REASONS
FOR JUDGMENT
Lyons J.
[1]
This is an appeal by Angela Maria Henao, the
appellant, of the assessment made under the Excise Tax Act (the “Act”) relating to the GST/HST New Housing
Rebate (the “Rebate”) application that she and
Carlos Restrepo, her uncle, had made with respect to the purchase of a house
located on Quetico Crescent, Oakville, Ontario (the
"House").
[2]
The Minister of National Revenue (the “Minister”) refused the Rebate on the basis the House
was not acquired by Mr. Restrepo for use as his primary place of residence and failed to satisfy the
requirement in paragraph 254(2)(b) of the Act.[1]
[3]
The issue in this appeal is the appellant’s entitlement
to the Rebate.
I.
Facts
[4]
The appellant owned another property in Mississauga, which she retained, but wanted to buy the House to improve the quality of her
life and for her daughter’s future. She occupied the House as her primary place
of residence.
[5]
On June 9, 2011, the appellant and her aunt
entered into an agreement of purchase and sale for the House with a closing
date of June 19, 2012. The appellant’s income was too low to qualify for
the $472,000 mortgage.[2]
[6]
The agreement of purchase and sale was amended
by replacing her aunt, due to credit issues, with Mr. Restrepo as a co-signer (the
“Amended Purchase Agreement”).[3]
He and the appellant became the registered owners of the House.[4] The appellant testified that her
uncle was merely on title for mortgage purposes and she would have been on
title on her own had she qualified for financing. She made all the
payments relating to the House.[5]
In 2014, she renewed the mortgage. When the House is sold, the appellant will
receive all the proceeds.
[7]
Mr. Restrepo tesftified that he agreed to help
by going on title for mortgage purposes and testified that he never owned, intended
to occupy, occupied, made mortgage payments nor expects proceeds from the House
when it is sold.[6]
He claims that he and his wife were neighbours of the appellant living in the
same complex where the House is located and they have a close family bond with
the appellant and her daughter.[7]
II.
Law
[8]
All references to provisions that follow will be
to the Excise Tax Act. The relevant legislation is provided below.
[9]
Subsection 254(2) sets outs the requirements for
the rebate in paragraphs (a) to (g), all of which must be met by
all individuals purchasing a new home to be eligible for the rebate. Paragraphs
254(2)(a) and (b) reads:
254(2) Where
(a) a
builder of a single unit residential complex or a residential condominium unit
makes a taxable supply by way of sale of the complex or unit to a particular
individual,
(b) at the
time the particular individual becomes liable or assumes liability under an
agreement of purchase and sale of the complex or unit entered into between the
builder and the particular individual, the particular individual is acquiring
the complex or unit for use as the primary place of residence of the particular
individual or a relation of the particular individual, …
[10]
Subsection 262(3) stipulates:
262(3) If
(a) a
supply of a residential complex or a share of the capital stock of a
cooperative housing corporation is made to two or more individuals, or
(b) two or
more individuals construct or substantially renovate, or engage another person
to construct or substantially renovate, a residential complex,
the references in sections 254 to 256 to a particular individual
shall be read as references to all of those individuals as a group, but only
one of those individuals may apply for the rebate under section 254, 254.1, 255
or 256, as the case may be, in respect of the complex or share.
[11]
Paragraph 133(a) states:
133. For the
purposes of this Part, where an agreement is entered into to provide property
or a service,
(a) the entering into of the agreement
shall be deemed to be a supply of the property or service made at the time the
agreement is entered into; and …
[12]
If all the requirements in subsection 254(2) are
satisfied, the Minister is to pay a rebate.
III.
Position
[13]
The appellant’s position is that the legal substance, not labels, governs. Mr. Restrepo signed the
Amended Purchase Agreement and was placed on title for the specific purpose of
mortgage financing as a “form of guarantor” and he had no beneficial ownership.
Therefore, section 134 applies deeming that the House was not a supply to him
and the transfer of title to him is to be ignored for GST purposes so that he would
not be required to meet the conditions in subsection
254(2) of the Act and the appellant was the “primary recipient”.[8]
[14]
The respondent’s position is that the appellant is
attempting to re‑characterize the legal reality after the fact. Rather,
upon entering into the Amended Purchase Agreement, the appellant and Mr.
Restrepo both became liable for the House (as recipients of a supply under subsection
123(1) and section 133 of the Act) and since the builder did not
transfer the House as security to the appellant and Mr. Restrepo, section 134 is
not applicable. Given that Mr. Restrepo never intended to acquire the House for
use as his primary place of residence, he failed to satisfy the requirement in
paragraph 254(2)(b), disentitling the appellant to the Rebate.
IV.
Analysis
[15]
Collectively, subsections 254(2) and 262(3) provides
that to qualify for a new housing rebate each individual purchaser must satisfy
the requirements in subsection 254(2) of the Act.[9] Paragraph 254(2)(b), in
issue in this appeal, requires that at the time the particular individual (all
in the group) becomes liable or assumes liability under the agreement of
purchase and sale with the builder, the particular individual must intend to acquire
the home as his/her primary place of residence and section 133 deems it to be a
supply upon entering into the agreement.[10]
If applicable, section 134 deems the transfer not to be a supply. I am to
determine if section 134 applies.
[16]
The appellant argues that section 134 applies as
it did in Pro-Ex Trading Co. v Canada, [2001] GSTC 111 [Pro-Ex],
deeming a supply not to have occurred despite documentation showing that it had
made sales of equipment to various lender companies even though these had been
recorded as corporate sales. O’Connor J. accepted Pro-Ex’s argument that title
to the equipment had been transferred by Pro-Ex, as a guarantor, for security
purposes only to secure repayment of loans taken by Pro-Ex. He stated that it
is the legal substance, not the labels, that is relevant for tax purposes.[11]
[17]
The appellant contends that her case is no
different than Pro-Ex because, in substance, at the time the builder
transferred the House to the appellant, the appellant simultaneously
transferred an interest in the House to Mr. Restrepo, thus deeming it not to be
a supply to him because he was involved strictly for financing purposes, as a
form of guarantor, because of her low income. Applying section 134, a supply
was not deemed to be received by Mr. Restrepo for the purposes of subsection
262(3), therefore, he need not meet the requirements in subsection 254(2).
[18]
Section 134 of the Act reads:
134. For the purposes of this Part, where, under an agreement
entered into in respect of a debt or obligation, a person transfers property or
an interest in property for the purpose of securing payment of the debt or
performance of the obligation, the transfer shall be deemed not to be a supply,
and where, on payment of the debt or performance of the obligation or the
forgiveness of the debt or obligation, the property or interest is
retransferred, the retransfer of the property or interest shall be deemed not
to be a supply.
[19]
For section 134 to apply, the transfer of
property (or interest) must be for the purpose of securing payment of the debt (or
obligation). In the present case, the builder did not transfer the House as
security or to secure a debt. The builder transferred the House under the Amended
Purchase Agreement as consideration in exchange for the money paid by the
appellant and Mr. Restrepo enabling them to obtain title to the House.
[20]
Pro-Ex is further
distinguishable because the present situation involves two separate agreements
(Amended Purchase Agreement and Mortgage Loan) with each agreement involving different
entities with separate purposes. I agree with respondent counsel that a debt
obligation must comprise the same parties involving a lender and debtor without,
as here, the third party bank lending money under a separate arrangement of
which the builder was not privy.[12]
Pro‑Ex was a debt obligation involving the same two entities with
the same lender(s) loaning funds (the debt) to Pro-Ex (debtor) and the
lender(s) receiving title to equipment from Pro-Ex as security for the loans
thus comes within the ambit of section 134.[13]
[21]
The appellant’s situation is more analogous to Canpar
Developments Inc. v Canada, 2011 TCC 353, [2011] GSTC 118 [Canpar],
in which the application of section 134 was rejected by Paris J. In that case,
he notes that the provision applies to the transfer of security arising out of
a debt agreement and the debt agreement must be between the same two parties.[14] At paragraphs 15 and 22 Paris
J. finds that there is no evidence that Canpar transferred the property to its
two shareholders to secure payment of debt.
[22]
Similar to Canpar, there is no evidence
that the builder transferred the House to the appellant and Mr. Restrepo to
secure a debt as the builder is not party to any debt obligation. In my view,
this is not a transfer of property for the purpose of securing debt as
contemplated by section 134. I find that the supply was made to Mr. Restrepo
thus, as a particular individual, he must satisfy the requirements in paragraph
254(2)(b) as previously noted.
[23]
In Sharp v Canada, 2014 TCC 323, [2014] TCJ No. 251 (QL), C. Miller J. did
not accept that section 134 applied noting, at
paragraph 22, that there had been no transfer of an interest in property to
secure payment.
[24]
While I accept that Mr. Restrepo was assisting
his niece, I do not accept that there was a simultaneous transfer of an
interest as between them. It is contrary to the evidence showing that the House
was jointly purchased from and transferred by the builder to the appellant and
Mr. Restrepo as purchasers under the Amended Purchase Agreement and they were
identified as joint tenants on title which continues at the time of the
hearing. Assisting in such a manner does not displace nor invalidate the rights
and obligations flowing from the legal relationships they created.
[25]
Turning to the appellant’s reliance on the
decision of Rochefort v. Canada, 2014 TCC 34, 2014 CarswellNat 161 (TCC),
and that it is factually similar to her situation (and consistent with the Pro-Ex
decision) because in Rochefort, the nephew was found not to
be a beneficial owner and should apply to her based on Mr. Restrepo’s testimony
that he was not a beneficial owner.[15]
[26]
Several facts in Rochefort are similar to
the present situation, but the decision in Rochefort does not assist the
appellant.[16]
First, the Court was focused on whether there had been a transfer of ownership
to Mrs. Rochefort in the context of paragraph 254(e). She had signed the
agreement of purchase and was involved in other aspects of the property
purchase but was not placed on title. The Court found that she was a beneficial
owner.[17]
[27]
Second, pivotal to C. Miller J.’s finding – that
no supply was made to the nephew – was the fact that he had not signed the agreement
of purchase. Further, he was unaware that he would be placed on title. In
referring to subsection 262(3) and the requirements in subsection 254(2), he
notes that the words “made to” refer to the definition of a recipient of the
supply in subsection 123(1), which refers to the individual who became liable
under the agreement of purchase agreement. He distinguished the decisions of Goyer v Canada, 2010 TCC 511, [2010] GSTC 163, and Davidson
v Canada, [2001] GSTC 25
on the basis that the individual assisting had signed
the agreement of purchase and sale; thus the particular individual in paragraph
254(2)(b) who became liable pursuant to the purchase agreement and
because of subsection 262(3) was required to meet all the legislative
requirements in subsection 254(2).[18]
[28]
The third reason why the Rochefort decision
does not assist the appellant is the recent confirmation by C. Miller J. in Sharp
that a person entering into an agreement of purchase and sale is caught by
subsection 254(2) and subject to the requirements of the provision. At
paragraph 23, he states:
23. I was also referred
to the cases of Davidson v The Queen and Goyer v The Queen, cases
I had distinguished in my reasons in Rochefort v The Queen. I find
that they do no [sic] help Ms. Sharp in this case, but confirm a finding
that someone entering a purchase agreement is a “particular individual” for
purposes of section 254(2) of the Act and subject to the requirements in
that provision.
[29]
C. Miller J. dismissed
the appeal because paragraph 254(2)(b) and subsection 262(3)
provides that every person who “becomes liable or assumes liability under an
agreement of purchase and sale” must intend to live in the new home (or have a
qualified relation live in it).[19]
Mr. Da Silva, Ms. Sharp’s colleague, had signed the agreement with Ms. Sharp. Since
Mr. Da Silva did not intend to live in the home, Ms. Sharp was disentitled to
the rebate.
[30]
Similarly, the individuals assisting in Davidson,
Goyer and Al-Hossain v Canada, 2014 TCC 379, [2014] TCJ No. 295
(QL), had also entered into an agreement or amended agreement of
purchase and sale and were also placed on title mirroring the appellant’s
situation.
[31]
Despite the creative arguments advanced by
appellant counsel, I am unable to conclude that section 134 applies nor that the
decision in Rochefort supports his position.
[32]
With respect to the portrayal of Mr. Restrepo as
a form of a guarantor, in Sharp, it was argued that Mr. Da Silva’s
status had changed from purchaser to guarantor as a result of a further
amendment to the amended purchase agreement adding Ms. Sharp’s parents. The
Court found that he remained a purchaser under the amended purchase agreement
because the builder would not permit him to extricate himself from his
obligations under that arrangement and even though Mr. Da Silva had directed in
writing that he not be placed on title.
[33]
The appellant’s testimony was the bank dictated
the terms of financing for the purchase, she was unsophisticated in financial
matters, had relied on her lawyer and was unfamiliar with the term guarantor. I
accept her evidence. Clearly, the bank would want to minimize its exposure and
optimize its security by dictating the terms to accomplish that, especially
because of her low income. It insisted that Mr. Restrepo be placed on title as
a registered owner and become a borrower and mortgagor. I find it highly
improbable that the bank would entertain Mr. Restrepo as a mere guarantor (that
generally steps in the event of default by the borrower) in these circumstances.
[34]
Documentary evidence adduced shows that in their
dealings with the bank the appellant and Mr. Restrepo were represented as borrowers
and mortgagors (granting a security interest to the bank by way of a mortgage
against the House as owners do). Under the Mortgage Loan, the appellant and Mr.
Restrepo each promised to pay and assume individual and
joint liability for the mortgage amount plus interest. That arrangement - and
remaining on title as registered owners - continue to
subsist at the time of the hearing and notwithstanding the mortgage was renewed
in 2014. On closing the transaction, they co-signed the
Direction directing that mortgage funds be advanced from the bank to their
lawyer. I find that Mr. Restrepo was not a guarantor or
a form of guarantor.
[35]
Appellant counsel conceded that there was no
formal trust agreement. Statements were made by the appellant in her testimony
that she had made all of the House-related payments and provided some
documents. She also commented that she would eventually receive all the
proceeds from the House but did not provide any further elaboration as to how
that impacted Mr. Restrepo. Of some importance is the fact that the appellant
and Mr. Restrepo were purchasers with the same rights accorded with that status
and assumed liability. They
were liable to the builder to pay for the House. Subsequently, they were legally
liable to the bank to pay for the funds loaned to them under the Mortgage Loan
with ongoing and continuing obligations plus they transferred security interest
in the House to the bank, all of which point to incidents of ownership. On the application for the Rebate, the appellant and Mr. Restrepo are
also identified as owners. I also note that no
references to a trust were pled in the Amended Notice of Appeal. It appears to
be an attempt to re‑characterize the transaction and find that there was no
trust in place and the appellant was not the sole beneficial owner.[20]
[36]
In Canpar, Paris J. referred to the
requirements of a trust and concludes that no trust was established. He noted
that if an individual holds out to the bank as co-owner, that has implications
and an individual cannot hold themselves out to the world as different things.
At paragraph 10, he stated that:
10. Thirdly, as
pointed out by counsel for the Respondent, there was no evidence that either
Mr. Parmar and Mr. Canning ever advised TD Canada Trust of the existence of a
trust with respect to the property, and I infer from this that no such
representation was made. This is inconsistent, in my view, with an intention to
create a trust. The comments of Justice Bowman in Erb v. The Queen, 2000
D.T.C. 1401 in this regard, I think, are appropriate. Justice Bowman said at
paragraph 26:
It strikes me that where a person
transfers property to someone else by a deed or conveyance that on its face is
absolute and does so to achieve a purpose that is premised upon a transfer on
beneficial ownership that would require very cogent evidence to establish that
the transferor had no intention of doing what the documentation unequivocally
shows that it did do and that intended to withholding from the grantee beneficial
title to the property.
[37]
Appellant counsel asserted that from a policy
perspective, it could not have been Parliament’s intent to deny the appellant
the Rebate since she took possession and occupation of the House. While it is
unfortunate that the legislation disentitles the appellant from the Rebate, it
is for Parliament - not the Court - to remedy the situation.
[38]
Based on the above reasons, I conclude that when
Mr. Restrepo entered into the Amended Purchase Agreement with the builder, the
combined operation of subsections 254(2) and subsection 262(3) and section 133,
results in a supply of the House being made to Mr. Restrepo but because he did
not intend to acquire the House for use as his primary place of residence, the
requirements in paragraph 254(2)(b) have not been satisfied and the
appellant is not eligible to the Rebate.
[39]
The appeal is dismissed. There will be no order
as to costs.
Signed at Toronto, Ontario, this 30th
day of March 2015.
“K. Lyons”
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