Date: 20130513
Dockets: A-415-12
A-414-12
A-413-12
Citation: 2013 FCA 128
CORAM: PELLETIER
J.A.
GAUTHIER
J.A.
TRUDEL
J.A.
A-415-12
BETWEEN:
GROUPE HONCO INC.
Appellant
and
HER MAJESTY THE QUEEN
Respondent
A-414-12
BETWEEN:
9069-4654 QUÉBEC INC.
Appellant
and
HER MAJESTY THE QUEEN
Respondent
A-413-12
BETWEEN:
GESTION PAUL LACASSE
INC.
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
Introduction
[1]
These are three
appeals that were consolidated by an order of this Court dated
November 14, 2012. They all arise from a judgment of the Tax Court of
Canada (TCC) (2012 TCC 305) in which Justice Boyle (the Judge),
on common evidence, dismissed the appeals of the three appellant companies
(Groupe Honco) against the assessment issued for each company for the 2004
taxation year.
[2]
The sole issue to be
decided by the TCC was whether the anti-avoidance rule set out in
subsection 83(2.1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th
Supp.) (the Act) applied in this case.
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83(2.1) Notwithstanding subsection
83(2), where a dividend that, but for this subsection, would be a capital
dividend is paid on a share of the capital stock of a corporation and the
share (or another share for which the share was substituted) was
acquired by its holder in a transaction or as part of a series of
transactions one of the main purposes of which was to receive the dividend,
(a) the
dividend shall, for the purposes of this Act (other than for the purposes
of Part III and computing the capital dividend account of the corporation), be
deemed to be received by the shareholder and paid by the corporation as a
taxable dividend and not as a capital dividend; and
(b) paragraph
83(2)(b) does not apply in respect of the dividend.
[Emphasis added.]
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83 (2.1) Malgré le paragraphe (2), le
dividende versé par une société sur une action de son capital-actions qui
serait, sans le présent paragraphe, un dividende en capital est réputé,
pour l’application de la présente loi — à l’exception de la partie III et
sauf pour le calcul du compte de dividendes en capital de la société — reçu
par l’actionnaire et versé par la société comme dividende imposable, et non
comme dividende en capital, et l’alinéa (2)b) ne s’applique pas à
ce dividende si l’actionnaire a acquis l’action — ou une action qui
lui est substituée — par une opération, ou dans le cadre d’une série
d’opérations, dont un des principaux objets consistait à recevoir ce
dividende.
[Je souligne.]
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[3]
In this case, the
Judge found that there was a series of transactions, including, among others, the
purchase of shares of an unrelated company, 9072-7207 Québec Inc. (Old
Supervac) by 9069-4654 Québec Inc., a Groupe Honco subsidiary that I will refer
to as New Supervac. He also found that one of the main purposes of this series
of transactions was to make possible the acquisition of Old Supervac’s capital
dividend account. By virtue of subsection 83(2.1), above, any dividends
paid were accordingly deemed to have been received by the shareholder and paid
by the company as a taxable dividend rather than as a capital dividend. Hence
these appeals.
[4]
On appeal before us,
the appellants submit first that the Judge erred in finding that there had been
a series of transactions. The transactions taken into account by the Judge were
effected, they maintain, over too long a period to be considered a series
within the meaning of the Act and Copthorne Holdings Ltd. v. Canada, 2011 SCC 63, [2011] 3 S.C.R.
721 [Copthorne]. The
appellants add that if they are wrong on this point, the Judge should have
considered transactions involving Old Supervac that took place well before the
transaction of November 17, 1999, namely, the purchase of Old Supervac’s
shares by New Supervac. The appellants also submit that the Judge misdirected
himself in law by finding that the acquisition of the capital dividend account
was a “main purpose”. Finally, the Judge, it is claimed, erred in law and in
fact by imposing a higher burden of proof on them and concluding that they had
failed to refute the Minister’s assumptions of fact, and the following
assumption in particular:
[translation]
[New Supervac] acquired the shares of [Old Supervac]
for the purpose of benefiting from its capital dividend account (Amended
Reply to the Notice of Appeal, Minister’s assumptions of fact, Appeal Book, Volume
1, p. 149 at para. 109(x)).
[5]
I am of the view that
the appeals should be dismissed. I will deal with the following subjects:
1)
The applicable
standards of review herein.
2)
The series of
transactions and subsection 83(2.1) of the Act.
3)
The main purpose
within the meaning of subsection 83(2.1) of the Act.
4)
The appellants’
burden of proof and the Judge’s findings of fact.
The relevant facts
[6]
The facts to be considered
in ruling on the issues are uncontested and can be summarized as follows: Paul
Lacasse is the principal and controlling shareholder of Groupe Honco. In 1997,
Groupe Honco undertook to deliver to Old Supervac, a company wholly controlled
by Eddy Bédard, a $600,000 turnkey structure. Old Supervac manufactured
high-pressure vacuum trucks, a specialty which requires special certification
from the American Society of Mechanical Engineers [ASME]. Before construction
was complete, Old Supervac ran into serious financial difficulties that made it
appear that it would be unable to pay its debt to Groupe Honco. It was
therefore agreed by Lacasse and Bédard that the new structure would not be
transferred to Old Supervac, but rather that Old Supervac would occupy it as a
tenant. During the same period, Bédard was diagnosed with terminal pancreatic
cancer.
[7]
By late 1998, it was
clear that Old Supervac’s operations could not be made profitable and that its
search for new investors was not yielding results. It was at this stage that Paul
Lacasse, concerned that he would be unable to recover the amounts due for the
new construction, proposed in a letter dated December 28 that New Supervac
purchase all of Old Supervac’s inventory and lease all of its assets. The letter
also proposed that Old Supervac’s shareholders should undertake to sell their
shares as soon as they were fully paid (letter dated December 28, 1998, Appeal
Book, Volume 4 at p. 699). A few weeks later, on January 13, 1999,
New and Old Supervac entered into an asset leasing and share option agreement (ibid.
at p. 700). Paul Lacasse thereupon took over the management of Old
Supervac’s inventory and work in progress, and under his direction the business
returned to profitability.
[8]
On May 19, 1999,
Eddy Bédard died. Old Supervac was the beneficiary of life insurance policies. The
death benefits were paid into its capital dividend account. The proceeds of those
insurance policies were used, among other things, to repay Old Supervac’s
creditors after Mr. Bédard’s death and pay a dividend to his spouse, Annette
Légaré.
[9]
On October 7, 1999,
New Supervac acquired Old Supervac’s assets. Finally, on November 17,
1999, it also acquired all of Old Supervac’s shares. At the same time, Old
Supervac ratified the transfer to Paul Lacasse of the only Class A preferred
share, which had been assigned to Annette Légaré by the Eddy Bédard estate on
October 26, 1999 (Appeal Book, Volume 5 at pp. 859 and 992). It is
important to note that, under Old Supervac’s articles of incorporation, this
Class A preferred share, originally issued by the company to Eddy Bédard for
insurance purposes, entitled the holder to receive a dividend from the
company’s capital dividend account in the event that life insurance proceeds were
paid into that account (Old Supervac’s Articles of Incorporation, Appeal Book, Volume
5 at p. 1006, clause 3.5).
[10]
In accordance with
that clause, Annette Légaré received a dividend of $186,000 paid in two stages:
an initial payment of $150,000 on October 30, 1999 (see the resolution of
Old Supervac’s board of directors dated October 29, 1999, Appeal Book,
Volume 5 at pp. 887 et seq.); and a payment of $36,000 after
the acquisition of Old Supervac’s common shares by New Supervac (see the
resolution of Old Supervac’s board of directors dated October 31, 1999,
Appeal Book, Volume 5 at pp. 894 et seq.). I will return later on to
the payment of this dividend to Annette Légaré.
[11]
On January 1,
2001, Old Supervac and New Supervac were merged to enable the latter to benefit
from the tax losses of the former. The Canada Revenue Agency (CRA) initially refused
to consider these losses deductible, which gave rise to a Notice of Objection
by New Supervac on November 1, 2002. Finally, in December 2003, New
Supervac’s grounds of objection were accepted by the CRA. According to the
appellants, it was during a telephone conversation in which the CRA informed
New Supervac’s accountants of this decision that the existence of a capital
dividend account originating from Old Supervac was brought up for the first
time. There was approximately $947,084 in the account.
[12]
In 2004, New Supervac
exercised the option of declaring a capital dividend in favour of its
shareholder, Groupe Honco, which in turn declared a dividend in favour of its
shareholder, Gestion Paul Lacasse Inc, which thereupon exercised the option of paying a
capital dividend to Paul Lacasse (see Form T2054 signed on December 20,
2004, Appeal Book, Volume 5 at p. 974).
[13]
In March 2007, relying
on subsection 83(2.1), reproduced above, the Minister issued to each of
the appellants a Notice of Assessment concluding that the dividend received was
not a capital dividend and, after review of the Notices of Objection filed by
the appellants, ratified the assessments (for Groupe Honco, see Appeal Book, Volume
5 at pp. 947 et seq.; for New Supervac, see ibid. at
pp. 940 et seq.; for Gestion Paul Lacasse Inc., see ibid. at
pp. 979 et seq.).
[14]
Having set out the
facts, I will now consider the issues.
The applicable standards of review
[15]
The Judge’s findings
of law are subject to the standard of correctness. His findings of mixed fact
and law or of fact will be upheld in the absence of a palpable and overriding
error (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235) [Housen].
The series of transactions and subsection 83(2.1)
of the Act
[16]
As mentioned above,
the appellants deny the existence of a series of transactions in this case. Relying
on Copthorne, their counsel argues that too much time passed between the
various transactions for them to be considered a series. He adds that, in the
event that his clients are wrong on this, the series started in 1997, when Paul
Lacasse and Eddy Bédard negotiated the construction of a structure for Old Supervac
(Appellants’ Memorandum of Fact and Law at paras. 14 et seq.).The judge
therefore erred, it is submitted, in placing the emphasis on New Supervac’s
purchase of Old Supervac’s shares.
[17]
I am not persuaded
that Copthorne is as helpful to the appellants as they suggest. First, Copthorne
dealt with an assessment based on the general anti-avoidance rule found in
section 245 of the Act, not the anti-avoidance rule specifically mentioned
set out in subsection 83(2.1), on which the appellants’ assessments are
based. Furthermore, Copthorne states that the length of time elapsed between
the series and the related transaction may be a relevant consideration in
some cases, as may the events that have taken place between them. Copthorne
does not prescribe a limitation period such that the existence of a series would
depend strictly on a temporal condition. Each case must be decided on its own
facts (Copthorne at para. 47).
[18]
On the basis of the
evidence, the Judge held that
. . . the acquisition of the Old
Supervac shares and the declaration of the capital dividend . . . form
a part of the same series of transactions . . . given that,
at the time of declaring the dividend and electing to have the dividend be a
capital dividend, New Supervac was or would have been contemplating the existence
of its capital dividend account which had been acquired upon the acquisition of
the Old Supervac shares. (Judge’s Reasons at para. 15)
[19]
This finding of fact is
amply supported by the evidence. When the Old Supervac shares were acquired on
November 17, 1999, the appellants and Paul Lacasse were aware of the
existence of Old Supervac’s capital dividend account. In light of the facts
described above, it could not have been otherwise. I will refer more
specifically to the evidence in my analysis of the burden of proof.
[20]
As for the argument
that the Judge erred by not looking further back in time and in focusing on the
share purchase agreement and the statutory declaration (Form T2054), I am of
the view that it is without merit. First of all, the Minister’s assumption of
fact, reproduced above, invited the Judge to do this, and in addition, the
issue of the capital dividend account only came up because the share purchase
agreement was entered into, which agreement included the single Class A
preferred share issued by Old Supervac when it was incorporated.
The main purpose
[21]
In paragraph 19 of
his reasons, the Judge accepts the appellants’ statement that the relevant main
purposes were:
1)
to permit Groupe
Honco to recover its costs of building the Supervac structure;
2)
through the
acquisition of the Old Supervac shares, to permit the New Supervac business to
be carried on as part of Groupe Honco without the need for new certification by
the ASME; and
3)
through the
acquisition of the Old Supervac shares, to permit the amalgamation of New
Supervac and Old Supervac to create New Supervac, which permitted Old
Supervac’s tax losses to be utilized against New Supervac’s income.
[22]
However, the
appellants invite us to find that the transactions at issue are unrelated to
the capital dividend account (Appellants’ Memorandum of Fact and Law at para. 49).
They ask the following questions: [translation]
“How many purposes” do there have to be in a series of transactions before a
“purpose” can no longer be considered a “main purpose”? If there are already
three main purposes, can there be a fourth? In my view, this question opens the
door to a false debate.
[23]
Subsection 83(2)
of the Act, found in Subdivision h, entitled, “Corporations Resident in Canada
and Their Shareholders”, sets out the rules applicable to a capital dividend
when it comes to computing the income of a corporation’s shareholders. As a
general rule, the purpose of the capital dividend account is to enable a
private company to distribute to its shareholders tax-exempt amounts that it
collects, without having those amounts become taxable in the shareholders’
hands. Subsection 83(2.1) imposes a restriction on this general principle
“where . . . the share . . . was
acquired by its holder in a transaction or as part of a series of transactions
one of the main purposes of which was to receive the dividend”.
[24]
The phrase “one of
the main purposes” is unambiguous and implies that a taxpayer may have more
than one main motive in acquiring shares. With respect, it seems to me that
counsel for the appellants is ignoring the purpose and spirit of subsection
83(2.1) of the Act in attempting to persuade us that the word “main” does not
leave open the possibility of having two or three motivations that explain a
transaction or series of transactions. According to this interpretation, a
taxpayer would merely have to present two or three plausible and credible main
purposes for a transaction or series of transactions to shield himself or
herself from the anti-avoidance rule. The intention to receive a capital
dividend would be the [translation]
“one purpose too many” that could not give rise to the application of
subsection 83(2.1) simply because it would take a back seat to the other
purposes advanced by the taxpayer. I am unable to agree with this
interpretation. The fact that the taxpayer has provided reasons for getting
involved in a transaction or series of transactions in no way excludes a
finding that one of the main purposes—one generally not disclosed by the
taxpayer—is to obtain a tax advantage.
[25]
In order to succeed
in this case, the appellants had the burden of demonstrating to the Judge that
the acquisition of the capital dividend account and the receipt of tax-free
dividends was not one of the main purposes of the purchase of the Old
Supervac shares. The Judge held that they had not discharged their burden nor
been successful in refuting the Minister’s assumption of fact. I agree with him
for the reasons I will give in the final point in my analysis.
Burden of proof
[26]
It is well known that
in tax matters, the standard of proof is the balance of probabilities. As
stated in Hickman Motors Ltd. v. Canada, [1997] 2 S.C.R. 336 at paras
92-96, the initial onus is on the taxpayer to “demolish” the exact assumptions
on which the Minister based his assessment. The taxpayer meets this burden by
making out at least a prima facie case. Only if this condition is met
does the onus shift to the Minister, who must then rebut the taxpayer’s
evidence and prove on the balance of probabilities the validity of his
assumptions.
[27]
Evidence considered
sufficient to establish a fact until proof of the contrary constitutes prima
facie evidence. Although it is not conclusive evidence, “the burden of
proof put on the taxpayer is not to be lightly, capriciously or casually
shifted”, considering that “[i]t is the taxpayer’s business” (Orly
Automobiles Inc. v. Canada., 2005 FCA 425 at para. 20); Amiante Spec.
Inc. v. Canada, 2009 FCA
139 at paras. 23‑24). In this case, the appellants submit that they
have established [translation]
“that the main purposes of the transaction were other than to receive a
dividend” (Appellants’ Memorandum of Fact and Law at para. 8). They note
that they were in the rather unusual position of having to prove [translation] “a lack of intent” (ibid.).
[28]
The appellants are
critical of the Judge more particularly for writing that “[i]n matters of
intention in particular, the availability of contemporaneous corroborative
evidence from written documents or from third parties takes on somewhat greater
significance” (Judge’s Reasons at para. 29). The appellants see in this
excerpt an error by the Judge in that he imposed too high a burden on them. In
light of the Judge’s reasons as a whole, I find that this criticism is base
less.
[29]
Ultimately, as the
TCC indicated, the question of whether the appellants discharged their burden had
to be decided "upon a preponderance of the totality of the evidence"
(ibid. at para. 18) (emphasis added). Having heard all the
witnesses, the Judge summarized the testimony of each and noted, among other
things, numerous gaps in the appellants’ oral and documentary evidence that
could have been filled had the persons with knowledge of the relevant facts
been called to the stand or had certain documents been filed. This is a finding
that was open to him to make.
[30]
In the first place,
as we are reminded by the Supreme Court of Canada at paragraph 18 of Housen:
The trial judge is better situated to make factual
findings owing to his or her extensive exposure to the evidence, the advantage
of hearing testimony viva voce, and the judge’s familiarity with the
case as a whole. Because the primary role of the trial judge is to weigh and
assess voluminous quantities of evidence, the expertise and insight of the
trial judge in this area should be respected.
[31]
Furthermore, where
purpose or intention is to be ascertained, it must not be supposed that courts
will be satisfied with only the taxpayer’s statements, ex post facto or
otherwise, as to the subjective purpose of a particular transaction (Symes v.
Canada, [1993] 4 S.C.R. 695 at para. 68).
[32]
It was certainly open
to the Judge to draw a negative inference from the absence of key witnesses or
relevant documents such as Old Supervac’s amended financial statements (Judge’s
Reasons at para. 23; Diaz v. Canada, 2013 FCA 11 at para. 3).
[33]
Finally, it is clear
from his reasons as a whole that the Judge fully understood the issues and applied
himself to addressing them in light of the facts in evidence that he had
accepted and the applicable legal and evidentiary rules. I cannot
identify any error warranting this Court’s intervention.
[34]
Ultimately, the Judge
did not accept the appellants’ argument and found it “remarkable, surprising
and perhaps convenient that [Mr. Lacasse,] an experienced businessman who had
built up several businesses and acquired at least one other, who was aided by
an outside law firm and an outside firm of chartered accountants, and who:
1)
was aware of the
terminal illness of Mr. Bédard,
2)
was aware that an
insurance policy was held by Old Supervac on the life of Mr. Bédard,
3)
had in hand at the
time the Old Supervac shares were acquired following the exercise of the option
financial statements indicating that life insurance proceeds had been received and
that a capital dividend had been paid to the former shareholders of Old
Supervac in that same period, and
4)
was planning to
obtain the benefit of the tax loss accounts of Old Supervac
could have missed the availability of Old Supervac’s
remaining capital dividend account.” (Judge’s Reasons at para. 28)
[Emphasis in
original.]
[35]
The evidence adduced
supported this finding by the Judge. Let us not forget that Paul Lacasse had
suggested that he had never heard of the capital dividend account before
December 2003 (see step 15 of the table of significant events filed
during the hearing of these appeals). Better still, he did not know what a
capital dividend account was. Yet the documentary evidence clearly establishes
that on November 16, 1999, the day before the share purchase agreement was
executed, Old Supervac, which was already under Lacasse’s control, had
exercised its [translation]
“option regarding a capital dividend under subsection 83(2)” with respect
to the $36,000 dividend owing to Ms. Légaré (Revenue Canada Form T2054, Appeal
Book, Volume 5 at p. 891). It was stated on the form that the balance
of the capital dividend account immediately before the distribution to
Ms. Légaré was $797,084. The same figure appeared in Old Supervac’s
unaudited statements of income and deficit for the fiscal year ending on
October 31, 1999, under the heading [translation]
“Other Income and Expenditures – Proceeds from Life Insurance Policy”
(Appeal Book, Volume 5 at p. 871). In addition, Paul Lacasse signed
the agreement as the principal shareholder of New Supervac in order to
guarantee solidarily with Old Supervac the undertaking to reimburse the
dividend still owing to Annette Légaré (Share Purchase Agreement, Appeal Book, Volume
5 at p. 850).
[36]
Finally, I note that
the Judge also found, at paragraph 9 of his Reasons, that Paul Lacasse had
never said that he and Bédard “had never discussed the existence of the life
insurance policy or the possibility of the eventual life insurance proceeds
being able to be distributed to shareholders tax-free . . . . ”
[37]
In conclusion, I cannot
identify in the Judge’s findings of fact any decisive error that would warrant
this Court’s intervention.
[38]
Before this Court,
the appellants also raised a second issue regarding the Judge’s so-called error
in failing to consider the exception set out in subsection 83(2.3) of the
Act. According to this subsection, the relevant anti-avoidance rule, namely
that in subsection 83(2.1), does not apply in respect of a dividend paid by a
corporation on a share of its capital stock “where it is reasonable to consider
that the purpose of paying the dividend was to distribute an amount that was
received by the corporation and included in computing its capital dividend
account” as proceeds of a life insurance policy of which the corporation was
the beneficiary, which it received following a person’s death. Having carefully
reread the transcript of the TCC hearing, I would make two observation:
(1) this issue was raised as an alternative argument at the beginning of
the hearing (Appeal Book, Volume 2, p. 202 at lines 13 et seq.);
but, (2) during his oral submissions, both in chief and in reply (Appeal Book, Volume
3 at pp. 688 et seq.), counsel then representing the appellants
never returned to that issue, even after counsel for the respondent pointed out
the omission (Appeal Book, Volume 3 at p. 662) .
[39]
Similarly, in his
submissions before the TCC, the appellants’ counsel requested a completely
different alternative finding, asking the Judge [translation] “to apply [subsection 83(2.1) to New
Supervac only], in order to avoid the cascading Notices of Assessment that
followed” (ibid. at pp. 596 et seq.). The Judge discusses this
request at paragraph 35 of his reasons.
[40]
In such
circumstances, uncontested by the appellants’ new counsel, I find it difficult
to accept the appellants’ criticism of the Judge. Moreover, the appellants
could have brought a motion asking the Judge to reconsider the judgments
disposing of their appeals with a view to amending those judgments because the
Court had failed to deal with an issue that it should have addressed (sections 168
and 172 of the Tax Court of Canada Rules (General Procedure) (SOR/90-688a)).
They did not do so.
[41]
Despite all this, the
appellants submit that this Court should deal with the issue. Again, I observe
that the issue has been raised before us in a most tentative manner, and that
only paragraphs 30 and 31 of the Appellants’ Memorandum of Fact and Law are
devoted to it, without any development of the legal argument. In light of this
and in view of the conclusion I have reached, I propose to decline the
invitation to consider it.
[42]
Accordingly, I would
dismiss the appeals, with costs payable jointly and severally by the appellants
but limited to one set in both this Court and the Tax Court of Canada. The
Court Registrar shall file a copy of these reasons in each file (A-415-12, A‑414‑12,
A‑413‑12).
“Johanne Trudel”
“I concur.
J.D.
Denis Pelletier J.A.”
“I concur.
Johanne
Gauthier J.A.”
Certified true translation
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