Kufsky – Federal Court of Appeal finds that a taxpayer received dividends for s. 160 purposes because she was estopped from arguing otherwise or because the corporate insolvency did not matter

A shareholder loan balance that was owing by the taxpayer was eliminated through dividend declarations backdated to the three preceding years and paid by way of set-off. CRA accepted amendments to the taxpayers’ returns to those years to add the dividend amounts, so that she thereby avoided income inclusions (and higher interest assessments) pursuant to s. 15(2).

Webb JA found that the taxpayer was estopped from now arguing that the amounts that she had treated as dividends in fact were not dividends (so that s. 160 did not apply to their payment) - because the appropriate procedures for the declaration and payment of the amounts as dividends were not followed and because s. 38(3) of the OBCA prohibited the payment of a dividend by an insolvent corporation – on the basis of the principle that:

[A] taxpayer who has benefited from having an amount included in his or her income as a dividend in a particular taxation year (and who has not objected to the assessment of tax based on having received this dividend) is estopped from claiming in any subsequent appeal related to the application of section 160 of the Act, that the previous filing position was wrong.

In her minority concurring reasons, Monaghan JA was “not certain” that estoppel applied to preclude the taxpayer from arguing that she had not received dividends, and instead found that s. 160 applied on the basis that the taxpayer had not made out a prima facie case that the dividends had not been paid - and noted that “[w]hile a breach of the solvency test may be unwise, and have consequences for the directors, shareholders or corporation, that does not mean a dividend was not declared and paid.”

Neal Armstrong. Summaries of Kufsky v. Canada, 2022 FCA 66 under s. 160(1), General Concepts – FMV – Other, Onus, and Payment and Receipt.