Hugh Waddell Limited v. Her Majesty the Queen, [1982] CTC 24, 82 DTC 6050

Gibson, J:—On December 31, 1971 (Valuation Day) Hugh Waddell Limited owned a Voting Trust Certificate representing 3,345 shares in CTC Dealer Holdings Limited; and on July 1, 1975 sold that Voting Trust Certificate for a sum equivalent to $39.75 per share market price of Canadian Tire Corporation Limited shares. The Minister of National Revenue, by assessment, assumed that the Valuation Day value of each DHL share represented by the Certificate was $33.35. Hugh Waddell Limited claims that the Valuation Day of each DHL share was in excess of $40.50 per share and that because it had sold these shares at $39.75 per share that it had not realized any capital gain on the sale of the shares for the purposes of the Income Tax Act.

The December 31, 1971 (Valuation Day) value of Canadian Tire Corporation Limited shares on the Toronto Stock Exchange was $40.50 per share. The significance of this is more apparent from the Statement of Facts, Exhibit 55, but the following from the statement of claim indicates the significance:

At all material times the Plaintiff operated a Canadian Tire dealership in Peterborough, Ontario.

The Canadian Tire Dealers Association (hereinafter referred to as “the Association”) is an Association of Canadian Tire dealers.

CTC Dealer Holdings Limited (hereinafter referred to as “DHL”) is a corporation which was incorporated in 1963 under Ontario law, with head offices in St Catharines, Ontario. DHL was used as a vehicle by Canadian Tire dealers to invest in Canadian Tire Corporation Limited (CTCL), a public corporation the common shares of which were listed on the Toronto stock exchange.

From time to time the Canadian Tire dealers subscribed for shares in DHL. The subscription price for DHL shares was always the stock market value of common shares of CTCL.

At various times from 1963 to 1971 the Plaintiff subscribed for a total of 3,345 DHL shares.

In 1971 the Association decided that it would be in the best interests of all members that there be an agreement limiting the ownership of DHL shares to members of the Association and governing the buying and selling thereof.

To that end the Association prepared an agreement entitled “Declaration of Trust”. (See Exhibit 2 at trial.) The agreement provided, inter alia, that

(a) beneficial ownership of all DHL shares would henceforth be vested in the Association as trustee;

(b) beneficial owners of DHL shares would be issued a Voting Trust Certificate representing the number of DHL shares held for their account;

(c) holders of Voting Trust Certificates would receive distributions equal to the amount of dividends received by the trustee on DHL shares; and

(d) Voting Trust Certificates could only be sold on the terms and conditions permitted by the Declaration of Trust.

On October 29, 1971 the Plaintiff executed the Declaration of Trust and was issued a Voting Trust Certificate representing the 3,345 DHL shares of which it was the former beneficial owner.

On July 1, 1975 the Plaintiff disposed of Voting Trust Certificates, including the Certificate it had acquired on October 29, 1971.

To compute the capital gain on this 1975 disposition, in conformity with paragraph 39(1 )(a) of the Income Tax Act and subsection 26(3) of the Income Tax Application Rules, inter alia, it was necessary that the Plaintiff know the fair market value of the Voting Trust Certificate it had held on December 31, 1971 (Valuation Day).

Recognizing that dealers who had acquired Voting Trust Certificates before 1972 would be required to determine the Valuation Day value thereof when Certifi- cates were subsequently disposed of, the Association had requested its auditors, Partridge, Skene & Company, to determine the Valuation Day value of the Voting Trust Certificates.

The auditors considered that to compute the Valuation Day value of Voting Trust Certificates, each dealer should use $40.50 as the Valuation Day value of each DHL share represented by a Certificate.

The Plaintiff claims that $40.50 was the Valuation Day value of each DHL share represented by a Certificate.

By Notice of Reassessment dated July 28, 1977 the Defendant reassessed the Plaintiff’s 1975 tax. The reassessment redetermined the taxable capital gain on the 1975 disposition on the basis that $33.35 was the Valuation Day value of each DHL share.

The reassessment also redetermined the Plaintiff’s cumulative deduction account. This redetermination was consequential upon the redetermination of the taxable capital gain mentioned . . . above.

“Fair market value” has been judicially defined in the Canadian Courts. See for example, Re Mann Estate, [1972] 5 WWR 23, affirmed [1974] CTC 222.

The plaintiff adduced evidence: Oral evidence was given by Lawrence Allan Warren, an owner of a Canadian Tire Associate store in North Bay, Ontario and one of the main persons instrumental in causing to be incorporated CTC Dealer Holdings Limited and in causing the Declaration of Trust, Exhibit 2, to be executed, and who was and is an active member in the Canadian Tire Dealers Association; by Mr Wallace C Partridge, chartered accountant, who since 1963 has been doing the accounting work for CTC Dealer Holdings Limited and for the Association and who is familiar with all the transactions involving the acquisition and disposal of these certificates, and who personally valued them at $40.50 as the Valuation Day value of each DHL share represented by a certificate; by Mr Hugh F Waddell, the controlling shareholder of the plaintiff; and by Mr lan Ronald Campbell, a valuator who prepared the report, Exhibit 56. The Minister of National Revenue called no evidence.

Mr. Campbell suggested three approaches to Valuation Day valuation which he referred to in his Report as Approaches A, B and C and came to the conclusion that:

The Minister of National Revenue says that Approach A made by Mr Campbell in his Report is the only possible fair market value as of December 31, 1971 because based on it, it envisages a closing of the purchase and sale of the certificates at December 31, 1971, all the conditions representing the number of DHL shares held and requirements of the Trust Agreement having been fulfilled; and that based on this approach and on such premises, the fair market value contemplating such a sale on December 31, 1971 results in a Valuation Day figure of $33.34 per share.

The plaintiff submits that the Formula price as determined by paragraph 9 of the Trust Agreement, Exhibit 2, is not the fair market value at Valuation Day that this Court is required to determine.

The submission is that all that the Formula deals with voluntarily is sales of certificates to Canadian Tire Dealers (according to the evidence there have been none of such sales since the execution of the Trust Agreement, Exhibit 2) and sales on retirement or death of Canadian Tire Dealer vendors, but the arithmetic computation of price pursuant to the Formula does not prove what a dealer would pay for the certificate representing the subject shares so as to “step into the shoes” so to speak, of Hugh Waddell Limited on December 31, 1971 by purchasing such certificate. The submission instead is that such a dealer purchaser would pay a premium sometimes referred to in the cases as based on a “retention value” because on acquisition such a dealer could keep such shares until he disposed of his Canadian Tire store business or died and that this premium value would be the amount over and above that which arithmetically would be the price computed pursuant to the Formula under paragraph 9 of the Trust Agreement, Exhibit 2.

As part of the evidentiary basis to support such submission, the plaintiff refers to Schedule 5 of the Report of Campbell, Exhibit 56, to establish that in 5 of the years from 1963 to 1972 dealers purchasing these certificates did in fact pay a premium for them, a premium equivalent to the amount above the Toronto Stock Exchange price for Canadian Tire Corporation Limited shares on the relevant closing date of purchase and sale.

In my view, the evidence of Warren, Partridge and Campbell is also supportive of this submission that Canadian Tire Dealers were at all material times prepared to pay such a premium to acquire such certificates when made available to them pursuant to the Trust Agreement, Exhibit 2.

The valuator Campbell puts a range of this premium as the amount equivalent to the excess over $40.50 to $46.62, a difference of $0.00 to $6.62 per share ($40.50 to $46.62). In part, he gives his reasons as follows:

Based on the history of the initial acquisition and trading in Voting Trust Certificates to December 31, 1971, and based in particular on those matters set out in paragraph 31(d) (of his Report, Exhibit 56), I believe that at December 31, 1971 the fair market value for Dealer Holdings shares represented by Voting Trust Certificates determined having regard to value beyond the Valuation Formula in the Declaration of Trust may appropriately be taken in a range of $40.50 to $46.62 per Dealer Holdings share represented by Voting Trust Certificates.

This concept of retention value resulting in a premium price is enunciated in Commissioners of Inland Revenue v Crossman [1937] AC 26. The head- note in that case reads in part:

A testator at the time of his death was entitled to a number of ordinary shares of 100/ each in a company the articles of association of which imposed rigid restrictions upon the alienation and transfer of the shares in the Company: —

Held, by Viscount Hailsham L.C., Lord Blanesburgh and Lord Roche (Lord Russell of Killowen and Lord Macmillan dissenting), that the value of the shares for the purpose of estate duty was to be estimated at the price which they would fetch if sold in the open market on the terms that the purchaser should be entitled to be registered and to be regarded as the holder of the shares, and should take and hold them subject to the provisions of the articles of association, including those relating to the alienation and transfer of shares in the company.

Green on Death Duties, 7th Ed. 1971, refers to this concept in this way:

.. . Accordingly the right to transfer shares in a public company may be and often is restricted. From the point of view of valuation for Estate duty, the most important of these conditions is that relating to restrictions on transfer.

The principle to be applied where, under the articles of the company, the right to transfer shares is restricted (e.g., because they cannot be sold in the open market without being first offered to other members at a price which is either fixed in advance or to be fixed in a prescribed manner, or merely because the directors have power to veto a transfer) was finally laid down by the House of Lords in Inland Revenue Commissioners v Mann (1937) AC 26; (1936) 1 All ER 762, approving A-G v Jameson, (1905) 2 IR 218, and Salvesen’s Trustees v Inland Revenue Commissioners, 1930 SLT 387. CF Holt v Inland Revenue Commissioners, (1953) 2 All ER 1499, 1508.) The Act imperatively postulates a sale in the open market, and a sale connotes delivery with a good title. On the other hand the restrictions on transfer must not be ignored, because they are an inherent element in the property which is to be valued. The principal value is therefore the price which the shares would fetch in the open market on terms that the purchaser would be duly registered as holder, but would hold subject to the provisions of the articles, including the restriction on (subsequent) alienation. In other words, it is the price which a purchaser would pay to stand in the shoes of a deceased shareholder, with a good title to get into them and to remain in them, and to receive all the profits, subject to all the liabilities, of the position (A-G v Jameson, supra, at p 230.). Even on this footing, the effect of the restrictions on transfer is not necessarily wholly depreciatory. Among the possible profits is the chance of acquiring the shares of other members of the company under the articles on advantageous terms, eg, at a fixed price.

Beament et al v MNR, [1970] SCR 680; [1970] CTC 193; 70 DTC 6130. is not an authority contrary to this concept. In the Beament (supra) case, on the death of Beament, the executors were bound by the agreement which Beament in his lifetime entered into with his children. “Pursuant to (that) agreement, the deceased covenanted with his children to provide in his will for the dissolution of the company and the distribution of its assets in accordance with the provisions of the letters patent.His estate received $10,725.98.” Accordingly, as Cartwright, C.J. said: “It is plain that no sensible person would have paid more for them than $10,725.98, and that on a winding up the executors could not receive more than that amount.”.

In other words, there was no retention value in the subject shares in that case which would result in the probability of a premium being paid.

That is not the situation in this case. Instead, the probable purchaser of the subject certificate would buy it to retain it while he continued to be a Canadian Tire Dealer or until he died and so for that time interval such a dealer/purchaser would be prepared to pay a premium because such certificate had a retention value within the meaning of this concept.

West Estate v Minister of Finance (BC), [1976] CTC 313, is also not an authority contrary to this concept. That decision had nothing to do with the application of this concept of retention value but solely with the application of the relevant section of the Succession Duty Act of British Columbia. With respect it would seem that Michael B Jameson in his book entitled Canadian Estate Tax illustrates the approach to determine the main issue which required determination in the West (supra) case. At 110 of this treatise the following appears:

Property transferable on or after death

Transactions which enable a person to have the use of property during his lifetime and to sell it at his death are dealt with by s 3(1 )(i) as follows:

S 3(1) There shall be included in computing the aggregate net value . . .

(i) property transferred to or acquired by a purchaser or transferee under the terms of an agreement made by the deceased at any time providing for the transfer or acquisition of such property on or after his death, to the extent that the value of such property exceeds the value of the consideration, if any, in money or money’s worth paid to the deceased thereunder at any time prior to his death;

These types of transactions or agreements are equivalent to testamentary dispositions and therefore the amount received by the decedent’s estate under the agreement is included as part of his estate.

The section however goes further and states that the amount which is included is the amount by which the value of the property, as valued under the Act, exceeds the money or money’s worth paid to the decedent during his lifetime. Thus, A during his lifetime agrees with B to sell his farm for $50,000, $5,000 payable then for the agreement and $45,000 payable after death. When A dies the farm is valued at $75,000; therefore, by s 3(1 )(i) the $75,000 less the consideration paid of $5,000 is taxable, namely $70,000. But B only has to pay A’s executor $45,000 to acquire the farm, so s 13(3) provides that the executor is only liable to the extent of the contract price which is paid to him,-or $45,000. As to the difference between the $45,000 and $70,000 this is a benefit to the purchaser and he is taxed on it under s 14 as a successor. The entire $70,000 will be included in the estate for aggregation but the duty on $45,000 will be payable by the executor, and on the remaining $25,000 by the purchaser. This situation would only vary where the purchaser was also a beneficiary of the estate and the executor might have property under his control passing to the beneficiary.

In my view, there was a retention value in the subject certificate and therefore a premium would be paid for the subject certificate representing 3,345 shares of DHL being an amount in excess of the price of Canadian Tire Corporation Limited shares on Valuation Day which as stated is $40.50 per share.

Since on the pleadings it is not necessary to find precisely what that premium is so long as the Valuation Day price is at least $40.50, accordingly I find on the evidence that the fair market value of the certificate representing 3,345 shares of DHL on Valuation Day within the meaning of an in conformity with paragraph 39(1)(a) of the Income Tax Act and subsection 26(3) of the Income Tax Application Rules held by the plaintiff on December 31, 1971 (Valuation Day) is $40.50 multiplied by 3,345.