Citation: 2012 TCC 8
Date: 20120118
Dockets: 2009-1110(IT)G
2009-1109(IT)G
2009-1107(IT)G
BETWEEN:
FRED WAGNER, CESARIO LOPEZ, JOSÉ DIAZ,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Favreau J.
[1]
These are appeals, heard
on common evidence, from reassessments made under the Income Tax Act, R.S.C.
1985, c. 1 (5th Supp.) as amended (the Act), dated May 2007 in respect of each
of the appellants’ 2003, 2004, 2005 and 2006 taxation years and January 2009 in
respect of each of the appellants’ 2003 taxation year.
[2]
In issue is the tax
treatment of a sale of shares of Château Dollard Inc., owner of a senior’s residence
and the vacant land nearby. Specifically, first, it must be determined whether
the amount of $1,050,000 paid by the appellants following the conversion of a
sale of assets into a sale of shares must be taken into account in the computation
of the proceeds of disposition of the shares and, second, whether the amount of
$4,678,000 attributed to a non-competition clause must be added to the proceeds
of disposition of the shares.
[3]
The three appellants
were co-owners in equal shares of Château Dollard Inc. (the shareholders), which
operated a senior’s residence, know as “Château Dollard.”
[4]
The shareholders
originally intended to proceed with the sale of the assets of Château Dollard
Inc. to 4178092 Canada Inc. (4178092 or the purchaser) for $13,750,000 and, to
that effect, entered into an agreement entitled [Translation] “Asset Purchase Agreement” (the Asset Purchase
Agreement) in April 2003.
[5]
The Asset Purchase
Agreement contained a provision allowing Château Dollard Inc. and its
shareholders, in their sole and absolute discretion, to convert the sale of the
assets into a sale of shares of Château Dollard Inc. The shareholders then did avail
themselves of that provision and, on August 26, 2003, entered into an
agreement terminating the Asset Purchase Agreement and, on August 27, 2003, they
entered into a Share Purchase Agreement (the Share Purchase Agreement) and they
signed a letter of agreement providing for the conversion of the Asset Purchase
Agreement into a Share Purchase Agreement (the Conversion Agreement Letter).
On August 28, 2003, each shareholder entered into a non-competition agreement with
4178092 in consideration for the payment by 4178092 of the amount of $4,678,000,
that is, $1,559,333.33 to each shareholder.
[6]
The Share Purchase
Agreement stipulates a sale price for the shares of $9,072,000 and an amount
of $4,678,000 for the shareholders’ non-competition covenants for a total
of $13,750,000, that is, the same consideration as the consideration for the
sale of assets. Adjustments in the amount $6,605,416 on the purchase price of
the shares are also provided for in the contract.
[7]
The Minister of National
Revenue (the Minister) computed the proceeds of disposition of the shares and
the taxable capital gain as follows:
|
|
|
|
Total
|
Part of each
shareholder (33
1/3%)
|
|
Sale price of the shares
|
$13,750,000
|
$4,583,333
|
|
LESS: adjustments
|
$6,605,416
|
$2,201,805
|
|
Proceeds of disposition
|
$7,144,584
|
$2,381,528
|
|
LESS: adjusted
cost base and
disboursements
|
$209,235
|
$69,745
|
|
Capital gain
|
$6,935,349
|
$2,311,783
|
|
Taxable
capital gain (50%)
|
$3,467,674
|
$1,155,892
|
|
[8]
The appellants submit that
they paid to 4178092 the amount $1,050,000 to convert the sale of the assets of
Château Dollard Inc. into a sale of the shares of that same company and filed
their respective tax return for the 2003 taxation year reporting the following
taxable capital gain:
|
|
Part of each
shareholder (33 1/3%)
|
|
|
Proceeds of disposition
|
$472,194.90
|
|
LESS: adjusted cost base
|
$50,000,00
|
|
disboursements and disposition costs
|
$19,745.37
|
|
Capital gain
|
$402,449.53
|
|
Taxable capital
gain
|
$201,224.76
|
|
|
|
|
|
[9]
Each appellant claimed
a capital gain exemption for the capital stock of a small business corporation in
the amount of $201,225 which was applied against the taxable capital gain, thus
reducing the capital gain to zero. The Minister granted the exemption of $201,225,
but he applied it against a taxable capital gain of $1,155,892.
[10]
Each appellant initially
computed an alternative minimum tax in respect of the sale of the shares
effected in 2003. Following the issuance of the reassessment for the 2003
taxation year, the Minister computed an alternative minimum tax for each of the
appellants’ 2004, 2005 and 2006 taxation years.
Conversion of the sale of assets into a sale of shares
[11]
The possibility of
converting the sale of assets into a sale of shares was provided for in article
10.8 of the Asset Purchase Agreement. This contractual clause essentially stipulated
that should Château Dollard Inc. determine that income tax savings could be
generated from the completion of the transaction by way of a sale of shares, the
purchaser would be entitled to convert the Asset Purchase Agreement into a share
purchase agreement for the same purchase price and subject to the same terms
and conditions for all the capital stock of Château Dollard Inc. and to equally
divide between the purchaser and the shareholders the projected income tax
savings.
[12]
The parties availed
themselves of article 10.8 of the Asset Purchase Agreement and signed a conversion
agreement letter whereby the parties undertook to enter into (a) a termination
agreement terminating the Asset Purchase Agreement and (b) a Share Purchase
Agreement for the same purchase price of $13,750,000 (subject to adjustments) in
accordance with the terms of the Asset Purchase Agreement, by making the adaptations
necessary to reflect a share purchase transaction. As consideration for the conversion,
the shareholders agreed to pay the sum of $1,050,000 (conversion costs) to the
purchaser at the closing of the transactions provided for in the Share Purchase
Agreement.
[13]
The shareholders’ obligation
to pay to the purchaser the sum of $1,050,000 was fulfilled by means of three
cheques of $350,000, each of them drawn on the trust account of Fraser Milner
Casgrain s.r.l., LLP, the law firm representing the purchaser, made payable to
each of the shareholders and endorsed by the shareholders to Fraser Milner Casgrain
in trust. The three cheques were immediately remitted to Fraser Milner Casgrain
following the endorsements.
[14]
The appellants submit that
the sum of $1,050,000 should be subtracted from the purchase price of the
shares and they filed their respective tax return for 2003 by deducting said amount
from the original proceeds of disposition of $13,750,000. According to the statements
made by the appellants in their respective Notice of Appeal, the sole purpose
of the transaction was to allow the purchaser to enhance its ability to borrow
money so that it could complete the Share Purchase Agreement.
[15]
The testimony of Daniel
Courteau, tax expert with De Granpré Chait, who was consulted regarding the tax
treatment of the payments made in consideration for non-competition covenants, of
Ronald Stein, of the firm De Grandpré Chait who represented the shareholders in
the transaction, of Pasquale Buffone, the shareholders’ accountant, and the
testimony of each of the appellants did not shed any light on the mystery
surrounding the computation of the sum of $1,050,000 paid to the purchaser by
the appellants to carry out the conversion. Mr. Buffone, an accountant, acknowledged
that he calculated the tax consequences for the shareholders resulting from a
share sale compared to an asset sale and that he orally disclosed the information
to Fred Wagner. Seeing as Mr. Buffone was not part of the negotiating team, he
did not see the calculations made by the purchaser’s accountants. Mr. Buffone acknowledged
having consulted with Daniel Courteau to make sure that the payments made under
a non-competition clause were not taxable. According to Mr. Stein, the conversion
to a share sale was done at the purchaser’s request and the amount of the conversion
costs was computed by the purchaser’s accountants. According to him, the
purpose of the transaction was to leave the same amount of money in the
shareholders’ pockets. None of the purchaser’s representatives testified at the
hearing to corroborate the computation of the conversion costs and the reason
for the transaction and the method of payment used.
[16]
Various taxation issues
were also mentioned by the witnesses, including the possibility for the
shareholders to benefit from the capital gain exemption during the share sale
and the possibility for Château Dollard Inc. to avoid the recapture of the
depreciation claimed with respect to the assets sold. Conversely, it was
mentioned that by acquiring the shares, the purchaser was acquiring depreciated
assets, which would result in the loss of a future tax benefit, that is, the
deduction for depreciation on the full value of the acquired assets.
[17]
The respondent submits that
the sum of $1,050,000 was not paid to 4178092 by the appellants and that, even
if that had been the case, the payment of said amount was not made by the appellants
for the purpose of effecting a disposition of the shares and should therefore
not be considered for the purposes of calculating the capital gain in
accordance with paragraph 40(1)(a) of the Act.
Non-competition agreements
[18]
One of the closing conditions
under the Asset Purchase Agreement was that the purchaser had to have received,
from Château Dollard Inc., a non-competition agreement under article 5.12 of
said agreement, which stipulated for non‑competition covenants from
Château Dollard Inc. and its shareholders within a 100‑mile-radius of the
business for a period of five years from the closing date of the transaction.
[19]
The Share Purchase
Agreement also required, as a closing condition, that the shareholders sign the
non-competition agreements meeting the requirements of article 5.10 of said
agreement, which were similar if not identical to the requirements of article
5.12 of the Asset Purchase Agreement. However, what set the two articles apart
was that, in article 5.10, it was stated that the non-competition covenants had
been provided in consideration for payment by the purchaser to each shareholder
of the amount of $1,559,333.33, for a total of $4,678,000 (payments for non-competition
covenants).
[20]
The non-competition
agreements were in fact signed by each of the shareholders on August 28, 2003,
and the shareholders each received a certified cheque for $1,559,333.33 dated
August 29, 2003, in his name, drawn on the trust account of Fraser Milner
Casgrain. Each of shareholders acknowledged receipt of the certified cheque for
$1,559,333.33, representing all of the payments for the non-competition
covenants provided for in the Share Purchase Agreement.
[21]
The appellants submit
that the amount of $4,678,000 is not taxable when related to the sale of the
shares of a corporation owned by private individuals following Fortino v.
The Queen, 2000 D.T.C. 6060 (F.C.A.), 1997 D.T.C. 55 (TCC) and Manrell v.
The Queen, 2003 D.T.C. 5225 (F.C.A.), 2002 D.T.C. 1222 (TCC). Said amount
cannot be part of the consideration for the disposition of the shares owing to
the fact that it was discussed and agreed upon by the shareholders and the purchaser
when the Asset Purchase Agreement was signed on or about April 30, 2003. The
non-competition agreements were addressed by specific and distinct provisions in
both the Asset Sale Agreement dated April 30, 2003, and the Share Sale
Agreement dated August 27, 2003. The non-competition agreements are legal
and enforceable and the value that was assigned to them was freely negotiated
by parties dealing at arm’s length.
[22]
The respondent submits
that no amount was received by the appellants that is attributable to non-competition
agreements. The consideration received by the appellants for the sale of their
shares is the total amount of $13,750,000 pursuant to subparagraph 40(1)(a)(i)
of the Act. If the total amount of $13,750,000 is not entirely attributable
to the disposition of the shares, the respondent submits that the Court will
therefore have to consider the value attributable to the non-competition
agreements, which, according to the respondent, is zero.
[23]
At the time of the
audit, Paul-Alain Drolet, auditor for the Canada Revenue Agency (the CRA),
refused to subtract from the proceeds of disposition of the shares the various adjustments
totalling $6,605,415.40, including mortgage fees, real estate commissions, municipal
and school taxes, termination payments, and payments to the CSST, but agreed to
subtract from the proceeds of disposition the amount of $4,678,000 attributable
to the non-competition agreements. Following the Notices of Objection filed by
the appellants, the appeals officer, Marissa Colaianni, allowed the deduction
of the adjustments but added to the proceeds of disposition of the shares conversion
costs of $1,050,000 and the amount of $4,678,000 attributable to the non-competition
agreements.
[24]
The testimony of Daniel
Courteau, Ronald Stein, Pasquale Buffone and of each of the appellants did not
reveal any information regarding either the attribution of a value of $4,678,000
to the non-competition agreements or the negotiation process in that respect.
[25]
Éric Gaudreau, accredited appraiser with the CRA, prepared an estimate of the market value of
the senior’s residence, Château Dollard, located at 1055 Tecumseh,
Dollard-des-Ormeaux, as of April 30, 2003. According to his appraisal
report dated May 11, 2010, and filed as Exhibit I-3, the going-concern market value
of all of the real rights attributable to the property under review as of April
30, 2003, was $13,400,000. That value was established through the income
approach.
[26]
Éric Gaudreau also appraised
the market value of vacant land located on Thornhill Street, south of Boulevard
De Salaberry, Dollard-des-Ormeaux, as of April 30, 2003. It is vacant land with
municipal services and reasonably ready to be developed. A senior’s residence
(Le Château Royal) was erected on the site in 2006. According to his appraisal
report dated May 11, 2010, and filed as Exhibit I‑4, the market
value of all the real rights attributable to the property under review as of
April 30, 2003, was $410,000. That value was established through the direct
comparison approach.
[27]
Steeve Sahakian, expert
in business valuation with the
CRA, was mandated to provide
an estimate of the fair market value, as of August 28, 2003, of the 150,000
common shares of Château Dollard Inc. as part of a contract of sale involving
the disposition of all the shares of the company and including a non‑competition
clause. In his report dated March 25, 2011, and filed as Exhibit I‑5, the
appraiser estimated that the fair market value of the common shares of Château
Dollard Inc. was between $12,640,000 and $13,765,000 as of August 28, 2003, that
is, the mid-point being $13,202,500. The appraiser specified that his report
was an estimate of value and not an exhaustive appraisal report.
[28]
According to Mr. Sahakian,
the tax savings not available to the purchaser of the share capital because the
purchaser cannot benefit from an increased capital cost allowance on the fair
market value of the assets, rather than on the tax cost of the assets for the
seller, is $1,170,000.
[29]
Also according to Mr.
Sahakian’s report, the value of the non-competition clause is between
$0 and $125,000. The existence of a five-year non-competition clause in a comparable
sale of a senior’s residence used by Appraiser Éric Gaudreau for the purposes
of his report confirmed that such a non-competition clause had little value in
the industry at the time.
[30]
For the purposes of determining
the proper value to be accorded to the non‑competition clause, the appraiser
considered the following factors on which he had information:
(a) state of the market and the state of
the competition;
(b) barriers to
entry in relation to the shareholders’ options to compete;
(c) clients’ mobility;
(d) labour mobility;
(e) shareholders’ financial ability to
compete;
(f) the shareholders’ age (54, 56 and 68 years
old in 2003); and
(g) the shareholders’ experience.
Analysis
Conversion costs of $1,050,000
[31]
The first issue
regarding the conversion costs of $1,050,000 is whether payment of the sum of
$1,050,000 by the purchaser is part of the sale price of the shares.
[32]
The sale price of the
assets of Château Dollard Inc. under the Asset Purchase Agreement was $13,750,000.
The Share Purchase Agreement did not result in a change in the purchase price
of $13,750,000 (subject to adjustments) and the termination agreement signed on
the day following the date of the signing of the Share Purchase Agreement also
referred to a purchase price of $13,750.000.
[33]
Nowhere in the documentation
adduced in evidence is there reference to the fact that the conversion costs of
$1,050,000 are part of the adjustments of the sale price of the shares. The
amount of $1,050,000 was indeed paid by the purchaser by means of three cheques
of $350,000 to each of the shareholders that were immediately endorsed and
remitted to Fraser Milner Casgrain.
[34]
Article 1564 of the Civil
Code of Québec provides as follows regarding the payment of a sum of money:
Where the debt consists of a sum of money, the debtor is
released by paying the nominal amount due in money which is legal tender at the
time of payment.
He is also released by remitting the amount due by money
order, by cheque made to the order of the creditor and certified by a financial
institution carrying on business in Québec, or by any other instrument of
payment offering the same guarantees to the creditor, or, if the creditor is in
a position to accept it, by means of a credit card or a transfer of funds to an
account of the creditor in a financial institution.
[35]
In Piché v. Canada,
[1993] F.C.J. No. 510, Létourneau J.A. of the Federal Court of Appeal made the
following comments at pages 3 and 4 of his judgment regarding a payment by cheque
and the acceptance of a cheque by the payee:
The applicant received the cheque on December 27, 1990, and
undoubtedly accepted it as payment. The steps he undertook the same day to have
it put into his bank account are evidence of this. The applicant seems to
believe, wrongly, that there was no acceptance of the payment so long as the
money had not been credited to his account. Unless there are special
circumstances, payment by cheque constitutes payment, even though it is subject
to a resolutory condition, and the payment is then presumed to be made at the
point when the cheque is received by the payee. . . .
. . .
Acceptance of a cheque by its payee is, contrary to what
the applicant believes, a different step from the banking operation by which
monies are deposited to the credit of the bearer. In this case, the applicant
could, for example, have endorsed the cheque he had received and accepted to
the order of a third party, and the money would then never have been deposited
to his credit. And yet there would be no doubt that he would then be presumed
to have received payment of the monies that were owing to him and to have
accepted that payment.
[36]
The acceptance of the
cheques by the shareholders and their endorsement to pay another obligation, namely,
the sharing of tax benefits, show without a shadow of doubt that the
shareholders received payment of the monies that were owing to them and that
they accepted such payment.
[37]
The second issue regarding
the conversion costs of $1,050,000 is whether payment of sum of $1,050,000 by
the shareholders is deductible in the computation of their income or for the
purpose of computing the capital gain realized when the shares were sold.
[38]
The endorsement of the
cheques by the shareholders and the remittance of said cheques to Fraser
Milner Casgrain were for the purpose of paying an obligation, namely, the
sharing of tax benefits obtained by the shareholders as part of the sale of
their shares. There was a genuine payment of a monetary obligation by the
shareholders. The purchaser did not wish to lower the purchase price of the shares
to take into account the sharing of tax benefits. There was no compensation on
the sale price of the shares.
[39]
Although the
transaction by which the shareholders endorsed and remitted the cheques to the
purchaser resulted from the share sale, it nevertheless constitutes a separate
and distinct transaction from the actual share sale. The nature of the
transaction resembles a form of compensation which the shareholders provided
the purchaser with for the loss of future tax benefits.
[40]
The evidence did not show
how the amount of $1,050,000 was determined, nor how the amount of $1,050,000 was
used by the purchaser as the purchaser did not testify at the hearing.
[41]
Payment of the amount
of $1,050,000 can neither be regarded as deductible in computing the shareholders’
income as said amount was not expended for the purpose of gaining or
producing income from a business or property, nor deducted for the purpose of computing
the capital gain realized by each of the shareholders at the time of the sale
of the shares of Château Dollard Inc.
Payments for non-competition covenants
[42]
The non-competition
agreements that were signed by the shareholders are not part of a subterfuge or
a sham. However, there is no evidence that the parties engaged in earnest and
meaningful negotiations with respect to the value of the non‑competition
covenants and the allocation of the purchase price.
[43]
At the time they
entered into the Asset Purchase Agreement, the parties were unrelated and were dealing
with each other at arm’s length. However, I highly doubt that, at the time of conversion
of the Asset Purchase Agreement into a Share Purchase Agreement, the parties could
have been deemed as dealing with each other at arm’s length, considering the
fact that the parties were working together and had a common interest, that is,
that of minimizing as much as possible the tax consequences of the transaction
and to divide among them the tax saving on the projected income. An unfavourable
inference must be drawn from the purchaser’s absence as it would have been able
to provide the Court with important evidence such as the status of negotiations
as to the value of the non-competition covenants and the allocation of the
purchase price between the shares and the non-competition covenants. In my opinion, the rule to be
applied in such circumstances is that a Court must presume that such evidence
would adversely affect the appellants’
case.
[44]
In the Asset Purchase
Agreement, the purchase price was $13,750,000, no value was attributed to the non-competition
covenants and no adjustment was provided for in the purchase price with respect
to the non‑competition covenants.
[45]
The value attributed to
the non-competition covenants in the Share Purchase Agreement of $4,678,000 is suspicious
as it represents approximately 30% of the total purchase price of the shares
whereas the annual net income of the business whose value is preserved by said non-competition
covenants was only $450,000, that is, approximately $2,500,000 over five years.
The value attributed to the non‑competition covenants appears to be
clearly unreasonable in the circumstances.
[46]
According to Mr. Sahakian’s
report, the value of the non‑competition clause was between $0 and $125,000.
That value is, furthermore, indirectly supported by the appraisal reports of Éric
Gaudreau that the market value of the Château Dollard residence was $13,400,000
and that the market value of the vacant land was $410,000, that is, a total of $13,810,000 and
by Mr. Sahakian’s estimate of the fair market value of the common shares
of Château Dollard Inc. which was $13,202,500.
[47]
The
estimates of the fair market value of the assets of Château Dollard, of the
shares of Château Dollard Inc. and of the non‑competition clause referred to in
the preceding paragraph were not contested by the appellants and the appellants
provided no reasonable evidence that the fair market value of the shares of
Château Dollard Inc. was only $9,072,000.
[48]
The
estimate of the value of the non‑competition
clause
shows that said value cannot be regarded as being additional consideration to the
disposition of the shares of Château Dollard Inc. and must necessarily be part
of the proceeds of disposition of the shares for sale under subparagraph 40(1)(a)(i)
of the Act, which reads as follows:
General rules
40. (1) Except as otherwise expressly
provided in this Part
(a) a taxpayer’s gain for a taxation year
from the disposition of any property is the amount, if any, by which
(i)
if the property was disposed of in the year, the amount, if any, by which the
taxpayer’s proceeds of disposition exceed the total of the adjusted cost base
to the taxpayer of the property immediately before the disposition and any
outlays and expenses to the extent that they were made or incurred by the
taxpayer for the purpose of making the disposition, or
[49]
As the Federal Court of
Appeal stated in Robert Glegg Investment Inc. v. Canada, 2008 FCA
332, 2009 D.T.C. 5009, there is no need to turn to paragraph 68 (a) of
the Act where the
entire amount of consideration received or receivable by a taxpayer from a
person can reasonably be regarded as consideration for the disposition of a
particular property, namely the
shares sold in this case.
[50]
Paragraph 68(a) of
the Act reads as follows:
68. Where
an amount received or receivable from a person can reasonably be regarded as
being in part the consideration for the disposition of a particular property of
a taxpayer or as being in part consideration for the provision of particular
services by a taxpayer,
(a)
the part of the amount that can reasonably be regarded as being the
consideration for the disposition shall be deemed to be proceeds of disposition
of the particular property irrespective of the form or legal effect of the
contract or agreement, and the person to whom the property was disposed of
shall be deemed to have acquired it for an amount equal to that part; and
[51]
It should be specified here
that the legislative provisions adopted following the press release issued on
October 7, 2003, by the Department of Finance Canada (release 2003-049), namely,
section 56.4 and paragraph 68(c), which have the effect of rendering payments
received in consideration for the non-competition covenants taxable, are not applicable
in this case as the Share Purchase Agreement and the non-competition covenants were
signed before October 7, 2003.
[52]
For these reasons, the appeals
are dismissed with only one set of costs.
Signed at Ottawa, Canada, this 18th day of January 2012.
“Réal Favreau”
Translation certified true
on this 24th day
of July 2012.
François Brunet,
Revisor
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