Scotti v. Agence du revenu du Québec, 2019 QCCQ 7579, effectively overruled in part by Verrier v. ARQ, 2024 QCCA 298 -- summary under unattached

An insurance broker (Mr. Chabot) agreed with the taxpayer (Mr. Scotti), as an inducement for Mr. Scotti to acquire a universal whole life policy from Standard Life with an insured sum of $5 million and providing for initial monthly premiums of $1,490.87) to pay him $6,000 per month for 24 months (for a total of $144,000). It was agreed that Mr. Scotti would keep the policy in force during this period and that, thereafter, he could terminate it or renew it for a lesser insured sum. This was subsequently determined to be part of a scheme of Mr. Chabot to cheat insurers, resulting in his pocketing commissions from them in excess of the amounts he agreed to pay to his clients. Here, the payments ceased in June 2009 after Mr. Scotti had received a total of $90,000 and when the scheme of Mr. Chabot (who had his brokerage licence taken away) was exposed.

The principal issue in determining whether the $90,000 paid by Mr. Chabot was includible in Mr. Scotti’s income under the Quebec equivalent of s. 12(1)(x) was whether it was received “in the course of earning income from a business or property.” In finding that this test was satisfied, Croteau, J.C.Q. stated (at paras. 31-32, 44, TaxInterpretations translation):

Mr. Scotti's Policy had an investment savings component that allowed him to pay a monthly premium in excess of the cost of insurance and accumulate the excess in an accumulating fund. The accumulated amounts were then invested by Standard Life in the investment funds chosen by Mr. Scotti.

Thus, of the $6,000 that Standard Life withdrew from the bank account to which Mr. Scotti deposited Mr. Chabot's cheques, only $1,490.87 was used to pay the monthly premium and insurance fees. The surplus, of just over $4,500, was immediately deposited by Standard Life in the Policy's investment accounts, which fluctuated according to the amounts and the interest that accumulated in them. …

Mr. Scotti was fully aware of the benefits he would derive from the purchase of a $5 million universal life insurance policy whose insurance premiums would be fully paid, for two years, by means of the amounts paid by Mr. Chabot and the major part of which would accumulate in an investment fund, from which he could then benefit as he wished. These same advantages made the offer attractive to Mr. Scotti, who, by his own admission, had no need for insurance at the time … .

In a footnote 15, Croteau, J.C.Q. further noted that CRA (most recently in 2008-0271381E5 and 2010-0359401C6) had “concluded that the holder of a policy that includes both a life insurance component and a savings component holds property that is a source of income” and that the ARQ concurred.