Phyllis Barbara Bronfman Trust v. Her Majesty the Queen, [1983] CTC 253, [1983] DTC 5243

Thurlow, C J:—The issue in this appeal is whether the appellant, in computing its income for tax purposes for the years 1970, 1971 and 1972, is entitled to deductions for interest amounting to $110,114 in 1970, $9,802 in 1971 and $1,432 in 1972, which the appellant paid on two bank loans, one in the amount of $300,000 (US) obtained in December, 1969, the other in the amount of $1,900,000 (Can) obtained in March, 1970. The latter loan was repaid in full by October 5, 1970, following the sale of certain investments in Gulf Canada Ltd. The former was substantially reduced in 1970 and 1971 and the balance was repaid in full on January 4, 1972.

The appellant is a trust established in 1942 by Samuel Bronfman in favour of his daughter. Under the deed of trust the daughter, as beneficiary, is entitled to receive annually 50 per cent of the income from the trust property and may from time to time be assigned, at the discretion of the trustees, capital allocations. At the material times the assets of the trust, almost all of which were invested in income earning securities, had a cost base of about $15,000,000 and a fair market value estimated at more than $70,000,000. The bulk of the value was represented by investments in family enterprises and was not readily realizable. The remainder was invested in marketable securities. But at the times when the loans in question were obtained it was inexpedient to sell some of them because their market value was depressed and others could not be sold immediately because they were temporarily pledged for the indebtedness of a family holding company. Almost all the investments of the trust were income producing. Income of the trust investments was:

in 1969 — $324,469 in 1970 — $293,178 in 1971 — $213,588 in 1972 — $209,816

In December, 1969, and March, 1970, capital allocations were made by the trustees to the beneficiary in the amounts of $500,000 and $2,000,000 respectively. The amounts of $300,000 (US) and $1,900,000 (Can), which were borrowed from the bank at or about the same times as the allocations were made, in each instance formed part of the amount transferred to the beneficiary.

The issue turns on whether in the taxation years in question the borrowed money can be said to have been “used for the purpose of earning income from property” within the meaning of subparagraph 11(1 )(c)(i) of the Income Tax Act, RSC 1952, c 148 applicable to the taxation years 1970 and 1971, and subparagraph 20(1 )(c)(i) of the Income Tax Act, S of C 1970-71- 72, c 63 applicable to the 1972 taxation year.

The appellant’s position is that the borrowed money replaced temporarily a portion of the capital of the trust fund which had been allocated to the beneficiary, that it enabled the trustees to keep the income yielding investments it had at that time, that the investments continued to earn income for the trust and accordingly, though the money received from the borrowings was paid to the beneficiary, it was used for the purposes of gaining or producing income from the trust property. For that position counsel relied on the judgment of the Exchequer Court in Trans-Prairie Pipelines, Ltd v MNR, [1970] CTC 537; 70 DTC 6351.

The position of the respondent was that as the borrowed moneys were used to pay the allocations to the beneficiary it cannot be said that they were used to earn income by the exploitation of the property of the trust.

I agree with the position taken by the appellant. It appears to me that, contrary to the respondent’s submission, when the borrowed money had been added to the trust property and there were allocations to be made to the beneficiary, the use of that money, rather than the investments, to pay the allocations was what enabled the trustees to keep the income yielding trust investments and to exploit them by obtaining for the trust the income they were earning. Had the trustees sold income yielding investments to pay the allocations, the income of the trust would have been reduced accordingly. Had they given the beneficiary income yielding investments in lieu of cash, the income of the trust would have been reduced accordingly. By not doing either, by borrowing money and using it to pay the allocations, the trustees preserved intact the income yielding capacity of the trust’s investments. That, as it seems to me, is sufficient, in the circumstances of this case, to characterize the borrowed money as having been used in the taxation years in question for the purpose of earning income from the trust property.

It is, I think, unrealistic to focus attention on the use of the borrowed money to pay the capital allocations. What appears to me to matter for this purpose is the effect which the use of the borrowed money to pay the allocations had on the ability of the trustees to keep the income earning investments and continue to earn for the trust the whole of the income therefrom. What the statute refers to is the purpose of earning income from property, by the exploitation of that property itself. See Rand, J, in Canada Safeway Ltd v MNR, [1957] SCR 717; [1957] CTC 335; 57 DTC 1239. In this case property to be exploited consisted of the trust investments being held by the trustees. The focus of the statute is thus the purpose of the trustees in continuing to hold the investments. If that purpose was to earn income from them and the money was borrowed to enable them to do so — to carry out that purpose — the requirement of the statute is satisfied. It does not matter that the method of accomplishing the purpose was not to buy securities with the borrowed money rather than to continue to hold what the trust already had by using the proceeds of the loans to discharge an obligation which if not discharged in that way would have made it necessary to give up a portion of the income earning investments of the trust. Nor, in my opinion, does it matter that the trustees in continuing to hold the investments may have had as well an eye to the possible appreciation of their capital value.

It should be noted that a trust such as that here in question has no purpose and the trustees have no purpose save to hold trust property, to earn income therefrom and to deal with such income and the capital of the trust in accordance with the provisions of the trust instrument. In that respect a trust differs from an individual person who may have many purposes, both business and personal. Compare Sternthal v The Queen [1974] CTC 851; 74 DTC 6646, where the taxpayer, an individual, had no obligation to lend money to his children but invested his borrowings in interest-free loans to them. There may be differences, as well, between the present situation and that in Trans-Prairie Pipelines, Ltd v MNR, [supra], since the situation considered in that case concerned borrowed money used for the purpose of replacing capital used to earn income from a business rather than from property.

But, in my opinion, the same principle applies. The trustees having on hand as trust assets income yielding investments to a certain value or amount and having determined that $2,500,000 of its capital should be withdrawn from the trust, the capital they were subsequently using to earn the income of the trust consisted of the remaining assets, that is to say, the former trust assets minus $2,500,000, and the borrowed money.

I would allow the appeal and refer the matter back to the Minister of National Revenue for reconsideration and reassessment on the basis that the appellant is entitled to deductions in respect of the interest payments in question. The appellant should have its costs of the appeal and of the proceedings in the Trial Division.

CJ

HYDE, DJ: I agree with the Chief Justice.

PRATTE J: [Dissenting]: This is an appeal from a judgment of the Trial Division (Marceau, J) dismissing an appeal by the appellant from income tax reassessments for the 1970, 1971 and 1972 taxation years. It raises only one issue: was the trial judge right in deciding that the appellant could not deduct, in computing its income for those three years, the interest it had paid on money borrowed from the Bank of Montreal?

The appellant is a trust established in favour of Phyllis Barbara Bronfman and her children pursuant to a deed of donation between Samuel Bronfman, as donor, and three named trustees. Under that deed, Miss Bronfman has the right to fifty per cent (50%) of the revenues from the trust property; in addition, the trustees have the discretion to make capital allocations of the trust property in her favour. In December, 1969, and March, 1970, the trustees decided to exercise that power and pay Miss Bronfman, out of the capital of the trust, amounts of $500,000 (US) and $2,000,000 (Can) respectively. In order to have the funds to pay those amounts, the trustees borrowed $2,200,000 from the Bank of Montreal. True, instead of borrowing, they could have disposed of some of the income producing securities owned by the Trust. However, they considered that it was far more advantageous for the trust to keep those securities and borrow from the Bank. The amount borrowed from the Bank was used to pay the capital allocations made to Miss Bronfman and the trust was thus enabled to keep valuable income producing securities. In computing the income of the trust for the years 1970, 1971 and 1972, the trustees deducted the interest paid during those years on the amount borrowed from the Bank. The Minister disallowed those deductions on the ground that the interest in question was not interest “on borrowed money used for the purpose of earning income from a business or property” within the meaning of subparagraph 11 (1 (c)(i) of the Income Tax Act as it read in 1970 and 1971 and subparagraph 20(1 )(c)(i) of the same Act as it stood in 1972. The trial judge confirmed that decision. Hence this appeal.

In 1970 and 1971, the relevant provision of the Income Tax Act was subparagraph 11 (1 )(c)(i); it read as follows:

11. (1) Notwithstanding paragraphs (a), (b) and (h) of subsection (1) of section 12, the following amounts may be deducted in computing the income of a taxpayer for a taxation year:

(c) an amount paid in the year or payable in respect of the year (depending upon the method regularly followed by the taypayer in computing his income), pursuant to a legal obligation to pay interest on

(i) borrowed money used for the purpose of earning income from a business or property (other than borrowed money used to acquire property the income from which would be exempt or to acquire an interest in a life insurance policy),

In 1972, a similar provision was found in subparagraph 20(1 )(c)(i) which read as follows:

20. (1) Notwithstanding paragraphs 18(1 )(a), (b) and (h), in computing a taxpayer’s income for a taxation year from a business or property, there may be deducted such of the following amounts as are wholly applicable to that source or such part of the following amounts as may reasonably be regarded as applicable thereto:

(c) an amount paid in the year or payable in respect of the year (depending upon the method regularly followed by the taxpayer in computing his income), pursuant to a legal obligation to pay interest on

(i) borrowed money used for the purpose of earning income from a business or property (other than borrowed money used to acquire property the income from which would be exempt or to acquire a life insurance policy),

It was argued on behalf of the appellant that the money borrowed from the Bank has been “used for the purpose of earning income” within the meaning of those provisions because the trustees had used it so as to be able to keep income producing securities that they, otherwise, would have had to sell. Counsel contended that the situation was, in substance, the same as if the appellant had first, sold securities, paid Miss Bronfman, and then borrowed from the Bank to finance the purchase of the securities it had just sold. In support of his argument, he invoked the decision of the Exchequer Court in Trans-Prairie Pipelines Ltd v MNR, [1970] CTC 537; 70 DTC 6351, where it was held that interest paid by a company on money borrowed by it to redeem its preferred shares was deductible in the computation of its income pursuant to subparagraph 11 (1 )(c)(i) of the Income Tax Act.

I agree with Mr Justice Marceau and cannot accept the appellant’s argument. Pursuant to the relevant provisions of the Income Tax Act, the interest here in question was not deductible unless the money borrowed from the Bank of Montreal had been “used for the purpose of earning income from a business or property”. It was not so used but was, in fact, used to pay the capital allocations made by the Trustees in favour of Miss Bronfman. The appellant’s argument, in my view, ignores the language of the Act. Moreover, I am of opinion that the decision rendered in Trans-Prairie Pipelines Ltd v MNR, (supra), has no application here. In that case, a company had borrowed money and used it to redeem its preferred shares; the money that had been previously subscribed by the preferred shareholders had clearly been used by the company for the purpose of earning income from its business; once the preferred shares had been redeemed with the borrowed money, it could be said that that money had, in effect, replaced the money subscribed by the preferred shareholders and that, thereafter, the company, instead of using their money in its business was using the borrowed money. In the present case, the situation is entirely different. The money paid to Miss Bronfman cannot be considered as money substituted for money already used by the trust for the purpose of earning income; and by no stretch of the imagination can the appellant be considered as having used for the purpose of earning income the money paid to Miss Bronfman.

I would dismiss the appeal with costs.