Singh – Tax Court of Canada applies the markers of possession, use and risk in ascertaining beneficial ownership

Before finding that there had been a transfer to the taxpayer of ½ of the beneficial ownership of the family home for s. 160 purposes from her husband (rather than her having been the full beneficial owner all along), MacPhee J adopted a previous judicial formulation of the concept of beneficial ownership, viz:

The primary attributes of beneficial ownership include possession, use and risk. Therefore, in determining whether a person has beneficial ownership in a property, one should consider such factors as the right to possession, the right to collect rents, the right to call for the mortgaging of the property, the right to transfer title by sale or by will, the obligation to repair, the obligation to pay property taxes and other relevant rights and obligations.

Here, the husband had had a significant degree of mutual control over the home, his income had contributed significantly to servicing the mortgage, and the funding of the down payment with a gift from her parents was not dispositive.

MacPhee J also commented obiter that s. 160 can be applied in a “cascading manner” so that where A transfers to B and B transfers to C then, provided the usual conditions are satisfied, CRA can assess C for A’s tax debt without first having to assess B.

He also noted obiter that there was some authority for the value of what the husband had transferred being reduced by his continuing to live there.

Neal Armstrong. Summaries of Singh v. The Queen, 2019 TCC 265 under s. 160(1) and General Concepts – FMV - Land.