a
person in respect of the tax shelter before … the identification number is
issued …
|
237.1(7.4) Toute personne qui, […]
contrevient au paragraphe (4) est passible d’une pénalité égale au plus élevé
des montants suivants :
a) 500 $;
b) 25 % de le total des sommes
représentant chacune la contrepartie reçue ou à recevoir d’une personne
relativement à l’abri fiscal avant […] qu’un numéro d’inscription ait été
attribué à l’abri fiscal […]
|
[6]
The
penalty can be imposed only if there is a tax shelter as defined in subsection
237.1(1) of the Act. A tax shelter, as so defined, is either a gifting
arrangement or a property (in respect of which certain conditions are
satisfied). In this case, there is no suggestion that there was any gifting
arrangement. Therefore, the only relevant parts of the definition of tax
shelter in this case are those parts that relate to a property. The relevant
parts of this definition of tax shelter are as follows:
|
“tax shelter” means
…
(b) … property (including any
right to income) … in respect of which it can reasonably be considered,
having regard to statements or representations made or proposed to be made in
connection with the … the property, that, if a person were to … acquire an
interest in the property, at the end of a particular taxation year that ends
within four years after the day on which the … interest is acquired,
(i) the total of all amounts
each of which is
(A) an amount, or a loss in the
case of a partnership interest, represented to be deductible in computing the
person’s income for the particular year …, or
would equal or exceed
(ii) the amount, if any, by
which
(A) the cost to the person of …
the interest in the property at the end of the particular year, determined
without reference to section 143.2,
would exceed
(B) the total of all amounts
each of which is the amount of any prescribed benefit that is expected to be
received or enjoyed, directly or indirectly, in respect of the … interest in
the property, by the person or another person with whom the person does not
deal at arm’s length.
|
« abri fiscal »
[…]
b) […] bien (y compris le droit
à un revenu), […] pour lequel il est raisonnable de considérer, compte tenu
de déclarations ou d’annonces faites ou envisagées relativement […] au bien,
que, si une personne devait […] acquérir une part dans le bien, le montant
visé au sous-alinéa (i) serait, à la fin d’une année d’imposition qui se
termine dans les quatre ans suivant le jour où […] la part, acquise, égal ou
supérieur au montant visé au sous-alinéa (ii) :
(i) le total des montants
représentant chacun :
(A) un montant ou, dans le cas
d’une participation dans une société de personnes, une perte qui est annoncé
comme étant déductible dans le calcul du revenu de la personne pour l’année […]
[…]
(ii) l’excédent éventuel du
montant visé à la division (A) sur le total visé à la division (B) :
(A) le coût, pour la personne,
[…] de la part dans le bien à la fin de l’année, déterminé compte non tenu de
l’article 143.2,
(B) la valeur totale des
avantages visés par règlement que la personne ou toute personne avec laquelle
elle a un lien de dépendance pourrait recevoir, directement ou indirectement,
[…] au titre de la part dans le bien.
|
|
|
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Test for Striking Pleadings
[7]
In
R.
v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R.
45, the Supreme Court of Canada confirmed that a “claim
will only be struck if it is plain and obvious, assuming the facts pleaded to
be true, that the pleading discloses no reasonable cause of action”, which
could also be stated as “the claim has no reasonable prospect of success”
(paragraph 17). Therefore, the question in this appeal is whether, assuming the
facts as alleged in the reply are true, the Crown has a reasonable
prospect of successfully defending its assessment of the penalty.
[8]
In
order to have any reasonable prospect of success, the reply must set out the
essential facts that would support the assessment of the penalty. If any facts
that would be required to assess the penalty are missing, then the assessment
of the penalty could not be supported, even if the other facts as alleged are
assumed to be true.
Identification of the Tax Shelter
[9]
Thomas
O’Dwyer submits that the Crown has not identified the property that is alleged
to be the tax shelter. In this case, if there is no property, there is no tax
shelter.
[10]
Paragraph
11 of the reply sets out the facts on which the Minister relied in determining
that Thomas O’Dwyer was liable to the penalty referred to above. This paragraph
provides in part as follows:
11. In
determining that the Appellant was liable to a penalty pursuant to subsection
237.1(7.4) of the Act, the Minister relied on the following facts:
The
Tax Shelter
a) Solid
Resources #1 Limited Partnership (SRLP) was structured as a limited
partnership.
[11]
Paragraphs
14, 15 and 16 of the reply each start with the phrase: “SRLP is a tax shelter
pursuant to subsection 237.1(1) of the Act because…”. While the units of
the limited partnership are property for the purposes of the Act, the limited
partnership itself is not property for the purposes of the Act. Therefore, SRLP
(the limited partnership) cannot be a tax shelter. While counsel for the Crown
agreed during the hearing of this appeal that the limited partnership cannot be
“property” for the purposes of the Act, he argued that “SRLP” was simply referring
to the collection of all of the limited partnership interests (which are
property as defined in the Act). However, this is not consistent with how the
expression was used throughout paragraph 11. For example, the following are
some of the subparagraphs which use the expression “SRLP”:
11….
b) SRLP’s first
taxation year was from December 15, 2006 to December 31, 2006…
…
e)
SRLP’s
66 limited partners acquired partnership units in SRLP…
[12]
It
seems to me that “SRLP” was not intended to mean the collection of the limited
partnership units but rather the limited partnership itself. Interpreting
“SRLP” as the collection of the limited partnership units would render the two
subparagraphs referred to above (as well as most of the other subparagraphs of
paragraph 11) meaningless.
[13]
However,
while stating that “SRLP is a tax shelter” in paragraphs 14, 15 and 16 was not
correct, it does not seem to me that this error alone would justify striking
the entire reply. The term “SRLP” is used consistently throughout paragraph 11 as
a shorthand reference to the limited partnership (and not the collection of the
units of the limited partnership). The error made is in paragraphs 14, 15 and
16 (which is part of the argument). The paragraphs as written may well leave
the reader with the impression that the author of those paragraphs was not
careful with respect to the use of the term “SRLP” and in identifying the
property that is alleged to be the tax shelter. However, it seems to me that
when the reply is read in its entirety, it is reasonable to infer that the
property that was alleged to be a tax shelter was a unit of the limited
partnership. Therefore, although the term “SRLP” was not used correctly in
paragraphs, 14, 15 and 16 of the reply and these paragraphs do not correctly
identify the property that is alleged to be the tax shelter, these errors would
not justify striking the entire reply.
Insufficiency of Alleged Facts
Related to the Required Representations
[14]
In
Baxter v. The Queen, 2007 FCA 172, Justice Ryer noted that in order to
find that a particular property is a tax shelter (as defined in the Act), it is
necessary to find that certain statements or representations were made prior to
the acquisition of that property. In particular he stated that:
9 The definition requires that statements or
representations must be made, at some time, in connection with the property
that is offered for sale. If no statements or representations have ever been
made in connection with a property, then that property cannot constitute a tax
shelter. Because the property that is contemplated by the definition of tax
shelter is a property that is assumed to have been acquired by the prospective
purchaser and the statements or representations are required to have been made
in connection with that property, it follows that the statements or
representations must have been made prior to any actual sale of the property
that is offered for sale. Further, while the definition does not specify to
whom or by whom the statements or representations must be made, in my view they
must be made to the prospective purchasers of the property by or on behalf of
the person who proposes to sell the property.
10 The subject matter of the statements or
representations is essentially a description of an amount that the prospective
purchaser would be able to deduct, in computing income in respect of the
property, as a consequence of an assumed acquisition of the property, that is
to say, if the prospective purchaser had actually acquired the property,
whether the amount constitutes the acquisition cost of the property, a cost
incurred in order to obtain the property (e.g. a drilling cost incurred to
acquire an interest in an oil and gas property in a farm-out transaction) or an
amount allocated to the holder of the property (e.g. a loss allocated to
partner holding a partnership interest).
..
37 A property cannot constitute a tax shelter if no
statements or representations are ever made with respect to the amount that a
prospective purchaser would be able to deduct in computing income as a
consequence of an assumed acquisition of that property. Accordingly, the
existence of statements or representations in connection with a property is a
necessary condition to a conclusion that the property constitutes a tax
shelter.
[15]
The
required statements or representations must describe the amount that the
purchaser of the property will be able to deduct in computing income under the
Act if the property is acquired. For limited partnerships, the deductible
amount will be the amount of the losses of the limited partnership that the
holders of the units of that limited partnership will be able to deduct in
computing their income under the Act. It must be reasonable to conclude that,
for the purposes of the Act, the total amount that is represented to be
deductible within the first four taxation years would equal or exceed the cost
of acquiring the property minus the amount of any prescribed benefit (as
determined under the Income Tax Regulations).
[16]
While
there are allegations of fact in the reply in relation to the actual revenue of
the limited partnership and the expenses actually incurred in 2006, these are
not relevant in determining whether there was a tax shelter. In determining
whether a property is a tax shelter, the statements or representations made
prior to the acquisition of the property in relation to the losses that will be
incurred are relevant — not the actual losses subsequently incurred. In order
to find that there is a tax shelter, it is necessary to examine the statements
or representations made before the property is acquired.
[17]
There
are only two references to statements or representations that were made before
the units of the limited partnership were acquired by the investors. These are
in paragraphs 11 (m) and (r) of the reply and are as follows:
m) The Offering
Memorandum states that the majority of the partnership's expenses
would occur in 2006;
…
r) SRLP made statements or representations that would cause an
investor to believe that the loss that would be deductible in respect of their
partnership interest would exceed the cost to the investor of the partnership
interest less the value of the investor's promissory note;
[18]
Counsel
for the Crown confirmed during the hearing that to the extent that paragraph (r)
referred to statements or representations, it was simply a summary of the
statements or representations referred to above. It was not intended to refer
to any other statements or representations. As a result, the only allegation of
fact related to any representation or statement made prior to the purchase of
the units of the limited partnership is the allegation contained in paragraph (m).
[19]
Assuming
that the allegation of fact in paragraph (m) is true, this is well short of
what would be required to find that the units of the limited partnership were a
tax shelter. The representation that the majority of the partnership’s expenses
would be incurred in 2006 does not:
(a)
provide
any indication of the amount of such expenses;
(b)
indicate
whether such expenses would be deductible in computing income for the purposes
of the Act;
(c)
provide
any indication of the expected revenue of the limited partnership for 2006 (and
therefore without knowing the amount of revenue and the amount of expenses it
is not possible to determine if there would be a loss for 2006 as determined
for the purposes of the Act);
(d)
provide
any indication of the amount of any anticipated losses as determined for the
purposes of the Act; and
(e)
provide
any indication of whether such anticipated losses will be deductible by the
holders of the units of the limited partnership in computing their income for
the purposes of the Act.
[20]
Therefore,
there are no allegations in the reply that the statements or representations
that would be required to support a finding that there was a tax shelter were
made in this case. As a result, assuming that all of the facts as alleged are
true, these facts would not support a finding that the units of the limited
partnership were a tax shelter. The claim of the Crown that the penalty was
properly imposed under subsection 237.1(7.4) of the Act does not have a
reasonable prospect of success and therefore, in my opinion, the reply must
either be struck or amended.
[21]
The Crown had many opportunities in the TCC to seek leave
to amend the reply. Such a request could have been made by a motion filed
immediately after the filing of the motion to strike the reply. Such a motion
could have been filed before or during the hearing of the motion to strike. It
could have been filed during the period of almost two months while the motion
was on reserve. The Crown filed no such motion in the TCC even though the Judge
raised the issue of amending the reply (see paragraph 25 of his reasons). In
this Court, no request for leave to amend the reply was made in the Crown’s
notices of appeal, or in the Crown’s memorandum of fact and law.
[22]
During the hearing of the appeals, counsel for the Crown
was asked why no leave to amend had ever been sought. No satisfactory answer
was offered. Counsel for the Crown, as noted above, confirmed during the
hearing that the only statements or representations upon which the Canada
Revenue Agency was relying in assessing the penalty were the statements and
representations specifically identified in the reply. Since there were no other
statements or representations, this could explain why no leave to amend the
reply had been sought as there was nothing to add to what was already in the
reply.
[23]
After counsel for Thomas O’Dwyer had completed his oral
submissions, counsel for the Crown made an oral request for leave to amend the
reply. This was the first time that any request to amend the reply had been
made and it was made when Thomas O’Dwyer had no reasonable opportunity to
oppose it.
[24]
There
are cases where amendments to pleadings are allowed, even at a late stage in a
proceeding. Several factors that should be taken into account in deciding
whether a particular amendment to a pleading should be allowed are identified
in The Queen v. Canderel Limited, 93 DTC 5357 (FCA). However, since
in this case the only request to amend the reply was made during the oral
submissions of the Crown in reply to the submissions of Thomas O’Dwyer and the
Crown acknowledged that the only statements or representations that had been
made were those already identified in the reply, this is not a case where the
request to amend the reply should be granted and I would not grant the request
of the Crown to amend the reply.
[25]
I
would, therefore, dismiss the appeal from the order striking the reply. Since I
would strike the reply, I would also dismiss the appeal of the Crown from the
order of the Judge allowing Thomas O’Dwyer’s appeal from the assessment of the
penalty.
The Role of Thomas O’Dwyer
[26]
Although
the above finding is sufficient to dispose of the appeals, the third criticism
of the reply warrants some comments. The penalty under subsection 237.1(7.4) of
the Act is imposed if a person “whether as a principal or as an agent, sells,
issues or accepts consideration in respect of a tax shelter” before the
identification number is issued. In the reply (paragraph 18), the provisions of
subsection 237.1(7.4) of the Act are reiterated without identifying what
specific role Thomas O’Dwyer is alleged to have played:
18. The
Appellant is liable for a penalty because he acted as principal or agent to
sell, issue or accept consideration in respect of the SRLP tax shelter before
the Minister issued a tax shelter identification number, pursuant to subsection
237.1(7.4) of the Act.
[27]
Every
possible combination enumerated in subsection 237.1(7.4) of the Act is
included. There is no clear indication of why the penalty was imposed. The
above paragraph 18 would include the allegation that Thomas O’Dwyer, as
principal, issued units in the limited partnership. However, only the limited
partnership could, as principal, issue units in itself.
[28]
The
penalty can be imposed if a person sells a tax shelter. A person can either
sell a property as a principal or as an agent, but not as both at the same time
in relation to the same property. Therefore, the Minister should have
identified whether Thomas O’Dwyer was assessed the penalty on the basis that he
was selling the alleged tax shelter as principal or as an agent, but not as
both.
[29]
In
the reply, it is stated that the Minister relied on the fact that “SRLP’s 66
limited partners acquired partnership units in SRLP pursuant to an offering
memorandum dated December 15, 2006” (paragraph 11 (g)). This would presumably mean
that the units were issued directly to the 66 limited partners. As a result,
there does not appear to any basis for the allegation that Thomas O’Dwyer sold
any units as principal.
[30]
The
alleged facts in relation to the role of Thomas O’Dwyer are set out in
subparagraphs 11 (bb) to (mm) of the reply. However it is not clear how these
alleged facts would lead to the conclusion that Thomas O’Dwyer is liable for
the penalty. The only paragraph that purports to provide the basis for the
assessment of the penalty is paragraph 18 and this paragraph does not provide
any clear indication of how the alleged facts would result in Thomas O’Dwyer
being liable for the penalty.
[31]
In
setting out the basis upon which the penalty was assessed, the Minister should
clearly identify the role that Thomas O’Dwyer is alleged to have played and not
simply reiterate every possible permutation or combination that could satisfy
the statutory conditions to impose the penalty. Any taxpayer who has been
assessed a penalty should know why the penalty was assessed. Simply reiterating
the multiple combinations of possibilities that could result in the imposition
of the penalty does not tell a taxpayer what specific act (that would result in
the imposition of the penalty) he or she is alleged to have committed.
Conclusion
[32]
I
would dismiss the appeals, with costs.
"Wyman
W. Webb"
“I
agree,
Pierre
Blais C.J.”
“I
agree,
K. Sharlow J.A.”
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