Odette Estate – Tax Court of Canada finds that a promissory note subsequently repaid in cash could not be equated to cash consideration for s. 118.1(13)(c) purposes
The appellant estate donated shares of a private company (Edmette), which were non-qualifying securities, to a private foundation with which it did not deal at arm’s length. Shortly thereafter, those shares were purchased for cancellation in exchange for a promissory note of Edmette for $17.7 million, which then was repaid in cash by Edmette between four and eight months later. The donation of the Edmette shares was deemed by s. 118.1(13)(a) to not be a gift except to the extent “of the fair market value of any consideration (other than a non-qualifying security of any person) received by the donee [i.e., the foundation] for the disposition” by it of the Edmette shares. The estate argued that for these purposes, the consideration received by the foundation for such shares should be considered to be the subsequent cash repayments of $17.7 million rather than the promissory note (which clearly was also a non-qualifying security), so that the estate’s previous donation was deemed by s. 118.1(13)(c) to be of $17.7 million rather than nil.
In rejecting this submission and finding that s. 118.1(13)(a) deemed there to be no gift, Rossiter CJ stated:
The cash payments were made approximately eight months after the disposition occurred, not at the time of the disposition. The only consideration received at the time of the disposition was the Promissory Note. …
Parliament does not want to grant a tax credit where the donor is not impoverished and the charity is not enriched. A non-arm’s length promissory note creates no real obligation to pay. … [I]t is important to show that the charity is actually enriched and the donor is in fact impoverished. A promissory note between non‑arm’s length parties is not convincing enough.
The above comments may not be congruent with the CRA rulings practice that on a share redemption for a note, the note must be stated to have been accepted as absolute payment of the redemption proceeds.
Neal Armstrong. Summary of Odette (Estate) v. The Queen, 2021 TCC 65 under s. 118.1(13)(c).