Guilder News Co. (1963) Ltd. v. MNR, 73 DTC 5048, [1973] CTC 1 (FCA)

The Chief Justice (concurred in by Bastin, DJ):—These four appeals were argued together. Each appeal is from a judgment of the Trial Division dismissing an appeal from an assessment under the Income Tax Act.

The facts are stated in the reasons for judgment of the learned trial judge and I need not repeat them. For the purpose of stating my views with reference to the merits of the appeals, I can summarize the facts that are directly in point, very briefly, in a way that is applicable to each of the appeals, as follows:

1. In 1962 an individual sold to a company, whose stock all belonged to him, shares in other companies for a price substantially below actual value.

2. In 1964 the company resold the shares, whose value had not changed since 1962, to the individual at the same price under an agreement containing the following clause:

4. It being the intention of the Vendor and the Purchaser that the prices herein stipulated should represent the fair market value of the shares being purchased and sold herein, the parties hereto agree that in the event that the Minister of National Revenue should at any time hereafter make a final determination that the fair market value of the said shares as of the date of this Agreement is less than or greater than the prices herein stipulated, the prices herein stipulated shall be automatically adjusted nunc pro tunc to conform with such fair market value as finally determined and all necessary adjustments shall be made, including adjustment of the above mentioned promissory note.

The assessments attacked by the appeals were each based on an assumption

(a) that the 1964 sale by the company to the individual at a price less than value was a device adopted for the purpose of conferring a benefit or advantage on the individual as a shareholder in the company within the sense of such provisions as section 8 of the Income Tax Act,* [1] and

(b) that as a result of the 1964 sale a benefit or advantage was conferred upon the individual by the appellant in a specified amount.

Two questions were raised by the appellant in the Trial Division and in this Court, namely, (1) the appellant contended that no benefit was conferred on the individual by the company, and (2) in the Joel Rottman case, it was contended that, if any benefit was conferred on him, he was entitled to a dividend credit.

The learned trial judge expressed the view, with reference to the first of such contentions, after considering all the evidence, that the assumption pleaded of benefit or advantage had not been rebutted. With reference to the second contention, the learned trial judge concluded that the amount or value of the benefit received by Joel Rottman is not subject to section 38 of the Act.*

(2) Where a corporation has, in a taxation year, made a loan to a shareholder, the amount thereof shall be deemed to have been received by the shareholder as a dividend in the year unless

(a) the loan was made

(i) in the ordinary course of its business and the lending of money was part of its ordinary business,

(ii) to an officer or servant of the corporation to enable or assist him to purchase or erect a dwelling house for his own occupation,

(iii) to an officer or servant of the corporation to enable or assist him to purchase from the corporation fully paid shares of the corporation to be held by him for his own benefit, or

(iv) to an officer or servant of the corporation to enable or assist him to purchase an automobile to be used by him in the performance of the duties of his office or employment,

and bona fide arrangements were made at the time the loan was made for repayment thereof within a reasonable time, or

(b) the loan was repaid within one year from the end of the taxation year of the corporation in which It was made and it is established, by subsequent events or otherwise, that the repayment was not made as a part of a series of loans and repayments.

(3) An annual or other periodic amount paid by a corporation to a taxpayer in respect of an income bond or income debenture shall be deemed to have been received by the taxpayer as a dividend unless the corporation is entitled to deduct the amount so paid in computing its income.

(4) This section is applicable in computing the income of a shareholder for the purposes of this Part whether or not the corporation was resident or carried on business in Canada.

*38. (1) An individual who was resident in Canada at any time in a taxation year may deduct from the tax otherwise payable under this Part for a taxation year 20% of the amount by which

(a) the aggregate of all dividends received by him in the year from taxable corporations in respect of shares of the capital stock of the corporations from which they were received and of all dividends that he is, by subsection (3) of section 8 and section 81, deemed to have received from such corporation in the year, to the extent that the dividends so received or so deemed to have been received, as the case may be, were included in computing his income for the year,

The position taken in this Court by the appellants with reference to the first contention is set out in their Memorandum of Fact and Law as follows:

1. It is respectively [sic] submitted that the learned Trial Judge erred in holding that a benefit was conferred on each of the four individuals because:

(a) the agreements of June 10, 1964 merely effected a cancellation of the earlier agreements of August 1, 1962 and put the parties back in the same position as they had been before the agreements of August 1, 1962;

(b) the whole group of transactions must be looked at in its entirety in order to determine whether or not there was any benefit to the four individuals;

(c) there could be no benefit in light of the readjustment clause;

(d) the alleged benefit was not conferred on these four individuals in their capacities as shareholders, but in their capacities as purchasers, and Sections 8 and 108(5) do not apply to such transactions.

The first two of these submissions may be considered together. They come to this, that, when the 1962 and 1964 transactions are consioered

exceeds the aggregate of

(b) the amount, if any, deductible from income in respect of those dividends by virtue of a regulation made under subsection (2) of section 11, and

(c) all outlays and expenses deductible in computing the taxpayer’s income for the year to the extent that they may reasonably be regarded as having been made or incurred for the purpose of earning the dividend income.

(2) In this section, “taxable corporation” means

(a) a corporation

(i) that was resident in Canada when the dividend was received or deemed to have been received, and

(ii) that was not, by virtue of a statutory provision, exempt from tax under this Part for the taxation year of the corporation during which the dividend was received or deemed to have been received; or

{b) a corporation

(i) any of the shares of which were listed on a prescribed stock exchange in Canada throughout the taxation year of the corporation during which the dividend was received or deemed to have been received,

(ii) not less than 85% of the income of which, for the taxation year of the corporation during which the dividend was received or deemed to have been received, was from a business carried on in Canada by the corporation, and

(iii) that was not, by virtue of a statutory provision, exempt from tax under this Part for the taxation year of the corporation during which the dividend was received or deemed to have been received.

(23) For the purposes of this Act, a dividend from a corporation described in paragraph (b) of subsection (2) shall be deemed to be a dividend from a source in Canada.

(3) Where, by virtue of section 21, 22 or 23, there is included in computing a taxpayer’s income for a taxation year a dividend received or deemed to have been received by some other person, for the purpose of this section the dividend shall be deemed to have been received by the taxpayer.

(4) Notwithstanding subsection (4) of section 10 of the Old Age Security Act, the amount deductible under this section shall be computed as though that subsection had not been enacted.

together, there is no benefit, because one sale cancels out the other. Leaving aside, as I think we are required by the jurisprudence to do in a case such as this, the fact that, when an individual benefits a company whose stock is all owned by him or when such a company benefits the individual, the individual’s overall net assets may well have neither increased nor diminished because the amount transferred out of his personal assets to the company may have effected an equivalent and offsetting increase in the value of his shares in the company, or vice versa, in my view, the two transactions, that of 1962 and that of 1964, must be regarded separately in the absence of any evidence that they were part of a single scheme, and there is no such evidence here. It is quite clear that, immediately after the 1962 transaction, the company was the wealthier and the individual was the poorer, to the extent of the difference between the 1962 price and the value of the shares sold and that that condition persisted until the 1964 transaction, after which the company was the poorer and the individual was the wealthier by the same amount.

If it had not been for the 1964 resale, the individual would have continued in the relatively impoverished state that resulted from the 1962 sale. As a result of the 1964 resale he was restored to his relatively affluent state at the expense of the company and the effect of the 1964 sale was, therefore, that the company thereby conferred a benefit on him.

With reference to the fourth submission on the first branch of the case, that is that the alleged benefit was not conferred on the individual in his capacity as shareholder but in his capacity as purchaser, I am of opinion that there was no evidence to rebut the assumption, set out above, on which the assessment was made that the 1964 sale was a “device” adopted by the company and the individual for the purpose of conferring a benefit or advantage upon the individual ‘‘as a shareholder” of the company. Clearly, the onus was on the appellant to rebut this assumption and no explanation was given of a sale by the company to the individual at such a substantial undervaluation that would have warranted such a sale as between persons dealing at arm’s length. We are left with the only possible explanation, which is that the substantial undervaluation was acceptable as price only because the purchaser was the 100% shareholder in the vendor company.

I turn now to the remaining submission on this branch of the case, which is that there could be no benefit conferred by the company on the individual “in light of the readjustment clause”. The reference is to clause 4 of the 1964 agreement which is repeated here for convenience:

4, It being the intention of the Vendor and the Purchaser that the prices herein stipulated should represent the fair market value of the shares being purchased and sold herein, the parties hereto agree that in the event that the Minister of National Revenue should at any time hereafter make a final determination that the fair market value of the said shares as of the date of this Agreement is less than or greater than the prices herein stipulated, the prices herein stipulated shall be automatically adjusted nunc pro tunc to conform with such fair market value as finally determined and all necessary adjustments shall be made, including adjustment of the above mentioned promissory note.

The respondent submits that the evidence shows that clause 4 was a sham, in the sense that the parties never intended it to affect their rights or obligations inter se and that, in any event, it never had any effect on their rights or obligations in the circumstances of these particular transactions. I do not find it necessary to deal directly with these submissions.

The appellants’ submissions, while variously put, as I appreciate them, all come to this, that the clause in question has the same legal effect as if the 1964 sale were expressed to be a sale at fair market value to be determined by a third person.

If, in fact, a company simply sold property to its sole shareholder on express terms that the price payable was an amount equal to fair market value and provided a fair manner to determine such value, I would agree with the contention on behalf of the appellants that there could not, as a matter of law, be a benefit arising out of the sale.

In my view, however, the 1964 sale was not such a sale.

In the first place, it is common ground that “The purchase price in each transaction was obviously less than the fair market value of the shares being sold . . .”’" [3] as appears from the Memorandum of Fact and Law filed in this Court on behalf of the appellants at paragraph 7. It follows that, at least with regard to the sale price set out in the contract, the statement in the opening words of clause 4 that it was “the intention of the Vendor and the Purchaser that the prices herein stipulated should represent the fair market value . . .” is a departure from the truth and can have no effect (unless it be as evidence that the clause was in fact a “sham”).

Leaving aside the untruthful introductory portion of clause 4, an examination of clause 4 shows that it does not have the effect of making the sale a sale at a price equal to actual value to be determined. When clause 4 is considered in the context of the whole of the 1964 sale agreement, what one finds is that, by an agreement executed on June 10, 1964, the company agreed to sell specified shares to the individual for a specified amount, which was obviously below their value, which sale was to be completed on the same day but subject to an agreement between the parties (clause 4) that “in the event” that the Minister of National Revenue should “at any time hereafter” make a final determination that the value of the shares as of the date of the agreement is less than or greater than the price stipulated in the agreement, such prices are to be adjusted retroactively to conform to the value as so determined.

This agreement is radically different from a sale that is expressly made for a consideration equal to value. This is an agreement for a sale at a price obviously less than value, which price is to be the only amount payable until such time, if any, as the Minister of National Revenue determines the value of the shares that happen to be the subject matter of this sale. While it can be said, as a matter of law, that a simple sale for value, with no other provisions, cannot result in a benefit, it cannot be said as a matter of law that the 1964 sale is such a sale merely because it is an agreement containing clause 4. That sale is at a substantial undervaluation and, except in a certain event, it will continue indefinitely to be so. Even if that event should arise at some subsequent time, the individual will have had the benefit of not having had to pay the amount in excess of the ‘‘price” until that subsequent time and this, in days of high interest, can be substantial benefit.

It is important to have in mind that the question of “benefit” or no “benefit”, in a case such as this, must be determined as of the time immediately after the sale. Immediately after the 1964 sale, in these cases, the individual had the shares for which he had paid an amount obviously less than their value and he had assumed an obligation that, in a certain event, he would, at some time in the future, pay an amount equal to the difference between price and that value. Clearly, his position just after the 1964 sale was an improvement over his position just before that sale. He had something worth substantially more than he had paid for it and there was only a possibility that he might have to pay the difference and, if that eventuality should arise, the difference would not have to be paid until some time in the future.

The appellant’s contention that, having regard to the readjustment clause, there was no benefit must therefore be rejected.

I do not overlook the fact that, in this case, the assessments were apparently made on the basis that the benefit was equal to the difference between value and price paid whereas, on my view of the effect of clause 4, the benefit may have been something less than that amount.* [4] However, as I understand the proceedings, not only did the parties proceed to the hearing of evidence on the appeal on the understanding that there was no issue as to quantum, but the appellants had, at no time, put forward- any contention or evidence based on the view that, if there were benefits, the amounts of the assessments were too high. The appellants’ contention on this branch of the case was that there were, having regard to clause 4, no benefits. That contention, on my view of the matter, fails.

Having regard to that conclusion, as already indicated I do not find it necessary to deal with certain of the arguments put forward on behalf of the respondent. If the question of the quantum of the benefit had been raised, such arguments would have had to be considered.

With regard to the second branch of the appeal, which is the question whether the appellant Joel Rotiman is entitled to a dividend tax credit on the benefit conferred on him, I am unable to accept the submission that a benefit or advantage the amount of which must be brought into a shareholder’s income by virtue of subsection 8(1) of the Income Tax Act is a “dividend” within the meaning of that word in section 38 of the Act. Where Parliament intended such a result in that Act, it seems to have said so. Compare subsections 8(2) and (3). lt is also to be noted that many of the amounts that would fall under subsection 8(1) would not fall within the concept of “dividend” in its ordinary sense in this context, which, as l conceive it, is “sum payable . . . as profit of joint-stock company” even though it were accepted that the term applies to a division of profits otherwise than in the manner required by the governing company law. In any event, it seems clear that the Supreme Court of Canada, in Smythe v MNR, [1970] SCR 64; [1969] CTC 558; 69 DTC 5361, has dealt with the matter expressly. See per Judson, J, giving the judgment of that court, at pages 70-1 [563, 5364] :

The Exchequer Court leaves the result untouched but bases its judgment on the application of Section 137(2) and Section 8(1). If these were applied, there would be no dividend tax credit.

I am of opinion that this point also fails.

In the result, I am of the opinion that each of the appeals must be dismissed with costs.

Sheppard, DJ:—In these four appeals heard together, the issue is whether a benefit or advantage within the meaning of paragraph 8(1 )(c) of the Income Tax Act was conferred in the taxation year 1964 by the three appellant companies and by Lira News Company (1963) Ltd, on each of the four members of the Rottman family.

The four members, Milton Rottman, Charles Rottman, Joel Rottman, the sons, and Muriel Ettlinger, the mother, are ail citizens of the United States of America, and there reside, except Joel Rottman, who was resident in Canada.

By agreement of August 1, 1962 each of the sons sold 151 shares in City News Company Limited and 193 shares in Montreal Newsdealing Supply Co Ltd for $34,400 to a company “wholly owned and controlled” by him (para 3 of the Notice of Appeal) by sales by Milton Rottman to Florin News Co Ltd, by Charles Rottman to Pruta News Co Ltd, and by Joel Rottman to Lira News Co Ltd. The mother, Muriel Ettlinger, sold 150 shares in City News Co Ltd and 24 shares in Montreal Newsdealing Supply Co Ltd to Guilder News Co Ltd, a company which she “wholly owned and controlled”. All sold at par at $100 per share with the purchase price secured by the purchaser’s promissory note payable on demand without interest.

Each purchasing company amalgamated with Eleventh Calder News Limited on December 27, 1963, and after amalgamation was known by the addition of (1963) to the former name as appears in the appellant companies.

By agreement of June 10, 1964, each purchasing company resold to its original vendor (a son or the mother, as the case may be) the said shares purchased by the company at the same price to be paid by surrendering the promissory note which agreements contain clause 4 as follows:

4, It being the intention of the Vendor and the Purchaser that the prices herein stipulated should represent the fair market value of the shares being purchased and sold herein, the parties hereto agree that in the event that the Minister of National Revenue should at any time hereafter make a final determination that the fair market value of the sold shares as of the date of this Agreement is less than or greater than the prices herein stipulated, the prices herein stipulated shall be automatically adjusted nunc pro tunc to conform with such fair market value as finally determined and all necessary adjustments shall be made, including adjustment of the above mentioned promissory note.

The reason for the resale is that each of the four members was indebted to City News Co Ltd (and to a lesser amount to Montreal Newsdealing Supply Co Ltd), and by restoring the individual to the register of shareholders it was possible for the creditor company to declare a dividend in an amount sufficient to repay the indebtedness (Goodman p 25, 1. 10 to p 26, 1. 35). That method was adopted.

The Minister of National Revenue subsequently determined that the fair market value of the shares of each son was $98,375 greater than the stipulated price of $34,400, and the market value of the shares of the mother was $51,600 greater than the stipulated price of $17,400. By assessment, the respondent assessed each appellant company for having sold to those resident in the USA, namely to Milton Rottman, Charles Rottman, and the mother Muriel Ettlinger, and having failed to deduct and remit the withholding tax at a rate of 15% of the amount of the benefit alleged conferred; by further assessment Joel Rottman was reassessed in respect of his income for the 1964 taxation year by adding to his declared income, the said amount of $98,375.

By a further agreement each of the three Rottman sons and their mother acknowledged to the vendors a further indebtedness of $98,375 for each son and $51,600 for the mother.

in the interval between 1962 and 1964 the value of the shares did not materially increase, although there was that change by the amalgamation by the purchasing companies and by a dividend in issue; the issue is whether any assessment could be made.

The learned trial judge has found “that the assumption pleaded of benefit or advantage within the meaning of paragraph 8(1)(c) of the Income Tax Act has not been rebutted” and, accordingly, he dismissed the appeal with costs. From that judgment the four appellants have appealed. Each appellant submits that the agreement of June 10, 1964 was a cancellation of the previous transaction of August 1, 1962. That contention has not been made good. The purchase of the shares was not a mere cancellation of the previous transaction of August 1, 1964, as the shares were then registered in the names of the purchasing companies and each purchasing company thereupon was vested with the rights of an owner witn respect to the shares. Pursuant to the agreement of June 10, 1964, the share certificates endorsed by the vendor company were delivered to the repurchasing son or mother, and an application for registration of the transfers of the shares from the company was approved by the City News Co Ltd (AB p 160) and by the Montreal Newsdealers Supply Co Ltd (AB p 162). Upon registration of the transfers of shares there were revested in each member the rights of the owner of the shares.

A dividend was thereupon declared in an amount sufficient to pay the indebtedness of that member as registered shareholder. Hence, there were two executed sales of shares and not a mere cancellation of the original sale of June 10, 1962. The declaration of dividend vested the right to that dividend in the individual member registered as shareholder and resulted in being discharged from the debt to the company by offset of that dividend against the debt.

Each appellant further contended that the purchasing son or mother has acknowledged the liability to pay the further sum and therefore there can be no benefit or advantage in the resale under such circumstances.

Clause 4 was a mere sham, and in any event has no application on the facts of the case, for the following reasons:

1. Fair value was not considered at the time the agreement was negotiated by the parties. Hence, there was never any intention to sell at the market value but only at par.

2. There was no finding by the Minister of the fair market value within the meaning of clause 4. There was at the most an assessment by the Minister under the power of the Income Tax Act, and not a valuation pursuant to clause 4.

3. Further, the agreement acknowledging the further indebtedness was a mere sham as it acknowledges that the balance of indebtedness is payable on demand of the selling company but without interest (AB p 183) and as the company is wholly owned and controlled by the member acknowledging as a party there is no possibility that the company could collect.

Each appellant further contends that to come within paragraph 8(1 )(c) the benefit or advantage must be conferred on the shareholder qua shareholder and in the appeals in question the benefit or advantage was conferred upon the shareholder qua purchaser, and not qua shareholder.

The appellant has cited MNR v Pillsbury Holdings Ltd, [1965] 1 Ex CR 676; [1964] CTC 294; 64 DTC 5184. That judgment does not support the appellant’s contention. In Robson v MNR, [1951] Ex CR 201; [1951] CTC 201; 51 DTC 500, Sidney Smith, DJ, at page 202 [203, 501], stated:

I think it will be convenient to consider the relative law before I analyze the admitted facts and the evidence. On the facts as claimed by the respondent, there can be no doubt that the new Income Tax Act sec. 8(1 )(c) would catch the appellant, but he says that there is nothing similar in the Income War Tax Act which governed in 1944. The respondent in answer invokes sec. 18 of the latter Act and also the more general provisions of sec. 3.

and at page 203 [204, 501 I:

The same considerations must apply to any variation of the same kind of transaction. If the company cannot give shares away tax free, then what is substantially a gift, such as a pretended sale for a nominal consideration, must be in the same position; and I cannot distinguish between a nominal consideration and an inadequate consideration.

The above conclusion does no violence even to the language of sec. 3 of the Income War Tax Act which includes as income

“profits directly or indirectly received . . . from stocks or from any other investment.”

On appeal ([1952] SCR 223; [1952] CTC 85; 52 DTC 1088) Kerwin, J stated for the majority at page 226 [86, 1088]:

This appeal is concerned with the assessment to income tax of the appellant under the Income War Tax Act in the year 1944. I agree with the reasons for judgment of the trial judge except that I find no occasion to consider any of the decisions in the Courts of the United States referred to by him.

Rand, J stated at page 229 I 89, 1089-90 I:

But such a distribution can be made under the guise of a sale, and here Smith J. has found that to have taken place. Shares purchased originally by Timberland for $100 each were, seven years later, made the subject of an agreement purporting to sell them to the shareholders of Timberland for the same price. One year still later, they were disposed of by the shareholders for $750 each. Those striking facts were buttressed by the frank disclosure of the desire to make a distribution of the shares, as to the mode of which the advice of the Income Department was sought; and I agree with Smith J. that the form adopted was simply what was thought to be a means of avoiding the taxation consequences of declaring a dividend.

The remaining question is of the value of the shares found, namely, $600 when they were received. In this, Smith J. has, I think, dealt carefully and thoroughly with all relevant factors, and I am quite unable to say that his conclusion was unwarranted or indeed that it was not dictated by what was before him.

The Pillsbury case (supra) follows the Robson case (supra) as Cattanach, J stated at page 684 [300, 5187]:

On the other hand, there are transactions between closely held corporations and their shareholders that are devices or arrangements for conferring benefits or advantages on shareholders qua shareholders and paragraph

(c) clearly applies to such transactions. (Compare Robson v. M.N.R., [1952] 2 S.C.R. 223; [1952] C.T.C. 85.) It is a question of fact whether a transaction that purports, on its face, to be an ordinary business transaction is such a device or arrangement.

The Pillsbury case is distinguishable on the facts as the issue here arising did not arise in the Pillsbury case as Cattanach, J stated at page 688 [303-4, 5189]:

However, there was no allegation that the waiver was anything other than what it purported to be, that is, a lender granting relief to a borrower in difficulties. Had the transactions been attacked in the Notice of Appeal and at the trial as being a device or arrangement for conferring a benefit on the respondent qua shareholder, it might well have been difficult for the respondent to have resisted the attack. However no such attack was made and the assessments cannoi therefore stand.

The assumption of benefit or advantage within the meaning of paragraph 8(1 )(c) of the Income Tax Act has not been rebutted and the appeals are therefore dismissed with costs.

On the question whether Joel Rottman is entitled to a dividend credit, I adopt the reasons of the Chief Justice.