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Citation: 2005TCC6
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Date: 20050106
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Docket: 95-978(IT)G
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BETWEEN:
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GEDDES CONTRACTING CO. LTD.,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
BowieJ.
[1] These appeals are brought from
reassessments under the Income Tax Act (the Act)
relating to the taxation years ending April 30, 1986, April 30,
1988 and June 29, 1989 of a predecessor corporation of the
Appellant, and to the taxation year of the Appellant ending April
30, 1989. The central issue in the appeals is whether the
Appellant[1] and
certain other persons successfully entered into a partnership
when they collectively acquired a 100% interest in a U.S.
partnership known as Grand Bell from certain residents of the
United States of America in May 1988.
[2] These appeals were begun in March
1995, and they came on for trial before me in March 2003. Up to
that point in the proceedings the Appellant had not asserted that
any of the reassessments under appeal were statute-barred. It is
clear from the pleadings that the Minister of National Revenue
had assessed the Appellant's predecessor company for its
taxation year ended April 30, 1986 initially on June 25, 1987,
and had reassessed it to carry back a non-capital loss from the
Appellant's taxation year ending June 29, 1988. This
non-capital loss for 1988 had been claimed by the Appellant as
its share of the non-capital loss for that year of the Grand Bell
partnership[2]. It
was not until February 20, 1992 that the Minister reassessed the
Appellant for 1988 to disallow this non-capital loss, and at the
same time reassessed the predecessor's year ended April 30,
1986 to disallow the carry-back of a portion of it. George
Agazarian was also a member of the Grand Bell partnership, and
the assessment history in his case was similar. He also appealed
from the reassessments disallowing his claims for non-capital
losses, but in January 2003 the Court heard a motion to determine
by way of a preliminary issue under Rule 58 of the Tax
Court of Canada Rules (General Procedure) whether the
Minister was entitled under subparagraph 152(4)(b)(i) to
make the reassessment disallowing the carry-back, notwithstanding
that the normal reassessment period had by then expired. The
taxpayer's position prevailed in this Court.[3] After the conclusion of the
trial in these appeals, while judgment was reserved, counsel
brought a motion to reopen the hearing of the appeals to permit
the same issue to be raised in the present case. By that time the
decision of this Court in Agazarian was under appeal, and
a date had been set for the hearing. At the request of both
counsel, I agreed to defer the motion, and not to give judgment,
pending final resolution of the limitation issue in
Agazarian. Since then the Federal Court of Appeal has
allowed the Crown's appeal in Agazarian, and on
December 16, 2004 the Supreme Court of Canada dismissed the
Appellant's application for leave to appeal. The Appellant
then withdrew its motion to reopen the hearing of this
appeal.
[3] In the meantime, counsel for the
Appellant brought two separate motions seeking to reopen the
trial to adduce additional evidence. I allowed both motions,[4] and as a result
Exhibits A-4 to A-30 were added to the trial record. They are all
documents that came into the Appellant's possession after the
end of the trial, and that could not have been obtained earlier.
In fact, most f them came into existence after the end of the
trial.
[4] In June 1988 Geddes Contracting
Co. Ltd. and 344820 British Columbia Ltd. amalgamated to form the
Appellant. Gordon Geddes is the principal shareholder, and his is
the directing mind of the Appellant. The company has had a long
and successful history in construction of roads, power lines,
dams and similar large projects. Mr. Geddes has also been
involved in some real estate development projects over the years,
and has made some small investments in oil and gas
properties.
[5] Bellamah Community Development
(Bellamah) was a partnership created under the laws of the State
of New Mexico; Kenland Development Inc. (Kenland) was an Arizona
corporation. On May 30, 1986, they formed a limited partnership
under the laws of New Mexico called Grand Bell Property Ltd.
(Grand Bell). Each of them held a 1% general interest and a 49%
limited interest in Grand Bell. Immediately after its creation,
Grand Bell purchased 575 acres of raw land near the city of
Phoenix, Arizona. The purchase was financed by a first mortgage
on the land for $23,613,000, some additional borrowings, and some
capital raised by the two partners. Development in the Phoenix
area did not proceed as rapidly after 1986 as the Grand Bell
partners had apparently expected. By that time the 575-acre
parcel of land had decreased to approximately
U$24 million.
[6] In the spring of 1988, a Mr. Lynch
was instrumental in introducing Mr. John Gregory of the firm
Thorsteinssons, Tax Lawyers, to the principals of Grand Bell. Mr.
Gregory represented the Appellant and some other clients to whom
it could be advantageous to realize non-capital losses in 1988
for income tax reasons. As a result the following series of
carefully planned and executed transactions occurred.
i)
On May 6, 1988, a limited partnership was formed under New Mexico
law. Bellamah and Kenland were its only partners, each of them
holding a 1% general interest and a 49% limited interest. It was
named Grand Bell II.
ii)
Grand Bellchanged its fiscal year end from December 31 to May
7.
iii)
Each of the partners of Grand Bell changed its interest from 1%
general interest and 49% limited interest to 49.5% general
interest and 0.5% limited interest.
iv)
The partners of Grand Bell jointly executed two promissory notes
payable to Grand Bell, one for U$12,000,000 and one for
U$5,500,000.
v)
Grand Bellassigned the $12,000,000 note to Grand Bell II, and in
consideration Grand Bell II assumed a liability of Grand Bell to
its bank of U$12,000,000.
vi)
Each of the two Grand Bell partners then assigned its 49.5%
general interest in Grand Bell to various Canadian purchasers for
a total consideration of U$202,125. The Appellant was one of
these purchasers, and it acquired a 10.7582% interest.
vii)
Each of the two original Grand Bell partners then assigned its
remaining interest in Grand Bell to 340545 B.C. Ltd. for a total
consideration of $8,250. 340545 B.C. Ltd. was a Canadian resident
corporation. At this point Grand Bell was entirely owned by
Canadian residents.
viii)
Grand Bell's partnership agreement was amended to include
among its objectives "(ii) to acquire, own, develop,
lease, manage and operate interests in oil and gas property;
(iii) to enter into partnerships, limited partnerships, ventures,
associations, corporations or other entities whose purpose
include any of the foregoing purposes and (iv) to engage in such
other activities as may be deemed necessary or appropriate by the
partners". It continued to have as one of its stated
objectives "... acquire, develop, construct improvements on,
lease, manage, operate for profit, hold for appreciation, and
sell or exchange real property, ... " (Exhibit A-1, Tab
40).
ix)
Grand Bellthen purchased an interest in three oil and gas leases
in Alberta from G.J.S. Resources Ltd (GJS) for $15,000. There
were producing wells on each of these properties.
x)
Grand Bellthen sold the 575 acre property to Grand Bell II, and
also assigned to it the U$5,500,000 note. In consideration Grand
Bell II assumed all the liabilities of Grand Bell other than
those pertaining to the oil and gas interest. As part of the same
transaction, Grand Bell II granted to Grand Bell what was
referred to in the evidence as an option in relation to future
development of the 575-acre property. I shall have more to say
about the nature of the option clause later in these reasons.
[7] As a result of the change in its
year end to May 7, Grand Bell had a year end the day following
the closing of these various transactions, and it computed a
non-capital loss for the year of $21,562,808, of which $21.4
million was attributable to the decrease in value of the 575-acre
parcel of land. The portion of the loss assigned to the Appellant
in respect of its 10.7582% interest was $2,319,770. It applied
this in computing its income for the taxation year ended June 29,
1988, leaving a balance of $2,274,720, of which it applied
$1,826,178 to its taxation year ended April 30, 1988 and $129,687
to its taxation year ended April 30, 1989. Following the
amalgamation to which I referred earlier, the Appellant applied
the remaining non-capital loss balance of $318,855 to reduce its
taxable income for the taxation year ended April 30, 1989. It is
from the disallowance of these loss deductions that the Appellant
now appeals.
[8] Mr. Gordon Geddes has been a very
successful entrepreneur for many years. The contracting business
was founded by his grandfather in the 1930s. Gordon Geddes became
a shareholder, an officer and a director of the company in the
mid 1960s. He moved the company from its primary activity of
logging into the construction of roads, dams and transmission
lines. He also took the company into real estate development, and
was involved himself in other real estate transactions through
different corporate vehicles.
[9] It was his investment advisor who
brought the Grand Bell deal to Mr. Geddes' attention.
Before entering into it he sought the advice of his accountant,
and of a tax lawyer, Mr. Warren Mitchell. Mr. Geddes was quite
candid in his evidence, saying that he was attracted to the deal
by reason of the substantial tax savings that he anticipated from
it. He went on to say, however, that he had friends who had made
very successful investments in oil and gas, and that he welcomed
the opportunity to invest in that field himself, and did so
through his company's interest in Grand Bell with every
expectation of making significant profits.
[10] There is no dispute about any of these
facts. The Respondent does not contest that the transactions were
completed as I have described, or that they were all properly
documented. The Crown's opposition to the appeals is based
simply upon the contention that Grand Bell, in the hands of the
Canadian purchasers, did not carry on business, and so did not
meet the classic definition of a partnership under Canadian
law.[5] The
partners, the Respondent says, were simply the co-owners of a
minor investment in three petroleum leases.
[11] The Appellant's position is that at
the relevant time Grand Bell was engaged in the oil and gas
business, and in the real estate development business, and
therefore qualifies as a partnership whose losses were available
to be used by the partners to reduce the incidence of tax on
their other incomes. Its oil and gas business was in relation to
the leases to which I have referred, and the real estate business
was in connection with the future development of the 575-acre
parcel, and in particular Grand Bell's future involvement in
that through the so-called option clause.
[12] Mr. Geddes stated quite candidly in his
evidence that the prospect of losses that could be applied to
minimize the incidence of tax was a motivating factor for him
when he decided that the Appellant would participate in the Grand
Bell partnership. That is irrelevant, however, to the question
whether Grand Bell, once acquired by the Canadian purchasers, was
a partnership. The Supreme Court of Canada put it this way in
Spire Freezers.
17 As stated in
Continental Bank, and reiterated in Backman, a tax
motivation will not derogate from the validity of a partnership
where the essential ingredients of a partnership are otherwise
present: Continental Bank, supra, at paras. 50-52;
Backman, supra, at para. 22. Furthermore, as held
in Backman, where a Canadian taxpayer seeks to deduct
partnership losses through s. 96 of the Act, he or she must
satisfy the essential elements of a partnership that exist under
Canadian law. In other words, for the purposes of s. 96 of the
Act, the essential elements of a partnership must be present,
even in respect of foreign partnerships: Backman,
supra, at para. 17.
As to the essential elements of a partnership, the Court said
this:[6]
14 The essential
ingredients of partnerships and the proper approach to
determining whether a partnership exists are discussed in
Backman. We summarize those principles below.
(a) The Essential
Ingredients of Partnership
15 The three essential
ingredients of a valid partnership in Canada were recently
described by this Court in Continental Bank, supra,
at para. 22. At the time the alleged partnership is formed, the
evidence must disclose that the alleged partners were (1)
carrying on a business, (2) in common, (3) with a view to
profit.
16 In Backman,
supra, we discuss the concepts of "carrying on a
business", "business", "in common", and
"view to profit" as applied to partnership law and as
described in Continental Bank. We need not repeat that
discussion here. Indeed, most of the reasoning in Backman
is applicable in this case.
...
18 As explained in
Backman, the determination of the existence of a
partnership will depend on the true contract and intention of the
parties as appearing from the whole of the facts of the case.
Courts must be pragmatic in their approach to the three essential
ingredients of partnership and weigh the relevant factors in the
context of all the surrounding circumstances: Backman,
supra, at paras. 25-26.
(c) Application to the Facts at Bar
19 The transactions at issue in
this case are similar to those in Backman. As in
Backman, in this case, two groups of Canadians allege that
they became partners in a valid partnership through a series of
transactions that involved their taking assignments of
partnership interests in a pre-existing American partnership. The
original American partners withdrew, leaving the resultant
alleged partnership between the Canadians holding two assets. The
primary asset, in this case the HCP condominium project, was held
briefly and in effect sold back to the original American
partners, generating a large loss for the alleged partnership.
The subordinate asset, in this case the Tremont apartment
building, is the vehicle through which the appellants seek to
establish that there was an ancillary purpose in the transactions
that rendered them members of a valid partnership, namely to
carry on business in common with a view to profit.
[13] Superficially at least, the present
case is remarkably similar to Backman and Spire
Freezers. The preordained plan had as its essential elements
the sale of the raw land by the original partnership, now owned
by Canadians, to a new partnership formed for the purpose by the
Americans, at its now greatly reduced value, leaving the original
partnership with a substantial loss and two ancillary assets. One
of these was the option to participate in the development of the
land, and the other is the interest in petroleum leases that it
purchased upon the closing of the various transactions. Counsel
for both parties accepted that, having regard to the cases of
Backman and Spire Freezers, the result in this case
must turn on whether I find that Grand Bell carried on a business
after May 6, 1988. Counsel for the Appellant argues that it did
carry on business, consisting of the sale of the raw land in
Arizona, the development of real estate through the option that
it acquired on closing that sale, and the oil and gas interests
that it purchased. For the reasons that follow, I am of the view
that the evidence simply does not establish that the Canadian
Grand Bell partners carried on business at all. They were simply
the co-owners of the oil and gas property, and of the rights they
acquired under the so-called option.
[14] I turn first to the suggestion that the
sale of the 575-acre parcel of land was in itself evidence of
carrying on business. If I understood counsel for the Appellant,
his thesis with respect to this is that since the decisions of
the Supreme Court in Stewart[7] and Walls[8] it is no longer necessary that a
taxpayer be able to show a reasonable expectation of profit in
order to establish that he had a business. While that is so, it
does not follow that taxpayers who enter into transactions in the
expectation, indeed the certainty, of a large loss can thereby be
said to have carried on a business. It is quite clear from the
Supreme Court's judgment in Stewart that pursuit of
profit is an essential element of a business.[9] Whatever may be said of the
acquisition of the option, or of the oil and gas property, the
sale of the acreage was not motivated by profit, but by loss,
albeit an artificial one on paper only so far as the Canadian
partners were concerned. I do not accept the Appellant's
proposition that the Stewart and Walls decisions
somehow detract from the principle stated in Backman and
Spire Freezers decided only two years prior.
Stewart and Walls were not concerned specifically
with defining a business, but rather with what constitutes a
source of income, whether business or property, for purposes of
section 3 of theAct. The essential attribute of a
partnership with which the Supreme Court was concerned in
Backman and Spire Freezers, and with which I am
concerned here, is very specifically the carrying on of a
business. From that perspective, the sale of the Phoenix acreage
in this case is not distinguishable from the sale of the
apartment complex in Backman. It does not constitute the
carrying on of a business by the Canadian partners.
[15] Nor do I accept the Appellant's
contention that by virtue of having purchased the so-called
option it was carrying on the business of real estate
development. There are two reasons for this conclusion. The
first requires an examination of the language of the document
itself. The operative provisions of it read as follows:
OPTION AGREEMENT
This Option Agreement (the "Agreement") is executed by
and delivered on the 6th day of May, 1988, by GRAND BELL PROPERTY
II, LTD. ("New Partnership") and GRAND BELL PROPERTY,
LTD., a New Mexico Limited Partnership ("Grand
Bell").
WHEREAS, contemporaneously herewith, Grand Bell will transfer and
convey to New Partnership that certain real property located in
Maricopa County, Arizona and described on Exhibit A which is
attached hereto and incorporated herein by reference for all
purposes (the "Property"); and
WHEREAS, in connection with the transfer of the Property, New
Partnership desires to grant, and Grand Bell desires to retain,
an option to share in ten percent (10%) of the Profits, as
hereinafter defined, from the Property;
NOW THEREFORE, for and in consideration of Ten Dollars ($10.00),
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, New Partnership and
Grand Bell hereby agree as follows:
1. Option.
Grand Bellmay elect to share in ten percent (10%) of the Profits
arising from and out of the Property if, as a condition
precedent, Grand Bell does the following in a timely manner:
a. Notifies New
Partnership in writing (the "Notice") ten (10) business
days after receipt by Grand Bell of a written demand for a loan
to be made pursuant to this Option Agreement that it elects to
participate in Profits;
b. Within ten
(10) business days of the Notice, placed in escrow (the
"Escrow") at a title company in Phoenix, Arizona
selected by the New Partnership, the following amounts:
(1) $100,000.00
representing the initial cost (escrow fees, title fees,
attorneys' fees, and other costs and fees of arranging and
closing the loan transaction herein contemplated);
(2) All Carrying
Costs, as hereinafter defined, as stated in writing by New
Partnership to Grand Bell within ten (10) business days of the
Notice; and
(3) All Development
Costs, as hereinafter defined, as stated in writing by New
Partnership to Grand Bell within ten (10) business days of the
Notice; and
(4) A letter of
credit (from a bank and in a form acceptable to New Partnership)
equal to Expected Future Development Costs, as hereinafter
defined.
c. Within ten
(10) business days of Notice, Grand Bell delivers to New
Partnership a binding written commitment to lend the funds in
Escrow on the terms described herein as
"Parameters".
[Exhibit A-2, Tab 48)
There follow certain parameters as to the loan by Grand Bell
to Grand Bell II of the escrowed funds, some definitions, and
some other provisions not relevant to this decision. The term of
the option is provided for in paragraph 3:
3.
Term. The Option herein shall expire without
any further action at 5:00 p.m., Phoenix, Arizona time on May 5,
1989. The Option shall also expire if Grand Bell does not elect
to participate as provided herein within ten (10) business days
after a written request for such participation pursuant to the
terms hereof is made by New Partnership accompanied by a written
development plan.
Although this agreement is styled an option agreement, and was
referred to as such throughout the trial, this seems to me
something of a misnomer. It is clear from paragraph 1a that it
can only be exercised by Grand Bell 10 business days after it
receives a written demand for a loan from Grand Bell II. Even
then, Grand Bell's only right under the agreement is to pay
to Grand Bell II $100,000, lend to it all the costs enumerated in
paragraph 1b at the Citibank prime rate, and to "share in
10% of the profits arising from and out of the property". It
makes no provision for Grand Bell or its partners to have any
role in the actual development of the property, except as a
lender, and that only if the original partners decide to invite
them to participate. As a lender they would potentially realize
10% of the net profit of the development, as well as the
stipulated rate of interest. However, they would have had no
right to participate in the decisions to be made in respect of
the project, or the manner in which it would be carried out. It
is not surprising that this "option" quietly expired at
the end of its one year term without ado. To describe being a
party to that agreement during its lifetime as carrying on
business would certainly be a gross distortion of the
concept.
[16] On the same day that the purchase of
Grand Bell by the Canadian partners closed, Grand Bell purchased
from GJS Resources Ltd. a 2.676300% interest in one oil and gas
lease and a 6.690800% interest in another. The total price for
these was $15,000. A few documents relating to these interests
became exhibits at the trial. They show that there was to be a
joint operating agreement, but that it apparently was never
executed. The major interest in the properties passed from GJS
Resources Ltd. through several hands before ending up at the time
of the trial with Penn West Petroleum. It appears that the owner
of the majority interest in the property from time to time
operated it, presumably pursuant to the terms of the unexecuted
joint operating agreement. It does not appear that a copy of this
document was included among the several inches of documents (many
of them quite irrelevant) that were put into evidence by
agreement of the parties. Such documents as there are relating to
these leases consist largely of notices to Grand Bell of its
obligation to remit from time to time its share of the rent to
the operator, and of statements of the operating results.
Immediately following the closing meeting on May 6, 1988, the
Grand Bell partners met and appointed their lawyer, John Gregory,
a Thorsteinssons partner, to be the manager of the partnership.
He seems to have signed the rent cheque on some occasions,
recovering the amounts later from the partnership. At some point,
however, Thorsteinssons ceased to act for Grand Bell, and by May
2000, Mr. Geddes had apparently taken over the function of
communicating with the majority owner and operator of these
leases. A rent cheque for $20.98 in May 2000 is drawn on the bank
account of Geddes Construction Ltd. Mr. Geddes apparently stepped
into the breach because no one else was looking after it.
[17] At about the time these appeals were
being heard, Penn West decided that it would embark on some
drilling operations at these sites, and it wrote to the
Appellant's solicitors to advise them of that and to get
Grand Bell to sign an authorization for expenditure (AFE) for its
part of the proposed program. As I have already said at paragraph
2, I permitted the trial to be reopened twice, and as a result a
number of additional documents having to do with the oil and gas
leases were admitted in evidence. What they show is that after
the trial in March 2003, Penn West carried on what appears
to have been some exploratory drilling work on these leases, at a
total cost of slightly more than $700,000, of which Grand
Bell's share was slightly more than $25,000. On three
separate occasions, Mr. Geddes was asked to, and did, sign AFEs
to authorize the work. There also continued to be a flow of
invoices for the land rent and statements of operations back and
forth. Nowhere in any of this additional evidence does it appear
that Mr. Geddes, or anyone else on behalf of Grand Bell, was
invited to contribute to the planning or decision-making as to
the manner of proceeding with the additional drilling. As a small
part owner, Grand Bell had to decide on each occasion if it
wished to continue to participate as an owner, and upon deciding
that it did, it then had to write a cheque for the amount of its
additional investment. There is no suggestion that Mr. Geddes
consulted Mr. Gregory, or any of the other Grand Bell partners,
before signing these AFEs, or even asked the other partners to
pay their shares.
[18] I do not accept that these facts
establish that the Canadian Grand Bell partners, when they
purchased their interests, had the intention of carrying on
business with a view to profit. There was much discussion at the
trial as to whether, on the state of the pleadings, the
Respondent was entitled to argue that the purchase of the oil and
gas interests was "mere window dressing". Whatever
expression one might use, I find as a fact that these interests
were purchased not for the prospect of the income that they might
produce, but because the lawyers who structured the tax avoidance
scheme knew very well that under Canadian law you cannot have a
partnership without some sort of a business to carry on. Mr.
Geddes testified that he had a friend who had made exceedingly
profitable investments in oil and gas, while he himself had been
much less successful in that field, and that he hoped to see
substantial profits from this investment. However, there was no
evidence that he or any of the partners had any particular basis
for buying these interests rather than any other, or that they
sought any advice from people with real knowledge of the
petroleum business. In Backman, the Supreme Court had this
to say about the issue whether the ownership of the oil and gas
property could satisfy the requirement that there be a
business.[10]
29 The appellant argues that he
established an ancillary intention to carry on business with a
view to profit by virtue of the purchase of a working interest in
an oil and gas property. Here, again, the documentary evidence
indicates an intention to form a partnership. Just prior to the
transactions at issue in this appeal, the partnership agreement
was amended to provide for investment in oil and gas as one of
the purposes of the partnership. Shortly before the scheduled
withdrawal of the American partners, the alleged partnership did
purchase a one percent interest in an Alberta oil and gas
property for $5,000. However, as discussed above, this evidence
of intention must be weighed against other factors in the context
of the surrounding circumstances relating to the oil and gas
property. In considering those circumstances, we are not
convinced that the putative partners had the necessary intention
to carry on business in common with a view to profit. It is
difficult to accept that there was in fact a business being
carried on when none of the factors relevant to the existence of
a business supports that contention. The putative partners did
not hold themselves out to others as providers of goods or
services derived from their interest in the oil and gas property.
They had no management duties in respect of the property. There
is no evidence that the alleged partnership or its agents
expended anything other than nominal time, attention or labour on
the project; nor did they incur any liabilities to other persons
in respect of it.
The same is essentially true of this case. There is no reason
to believe that anyone other than Penn West knew that Grand Bell
even owned its oil and gas interests. It never interacted with
people in the industry. The only liabilities that it incurred
were to the majority owner and operator for its small share of
the rent. It did make an additional investment of some $25,000
after March 1993, but that was certainly not in contemplation of
Mr. Geddes, or any other partner, in May 1986 when the
arrangements were put in place. Against all this, there is only
the subjective evidence of Mr. Geddes that he hoped that this
time his oil and gas investment would be profitable. That does
not turn a passive investment into a business. Mr. Geddes quite
clearly knew very little about any of the affairs of the
partnership. Other than the few cheques that he had signed for
rent, because no one else was doing it, he could not tell us
anything significant about the oil and gas properties. One might
reasonably think that Mr. Gregory, who had been made manager of
Grand Bell in May 1986, would have had some knowledge of the
business, if business it was. He did not testify. Nor did any
other Grand Bell partner. The inference that I draw is that they
could not have said anything that would have been useful to the
Appellant.
[19] My conclusion is that nothing in the
facts distinguishes this case from that of Backman. The
Grand Bell partners in Canada did not carry on business with a
view to profit, even as an ancillary purpose. The appeals are
dismissed, with costs.
Signed at Ottawa, Canada, this 6th day of January, 2005.
Bowie J.
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