REASONS
FOR JUDGMENT
Hogan J.
I. Overview
[1]
The present case is an appeal from a
reassessment made by the Minister of National Revenue (the “Minister”) for the 2006
taxation year of Birchcliff Energy Ltd. (the “Appellant”). The genesis of this
appeal is a dispute regarding the disallowance by the Minister of a deduction
of $16,226,489 of non-capital losses claimed by the Appellant for its 2006
taxation year in the circumstances described below. The losses were incurred by
a predecessor corporation, Veracel Inc. (“Veracel”), which was amalgamated with
Birchcliff Energy Ltd. (“Birchcliff”) to form the Appellant as the last step of
a complex series of transactions (the “Amalgamation Transactions”) implemented
pursuant to the terms of a court‑sanctioned plan of arrangement.
[2]
The Respondent defends the reassessment on the
grounds that control of Veracel was acquired by a person or “group of persons” either
upon or immediately prior to its amalgamation with Birchcliff. As a result, the
Appellant is barred from using the losses by virtue of the restrictions (the
“Loss Streaming Restrictions”) contained in subsection 111(5) of the Income
Tax Act (the “Act”) because it did not carry on the business that gave rise
to Veracel’s losses. In the alternative, the Respondent argues that the Appellant
abusively circumvented the Loss Streaming Restrictions by avoiding a special
rule that deems control to have been acquired, such that the general anti‑avoidance
rule in section 245 of the Act (the “GAAR”) applies with a similar effect to
that of the Loss Streaming Restrictions.
[3]
This appeal was originally heard by Justice
Jorré of this Court. With the consent of both parties, the appeal is to be
decided by me on the basis of the transcript and the record.
II. Factual
Background
[4]
The facts are essentially as set out in a
partial agreed statement of facts, which reads as follows:
The parties agree for the purposes of the
determination of the issues herein that the following facts may be accepted as
evidence without further proof thereof. Numerical references in brackets refer
to the relevant tab in the Agreed List of Documents.
Veracel
1. Veracel Inc. (“Veracel”) was incorporated on August 10,
1994 as Morphometric Technologies Inc. under the Business Corporations Act
of Ontario.
2. Veracel’s business was to develop, manufacture and market
automated diagnostic instruments for medical applications (the “Medical
Business”).
3. In April 2001, the company changed its name to Veracel.
4. On November 15, 2002, Veracel filed a proposal under
the Ontario Bankruptcy and Insolvency Act that was accepted by the
Ontario Superior Court of Justice. [2] On November 19, 2003, the Trustee
certified that Veracel had fully performed the proposal.
5. Veracel ceased its Medical Business in 2002. No income was
earned from the Medical Business after 2002.
6. In February 2004, Veracel solicited proposals in connection
with its existing tax attributes. [4] Soon thereafter, Veracel started to work
with David Tonken and Greg Matthews.
7. On November 5, 2004, Veracel, David Tonken, Greg
Matthews and Emerging Equities Inc. executed a letter agreement in connection
with a proposed transaction. [5] The proposed transaction was not completed.
8. As at the end of 2004, Veracel had the following tax
attributes: non-capital losses of $16,226,489; scientific research and
experimental development expenses of $15,558,003; and, investment tax credits
of $1,874,979 (the “Tax Attributes”).
9. The issued and outstanding Veracel shares, as at December 31,
2004, consisted of 10,280,461 Common Shares and 7,299,424 Class A
Preference Shares. [9; 44, Exhibit B]
10. Class A Preference shareholders were entitled to receive
notice of and attend meetings, and vote at such meetings, on a 1:1 basis with
holders of Common Shares. [64]
11. Veracel shareholders included the Business Development Bank
of Canada, Ontario Development Corp., AGF and HSBC. [44, Exhibit B]
Birchcliff
12. On July 6, 2004, Birchcliff was incorporated as 1116463
Alberta Ltd. That company changed its name to Birchcliff Energy Ltd. on
September 10, 2004.
13. On January 18, 2005, Scout Capital Corp. (“Scout”), a
publicly listed company, amalgamated with the company then named Birchcliff
Energy Ltd. (the “Scout Amalgamation”). The amalgamated company adopted the name
Birchcliff Energy Ltd. (“Birchcliff”). When Birchcliff and Veracel amalgamated
on May 31, 2005, as set out below, that company also adopted the name
Birchcliff Energy Ltd. (“Amalco”).
14. On January 19, 2005, the common shares of this newly
amalgamated company were listed for trading on the TSX Venture Exchange under
the trading symbol “BIR”.
15. The Scout Amalgamation was done by way of a court approved
Plan of Arrangement and involved the issuance of subscription receipts. [11]
16. David Tonken was the President and CEO of Scout from 1998 to
2002.
17. David Tonken is the brother of Jeff Tonken, the President and
CEO of Birchcliff and of Amalco.
Purchase
of initial oil and gas property
18. On February 14, 2005, Birchcliff entered
into a letter agreement to purchase properties in the Peace River Arch area of
Alberta for $2.75 million.
19. This purchase closed on May 5, 2005.
Agreement to purchase major oil and gas property
20. On March 9, 2005, Birchcliff entered into a letter
agreement in connection with the purchase of oil and natural gas properties in
the Peace River Arch area of Alberta for $255 million (the “Devon
Properties”). [14] The related purchase agreement was executed on March 29,
2005 for a purchase price of $243 million.
21. It was anticipated that the acquisition of the Devon
Properties would close on or before May 31, 2005.
22. Birchcliff approached several financial institutions
including Scotia Capital in connection with financing the acquisition of the
Devon Properties.
23. On March 29, 2005 Birchcliff and Scotia Capital signed a
Commitment Letter wherein Scotia Capital committed financing in the form of a
Revolving Loan in the amount of $70 million and a Bridge Loan in the
amount of $149 million, to purchase the Devon Properties. [21] The Bridge
Loan was never advanced.
24. KPMG prepared a schedule of revenue and expense for the Devon
Properties identifying that, in 2004, the Devon Properties generated revenue
exceeding $85 million which, after the payment of royalties and operating
costs, generated net profit of more than $50 million. [10]
Veracel and Birchcliff sign a letter agreement
25. David Tonken brought Veracel and Birchcliff together for a
possible transaction. He contacted Jim Surbey at Birchcliff and discussed
Veracel’s situation with him. [132, 133]
26. On March 18, 2005, Birchcliff directors approved of
entering into a purchase agreement for the Devon Properties and approved a
proposed Arrangement Agreement with Veracel. [19]
27. Negotiations between Veracel and Birchcliff included the
exchange of draft agreements, and revisions to such agreements, in
correspondence dated March 21, 23, and 29, 2005.
28. On March 29, 2005, a Birchcliff press release announced
that Birchcliff had entered into an acquisition agreement for the purchase of
the Devon Properties for approximately $240 million. The press release
described the Devon Properties and identified that the parties anticipated that
the transaction would be completed by May 31, 2005. [25]
29. John Anderson of Veracel sent a letter dated March 29,
2005 to the shareholders of Veracel regarding “Reorganization of Veracel Inc.”
[24]
30. On April 1, 2005, Birchcliff and Veracel signed a Letter
Agreement. [27]
31. On April 3, 2005, Birchcliff issued a press release
announcing that Veracel and Birchcliff had signed the Letter Agreement. [39]
32. By April 4, 2005, the new financing proposed in the
letter agreement is being marketed. [34]
Steps to implement letter agreement
33. On April 12, 2005, Olympia Trust Company (“Olympia”) on
behalf of Birchcliff advised the TSX Venture Exchange (“TSXV”) and the
securities commissions in British Columbia, Alberta, Saskatchewan, Ontario and
Nova Scotia that the annual and special meeting was set for May 24, 2005.
34. On April 14, 2005, GMP Securities Ltd. signed a letter
of offer to Veracel to agree to place subscription receipts. [32]
35. On April 14, 2005, the Underwriting Agreement became
effective, among Veracel and GMP Securities Ltd., as lead underwriter, Sprott
Securities Inc. and Scotia Capital Inc. (collectively the “Underwriters”), with
respect to an equity financing of up to $136,000,000 plus a further $10,000,000
in a separate flow-through equity financing. [42]
36. On April 18, 2005, Veracel and Birchcliff executed the
Arrangement Agreement. Exhibit A to the Arrangement Agreement is the Plan of
Arrangement. [44]
37. During April 2005, Veracel received concurrence of
shareholders to proceed with the Arrangement Agreement. [40]
Notices and approvals
38. On April 18, 2005, Birchcliff notified the TSXV in
connection with the proposed transactions. [45]
39. On April 18, 2005, Veracel notified shareholders of a
special meeting in connection with proposed transactions. [46]
40. On April 19, 2005, Birchcliff notified the Alberta
Securities Commission (“ASC”) that counsel to Birchcliff would attend the
Alberta Court on April 22, 2005 to apply for an Interim Order in
connection with the Plan of Arrangement.
41. On April 21, 2005, the Veracel directors approved the
Arrangement Agreement, the Private Placement, the “New Equity Financing” and
other matters. [47]
42. On April 21, 2005, the Birchcliff directors approved of
the Information Circular and other matters. [48]
43. On April 21, 2005, in accordance with the Arrangement
Agreement, Birchcliff filed a Petition with the Alberta Court applying for an
Interim Order directing that a shareholders meeting be called to vote on the
proposed Arrangement. [49] An affidavit of Jim Surbey was filed in connection
with this Petition. [52]
44. On April 21, 2005, an MRRS Decision document was issued.
[50]
45. On April 22, 2005, the Alberta Court issued the Interim
Order.
46. A copy of the Interim Order and related documents [was]
provided to the ASC by letter dated April 22, 2005.
47. On April 22, 2005 the Information Circular was
published. [51]
48. A corporate administrator from Olympia declared, on May 5,
2005, that the Information Circular and a Proxy were mailed to each Birchcliff
Shareholder on April 26, 2005 and confirmation of same was provided to the
TSXV and to securities commissions in British Columbia, Alberta, Saskatchewan
and Ontario.
49. An April 25, 2005 press release announced that the
Underwriters had exercised their option to sell the additional 8 million
Veracel Subscription Receipts, to increase the equity financing up to
$136,000,000. [54] The Underwriters’ confirmation of same was issued May 4,
2005. [68]
50. On April 26, 2005, Birchcliff by letter applied to the
Committee on Uniform Security Identification Procedures (“CUSIP”) for approval
of a new CUSIP number for the Common Shares of Amalco that were to be issued in
exchange for shares of Veracel and Birchcliff on the amalgamation.
51. The new CUSIP number was issued on May 2, 2005. A
specimen Amalco Common Share certificate with the new CUSIP number and a
specimen Amalco Series 1 Preferred Share certificate were prepared on May 20,
2005.
Further Veracel approvals
52. On April 29, 2005, the shareholders and investors of
Veracel met and passed the following resolutions: [56]
a. to elect Robert Allan, John Anderson and David Tonken as
directors;
b. to issue 3,775,000 [common shares] to each of David Tonken
and Greg Matthews on condition of the Arrangement closing (the “Private
Placement”);
c. to amend then terminate the Unanimous Shareholders
Agreement;
d. to authorize the Letter Agreement with Birchcliff;
e. to approve the amendment to the articles of Incorporation
to create Class B common shares;
f. to transfer all assets to Newco in exchange for Newco
shares and then to distribute those shares to Veracel shareholders;
g. to continue to Alberta;
h. to authorize the Arrangement Agreement with Birchcliff;
i. to authorize the “New Equity Financing”; and
j. to waive rights, privileges and conditions attached to
Class A Preferred Shareholders.
53. On April 29, 2005, the directors of Veracel passed the
following resolutions: [55]
a. to approve the Letter Agreement and Arrangement with
Birchcliff;
b. to transfer all assets to Newco in exchange for Newco shares
and then to distribute those shares to Veracel shareholders;
c. to authorize David Tonken and John Anderson to implement
the “Arrangement”;
d. to issue 3,775,000 [common shares] to each of David Tonken
and Greg Matthews; and
e. to authorize the “New Equity Financing”.
54. On April 29, 2005, Veracel filed Articles of Amendment
to allow for the issuance of Class B Common Shares.
55. On April 29, 2005, Veracel share certificates were
issued representing 3,775,000 [common shares] to each of David Tonken and Greg
Matthews in accordance with the Private Placement. [57]
56. On May 2, 2005, Veracel continued from Ontario to
Alberta. [64]
Financing to raise $136,000,000
57. On May 2, 2005 Veracel completed a “Due Diligence
Questionnaire” for the Underwriters regarding the transaction with Birchcliff.
[61]
58. On May 2, 2005 Birchcliff completed a “Due Diligence
Questionnaire” for the Underwriters regarding the transaction with Veracel.
[62]
59. On May 4, 2005, the Subscription Receipt Indenture among
Veracel, the Underwriters and Olympia became effective. [69]
60. On May 4, 2005, the Representation Agreement between
Birchcliff and the Underwriters became effective. [70]
61. A memorandum was issued regarding the transfer of
$130,500,000, to be received by the Underwriters for the sale of 32,625,000
Subscription Receipts, which provided that, once all parties and counsel agreed
the closing documentation had been tabled, such funds would be wire transferred
from the Underwriters’ account to Olympia’s account. [73] The other $5,500,000
was to be received from the President’s List subscribers. [67]
62. On May 4, 2005, the Subscription Receipt financing
closed and 34,000,000 Subscription Receipts were issued to 133 investors. [111]
63. On May 4, 2005, the closing of the $136,000,000
financing was announced. [71]
64. A Subscription Receipt Agreement was completed by each of the
133 investors [60, 80, 81] and each investor was issued a Subscription
Receipt. [58, 66, 77, 78, 82]
65. On May 4, 2005, by Treasury Order, Veracel directed
Olympia to issue the Subscription Receipts. [74]
66. On May 4, 2005, Veracel and Olympia acknowledged receipt
by Olympia of $136,000,000 in aggregate from the Underwriters ($130,500,000)
and from the President’s List subscribers ($5,500,000). [75, 76, 79]
Further Birchcliff approvals
67. On May 10, 2005, Birchcliff warrant holders and stock
option holders approved the Arrangement and the Arrangement Agreement. [84, 85]
68. On May 16, 2005, Birchcliff notified the ASC that
Birchcliff intended to apply to the Court on May 24, 2005 for a Final Order.
69. On May 24, 2005, the Birchcliff shareholders’ meeting
was held and Olympia, as scrutineer, issued a report identifying that holders
of more than 50% of the outstanding shares of Birchcliff attended the meeting
in person or by proxy and that 100% of the 54 votes cast were in favour of
the Amalgamation and acquisition of the Devon Properties.
Completion of the plan of arrangement and
related matters
70. On May 24, 2005, an Affidavit was sworn in support of
the Final Order. [90]
71. On May 24, 2005, the Court approved the Final Order,
which provided that the Arrangement was approved and would be effective in
accordance with its terms, and binding on all persons, upon the filing of the
Articles of Arrangement. A copy of the Order was provided to the ASC.
72. On May 25, 2005, Veracel directors approved of the form
and allotment of the Veracel Class B Common Shares and other matters. [91]
73. On May 25, 2005, Veracel and the Underwriters directed
Olympia to deposit the $136,000,000 into Olympia’s account at the Bank of Nova
Scotia. [92]
74. On May 30, 2005, Birchcliff directors approved the
filing of Articles of Amendment to create Series 1 Preferred Shares dated May
30, 2005. [95]
75. On May 30, 2005, Articles of Amendment were filed,
creating Series 1 Preferred Shares, and a Certificate of Amendment was
issued by the Alberta Corporate Registrar (the “Registrar”). [96]
76. The Series 1 Preferred Shares provided for redemption and
retraction at a price equal to $1,500,000, less certain liabilities, divided by
the total number of Veracel Common Shares and Veracel Class A Preference Shares
outstanding prior to filing of the Articles of Arrangement. [96]
77. On May 30, 2005, the Depositary Agreement between
Veracel and Olympia became effective. [97]
78. Veracel and Birchcliff jointly confirmed for Olympia that the
redemption price for the Series 1 Preferred Shares of Amalco was $0.05969 and
confirmed the exchange ratio for each holder of Veracel Common Shares and Class A
Preference Shares that elected to receive Amalco Common Shares would have an
exchange ratio of 1:0.01492. [114]
79. Veracel shareholders issued Letters of Transmittal in order
to elect whether to receive Amalco common shares or Amalco Series 1 Preferred
Shares. [94]
80. On May 31, 2005, Veracel and the Underwriters issued the
Transaction Notice and Direction which is received by Olympia. [102, 103]
81. On May 31, 2005, Birchcliff issued a Certificate,
acknowledged by Olympia, confirming that the capital stock of Birchcliff at the
close of business on May 30, 2005 continued to consist of 20,248,337
Common Shares.
82. On May 31, 2005, Veracel issued a Certificate,
confirming that the issued and outstanding Veracel shares continued to
consist of 17,830,461 Common Shares and 7,299,424 Class A Preference Shares
for a total of 25,129,885 outstanding shares. [108]
83. On May 31, 2005, Articles of Arrangement were filed by
Veracel and Birchcliff and the Registrar confirmed such filings.
84. On May 31, 2005, Gordon Cameron, Werner Siemens, Larry
Shaw and Jeffery Tonken signed consents to act as directors of Amalco.
85. On May 31, 2005 John Anderson, Robert Allan, and David
Tonken resigned as officers and directors of Veracel. These directors and
Veracel signed mutual releases effective on the same day. [107, 109, 110]
86. On May 31, 2005, Olympia acknowledged receipt of the
Treasury Order. [116, 117]
87. On May 31, 2005, the Underwriters were paid, and
acknowledged receipt of payment [of], their fee of $6,580,475, in accordance
with the Underwriters’ agreement with Veracel. [99]
88. On May 31, 2005, Olympia received $1,031,884.87,
representing the redemption price for the outstanding Amalco Series 1 Preferred
Shares. [100]
89. On May 31, 2005, Amalco filed the Articles of
Arrangement [115], Final Order, Plan of Arrangement, and Articles of
Amalgamation with the TSXV and the securities commissions in British Columbia,
Alberta, Saskatchewan, Ontario and Quebec.
90. On June 3, 2005, Amalco issued a press release
announcing that Amalco had completed the Flow-Through Financing. [122]
91. On June 3, 2005, Amalco issued a TSXV Bulletin
announcing that Amalco shares were issued in exchange for Veracel and
Birchcliff shares and identifying that the Amalco Common Shares would commence
trading on the TSXV on June 6, 2005. [123]
Reassessment and related matters
92. The Appellant claimed a portion of the Tax Attributes in its
2006 taxation year.
93. By Notice of Reassessment dated November 30, 2011, the
Minister reassessed Birchcliff to disallow the deduction of $16,226,489 of non‑capital
losses (the “Reassessment”) claimed in the 2006 taxation year.
94. The Reassessment was based on assumptions related to
allegations of sham and acquisition of control. GAAR was not a basis for the
Reassessment.
95. The Appellant filed a Notice of Objection dated December 2,
2011.
96. By Notice of
Appeal filed March 13, 2012, the Appellant appealed the 2006 taxation year
to this Court.
[5]
All defined terms used herein have the meaning
given in the partial agreed statement of facts unless otherwise indicated.
[6]
The cursory description of the transaction steps
provided in the partial agreed statement of facts is not helpful without a good
understanding of the background context of these transactions. In this regard,
the Appellant and the Respondent paint a very different picture of the
circumstances and objectives that influenced the transaction steps leading up
to and culminating in the amalgamation of Veracel and Birchcliff. Each party’s position
regarding the factual context is summarized below.
III. Respondent’s
Position
[7]
The Respondent points out that there is no
dispute that Veracel was a dormant corporation that had accumulated a large
amount of non-capital losses, scientific research and experimental development
expenses and investment tax credits (the “Tax Attributes”) from the Medical Business
that it had previously carried on. The evidence shows that Veracel sent out a
request for proposals to sell its Tax Attributes for the benefit of its
existing shareholders. The Respondent contends that in early 2004 David Tonken
and his partner, Greg Matthews, were engaged as advisors to Veracel to market
the Tax Attributes.
[8]
David Tonken and Greg Matthews were the managing
directors of Cavalon Capital Partners Ltd. (“Cavalon”). The Respondent states
that Cavalon was in the business of the monetization of tax losses.
[9]
David Tonken sought out potential partners in a
transaction with Veracel who might be interested in acquiring Veracel’s Tax
Attributes. He brokered an initial transaction with Emerging Equities Inc. (“EEI”),
which ultimately fell through. David Tonken then contacted Jim Surbey, the
vice-president of corporate development and corporate secretary of Birchcliff,
to inform him of Veracel’s Tax Attributes and Veracel’s willingness to make the
Tax Attributes available to a profitable company.
[10]
Birchcliff, the other predecessor corporation in
the amalgamation, was a public entity that had entered into an agreement to
purchase the Devon Properties. At that time, it was already on a successful
path in establishing its oil and gas business. Prior to the amalgamation,
Birchcliff had obtained a commitment for financing for the Devon Properties acquisition
in the form, inter alia, of the Bridge Loan. Birchcliff did not intend
to draw on the Bridge Loan. The plan was to raise equity rather than draw on
the Bridge Loan, or to use the proceeds from the equity financing to repay the
Bridge Loan if the Devon acquisition was closed prior to completion of the
equity financing.
[11]
The Respondent reasons that David Tonken was
quite familiar with how a loss utilization transaction could be implemented. A
direct acquisition by Birchcliff of the issued and outstanding shares of
Veracel was not an option as that would trigger an acquisition of control of
Veracel. As a result, the Loss Streaming Restrictions would have barred the
Appellant from using Veracel’s non‑capital losses by reason of the fact
that the Medical Business which gave rise to the losses was not being carried
on by the Appellant with a reasonable expectation of profit.
[12]
The Respondent also notes that, had Birchcliff
and Veracel simply been amalgamated without further tax planning, Veracel would
by virtue of the special deeming rule set out in subparagraph 256(7)(b)(iii)
of the Act have been deemed to have undergone an acquisition of control prior
to the amalgamation.
[13]
The Respondent reasons that, to overcome this
obstacle, an elaborate tax plan was developed, culminating in Veracel’s
amalgamation with Birchcliff. The Respondent observes that the deeming rule in
subparagraph 256(7)(b)(iii), which deems control of a particular predecessor
corporation to have been acquired on an amalgamation, does not apply if the
shareholders of that corporation collectively receive a majority of the voting
shares of the amalgamated entity (the “Majority Voting Interest Test”) as
consideration for the exchange of their shares in the particular predecessor
corporation.
According to the Respondent, this is where clever but nonetheless ineffective
tax planning came into play. To avoid an acquisition of control of Veracel, the
Amalgamation Transactions were implemented in such a way as to allow the
Appellant to argue, at least on paper, that Veracel’s shareholders received a
majority of the voting shares of the Appellant. To achieve this purpose, the equity
financing required by Birchcliff to acquire the Devon Properties was arranged
through Veracel with the assistance of Birchcliff’s representatives. The new
investors (the “New Investors”) were presented with Birchcliff’s business plan. They invested on the strength
of Birchcliff’s business. Pursuant to the tax plan, Veracel rather than
Birchcliff issued subscription receipts to the New Investors. These receipts
were then exchanged for Class B common shares of Veracel (the “Class B shares”)
immediately prior to its amalgamation with Birchcliff. The Class B shares were
then exchanged for common shares of the Appellant upon amalgamation. Because
the New Investors required assurance that they would own shares in the
corporation that carried on the oil and gas business, the Amalgamation
Transactions were carried out in sequential order under the terms of a court‑sanctioned
plan of arrangement implemented only after all securities approvals and other
approvals had been obtained. Under the plan of arrangement, the New Investors
became shareholders of Veracel for a fleeting moment.
[14]
The Respondent argues vigorously that the
Appellant failed to avoid the Loss Streaming Restrictions because the issuance
of the Class B shares by Veracel immediately prior to the amalgamation was a
sham. In that regard, the Respondent contends that the parties to the
Amalgamation Transactions did not intend that the New Investors acquire
shareholder rights in Veracel. As a result, the Class B shares must be
ignored. On that basis, the amalgamation triggered an acquisition of control of
Veracel because the Veracel shareholders did not receive shares representing a
Majority Voting Interest in the Appellant.
[15]
In the alternative, if the Court concludes that
the sham doctrine does not apply such that the Class B shares are found to have
been effectively issued, the Respondent argues that an acquisition of control
of Veracel nonetheless occurred because the New Investors constituted a “group
of persons” that acquired control of Veracel immediately prior to its
amalgamation with Birchcliff.
[16]
Finally, in the further alternative, the
Respondent claims that the GAAR applies to override the Amalgamation
Transactions designed to avoid an acquisition of control of Veracel. The GAAR
argument was raised only after the Minister confirmed the reassessment.
IV. Appellant’s
Position
[17]
Relying principally on David Tonken and Jim
Surbey’s testimony, the Appellant alleges that David Tonken and Greg Matthews
were tasked with more than the monetization of Veracel’s Tax Attributes. Their
mandate called for the implementation of a so‑called “restart”
transaction whereby Veracel would raise new capital for the purpose of pursuing
a new business opportunity. Because the capital was raised from a large number
of unrelated investors acting independently, Veracel did not undergo an
acquisition of control. The underlying suggestion is that it was pure happenstance
that Veracel’s plan to restart, which the Appellant claims was developed prior
to David Tonken’s first meeting with Birchcliff’s executives, was complementary
to Birchcliff’s desire to raise new capital for the Devon Properties acquisition.
[18]
With that contextual background in mind, the
Appellant argues that the issue by Veracel of the Class B shares to the
New Investors cannot be ignored under the sham doctrine. For a sham to exist,
there must be deceit. The New Investors intended to become and did become
Class B shareholders of Veracel.
[19]
Furthermore, the New Investors did not act as a
“group of persons” that acquired control of Veracel. The Respondent alleges
that they constitute a “group of persons” because they entered into the
Subscription Agreement, which endorsed the plan of arrangement and granted a
proxy to Jeff Tonken or Jim Surbey to vote all of the subscription receipts or
Class B shares in favour of the plan of arrangement. That, according to
the Appellant, is not enough to congeal the New Investors into a “group of
persons”. The New Investors acted independently in acquiring their shares and
granting the proxy.
[20]
Finally, the Appellant invoked a number of
arguments to rebut the Respondent’s claim that the GAAR applies in support of
the Minister’s reassessment.
V. Credibility
and Factual Findings
[21]
There are between David Tonken’s testimony and
the documentary evidence relied on by the Respondent significant
inconsistencies, which serve to undermine his credibility. The first
inconsistency relates to the nature of Cavalon’s business and its participation
in the transactions at issue in this appeal. David Tonken contended that tax loss
monetization was only a small part of Cavalon’s advisory business. During
cross-examination, he was confronted with the contents of a memorandum to the Original
Veracel Shareholders written by John Anderson. Mr. Anderson was the former
chief financial officer of Veracel. He was hired to act as a consultant to
Veracel on the transactions proposed by Mr. Tonken and his partner. Mr. Anderson
wrote:
The historical background to the proposed Plan of Arrangement is as
follows. The Veracel/XYZ transaction has been arranged by Cavalon Capital
Partners Ltd. (“Cavalon”). Cavalon is a private company engaged in the
business of the monetization of tax losses through reorganizing public and
private companies and has assembled the parties to the proposed transaction and
will oversee the transaction. . . .
[Emphasis added.]
[22]
Mr. Tonken maintained that the memorandum
was inaccurate. Mr. Tonken also testified that Cavalon was an “unrelated
party” to the transactions.
[23]
However, Mr. Anderson specifically names
Cavalon as the party who put together the initial proposed transaction between
Veracel and EEI:
Cavalon originally proposed to combine
Veracel with oil and gas assets and a management group as way of maximizing
value for the Veracel shareholders. . . . Most recently, Cavalon
arranged for a transaction with an oil well service company through Emerging
Equities Inc. (“EEI”), a transaction that was described in a previous
memorandum sent to the Veracel shareholders. . . .
[24]
Mr. Tonken’s testimony that Cavalon was not
involved is further undermined by a chain of emails between him, Mr. Anderson
and Bob Allan
which indicates otherwise. In an email to Mr. Allan, David Tonken writes:
Gentlemen:
We are working on a letter of intent with
Birchcliff Energy Ltd.
. . .
They are interested in using Veracel as part
of a financing they are working on. A draft will be provided likely by
Thursday. Birchcliff will cover all reorganization costs and net them against a
total value of $1,984,200 for Veracel. Present shareholders will receive 70%
and Cavalon will receive 30%, in cash or shares of Birchcliff, as
elected by each shareholder.
John, please call me to discuss . . . .
. . .
Regards,
David
[Emphasis added.]
[25]
When this email was put to David Tonken, he
acknowledged that this is what the email said and made no further observation.
[26]
Another inconsistency relates to Veracel’s
motivation in undertaking the Amalgamation Transactions. Mr. Tonken’s
testimony suggested that Veracel wanted to restart in the oil and gas industry
and minimized the importance of monetizing Veracel’s Tax Attributes. He
disagreed with the statement that Veracel wished to wind up its affairs and
monetize its tax pools. He was then confronted with another letter, from Mr. Anderson
to the Canada Revenue Agency appeals officer, Beverley Philipp, from which he again
distanced himself. The letter reads, in part, as follows:
. . . My involvement in this
transaction was initially to advise the Board of Veracel as to their attempt at
monetizing their tax pools. The company was at a point where they wished to
wind up their affairs. . . .
. . . They had accumulated tax pools in excess of $30
million and wanted to somehow monetize the value of these pools.
[Emphasis added.]
[27]
Mr. Tonken testified that this letter may
have reflected Mr. Anderson’s position and beliefs, but it did not
coincide with his own view of Veracel’s intention, which was that Veracel
wanted to restart in the oil and gas industry. Mr. Tonken’s explanation is
inconsistent with Mr. Anderson’s explanation to the appeals officer.
[28]
Other documentary evidence demonstrates that the
monetization of the Tax Attributes was a more significant motivating factor
than suggested by Mr. Tonken.
[29]
The evidence shows that David Tonken and Veracel
first became acquainted shortly after February 24, 2004 when Mr. Tonken
received a Request for Proposal letter
written by Veracel, which sought the utilization of Veracel’s tax losses. The
request reads as follows:
This is a request for a proposal to utilize
the tax losses of Veracel Inc.
. . .
After several years of development work and
pre-clinical trials, it was decided by the Shareholders that unless a suitable
clinical development partner could be found, the Company would need to suspend
operations. . . .
The Company is now dormant; it continues to
own its intellectual property, prototype units, and data. The Company files,
records, and physical embodiments are in safe storage in a suitably secure
facility. The Company has no operations at this point.
Tax losses totaling some $34.8 million
including R & D carry-overs, plus $1.9 million Investment
Tax credits are available and the Shareholders of the Company want proposals
for utilization of these losses.
. . .
The Shareholders will only entertain proposals
that are not contingent on utilization of the future losses and involve
compensation, which includes an upfront cash component and equity in the
transaction.
The current
Shareholders are prepared to continue in a role to support an arrangement and
transaction that would utilize the losses.
[30]
I observe that the request for proposal does not
mention any intention on Veracel’s part to “restart”. The letter only states
that Veracel is soliciting offers to use its tax pools.
[31]
David Tonken wrote an email to Mr. Allan on
March 2, 2005
in which he stated that Birchcliff was looking for a “loss
co” and that this was the role Veracel would play in the transaction:
Dear Bob:
We have another group looking at the Veracel
pools. They have bid on a $200 million asset package and want to
include a loss co. They are aware of the USA issue and their lawyers at BLG
have requested a copy of the most recent executed USA along with the 2001
federal tax return.
We believe we should pursue this
opportunity. Would you please call me . . . to discuss.
. . .
David
[Emphasis added.]
[32]
When this email was put to David Tonken in
cross-examination, he confirmed that the pools referred to tax pools, that the
group was Birchcliff and that the “loss co” was
Veracel.
[33]
As alluded to above in the statement of the
Respondent’s position, a deal had initially been arranged between EEI and
Veracel, which ultimately failed. Mr. Tonken similarly understated the
importance of the Tax Attributes to the EEI transaction. Mr. Tonken
testified that EEI had financing problems and that the deal failed because EEI
could not raise a deposit. Notably, however, the memorandum from Mr. Anderson
to the Original Veracel Shareholders dated March 29, 2005 states that the EEI transaction
failed due to issues with Veracel’s Tax Attributes:
. . . Most recently, Cavalon
arranged for a transaction with an oil well service company through Emerging
Equities Inc. (“EEI”), a transaction that was described in a previous
memorandum sent to the Veracel shareholders. Cavalon fully disclosed to EEI the
issues relating to the Veracel tax pools and the financial risks relating to
the tax pools were reflected in the terms of the proposed transaction. Nevertheless,
the EEI transaction did not proceed because the professionals reviewing the tax
pools on behalf of the oil well service company advised that the issues
relating to the tax pools could not be resolved in sufficient time to complete
the transaction. . . . As well, Cavalon has expended
considerable time and effort in examining and clarifying the issues relating to
Veracel’s tax pools.
Cavalon is confident that the XYZ transaction can be completed
notwithstanding the difficulties associated with Veracel’s tax pools and its
corporate structure.
[Emphasis added.]
[34]
When this letter was put to David Tonken in cross-examination,
he denied that the EEI transaction failed due to problems with the Tax Attributes
and maintained that it failed due to financing issues. He was unable to point
to any documentary evidence that the deal failed due to financing problems. He
did, however, admit that questions and issues relating to Veracel’s Tax Attributes
were raised in the deal with Birchcliff, namely, the existence of backup
records establishing the expenditures and the possible tax effects of the Unanimous
Shareholders Agreement among the Original Veracel Shareholders.
[35]
After the failed EEI transaction, David Tonken
went back to the drawing board to try to broker another transaction. He
ultimately began discussions with Birchcliff. The discussions led to Veracel
and Birchcliff signing a letter agreement on April 1, 2005 which set out their agreement
with respect to the reorganization of Veracel and its amalgamation with
Birchcliff. In the letter agreement, Veracel undertook to use all commercially
reasonable efforts to raise new equity financing. The equity financing would be
done by issuing subscription receipts which would be exchangeable for Class B
shares of Veracel, which would then be exchanged for Amalco common shares. The
Amalco preferred shares, on the other hand, would be redeemable for cash upon the
closing of the plan of arrangement, up to a maximum of $1.5 million. The Original
Veracel Shareholders could opt for these preferred shares if they did not want
to follow Birchcliff into the oil and gas industry. The evidence shows that all
but three Original Veracel Shareholders pursued this option, which calls into question
Mr. Tonken’s testimony that the transactions with Birchcliff were intended
to be a “restart”.
[36]
On April 14, 2005, Veracel entered into an
underwriting agreement
with the Underwriters who were engaged to raise money through 26,000,000 subscription
receipts at the price of $4 per receipt. The Respondent highlighted
various disclosures and representations required of Veracel, which demonstrated
the Underwriters’ concern with the Appellant’s ability to utilize and have access
to the Tax Attributes. Veracel represented in the underwriting agreement that
it had not previously undergone an acquisition of control and that the
arrangement agreement would not result in any direct or indirect acquisition of
control such that Amalco would not have access to Veracel’s Tax Attributes.
[37]
As a result of hiring the Underwriters, Veracel
had to complete a due diligence questionnaire
to ensure honest and full disclosure. Several sections of the due diligence
questionnaire pertained to the availability of Veracel’s Tax Attributes and were
cited by the Respondent in her cross‑examination of David Tonken. The
Respondent highlighted question
9 of the due diligence questionnaire, which reads as
follows:
9. Please confirm that prior to the Effective Time of the
Arrangement, Veracel will have no Veracel Assets, that the only assets in
Veracel will be the tax pools as disclosed in the Veracel Financial Statements
contained in the Birchcliff Information Circular and that as at the Effective
Date of the Arrangement, Veracel will have no liabilities except in respect of
Transaction Costs as set forth in Section 4.1(s) of the Arrangement Agreement.
Answer
Confirmed.
[38]
The Respondent also highlighted questions 11 and
12, which read as follows:
11. Please
confirm that the available losses for Canadian income tax purposes, the
non-refundable investment tax credits and the eligible scientific and
development expenditures incurred by Veracel as contained in the Veracel
Financial Statements will be enabled to be utilized by Amalco to reduce future
income tax payable by Amalco or, in the case of eligible scientific and
development expenditures, be able to be deducted from taxable income in future years
of Amalco.
Answer
Veracel confirms that, to the best
of its knowledge, information and belief, the available losses for Canadian
income tax purposes, the non‑refundable investment tax credits and the
eligible scientific and development expenditures incurred by Veracel as
disclosed in the Veracel December 31, 2004 audited financial statements
should be available to be utilized by Amalco to reduce future income tax
payable by Amalco or, in the case of eligible scientific and development
expenditures, be able to be deducted from taxable income in future years of
Amalco subject to the possibility of the Canada Revenue Agency and Canadian
provincial tax authorities making arbitrary assessments and rulings and
arbitrarily imposing anti‑avoidance rules to the deductibility of tax
losses.
12. Please confirm that the Veracel Subscription Receipt
Financing will not result in an acquisition of control of Veracel for purposes
of the Income Tax Act (Canada).
Answer
Veracel has no knowledge of the
persons who will become the beneficial owners of the Veracel Subscription
Receipts and the Veracel Class B Shares and therefore has no way to determine
the effect the Veracel Subscription Receipt Financing will have on the control
of Veracel.
[39]
I observe that Veracel was also required to make
representations and provide warranties, in the arrangement agreement with Birchcliff,
concerning the availability of its Tax Attributes and its status as a liability‑free
dormant company.
Veracel represented and warranted that prior to the arrangement it would have
no assets and liabilities and that, since its incorporation, there had not been
a direct or indirect acquisition of control of Veracel. The arrangement
agreement also contained a provision giving Birchcliff the ability to unilaterally
terminate the plan of arrangement if the Supreme Court of Canada rendered a
decision that made it unlikely that Veracel’s Tax Attributes would be available
for use by the Appellant. I surmise that Veracel was required to make these
representations and provide these warranties because part of the equity
financing was directly or indirectly used to pay for Veracel’s Tax Attributes.
[40]
The Appellant contends that the reason for
including Veracel in the equity financing was not limited to the use of its Tax
Attributes. The Appellant suggests that Veracel’s participation was also
necessary to achieve a successful equity financing. I find this position
unconvincing for several reasons.
[41]
The documentary evidence reveals to me that the
New Investors required the assurance that they would obtain what they bargained
for, namely, an equity stake in Birchcliff’s oil and gas business. I am comforted
in my conclusion by the fact that the evidence shows that it was Birchcliff’s
business that was presented as the investment opportunity for potential
investors. The promotional materials were prepared by Birchcliff and presented
by Birchcliff’s officers and executives.
David Tonken testified that investors were interested in investing in
Birchcliff’s business, not in Veracel.
He further testified that any questions the investors had regarding Veracel
related solely to its Tax Attributes, and that Veracel’s “participation was the tax pools”. When questioned about the
value Veracel added to the equity financing, Jim Surbey could not point to
anything other than the Tax Attributes.
[42]
It was suggested in the Appellant’s oral
arguments that Birchcliff benefited from Veracel’s involvement in the equity
financing because it would gain access to the equity without expending resources
or effort in raising the equity itself, and without the risk of a failed
offering.
I am not convinced that streaming the equity financing through Veracel
simplified the financing process for Birchcliff. The evidence shows that
Birchcliff remained significantly involved in this process, both in marketing
the opportunity to potential investors and in preparing documents such as the
Subscription Agreements.
Furthermore, from the evidence, I believe that Birchcliff’s management already
had a plan to raise equity without Veracel’s involvement before being
approached by David Tonken. Birchcliff was experienced in, and familiar with,
the subscription receipt financing technique, as it had previously participated
in a similar subscription receipt offering when it had undertaken the Scout
Amalgamation.
Furthermore, when Birchcliff arranged the Bridge Loan with Scotia Capital,
Scotia Capital was confident that Birchcliff could successfully raise equity. The risk of a failed offering
is questionable in light of Scotia Capital’s confidence in Birchcliff’s ability
to raise equity and Birchcliff’s previous participation in the subscription
receipt offering in the Scout transactions. In the Scout transactions, the
subscription receipts were issued in the name of Birchcliff rather than in the
name of Scout.
[43]
The Appellant’s position that Veracel intended
to pursue a “restart” transaction is simply not believable. I infer from the
evidence that Birchcliff planned to raise new share capital to finance the
Devon Properties purchase. Had Birchcliff not been approached by David Tonken
to enter into the “loss monetization” transactions at issue in this appeal,
Birchcliff would have issued the subscription receipts directly to the New
Investors. I also conclude, on the basis of the evidence, that the Original Veracel
Shareholders desired only to monetize Veracel’s Tax Attributes for their own benefit.
There was no intention on their part to engage in a restart transaction.
[44]
In light of the above, I conclude that the
subscription receipt financing was “seeded” into Veracel for the purpose of
avoiding the acquisition of control restrictions, and this, if successful, would
have allowed Birchcliff to gain access to Veracel’s Tax Attributes. I must now
determine whether this plan worked or failed.
VI. Analysis
A. Sham
[45]
The Respondent argues that the creation and the
issuance of the Class B shares were a sham because the New Investors would not
enjoy the rights and privileges attached to those shares. The Respondent also
contends that the shares were never properly issued. According to the
Respondent’s reply, the plan of arrangement called for the issuance of Class B
shares for the purpose of representing that the New Investors were shareholders
of Veracel before the amalgamation. In other words, they were Class B
shareholders only on paper.
[46]
At the very end of the Respondent’s
cross-examination of him, David Tonken made a comment which weighed heavily in
the Respondent’s argument on sham. The Respondent pursued a line of questions
on why the Class B shares had been created and why they purported to have been
issued to the New Investors. Of interest are the following questions and answers:
Q So . . . then . . .
pursuant to the plan of arrangement, there’s a new class of shareholders coming
into existence pursuant . . . to what I understand the plan . . .
to purport to say, and that’s the Class B shareholders, correct?
A Correct.
Q And did the directors or pre‑existing
shareholders of Veracel intend that control of Veracel was to be altered by the
creation and issuance of those shares?
A No.
Q No? Okay. . . .
[47]
This last answer is used by the Respondent to
support the contention that the documents relating to the Class B shares were a
sham. In closing arguments, the Respondent argued:
If we could move to
the sham argument on page 41 and this sham argument . . . is that
effectively they didn’t create any shares. Here they did not intend to create
any Class B shares with real controlling rights.
Under the acquisition of control
issue, it’s -- they were just unsuccessful in doing so, but here where there is
no intent to create or issue shares with any effective rights to control the
corporation, but such shares are nonetheless created to give the appearance
that their holders have control. The purported creation of the new class of
controlling shares is a sham.
In this case [it] was intended
by the pre-existing shareholders and directors of Veracel that the Class B
shareholders would have no rights to exert any control over Veracel.
Do you know where we got this?
We got this from Mr. Tonken. He said, I think it was the last question,
the last two questions of his cross‑examination. He was asked whether the
directors or pre-existing shareholders of Veracel intended that control of
Veracel was to be altered by the creation and issuance of the Class B shares.
He said, no.
34
million new voting shares are going to be created and you don’t intend that
they’re going to alter control of Veracel?
[48]
In my opinion, the Respondent has not placed
David Tonken’s answer in its proper context. It is apparent to me that David
Tonken understood the question to be asking whether the directors of Veracel
intended that the creation and issuance of the Class B shares give rise to
an acquisition of control of Veracel. Needless to say, that was not in the
cards. The Appellant’s position is that a large group of unrelated investors
committed, after solicitation, to an investment in Veracel for reasons that
appealed individually to each of them. In that context, David Tonken was
justified in saying that it was never intended that the New Investors be viewed
as a “group of persons” who, as such, would act in concert with respect to the
control of Veracel. David Tonken’s answer does not signify that it was intended
that the New Investors would not enjoy the attributes of ownership of those
shares, although they would only do so for a brief moment.
[49]
There appears to be no dispute between the
parties as to the meaning of sham. The parties’ lengthy oral and written
submissions make reference to the classic definition of a sham referred to in
the often‑cited case of Snook v. London & West Riding Investments,
Ltd.
In Snook, Lord Diplock stated that “sham”:
. . . means
acts done or documents executed by the parties to the “sham” which are intended
by them to give to third parties or to the court the appearance of creating
between the parties legal rights and obligations different from the actual
legal rights and obligations (if any) which the parties intend to create. One
thing I think, however, is clear in legal principle, morality and the
authorities . . . that for acts or documents to be a “sham”, with whatever
legal consequences follow from this, all the parties thereto must have a common
intention that the acts or documents are not to create the legal rights and
obligations which they give the appearance of creating. No unexpressed
intentions of a “shammer” affect the rights of a party whom he deceived. . . .
[50]
Canadian courts adopted the Snook
definition of sham in 1972.
This definition of sham was reaffirmed and followed by the Supreme Court of
Canada in Stubart Investments Ltd. v. The Queen. In Stubart, Justice
Estey defined a sham as “a transaction conducted with
an element of deceit so as to create an illusion calculated to lead the tax
collector away from the taxpayer or the true nature of the transaction; or,
simple deception whereby the taxpayer creates a facade of reality quite
different from the disguised reality”.
[51]
Two more recent decisions of Justice Noël of the
Federal Court of Appeal discuss sham. In Antle v. Canada, he said, in obiter: “The required intent or state of mind is not equivalent to mens
rea and need not go so far as to give rise to what is known at common law
as the tort of deceit . . . . It suffices that parties to a
transaction present it as being different from what they know it to be.” In 2529-1915 Québec Inc.
v. Canada,
he said:
59 It follows
from the above definitions that the existence of a sham under Canadian law
requires an element of deceit which generally manifests itself by a
misrepresentation by the parties of the actual transaction taking place between
them. When confronted with this situation, courts will consider the real
transaction and disregard the one that was represented as being the real one.
[52]
As the Appellant points out, the essence of the
Respondent’s theory of sham is that a large number of independent investors
orchestrated mass deception. I find nothing in the evidence to support the view
that the New Investors were engaged in deceit. I surmise that the Respondent
takes offence at the Class B shares having been issued for a very brief moment
as a critical step in a preordained series of transactions so that there would
be no opportunity for the New Investors to exercise their rights of share
ownership. In practice, this often happens when transactions are completed
pursuant to the terms of a plan of arrangement. The parties to a transaction
require assurance that the transaction will be completed in a certain way. They
do not want to commit to an earlier transaction without assurance that the
subsequent transactions will also be completed. For example, this is a common
feature of plans of arrangement used in the context of debt workouts. Debt
holders do not want their debts to be compromised or settled without assurance
that they will receive the consideration promised to them.
[53]
In the case at bar, the New Investors were
promised that they would receive Class B shares of Veracel for
their subscription receipts and that these Class B shares would become
shares of the Appellant following the amalgamation of Birchcliff and Veracel.
This is what happened. The brevity of the share ownership does not negate the
fact that the New Investors became shareholders of Veracel.
[54]
Furthermore, I respectfully disagree with the
Respondent’s suggestion that the shares were never issued. The documentary
evidence clearly shows that the Class B shares were to be issued as
consideration for the acquisition of the subscription receipts by the
investors. Susan Mak, the assistant manager of client services at Olympia, the
subscription receipt agent for Veracel, testified that Olympia received the
funds realized from the sale of the subscription receipts. She confirmed that Olympia
received the certificate for 34,000,000 Class B shares of Veracel in trust for
the New Investors. She further confirmed that Olympia received instructions to
exchange the certificate representing 34,000,000 Class B shares of Veracel for
34,000,000 common shares of the Appellant following the amalgamation. Her
cross-examination did not reveal any inconsistencies or contradictions with her
evidence in chief.
[55]
Considering the evidence as a whole, I am
satisfied that the Class B shares were effectively issued and their
existence cannot be ignored under the legal doctrine of sham.
B. Were the Class B shareholders
a “group of persons” that acquired control of Veracel?
[56]
The Respondent argues that the Class B
shareholders acquired control of Veracel as a “group of persons” by virtue of
the fact that they acted in concert as a group by entering into the
Subscription Agreement and giving Jeff Tonken and Jim Surbey an irrevocable
proxy to approve the plan of arrangement. I respectfully disagree. A finding in
favour of the Respondent would have significant consequences for, and interfere
with, common business practices.
[57]
Proxies have become a common feature of modern
corporate law. Institutional shareholders are often solicited by management to
give proxies, for example, to approve a slate of candidates for election to the
board. It is reasonable to infer that shareholders agree to give such proxies
because it simplifies their life and because the slate conforms to their individual
interests. Another example is the decision by corporations to hire professional
proxy solicitation firms for the purpose of soliciting approval of transactions;
this is designed to ward off the advances of activist shareholders.
[58]
Plans of arrangement are also a common feature
of modern corporate law. In a public context, they are used for all but the
most straightforward transactions. For example, if a share reorganization is
planned in order to offer a choice to existing shareholders (different classes
of shares, shares exchangeable for shares of a parent, etc.), a plan is used to
ensure that the transactions are completed in the proper order and that the
shareholders end up with what they bargained for. Plans of arrangement are also
regularly used to implement so‑called “public butterfly transactions”.
The most notable example was the split‑up of Canadian Pacific Limited holdings
to eliminate the holding company discount in 2001. If shareholders are to be
treated as a “group of persons” simply because they grant to the same person a
proxy to vote their shares or agree to carry out the butterfly transaction
pursuant to a plan of arrangement, this would mean that most of those types of transactions
would become fully taxable.
[59]
A court‑sanctioned plan of arrangement is
often used to implement a debt workout for the purpose of the Companies’
Creditors Arrangement Act. Debt holders require assurance that all of the
steps leading to the recapitalization of their debt will be carried out. Does
this make them a “group of persons”? In view of the principles developed in the
case law discussed below, I do not believe so.
[60]
In Silicon Graphics Ltd. v. Canada, the Federal Court of Appeal
held that there must be a common connection or community of interest uniting
shareholders of a particular corporation before they can be considered as a
“group of persons” with respect to the control of a particular corporation. In
this regard, the Court of Appeal said:
36 Based on these cases, I agree with the
appellant’s submission that simple ownership of a mathematical majority of
shares by a random aggregation of shareholders in a widely held corporation
with some common identifying feature (e.g. place of residence) but without a
common connection does not constitute de jure control as that term has
been defined in the case law. I also agree with the appellant's submission that
in order for more than one person to be in a position to exercise control it is
necessary that there be a sufficient common connection between the individual
shareholders. The common connection might include, inter alia, a voting
agreement, an agreement to act in concert, or business or family relationships.
37 In the
present case, no evidence was adduced that would suggest the non‑resident
shareholders will vote as a block in the election of the directors of Alias or
in other important matters relating to control of that company. The residence
of shareholders alone provides no indication as to whether or not they are in
agreement on the major issues relating to control of a company. The fact that
there are in excess of 50% of the shareholders of Alias residing in the United
States where there is no evidence that they have any common connection or
indeed even know each other’s identity provides no indication as to whether or
not they could or would agree on any issue relating to control of the company.
[61]
In the case at hand, there is no evidence to
show that the New Investors knew each other or had a plan to control the
corporation together. I infer that the New Investors entered into the
Subscription Agreement and granted a proxy to Jeff Tonken or Jim Surbey to vote
their shares in favour of the plan, if required, because it appealed to their individual
self-interest. I surmise that they did so without discussing the matter with
the other investors. Therefore, I agree with the Appellant’s submission that
the grant of the proxy in these circumstances is insufficient to demonstrate a
common connection between the New Investors, and I find that the New Investors
did not constitute a “group of persons” that acquired control of Veracel.
VII. General
Anti‑Avoidance Rule
[62]
I will now consider whether the GAAR applies to
disallow the deduction of non‑capital losses by the Appellant. In Canada
Trustco Mortgage Co. v. Canada,
the Supreme Court of Canada established a three-step framework for determining
whether the GAAR applies to a transaction or series of transactions. This
framework was reasserted by the Supreme Court in Lipson v. Canada and Copthorne Holdings
Ltd. v. Canada.
[63]
Within this framework, the first step is to
inquire into the existence of a “tax benefit”
within the meaning of subsection 245(1). For there to be a tax benefit, a
transaction or a series of transactions of which the transaction is a part must
result in “a reduction, avoidance or deferral of tax or
other amount payable” under the Act or other relevant source of tax law,
or “an increase in a refund of tax or other amount”
under the Act or other relevant source of tax law.
[64]
Under the second step of the framework
established in Canada Trustco, the transaction giving rise to the tax
benefit must be an “avoidance transaction”
within the meaning of subsection 245(3).
[65]
The third step of the framework is to determine
whether the avoidance transaction was abusive pursuant to subsection 245(4). An
avoidance transaction will be found to be abusive if “it
cannot be reasonably concluded that a tax benefit would be consistent with the
object, spirit or purpose of the provisions relied upon by the taxpayer”.
[66]
The Respondent considers the following to be
avoidance transactions that form part of a preordained series of transactions
(the “Veracel Transactions”):
(a) the transfer of all assets of Veracel to a newly
incorporated company;
(b) the sale of subscription receipts by Veracel rather than
Birchcliff;
(c) the exchange of the subscription receipts for Class B shares;
and
(d) the amalgamation
of Veracel and Birchcliff.
[67]
The Respondent argues that the tax benefit is
the preservation and use of the Tax Attributes by the Appellant without the
restrictions imposed under the Loss Streaming Restrictions.
[68]
The Supreme Court in Copthorne affirmed
that the existence of a tax benefit can be determined by comparing the
taxpayer’s situation with an alternative arrangement that would have been
carried out but for the existence of the tax benefit.
[69]
In this case, Birchcliff could have issued the
subscription receipts directly to the New Investors to raise the equity
financing. Instead, Veracel issued the subscription receipts to the New
Investors. The subscription receipts were exchanged for Class B shares of
Veracel, and Veracel and Birchcliff were then amalgamated. Because Veracel had
issued the subscription receipts to the New Investors, there was no acquisition
of control of Veracel upon the amalgamation of Veracel and Birchcliff, and the
Tax Attributes were not subject to the Loss Streaming Restrictions. Therefore,
I accept the Respondent’s position that the tax benefit in this case is the
preservation and use of the Tax Attributes.
[70]
The second step in the GAAR framework is to
determine whether the transaction giving rise to the tax benefit is an
avoidance transaction. Pursuant to subsection 245(3) of the Act, an avoidance
transaction is a transaction that results in a tax benefit and is not
undertaken primarily for a bona fide non-tax purpose. The determination under
subsection 245(3) requires an objective assessment of the relative importance
of the driving forces of the transaction.
[71]
Considering the evidence as a whole, I am
satisfied that the sale of subscription receipts by Veracel rather than
Birchcliff constituted an “avoidance transaction”. In this regard, I conclude
that the Veracel Transactions form part of the same series of transactions. As
noted in my factual findings, I conclude that Birchcliff agreed to participate
in the Veracel Transactions, including the shifting of Birchcliff’s required
equity financing to Veracel, for the primary purpose of allowing the Appellant
to gain access to Veracel’s Tax Attributes without restriction.
[72]
The Appellant alleges that the primary purpose
behind the Veracel Transactions, including the sale of subscription receipts by
Veracel rather than Birchcliff, was to raise equity financing for the
acquisition of the Devon Properties.
[73]
Although the overarching purpose behind the
Veracel Transactions and the sale of subscription receipts by Veracel was to
raise equity financing for the Devon Properties acquisition, this does not
provide a bona fide non-tax reason for having Veracel rather than
Birchcliff issue the subscription receipts to the New Investors. As noted
earlier, I reject the Appellant’s version, according to which Veracel intended
to “restart” in the oil and gas field, and I infer that Birchcliff would have
issued the subscription receipts directly to the New Investors had the parties
not believed that the Loss Streaming Restrictions could be avoided by shifting
the equity financing to Veracel for the purpose of benefiting from the
exception in clause 256(7)(b)(iii)(B). I agree with the Respondent that
the primary purpose for including Veracel in the equity financing was to
preserve and utilize the Tax Attributes.
[74]
This appeal thus turns on the outcome of the
third step of the framework established in Canada Trustco, which is the determination
of whether the avoidance transactions are abusive under subsection 245(4). Within this framework, the
abuse inquiry involves, first, interpreting the provisions of the Act giving
rise to the tax benefit to determine their object, spirit and purpose and,
second, determining whether the impugned transactions fall within or frustrate
the purpose of those provisions.
As described in Copthorne:
69 In order to determine whether a
transaction is an abuse or misuse of the Act, a court must first determine the “object,
spirit or purpose of the provisions . . . that are relied on for the
tax benefit, having regard to the scheme of the Act, the relevant provisions
and permissible extrinsic aids” (Trustco, at para. 55). The object,
spirit or purpose of the provisions has been referred to as the “legislative
rationale that underlies specific or interrelated provisions of the Act” (V.
Krishna, The Fundamentals of Income Tax Law (2009), at p. 818).
70 The object, spirit or purpose can be identified by applying the
same interpretive approach employed by this Court in all questions of statutory
interpretation — a “unified textual, contextual and purposive approach” (Trustco,
at para. 47; Lipson v. Canada, 2009 SCC 1, [2009] 1 S.C.R. 3, at para.
26). While the approach is the same as in all statutory interpretation, the
analysis seeks to determine a different aspect of the statute than in other
cases. In a traditional statutory interpretation approach the court applies the
textual, contextual and purposive analysis to determine what the words of the
statute mean. In a GAAR analysis the textual, contextual and purposive analysis
is employed to determine the object, spirit or purpose of a provision. Here the
meaning of the words of the statute may be clear enough. The search is for
the rationale that underlies the words that may not be captured by the bare
meaning of the words themselves. However, determining the rationale of the
relevant provisions of the Act should not be conflated with a value judgment of
what is right or wrong nor with theories about what tax law ought to be or
ought to do.
[Emphasis added.]
[75]
A transaction will be abusive if it circumvents
the application of a provision such as a specific anti-avoidance rule or relies
upon a provision in a manner that frustrates the object, spirit or purpose of
the rule.
[76]
The existence of abusive tax avoidance must be
clear. If it is not, the benefit of the doubt goes to the taxpayer. Moreover,
the Minister bears the burden of establishing abusive tax avoidance.
[77]
Canada Trustco
and Copthorne each reiterate the principle that tax planning is not per
se abusive for the purposes of subsection 245(4). In Canada Trustco, the
Supreme Court stated:
61 A proper
approach to the wording of the provisions of the Income Tax Act together
with the relevant factual context of a given case achieve balance between the
need to address abusive tax avoidance while preserving certainty,
predictability and fairness in tax law so that taxpayers may manage their
affairs accordingly. Parliament intends taxpayers to take full advantage of the
provisions of the Act that confer tax benefits. Parliament did not intend the
GAAR to undermine this basic tenet of tax law.
[78]
Similarly, in Copthorne, the Supreme Court
said that “[t]axpayers are entitled to select courses
of action or enter into transactions that will minimize their tax liability”. As a result, a taxpayer who
chooses a course of action that minimizes his or her tax liability will not
necessarily have engaged in abusive tax avoidance for the purposes of
subsection 245(4).
[79]
I must now undertake the two‑stage
analysis for the purpose of determining whether the sale of the subscription
receipts by Veracel rather than Birchcliff constituted abusive tax avoidance.
[80]
The Respondent contends that the Veracel
Transactions circumvented the application of subsection 111(5) of the Act, or
frustrated or defeated the object, spirit or purpose of that provision. In that
regard, the Respondent argues that subsection 111(5) is part of a general
policy against loss trading embedded within the Act and that it would offend
the object, spirit and purpose of that general policy and the Loss Streaming Restrictions
to allow the Appellant to utilize Veracel’s Tax Attributes.
[81]
The Respondent also contends that the issue of
Class B shares to the New Investors, which made them Veracel shareholders for
a brief moment, constituted an abusive reliance on the exception set out in
clause 256(7)(b)(iii)(B), contrary to the object, spirit and purpose of
that carve‑out from the general rule laid out in the preamble to that
provision.
[82]
The Appellant, on the other hand, argues that
subsection 111(5) adopts a shareholder‑level common law test to determine
when non-capital losses are restricted, and that the GAAR cannot apply to a
common law test. De jure control, as defined under general principles,
must be acquired by a person or “group of persons” before the Loss Streaming Restrictions
can apply.
[83]
The Appellant also invokes a number of policy
considerations in favour of its position, namely:
(a) The elimination of tax attributes is inequitable.
(b) Parliament chose a bright line “acquisition of control” test
with regard to the impairment of corporate tax attributes.
(c) Anti-avoidance rules that deem an acquisition of control do
not apply to the transactions in this case.
(d) Parliament
amended the rules regarding amalgamation to give effect to a 2013 budget
announcement.
[84]
The Appellant argues that the words and context
of paragraph 256(7)(b) suggest that Parliament did not intend that there
be an examination of the shareholdings of the predecessor corporations to the
amalgamated entity, other than immediately prior to the amalgamation, for the
purpose of determining whether the Majority Voting Interest Test was satisfied.
As a result, because the New Investors became Class B shareholders of
Veracel prior to the amalgamation, albeit for a brief moment, the Majority
Voting Interest Test was satisfied as required by the carve‑out from that
specific deemed acquisition of control rule.
[85]
For the purpose of deciding this matter, I am
not required to determine whether there is a general policy embedded in the
provisions of the Act that prohibits loss trading between unrelated parties. In
my opinion, the outcome of this appeal turns on a narrower issue, namely,
whether the sale of the subscription receipts by Veracel circumvented the
application of subparagraph 256(7)(b)(iii) or whether, with regard to
the sale, the exception set out in clause 256(7)(b)(iii)(B) was relied
on in a manner that frustrated the object, spirit and purpose of that provision.
Therefore, I will leave the question of whether the Act embodies a general
prohibition against loss trading to be determined in a case that does not
involve a question of the application of a specific deeming rule.
[86]
I begin the first step of the abuse inquiry with
a textual review of the relevant parts of paragraph 256(7)(b), which
reads as follows:
256(7) . . .
(b) where at any time 2 or more
corporations (each of which is referred to in this paragraph as a “predecessor
corporation”) have amalgamated to form one corporate entity (in this paragraph
referred to as the “new corporation”),
(i) control of a corporation is deemed not
to have been acquired by any person or group of persons solely because of the
amalgamation unless it is deemed by subparagraph 256(7)(b)(ii) or
256(7)(b)(iii) to have been so acquired,
(ii) a person or group of persons that
controls the new corporation immediately after the amalgamation and did not
control a predecessor corporation immediately before the amalgamation is deemed
to have acquired immediately before the amalgamation control of the predecessor
corporation and of each corporation it controlled immediately before the
amalgamation (unless the person or group of persons would not have acquired
control of the predecessor corporation if the person or group of persons had
acquired all the shares of the predecessor corporation immediately before the
amalgamation), and
(iii) control of a predecessor corporation
and of each corporation it controlled immediately before the amalgamation is
deemed to have been acquired immediately before the amalgamation by a person or
group of persons
(A) unless the predecessor corporation was
related (otherwise than because of a right referred to in paragraph 251(5)(b))
immediately before the amalgamation to each other predecessor corporation,
(B) unless, if one person had immediately
after the amalgamation acquired all the shares of the new corporation’s capital
stock that the shareholders of the predecessor corporation, or of another
predecessor corporation that controlled the predecessor corporation, acquired on
the amalgamation in consideration for their shares of the predecessor
corporation or of the other predecessor corporation, as the case may be, the
person would have acquired control of the new corporation as a result of the
acquisition of those shares, or
(C) unless this subparagraph would, but
for this clause, deem control of each predecessor corporation to have been
acquired on the amalgamation where the amalgamation is an amalgamation of
(I) two corporations, or
(II) two corporations
(in this subclause referred to as the “parents”) and one or more other
corporations (each of which is in this subclause referred to as a “subsidiary”)
that would, if all the shares of each subsidiary’s capital stock that were held
immediately before the amalgamation by the parents had been held by one person,
have been controlled by that person;
. . .
[87]
The words of subparagraph 256(7)(b)(i)
are clear. If predecessors A and B are amalgamated, an acquisition of control
does not arise simply by virtue of their amalgamation unless control is deemed
to have been acquired under subparagraph 256(7)(b)(ii) or (iii).
Something more is required.
[88]
The wording of subparagraph 256(7)(b)(ii)
is somewhat more complex, because both a general rule and an exception are
embedded in the provision. The general rule is best explained by reference to
an example. Let us assume that predecessors A and B are amalgamated.
Predecessor A has a controlling shareholder. Predecessor B is widely held.
Predecessor A is worth twice as much as predecessor B such that the controlling
shareholder of predecessor A ends up with de jure control of the
amalgamated corporation. In this example, control of predecessor B will be
deemed to have been acquired by the controlling shareholder of predecessor A
immediately prior to the amalgamation of both corporations.
[89]
The exception to the general rule stated in
subparagraph 256(7)(b)(ii) can be best explained by a slight variation to
the above example. Both predecessor A and predecessor B have controlling
shareholders who are related by virtue of the fact that they have a common
parent corporation. If the controlling shareholder of predecessor A ends up
with control of the amalgamated entity, the general rule does not apply because
the controlling shareholder of predecessor A would be deemed not to have
acquired control of predecessor B had he or she acquired all the shares of
predecessor B before the amalgamation. The exception is required in order to
facilitate related‑party corporate reorganizations.
[90]
Subparagraph 256(7)(b)(iii) is of
particular importance to the case at hand. It is an understatement to say that
this provision is a difficult read. The complexity arises because the general
rule set out in the preamble of subparagraph 256(7)(b)(iii) is followed
by three separate exceptions set out in each of clauses 256(7)(b)(iii)(A),
(B) and (C). The general rule is that control of a predecessor corporation is
deemed to have been acquired immediately before an amalgamation, unless one of
the exceptions applies.
[91]
The easiest exception to understand is set out in
clause 256(7)(b)(iii)(A). Once again, an example best illustrates the
meaning of the words contained in that provision. Let us assume that
predecessors A and B are related by virtue of the fact that they have a common
parent corporation. Consistent with a number of other exceptions found in
subsection 256(7), an acquisition of control does not arise upon an
amalgamation of related corporations; this is in order to facilitate related‑party
corporate reorganizations.
[92]
The exception in clause 256(7)(b)(iii)(B)
is based on the Majority Voting Interest Test. Once again, an example best
illustrates this exception. If predecessors A and B are amalgamated and both
are widely held and unrelated, control of predecessor A will be deemed to have
been acquired unless the shareholders of predecessor A end up with a majority
of the voting shares of the amalgamated entity. The wording of the provision
requires that we test for de jure control on the basis of the following
hypothesis. The provision requires first that we suppose all the shares of the
amalgamated entity received by the shareholders of a particular predecessor
corporation, in our example predecessor A, were acquired by a sole hypothetical
person. If that person would have acquired control of the amalgamated entity by
virtue of the fact that the shareholders of predecessor A received in the
aggregate a majority of the voting shares of the amalgamated entity, then
control of predecessor B, whose shareholders received less than a Majority
Voting Interest, is deemed to have been acquired immediately before the
amalgamation.
[93]
Clause 256(7)(b)(iii)(C) deals with the
case where two corporations amalgamate and the shareholders of each predecessor
receive exactly 50% of the voting shares of the amalgamated entity. In the
absence of this exception, control of both corporations would be deemed to have
been acquired. In this narrow case of 50‑50 voting shareholdings, the
deemed acquisition of control rule does not apply.
[94]
The Appellant relies on a purely textual
interpretation of clause 256(7)(b)(iii)(B) to take the position that the
deemed acquisition of control rule set out in the preamble of that provision
does not apply to Veracel because the Veracel shareholders, which include the
Class B shareholders, received a majority of the voting shares of the Appellant
on the amalgamation of Birchcliff and Veracel.
[95]
Needless to say, under a GAAR analysis, a
textual, contextual and purposive analysis is required to determine whether
reliance on this exception violates the object and spirit of the provision in
an abusive manner.
[96]
This is where I believe the Appellant’s appeal
fails. A contextual analysis requires an examination of other relevant
provisions, which are those that are “grouped together” or “work together to
give effect to a plausible and coherent plan”.
The immediate context of paragraph 256(7)(b) is subsection 256(7), which
describes the circumstances where control of a corporation is deemed not to
have been acquired and the circumstances where control is deemed to have been acquired.
In the former case, generally speaking, there is a continuity of shareholder
interest that Parliament views as sufficient to trump a technical acquisition
of de jure control. In such a case, while de jure control is strictly
speaking acquired by a person or “group of persons”, Parliament deems de
jure control not to have been acquired. For example, Parliament will allow an
exchange of majority voting shares between related parties to facilitate
corporate reorganizations. In the instant case, the Majority Voting Interest
Test in clause 256(7)(b)(iii)(B) is intended to reflect a continuity of
shareholder interest that would justify an exception to the deemed acquisition
of control upon amalgamation.
[97]
I observe that a similar test was employed in
the reverse takeover rule set out in paragraph 256(7)(c) as it applied
in the 2006 taxation year.
That provision reads as follows:
256(7) . . .
(c) subject to paragraph 256(7)(a),
where 2 or more persons (in this paragraph referred to as the “transferors”)
dispose of shares of the capital stock of a particular corporation in exchange
for shares of the capital stock of another corporation (in this paragraph
referred to as the “acquiring corporation”), control of the acquiring corporation
and of each corporation controlled by it immediately before the exchange is
deemed to have been acquired at the time of the exchange by a person or group
of persons unless
(i) the particular corporation and the
acquiring corporation were related (otherwise than because of a right referred
to in paragraph 251(5)(b)) to each other immediately before the
exchange, or
(ii) if all the
shares of the acquiring corporation’s capital stock that were acquired by the
transferors on the exchange were acquired at the time of the exchange by one
person, the person would not control the acquiring corporation;
. . .
[98]
Under that provision, if a corporation acquires
another corporation in a share-for-share exchange, control of the acquiring
corporation is deemed to have been acquired unless one of the two exceptions
set out in subparagraph 256(7)(c)(i) or (ii) applies.
[99]
The technical notes to paragraph 256(7)(c)
reveal that the purpose of the rule is to prevent the “reverse takeover”
technique from being used to circumvent the result that would be arrived at had
a profitable corporation (“Profitco”), being the larger of the two corporations
and widely held, simply acquired a loss corporation (“Lossco”). The examples given
in the technical notes read as follows:
New paragraph 256(7)(c) of the Act
deals with reverse takeover transactions which are illustrated by the following
examples.
EXAMPLE A:
An individual,
Mr. X, owns all the shares of a corporation (Lossco) which have a total fair
market value of $100,000. A profitable public corporation (Pubco) that is not
controlled by any person or group of persons wishes to gain access to Lossco’s
non-capital loss carryforward. If Pubco were to acquire the shares of Lossco
from Mr. X, various stop-loss rules in the Act would limit the deductibility
of those losses. Instead, the shareholders of Pubco transfer their shares of
Pubco to Lossco in exchange for shares of Lossco worth $10,000,000. Mr. X
relinquishes control of Lossco as a result of the exchange.
EXAMPLE B:
Assume the same
facts as in example A except that, instead of transferring their shares of
Pubco to Lossco in a share-for-share exchange, the shareholders of Pubco
receive shares of Lossco in consideration for the disposition of their shares
of Pubco on a triangular amalgamation or merger of Pubco and a wholly owned
subsidiary of Lossco.
In each of
these examples, there is no acquisition of control of Lossco under the existing
rules unless there is a group of shareholders that controls Lossco after the
takeover. However, if new paragraph 256(7)(c) were applied to each of
these examples, control of Lossco would be considered to have been acquired by
a person or group of persons because the shares of Lossco issued to the
shareholders of Pubco in each case are such that, if they had been acquired by
one person, that person would have acquired control of Lossco. This paragraph
applies to mergers that occur after April 26, 1995 except in certain
specified circumstances.
[100] In the absence of this rule, an acquisition of control of Lossco
could be avoided by causing Lossco to acquire Profitco in a “reverse takeover”
transaction. The rule triggers a deemed acquisition of control unless Lossco
and Profitco are related, or the Profitco shareholders collectively do not end
up holding a Majority Voting Interest in Lossco after completion of the share‑for‑share
exchange.
[101] I acknowledge that the rule actually refers to the shareholder
interest of the Profitco shareholders in Lossco. If they, as transferors,
receive shares that together represent a Majority Voting Interest in Lossco,
then control of Lossco is deemed to have been acquired. The rule does not apply
if the original Lossco shareholders own in the aggregate shares that represent
a Majority Voting Interest in Lossco after completion of the transaction. This
is analogous to the test applied in the context of an amalgamation. As noted
earlier, if the Lossco shareholders do not in the aggregate own shares
representing a Majority Voting Interest in the amalgamated entity, control of
Lossco is deemed to have been acquired immediately prior to the amalgamation.
These rules indicate to me that Parliament intended that there be a significant
continuity of the Lossco shareholder interest in the combined enterprise for a
deemed acquisition of control not to arise in these circumstances. In the
instant case, the evidence shows there is no continuity of interest of the
Original Veracel Shareholders as shareholders of the Appellant.
[102] In my opinion, in mandating the Majority Voting Interest Test as a
means of determining the circumstances where the deeming rule should apply,
Parliament did not expect that taxpayers would circumvent the rule by
implementing strategies that skew the voting interest of the shareholders of
the predecessor Lossco in the amalgamated entity or artificially make persons
shareholders in a predecessor Lossco solely to ensure mere technical compliance
with the test. As noted earlier, I have found that this is what the parties did
when they “seeded” the required equity financing into Veracel, causing the New
Investors to become Class B shareholders of Veracel for only a fleeting
moment in order to guarantee strict compliance with the words of the provision.
[103] Canada Trustco states that “abusive tax avoidance may be found where the relationships
and transactions as expressed in the relevant documentation lack a proper basis
relative to the object, spirit or purpose of the provisions that are purported
to confer the tax benefit, or where they are wholly dissimilar to the
relationships or transactions that are contemplated by the provisions”. I find such to be the case in
this matter.
[104] In a loss trading context, in the absence of clause 256(7)(b)(iii)(B),
Lossco shareholders seeking to monetize their losses after Lossco has abandoned
the failing business would end up with less than a majority of the voting
shares of the amalgamated entity.
Their interest in the amalgamated entity would reflect the market value of the
losses. Profitco shareholders would end up with a Majority Voting Interest in the amalgamated entity.
[105] In my opinion, the Majority Voting Interest Test indicates that
Parliament did not want amalgamations and reverse takeovers being used as
techniques to avoid an acquisition of control in situations where the original
Lossco shareholders do not collectively receive shares representing a Majority
Voting Interest in the combined enterprise.
[106] Therefore, it is apparent to me that Parliament adopted the Majority
Voting Interest Test to prevent Lossco from being subsumed by Profitco without an
acquisition of control of Lossco. On a textual, contextual and purposive
analysis of subparagraph 256(7)(b)(iii), artificial compliance with the Majority Voting
Interest Test which lacks a proper basis relative to the object, spirit or
purpose of that test amounts to an abuse of the provision.
[107] A brief comment on Copthorne
is warranted here. Copthorne Holdings Ltd. (“Copthorne”) was a Canadian company
that was the parent of VHHC Holdings Ltd. (“VHHC”). By a series of transactions
that stretched out over a few years, Copthorne sold the shares of VHHC to a related
non‑resident corporation. As a result, Copthorne and VHHC became sister
corporations. Copthorne and VHHC were ultimately amalgamated “horizontally” to
form the successor, also named Copthorne.
[108] Copthorne argued that, because the amalgamation was “horizontal”,
the paid‑up capital of its shares included the amount of the paid‑up
capital of the shares of the two predecessor corporations. Had the two
predecessor corporations remained parent and sister, the paid‑up capital
of VHHC would have been eliminated on a “vertical” amalgamation.
[109] The Supreme Court, in affirming the Tax Court’s decision, held that,
in the context of that case, the horizontal amalgamation of Copthorne and VHHC
was subject to the application of the GAAR. The paid‑up capital of VHHC
was eliminated in the calculation of Copthorne’s paid‑up capital.
[110] In my opinion, the “abusive” nature of the transactions considered in
Copthorne is less apparent than the abuse found to exist with regard to
the transactions in the instant case. I note that the series of transactions giving
rise to the benefit in Copthorne was carried out over a long period of
time. It was also unclear that the series was completely planned when the first
steps were taken. This did not prevent the Supreme Court from looking at the
situation at the starting point of the series of transactions, when Copthorne
was the parent corporation of VHHC.
[111] In contrast, in the instant case, the New Investors were not
shareholders of Veracel at the commencement of the series of transactions. They
were made transient shareholders of Veracel for the sole purpose of
artificially complying with the Majority Voting Interest Test mandated in
clause 256(7)(b)(iii)(B). In addition, the Veracel Transactions were painstakingly
planned before they were implemented. They were carried out in rapid sequential
order. The New Investors became shareholders of Veracel literally for the
briefest time. The financing was “seeded” into Veracel to circumvent the application
of the deeming rule in subparagraph 256(7)(b)(iii) by an attempt to
qualify the transactions under the exception found in clause 256(7)(b)(iii)(B)
in a manner which does harm to the object, spirit and purpose of that exception.
While tax planning does not necessarily bring into play the GAAR, this is a
case where the proverbial elastic was stretched beyond its breaking point.
[112] Subsection 245(2) empowers the Minister to determine the tax
consequences that are reasonable in the circumstances in order to deny a tax
benefit. As noted, the Veracel Transactions were planned so as to fit within
the exception provided for in clause 256(7)(b)(iii)(B). As a result, in
my opinion the issue of the Class B shares by Veracel should be ignored,
resulting in an acquisition of control of Veracel upon the amalgamation of
Veracel and Birchcliff. In this context, the reasonable tax consequence that
flows from the application of the GAAR is that the Loss Streaming Restrictions apply
to prevent the Appellant from using Veracel’s Tax Attributes.
VIII. Conclusion
[113] For all these reasons, the appeal is dismissed and the Minister’s
reassessment of the Appellant’s 2006 taxation year is confirmed. Costs are
awarded to the Respondent.
Signed at Ottawa, Canada, this 1st day of October 2015.
“Robert J. Hogan”
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