Frederick G Vivian and Rex T Parsons v. Her Majesty the Queen, [1983] CTC 107, [1983] DTC 5144

Mahoney, J:—This is a management company case. It was tried together on common evidence with Rex T Parsons v The Queen, Court file no T-2660-81. Parsons testified first; the plaintiff, Frederick G Vivian, was excluded from the courtroom during his cross-examination. In issue are the assessments of their personal income tax returns for 1975, 1976, 1977 and 1978. The Minister has included in their respective incomes amounts paid by Newfoundland Design Associates Limited, hereafter “Design”, to Frederick G Vivian Management Limited and Rex T Parsons Management Limited, hereafter the “management companies”. The management companies reported the payments as their income.

At all material times, all of the shares in Design were owned equally by Vivian, Parsons and their wives, or by two holding companies, whose voting shares were entirely owned by them respectively. They are professional engineers. Design is an engineering firm offering its services in the Province of Newfoundland. The management companies, as well as Vivian, Parsons and, presumably, Design, were, at all material times, duly licensed to practise the profession of engineering in Newfoundland.

Vivian and Parsons each owned all 500 issued voting preference shares of his management company and each was sole trustee of the trust that owned all of the issued common shares for the benefit of his children. There were 200 issued common shares of F G Vivian Management Limited and 201 of Rex T Parsons Managememt Limited. Each share, common and preference, carried one vote.

There is no point in a detailed review of the extensive documentary evidence, all admitted by agreement. Suffice it to say, the plaintiffs and the companies took and meticulously followed competent professional advice. Every move is properly documented and, in the documentation, every “i” is dotted and “t’crossed. Vivian and Parsons resigned their employment by Design and were employed by their respective management companies. The arrangements were undoubtedly made with a view to an overall reduction of income tax. That said, they were precisely what they purported to be: all services theretofore rendered to Design by Vivian and Parsons as employees were, as of and after October 1, 1975, rendered by the respective management companies. Vivian and Parsons were no longer paid salaries by Design; they were paid by the management companies. They remained directors and corporate officers of Design. The management companies each employed the wife of its respective controlling shareholder at a nominal salary to perform services for the management company were, in fact, entirely performed by Vivian and Parsons personally. The services performed for Design by the management companies were the services called for under the management contracts and the management companies were paid therefor by Design in strict compliance with the terms of those contracts. The services called for by the contracts were the identical services previously performed in their employment and there was no apparent change in their relationships with Design’s staff as a result of the interposition of the management companies. In short, the relationships among Design, the management companies, the trusts and Vivian and Parsons, were entirely legal, precisely defined in writing and, in fact, observed by each and all of them.

The management companies each maintained an office in the residence of its controlling shareholder. There were separate telephone listings and they offered engineering services to others than Design. Aside from Vivian and Parsons and their wives, they had no employees. With one exception, when the services of others were required, they were provided by Design’s staff and Design was reimbursed therefor at the rates published from time to time by the Association of Professional Engineers of Newfoundland. That exception was in the case of the $5,080 billing by Vivian’s management company in 1979, as set out below. It paid $2,080 to a third party in respect thereof.

I do not accept Parsons’ evidence that he would not have entered into the transactions in issue only because of the tax advantages on account of them being too cumbersome. Neither do I accept as well-founded, Vivian’s doubt that there was really any tax advantage. Vivian’s personal income tax, as reported, for 1974, the last full year prior to the reorganization, was $48,623 on a taxable income of $91,260. The combined personal and corporation income taxes, as reported by Vivian and his management company for 1976, the first full year in which the reorganization was in effect was $67,639 on combined taxable incomes of $174,528. Comparable figures for Parsons were, for 1974, $48,378 tax on $93,026 taxable income and, combined for 1976, $63,886 tax on $167,558 taxable income.

One of the reasons, aside from income tax considerations, for the reorganization was to permit Vivian and Parsons, individually, to pursue their particular professional interests and establish personal identities in the practice of their profession independent of Design and their association with each other. In the last quarter of 1975, the Vivian management company received $30,525 from Design under the management contract and nothing from others. Thereafter, the pertinent amounts were:

Likewise, the Parsons management company received $29,726 from Design, and nothing from others, in the last quarter of 1975 and thereafter, the following:

The amounts received from others, as set out above, are gross receipts. The payments to Design are the amounts paid each year by each management company for the services of Design’s employees in the performance of their independent work for others. Over the four years, Vivian’s management company received 98.5% of its net revenue for services from Design and Parsons’ received 98.6% from that source.

The reorganization was also expected to slow, stop or reverse the growth in the equity value of Design thereby permitting equity participation by employees. Since 1975, no one, other than the plaintiffs, their wives and holding companies, have participated in Design’s equity. There is no evidence that the opportunity of such participation has yet been offered.

Vivian and Parsons testified to tensions between them under the old regime that, almost magically it seems, dissolved with the reorganization. Neither articulated a rational theory to explain the phenominon.

One area of tension was described as arising out of the “Siamese twins” style leadership extant before the advent of the management companies. While the problems were described with some specificity, the manner of their resolution as an objective rather than a result of the reorganization was not even alluded to. It is surprising that an organizational setup described as too cumbersome to be justified by its substantial tax savings alone had so beneficial a result.

Another area was embraced in the term “funds in jeopardy”. They were concerned with Design’s built up worth being available to satisfy potentially enormous damages founded in professional liability claims. I can appreciate the reality of such a concern but, again, fail to understand how interposition of the management companies was proposed to, or did in fact, resolve it. There was no distribution of surplus involved in the transaction in issue. That occurred with the later interposition of the holding companies.

A third area identified was the conflicting views between Vivian and Parsons as to the investment of Design’s surplus funds. Again, since there was no distribution of surplus, it is not apparent how interposition of the management companies could have, in fact, or was intended, to resolve that conflict. There was no evidence as to how those funds were invested prior to October 1, 1975, and how they were invested after. The witnesses both asserted the existence of the disagreement but I do note, from a perusal of their personal income tax returns, that they do share a rather special investment interest: Canadian film production. Perhaps that is rooted in a common cultural concern.

There was, of course an element of estate planning. The only reason advanced, by Parsons, was his guilt at being kept away from his children by pressures of business and, as a result, wanting to do something for them. That, praiseworthy as it is, is not a business purpose. I should not wish to close the door to the possibility that estate planning may have a bona fide business purpose in some circumstances as well as tax and personal purposes. If it is possible, it has not been proved here.

If I have not mentioned other alleged business purposes asserted in evidence, it is because I found them even more far-fetched than those I have dealt with. I find that the interposition of the management companies (1) had no bona fide business purpose, (2) had, primarily, the purpose of directly reducing their income tax liabilities, (3) had, secondarily, an estate planning purpose which, in the absence of credible evidence to the contrary, must be taken to have also been solely motivated by tax and personal, not business, considerations and (4) was not a sham in the generally accepted legal sense of that word. I understand that to be the frequently cited opinion of Lord Diplock in Snook v London & West Riding Investments, [1967] 1 All ER 518:

I apprehend that, if [sham] has any meaning in law, it 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 obliations 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 the 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.

That definition appears recently to have been adopted in a number of judgments in the context of the Income Tax Act, by the Federal Court of Appeal.* [1]

The definition of “sham” in the context of the Income Tax Act was, however, considerably broadened by the Federal Court of Appeal in MNR v Leon, [1976] CTC 541; 76 DTC 6303, where it was held:

If the agreement or transaction lacks a bona fide business purpose, it is a sham. . . . In the case at bar, there is no bona fide business reason for the agreements and the sole purpose of the agreements is the savings in income tax.

By that definition, the interposition of the management companies was a sham. Leave to appeal that decision was refused by the Supreme Court of Canada.

In Massey-Ferguson Ltd v The Queen, [1977] 1 FC 760, a different panel of the Federal Court of Appeal, considering the Leon judgment, said:

I am not at all sure that I would have agreed with the broad principles relating to a finding of sham as enunciated in that case, and, I think, that the principle so stated should perhaps be confined to the facts of that case.

The facts in Massey Ferguson were very different from those in Leon. Those here are not.

Again, dealing with facts very different from here, another panel of the Court of Appeal, including, coincidentally the authors of both the Leon and Massey-Ferguson judgments, in Stubart Investments v The Queen, [1981] CTC 168; 81 DTC 5129, after accepting Lord Diplock’s definition of “sham”, had this to say:

It was admitted that the transactions were entered into for the purpose of utilizing the tax losses accumulated by Grover. That in itself is not a reprehensible, let alone an illegal, act since every person is entitled to organize his affairs in such a manner as to minimize or eliminate taxes so long as he does so within the limitations imposed by the law. To attach to those transactions the pejorative term “sham”, in the circumstances of this case, it seems to me may be unnecessary, unfair and perhaps unwarranted, although it must be said that the evidence certainly points in that direction. However, even if they did not comprise a sham, that conclusion does not necessarily permit the appellant to claim that the Minister’s reassessments were invalid. As I see it, it must, in any event, satisfy the Court that what it purported to do, namely to transfer its assets and undertakings to Grover, was in fact accomplished. Since the acknowledged purpose of the transactions was to reduce the tax consequences arising out of the profits of the flavourings business by applying Grover’s tax losses thereto, the Court is entitled, indeed obliged, to examine all of the evidence relating to the transactions to ensure that what was done for the purpose of achieving the desired result in fact was sufficient to enable the Court to conclude that there had been a valid, completed transaction.

In Stubart, the Court of Appeal also took the opportunity to reiterate what it had said earlier in Atinco Paper Products v The Queen, [1978] CTC 566; 78 DTC 6387:

I do not think that I should leave this appeal without expressing my views on the general question of transactions undertaken purportedly for the purpose of estate planning and tax avoidance. It is trite law to say that every taxpayer is entitled to so arrange his affairs as to minimize his tax liability. No one has ever suggested that this is contrary to public policy. It is equally true that this Court is not the watch-dog of the Minister of National Revenue. Nonetheless, it is the duty of the court to carefully scrutinize everything that a taxpayer has done to ensure that everything which appears to have been done in fact has been done in accordance with applicable law. It is not sufficient to employ devices to achieve a desired result without ensuring that those devices are not simply cosmetically correct, that is correct in form, but, in fact, are in all respects legally correct, real transactions. If this Court, or any other Court, were to fail to carry out its elementary duty to examine with care all aspects of the transactions in issue, it would not only be derelict in carrying out its judicial duties, but in its duty to the public at large. It is for this reason that I cannot accede to the suggestion, sometimes expressed, that there can be a strict or liberal view taken of a transaction, or series of transactions which it is hoped by the taxpayer will result in a minimization of tax. The only course for the Court to take is to apply the law as the Court sees it to the facts as found in the particular transaction. If the transaction can withstand that scrutiny then it will, of course, be supported. If it cannot, it will fall.

In both Stubart and Atinco, it was found that the transaction, or series of transactions, could not withstand scrutiny. Here, it is otherwise. What was purported to be done was, in fact, done; what was done to achieve the desired result: the reduction of tax, was a valid, complete, transaction, or series of transactions, and nothing less. Only if the definition of “sham” adopted in Leon remains valid can the plaintiffs fail. It is apparent from its later judgments that the Court of Appeal has not taken the refusal of leave to appeal by the Supreme Court of Canada as approving that definition. Those later judgments raise doubts as to its validity.

The law is not clear. In tax matters, while the burden of proof of facts rests generally upon the taxpayer, the burden of demonstrating that the law clearly imposes the tax sought to be levied invariably rests upon the fisc. The appeals from the assessments are allowed with costs.