Citation: 2014 TCC 17
Date: 20140116
Docket: 2011-2341(IT)G
BETWEEN:
ALLAN O. PROCHUK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
D'Auray J.
Introduction
[1]
In 2005, Mr. Prochuk invested
$250,000 in a foreign exchange currency fund with the Sabourin and Sun Group of
Companies (“SSGC”).
[2]
According to the parties, the SSGC
investment fund turned out to be a fraudulent investment scheme.
[3]
As a result, Mr. Prochuk
claimed a business loss of $186,250 for his 2007 taxation year, namely the
difference between the $250,000 he invested and the $63,750, he received from
SSGC.
[4]
The respondent’s position is that
Mr. Prochuk is not entitled to claim a business loss since he was not in
the business of trading and the SSGC investment was not an adventure or concern
in the nature of trade. She submitted that the loss incurred by Mr. Prochuk
was a capital loss.
Evidence
[5]
Mr. Prochuk is a civil
engineer. Until 1985, he worked for BC Hydro. In 1985, BC Hydro decided to
postpone the development of major hydro projects and, as a consequence,
Mr. Prochuk was laid off. He was given severance pay that he rolled into
his registered retirement savings plan (“RRSP”).
[6]
Mr. Prochuk always had an
interest in the financial field. After he left BC Hydro, he took financial
courses to satisfy licensing requirements and started working for investment
companies.
[7]
From 1986 to approximately 1999,
he worked in the financial field. In 1986, he worked for Evergreen Futures, and
later for Mustard Seed Capital and then Yaletown Futures Group. Mr. Prochuk
stated that working for these companies gave him great exposure to the
financial field. However, for one reason or another, he was not successful at
it, and since he was doing well with his RRSP investments, he decided to stop
working for others and to take care of his own finances. He stated that from
1987 to 1999, he managed to increase the capital in his RRSP by a factor of
eight.
[8]
Mr. Prochuk stated that
starting in 2000, he made his livelihood from gains made with his RRSP. The
evidence showed that he withdrew $250,000 from his RRSP in the 2005 taxation
year, $100,000 in each of the 2006, 2007, 2008, 2009 taxation years, and
$95,000 and $70,000 in the taxation years 2010 and 2011 respectively.
[9]
From 2000 onwards, Mr. Prochuk’s
reported income consisted of the amounts he withdrew from his RRSP and amounts
received under the Canada Pension Plan and old age security (since 2006). In
his income tax return for the 2007 taxation year as well as for the other
taxation years, Mr. Prochuk did not report any income from business or
property.
[10]
In 2003, Mr. Prochuk met Mr. Len
Zielke (“Zielke”) and Mr. Shane Smith (“Smith”). They promoted
different investment strategies, which they called “reduction strategies”.
[11]
On the advice of Zielke and Smith,
Mr. Prochuk contributed $20,000 to the Global Learning Systems Donation
and received a donation receipt for $120,000. The Minister of National Revenue
(the “Minister”) denied the donation claimed by Mr. Prochuk. At the time
of the hearing, the issue had been settled.
[12]
In 2004, again on the advice of
Zielke and Smith, Mr. Prochuk invested in a business loss strategy. Under
this strategy, Mr. Prochuk claimed business losses of $220,000 and
$210,000 for the 2004 and 2005 taxation years respectively, although he was out
of pocket for the amounts of $42,000 and $44,000. The Minister denied these
losses. At the time of the hearing, the issue was still under appeal at the
Canada Revenue Agency (“CRA”).
[13]
It was Zielke and Smith, who
introduced Mr. Prochuk to SSGC. In his testimony, Mr. Prochuk,
stated:
. . . the promoters
of this were the same people who got me into some very bad tax avoidance deals,
or I don’t know, “reduction strategies” they called them . . .
[14]
In 2005, after having been
introduced by Zielke and Smith to SSGC’s representatives and learning of the
type of investment SSGC made, Mr. Prochuk decided to invest with SSGC.
Accordingly, he withdrew $250,000 from his RRSP to invest.
[15]
On January 6, 2005, Mr. Prochuk
and his spouse, Mrs. Prochuk, signed an application for service with the
Investment Management Division (British Virgin Islands) of SSGC. Under the
application, the Prochuks agreed to invest $250,000 in a foreign exchange
currency fund. The issue date was January 7, 2005 and the maturity date was May
7, 2007.
[16]
By a letter dated January 31, 2005
to the Prochuks, SSGC confirmed that the principal amount of $250,000 and the
return on investment (“ROI”)/Interest of 17.52 % per annum paid twice a
year, were both guaranteed by SSGC.
[17]
The Prochuks received three
payments from SSGC totaling $63,750 namely, $18,750 on August 4, 2005 and
$22,500 on both February 7, 2006 and September 13, 2006. The Prochuks did
not receive any further payments from SSGC.
[18]
Mr. Prochuk testified that he
could not tell that the investment promoted by SSGC was fraudulent. The
presentation to investors was slick and the list of clients allegedly dealing
with them was quite impressive. He stated that he undertook a due diligence examination
on them and was convinced that he was investing with a reputable Toronto firm.
[19]
On February 10, 2011, the Prochuks
received a letter from the Anti-Racket Division of the Ontario Provincial
Police informing them that Sabourin was under criminal investigation regarding
his investment practices. In fact, Sabourin and his associates failed to appear
in various legal proceedings.
[20]
In filing his 2007 income tax
return, Mr. Prochuk claimed $186,250 as a capital loss. On April 10, 2010,
Mr. Prochuk by way of Notice of Objection characterized his claim as a
non-capital loss. Clearly, the Prochuks will never recover the balance of their
investment with SSGC.
Issue
to be decided
[21]
The issue to be decided is whether
Mr. Prochuk is entitled to claim a business loss in the amount of $186,250
for his 2007 taxation year.
[22]
In order to do so, Mr. Prochuk
has to establish either that he was in the business of trading or that he was
engaged in an adventure or concern in the nature of trade with respect to the
SSGC investment.
Position
of the parties
Appellant’s
position
[23]
Mr. Prochuk argued that the
evidence showed that he is in the business of trading. He also argued that his
losses should be allowed in any event since he met the criteria listed in the Interpretation
Bulletin IT-459, Adventure or Concern in the Nature of Trade.
[24]
He submitted that he had spent his
life trading and since 2000, had run a business within his RRSP. His livelihood
depended on the profits he made trading within his RRSP. He stated that he had
to remit a withholding tax of 30% on the amounts that he withdrew from his
RRSP.
[25]
He submitted that his significant
gains show that he was an active trader. When he transferred his RRSP from the
Royal Bank to Altamira on May 14, 1999, he transferred an amount of $886,000.
By the end of May 31, 2004, the RRSP showed an amount of $1,348,636.
[26]
He argued that when SSGC proposed
a foreign currency trading fund with a guaranteed principal and a ROI of 17.52%
per annum, his intention was to make a profit. He also argued that he acted in
the same manner with respect to the SSGC investment as he did with respect to
other investments within his RRSP. He would renew the SSGC investment only
after being assured of a good return and only if nothing better came along.
[27]
He argued that the 17.52% per
annum, approximately 9% of which he was to receive on a semi-annual basis from
SSGC, was not interest income but an earning return. He pointed out that the
term “interest” is not used in the SSGC contract that he and his spouse signed
on January 6, 2005. Instead, the term used is an “ROI” of 17.52% per
year. He stated that I should disregard the letter dated January 31, 2005 from
SSGC referring to the income as interest since the person who had signed the
letter on behalf on SSGC, had made a mistake in referring to the term interest
of 17.52%.
[28]
He further argued that he had the
“badges of trade” referred to by Justice Campbell in Corvalan v HMQ,
2006 CCI 200, 2006 DTC 2907.
[29]
In any event, he argued that if he
was not in the business of trading the motivating factor for buying the SSGC
investment was to make a profit. Accordingly, he met the requirements of the Interpretation
Bulletin IT-459.
Respondent’s
position
[30]
The respondent’s position is that
the Appellant’s loss of $186,250 was a capital loss. She pointed out that the
investment was intended to yield income. At paragraphs 11 and 12 of her written
submissions, she stated as follows:
11. The
characterization of an item of property as inventory or as capital property is
based primarily on the type of income that the property will produce.
12. Assets with a
potential of yielding income are generally seen as investment assets and
profits resulting from transactions in these types of assets are generally
characterized as capital gains, and correspondingly, losses are generally
characterized as capital losses.
[31]
The respondent also submitted that
Mr. Prochuk’s income tax returns did not reflect any level of activity
that would constitute trading as a business. He never reported income or losses
from trading. She further argued that Mr. Prochuk’s goal in any eventual
disposition of the SSGC fund was to create a capital gain, and when the gain
did not result, he instead reported a non-capital loss.
[32]
She argued that an RRSP is a
unique tax-protected vehicle and that trading carried on within an RRSP does
not amount to carrying on a business.
[33]
The respondent also argued that
Mr. Prochuk did not act as a trader with respect to the $250,000 SSGC
investment. He could not sell the investment for at least 28 months. He was a
passive participant.
[34]
In addition, the respondent argued
that Mr. Prochuk’s intention was to hold the SSGC investment for the long
term as an income-producing vehicle to gain guaranteed interest income. She submitted
that Mr. Prochuk’s testimony was clear he would have renewed the fund if
it had not been a fraudulent transaction at the maturity date. Therefore, he
did not have any “badges of trade”.
[35]
The respondent also submitted that
Mr. Prochuk was not engaged in an adventure or concern in the nature of
trade. She argued that he did not meet the test established in Canada Safeway
v HMQ, 2008 FCA 24, 2008 DTC 6074 (FCA) for an adventure or concern in the
nature of trade. She submitted that the SSGC investment was acquired with the
intention of being held for the purpose of producing income and not to be
“flipped”. Therefore, the SSGC investment was capital in nature.
Analysis
Was
Mr. Prochuk a trader?
[36]
The respondent argued that the
nature of the property under litigation is a capital property and the loss
claimed by Mr. Prochuk is a capital loss.
[37]
I agree with the respondent that
usually an asset that yields income is a capital asset. For example, shares in
a corporation yield dividends and the income from the disposition of shares is
usually a capital gain. However, shares can also be inventory if the person
holding the shares is in the business of buying and selling shares. The nature
of the asset is one indicia in deciding as to whether an asset should be
characterized as capital or inventory. This is why I need to determine whether
Mr. Prochuk is a trader.
[38]
It is a question of fact as to
whether Mr. Prochuk was a trader. A number of factors are relevant to this
determination.
[39]
In HMQ v Vancouver Art Metal
Works Limited, [1993] 2 FC 179, 93 DTC 5516 (FCA), Justice Letourneau
in an unanimous decision of the Federal Court of Appeal, listed several factors
to be considered in determining if a person is engaged in the business of
trading. At page 5519, he states as follows:
I
have no doubt that a taxpayer who makes it a profession or a business of buying
and selling securities is a trader or a dealer in securities within the meaning
of paragraph 39(5)(a) of the Act. As Cattanach, J., stated in Palmer v.
Minister of National Revenue, [1973] C.T.C. 323, 73 D.T.C. 5248 (F.C.T.D.) at
325 (D.T.C. 5249), “it is a badge of trade that a person who habitually does
acts capable of producing profits is engaged in a trade or business” (id., at
p. 325). It is, however, a question of fact to determine whether one's
activities amount to carrying on a trade or business. Each case will stand on its
own set of facts. Obviously, factors such as the frequency of the
transactions, the duration of the holdings (whether, for instance, it is for a
quick profit or a long-term investment), the intention to acquire for resale at
a profit, the nature and quantity of the securities held or made the subject
matter of the transaction, the time spent on the activity, are all relevant and
helpful factors in determining whether one has embarked upon a trading or
dealing business.
[Underlining added.]
[40]
Mr. Prochuk stated that he was an active trader
within his RRSP. He pointed out that he made 512 trades within his RRSP in
2007.
[41]
Counsel for the
respondent argued that I could not take into account the trades Mr. Prochuk
made within his RRSP since it is a unique vehicle under the Income Tax Act (the
“Act”). I agree. A person trading within his RRSP cannot be considered
to be operating a business. Therefore, the transactions within the RRSP cannot
be taken into account. I will explain further later in my reasons why trading
within an RRSP cannot be considered a business.
[42]
Looking at the factors
established by Justice Letourneau in Vancouver Art Metal Works, I
conclude that Mr. Prochuk was not a trader for the following reasons:
•
the frequency of the
transactions: since 2000, the
only transaction that Mr. Prochuk made outside his RRSP was the SSGC
investment;
•
the duration of the
holdings: Mr. Prochuk’s
investment was locked in for a period of 28 months and could not be sold before
the maturity date, namely, May 7, 2007;
•
the intention to
acquire for resale at a profit: Mr. Prochuk often stated that the principal motivation for the
SSGC investment was the same motivation that he had when trading within his
RRSP, namely, the intention to make a profit. If a better investment came
along, he would have not renewed the SSGC investment;
Although,
the intention of making a profit is important, it is not sufficient to
establish that a person is operating a business since both investors and
traders want to make a profit. Here clearly, Mr. Prochuk’s intention, at
the time he acquired the investment, was to hold the investment for the long
term as an income producing vehicle and to earn a ROI/Interest of 17.52% per
annum. Mr. Prochuk’s goal in any eventual disposition of the investment
was to create a capital gain;
•
the nature of and
the quantity of the securities held or made the subject of the transaction: the SSGC investment was the only
transaction Mr. Prochuk made outside his RRSP. It is also important to
note that when Mr. Prochuk was trading within his RRSP, except for one
investment that he held for four years, the holding time for his investments
ranged from one hour to four months. His transactions within his RRSP were
therefore different from the SSGC investment which he had to hold for at least
28 months. In addition, the SSGC investment had a high yield; this was not the
case for the investments he held within his RRSP. And as I stated earlier, the
nature of the fund was that of a capital property;
•
the time spent on
the activity: Mr. Prochuk
was a passive participant with respect to the SSGC investment. He did not have
to do anything in order to receive his ROI/Interest of 17.52% per annum from
SSGC. Both his principal and the ROI/Interest were guaranteed by SSGC.
Trading within an RRSP
[43]
Parliament created the
RRSP regime to allow individuals to defer tax and to set aside income in a
trust in order to enhance their income upon retirement. The RRSP is a unique
regime and the provisions in the Act dealing with the RRSP are specific.
[44]
Contributors to an RRSP
benefit from tax incentives. Contributions to an RRSP can be deducted,
resulting in a reduction in income tax. Funds can be moved around inside an
RRSP without any tax consequences. During the time that funds are held in an RRSP,
income can be accumulated without attracting tax.
[45]
Investments within an
RRSP have to be “qualified investments” as defined by the Act. In addition, the
holder of an RRSP cannot hold security under his or her name, it must be owned
by the trustee.
[46]
When an individual
withdraws funds from an RRSP, the funds are taxed pursuant to paragraphs 56(1)(t)
and 146.3(5) of the Act.
[47]
A person gaining
business income from trading has to report all his business income on a yearly
basis, and his profit will be determined pursuant to section 9 of the Act. By
contrast, since the funds accumulated in an RRSP do not attract tax, an
individual is subject to taxation on them only when he withdraws them from the
RRSP. Depending on his other income for a taxation year, an individual may
chose to withdraw an amount that will keep him or her within a certain level of
taxation.
[48]
From the above, it can
be seen that the Act treats an individual who trades within his RRSP
differently than a taxpayer who is in the business of trading. For this reason,
trades within an RRSP are not relevant in deciding whether an individual is in
the business of trading.
[49]
Counsel for the
respondent pointed to the decision of Justice C. Miller of this Court in Deep
v HMQ, 2006 TCC 315, 2006 DTC 3033 in support of the proposition that
trading within an RRSP does not amount to business income.
[50]
In Deep, there
were a number of questions in issue, including whether Mr. Deep was
engaged in the business of trading in stock and financial instruments. With
respect to trading within an RRSP, Justice Miller stated as follows at
paragraph 51:
. .
. He provided no evidence of any extensive trading activity during those years,
nor do his tax returns reflect any level of activity that would constitute
trading as a business. Even his own testimony was the trading he carried on was
within his RRSP. This is not the carrying on of a business.
[51]
Accordingly, I am
satisfied that trading within an RRSP does not amount to carrying on the
business of trading.
[52]
As I stated earlier,
Mr. Prochuk never reported income from business in any of his tax returns.
Mr. Prochuk often stated that his RRSP was his livelihood. In my opinion,
this is consistent with why Parliament created RRSP, namely to assist
individuals in saving and earning money for retirement.
Adventure or Concern in the Nature of Trade
[53]
The second issue to
decide is whether Mr. Prochuk’s activities amounted to an adventure or
concern in the nature of trade.
[54]
There are numerous
cases dealing with the concept of an adventure or concern in the nature of
trade. One of the leading cases in this area is Canada Safeway Ltd v HMQ,
2008 FCA 24, 2008 DTC 6074, where Justice Nadon, at paragraph 41, states as
follows:
[41] In
Friesen v R, [1995] 3 S.C.R. 103, Justice Major writing for the majority
of the Supreme Court, remarked, at page 115, that the concept of an adventure
in the nature of trade is a judicial creation designed to determine which
purchase and sale transactions are of a business nature and which are of a capital
nature. Major J. then made the point that for a purchase and sale to
constitute an adventure in the nature of trade, there had to be a “scheme for
profit-making”. In his view, there was a requirement for the taxpayer to have
had an intention of gaining a profit from his transaction and, in that regard,
he referred to Interpretation Bulletin IT-459: “Adventure or Concern in the
Nature of Trade” (Sept. 8, 1980), which sets out the relevant tests found in
the case law for a determination of whether a transaction constitutes an
adventure in the nature of trade. Paragraph 4 of IT-459 provides as follows:
In determining whether a particular transaction is an adventure or
concern in the nature of trade the Courts have emphasized that all the
circumstances of the transaction must be considered and that no single
criterion can be formulated. Generally, however, the principal tests that have
been applied are as follows:
(a) whether the taxpayer dealt with the property
acquired by him in the same way as a dealer in such property ordinarily would
deal with it;
(b) whether the nature and quantity of the property
excludes the possibility that its sale was the realization of an investment or
was otherwise of a capital nature, or that it could have been disposed of other
than in a transaction of a trading nature; and
(c) whether the taxpayer's
intention, as established or deduced, is consistent with other evidence
pointing to a trading motivation.
[55]
Taking into account the
criteria cited in Canada Safeway Ltd for determining if a person is
engaged in an adventure or concern in the nature of trade, I am of the
view that:
(a) Mr. Prochuk did not act in the
same manner as a person in the business of trading. He was a passive investor
and at the time he acquired the SSGC investment, he intended to hold it on a
long-term basis. He expected to receive a yield of 17.52% paid semi-annually.
Clearly, his intention at the time he purchased the investment was not to
resell it promptly for a profit. In any event, he could not sell the investment
since it was locked in for 28 months;
(b) any eventual sale of the SSGC
investment would have resulted in a capital gain. In a letter dated October 26,
2006, Mr. Prochuk wrote to CRA questioning the tax treatment if a gain
were to occur, he stated at page 2 of his letter as follows:
.
. .
2. If
I receive all my capital back and some gain and this happens sometime in 2007,
I/we should report the entire capital gain (all capital received over all
years, minus my initial investment) on my/our 2007 tax return. Can either my
wife or myself claim the capital gain, sharing it as we wish, or must we share
it equally?
.
. .
(c) Mr. Prochuk’s intention at
the time of the purchase of the SSGC investment was to achieve a capital gain
and to obtain a return on his investment. He testified that he would have
renewed the investment had the terms of the investment contract been respected.
In addition, in the same letter dated October 26, 2006 to CRA, he stated that
SSGC was in the business of creating capital gains.
[56]
After reviewing these
factors and the jurisprudence submitted by the respondent on the concept of
adventure or concern in the nature of trade, I am of the opinion that Mr. Prochuk
was not engaged in an adventure or concern in the nature of trade.
Conclusion
[57]
In light of my
conclusion that Mr. Prochuk was not in the trading business and that he
was not engaged in an adventure or concern in the nature of trade, he is not
entitled to claim a non-capital loss for his 2007 taxation year.
[58]
In closing, I would
like to state that Mr. Prochuk is sadly another victim of a scheme sold to
taxpayers with the promise of a high return on investment.
[59]
The appeal is dismissed
with costs.
Signed at Ottawa, Canada,
this 16th day of January 2014.
“Johanne D’Auray”
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