Mingle – Tax Court of Canada indicates that a de facto executor is a legal representative

Wong J rejected the taxpayer’s submissions that he had renounced his executorship shortly after being appointed and that his subsequent acts in jointly (with his brother) transferring estate property to his daughter were performed qua a trustee de son tort and not as an executor – so that he should not have been assessed under s. 159(3) for unpaid estate taxes given their failure to obtain a clearance certificate. Regarding the taxpayer’s second argument, Wong J stated:

[I]f Mr. Mingle was a trustee de son tort (i.e. a person who is not appointed as trustee but whose course of conduct suggests that he be treated as one), I believe that for income tax purposes, he would have still fallen within the definition of “legal representative” which encompasses “any other like person ... dealing in a representative or fiduciary capacity with the property.”

She also indicated that assessments of the taxpayer under s. 159(3) within the s. 222(4) 10-year limitation period restarted the limitation period running pursuant to s. 222(5)(c).

Neal Armstrong. Summaries of Mingle v. The Queen, 2022 TCC 34 under s. 159(3) and s. 222(5)(c).