Minister of National Revenue v. Louis Bisson, [1972] CTC 446

Pratte, J:—When he declared his income for the years 1955 to 1965, respondent did not allow for the fact that Hull City Transport Ltd, a company in which he was the majority shareholder, had paid one Walter F Thorn annual amounts of $3,000 from 1955 to 1957, and $5,000 from 1958 to 1965. Taking the view that these payments ought to have been included in respondent’s calculation of income (because they were made for his benefit and with his consent), appellant on November 28, 1967 gave him notice of reassessments for each of the years 1955 to 1965 inclusive. According to those reassessments respondent owed additional tax with interest for each of the years concerned and, further, owed the penalty specified in subsection 56(2) of the Income Tax Act, RSC 1952, c 148, for the years 1960 to 1965. After objecting to these assessments in vain, respondent appealed to the Tax Appeal Board, which decided in his favour. It is from that decision of the Board, rendered on May 12, 1969, that the Minister of National Revenue is now appealing.

In order to establish the real nature of the payments which were the basis of the assessments cancelled by the Board, the parties sought, by examining respondent Bisson and by referring to a voluminous documentary evidence, to reconstruct the history of Hull City Transport Ltd, and of the business relationship which existed between respondent and Walter F Thorn. To understand the dispute, only certain of the facts thus presented need to be known.

Respondent Bisson is a former air pilot who, at the end of the last war, had no business experience. He had formed a friendship with W T Thorn, now deceased, who was then a very active and enterprising financier. At Thorn’s suggestion, Bisson decided to leave aviation and set up and operate a bus transport business in the City of Hull in partnership with his friend. The intention was apparently for Thorn to finance the business while Bisson handled the operational side.

As a result of Bisson’s efforts the two partners in 1946 obtained from the City of Hull a franchise granting them the right to operate a bus company within the city limits. This franchise was granted for a ten-year period, ending in 1956, and was renewable on certain conditions for another period of ten years.

In September 1946 the two partners transferred their franchise to Hull City Transport Ltd, a company which they had caused to be incorporated the previous month.

Thorn was at the time president of Hull City Transport Ltd, which had undertaken to pay him an annual salary of $3,000 in that capacity; Bisson, in addition to being a director of the new company, was its general manager. I would add, and this is not without significance, that shortly afterwards the 100 ,000 common shares of the company were distributed almost equally between them.

The company thus began operating, and the two partners, Bisson and Thorn, worked together in the business until, in 1952, a serious difference arose between them.

In 1952 Thorn owned no more than a single share of the company’s common stock, and he had not been re-elected to the presidency. He claimed that Bisson had improperly appropriated his shares under the following circumstances:

(a) In October 1946, in order to induce a broker named Simard to sell the preferred shares of Hull City Transport Ltd, Thorn had been obliged to transfer 1,000 shares of common stock in the company to him. Simard had subsequently sold these shares to Bisson for $1,000. Thorn contended that Bisson had acted as his agent in buying back the shares from Simard, and was consequently under an obligation to transfer them to him for the sum of $1,000.

(b) On April 12, 1949 Thorn had met with financial difficulties. Bisson had loaned him $26,000, and, in return, Thorn had handed over to Bisson the certificates, duly endorsed, for all his common stock (except for one share). On this occasion Thorn had had Bisson sign a document that read as follows:

Royal York Hotel,

Toronto, Ontario,

April 12, 1949.

Dear Mr. Thorn,

For my loan to you of $26,000 I acknowledge receipt of enclosed 49,000 shares Common Stock Hull City Transport, as security.

I agree that these shares will be returned to you on payment to me of the $26,000 plus interest and that I will not take foreclosure of these shares for one year from this date.

(signed) Louis Bisson.

Some months after expiry of the period of one year mentioned in this document, Thorn still had not repaid the amount borrowed. Bisson then, without requesting payment of the sum owed to him, simply had the shares which had been given to him as security registered in his name. Thorn claimed that Bisson had acted illegally in so doing, and that he was obliged, on repayment of the sum borrowed with interest at the legal rate, to return the shares.

Bisson, of course, denied Thorn’s allegations. He stated that he had acted for himself in purchasing the 1,000 shares from the broker Simard. He contended that, according to the agreement he had made with Thorn, he was entitled to take over the shares which had been given to him as security on April 12, 1949. Finally, he alleged that Thorn had consistently refused to pay him certain sums he had undertaken to pay.

This explains why, in 1952, Thorn instructed his lawyers to take the necessary steps to recover the common stock in the company which, according to him, Bisson had unlawfully appropriated. On March 11, 1953 a notary acting on Thorn’s behalf tendered to Bisson the sums of $26,000 and $5,089.64 (representing interest on $26,000 from April 12, 1969, calculated at the legal rate), and at the same time requested Bisson to return the shares given as security on April 12, 1949. Bisson refused. Lengthy negotiations ensued between counsel for Thorn and for Bisson, ending finally in an agreement under the terms of which the payments of $3,000 and $5,000 were made which were the basis of the assessments cancelled by the Tax Appeal Board. This agreement was recorded in a document signed by Thorn and Bisson on May 13, 1953. Signature of this contract was preceded by adoption of the following resolution at a meeting of the directors of Hull City Transport Ltd, held on May 12 and attended by Bisson:

. . . The secretary proposed that it was in the interest of the Company to give immediate consideration to the revision of the Company’s agreement with Mr. W. F. Thorn as stated in the prospectus issued on September 17th, 1946. It was then considered that:—

WHEREAS the Company has made it a practice to pay ‘an annual fee to Mr. W. F. Thorn since the Incorporation of the Company to the amount of $3,000.00 per year;

WHEREAS the valuable services rendered by Mr. W. F. Thorn to date are above and beyond those normally called upon to be performed;

WHEREAS the Company, as in the past, might be in a position to call on

W. F. Thorn’s help and financial advice;

WHEREAS the Company could be in a position in the future, as it has been in the past, to require his financial help and credit;

WHEREAS the Company could be in a position in the future, as it has been in the past, to require his valuable financial advice;

WHEREAS though the original contract was providing that W. F. Thorn would receive a set salary as president of the Company and being that

W. F. Thorn is no longer president;

WHEREAS it is in order to revise the above mentioned contract in order to validate the payments made during the time he was not president and to continue payment to him in the future;

WHEREAS it was brought before the meeting that W. F. Thorn is agreeable to continue to accept $3,000.00 a year until 1957 inclusively, and then agrees to receive $5,000.00 per year until 1966 at which time the aforementioned payments to him will be terminated in conjunction with the termination of the Company’s contract with the City of Hull.

Therefore it was moved and unanimously carried that the annual payment of $3,000.00 made to date to W. F. Thorn be and are hereby ratified and confirmed.

It was further moved and unanimously carried that the Company continue to pay W. F. Thorn the annual sum of $3,000.00 a year as before, until 1957 inclusively, and then $5,000.00 a year until the termination of the contract with the City in 1966.

It was further moved and unanimously carried that Louis Bisson be and is hereby authorized to act either personally or in the name of the company to complete and ratify this agreement.

lt was further moved and unanimously carried that Louis Bisson be and is hereby authorized to sign any and all documents to the above effect. . . .

The day following adoption of this resolution Thorn and Bisson signed a contract worded as follows:

THIS AGREEMENT made, in duplicate, this 13th day of May, A.D. 1953. BETWEEN:

WALTER FRANCIS THORN, of the City of Moose Jaw, in the Province of Saskatchewan, Financier, hereinafter called the PARTY OF THE FIRST PART

OF THE FIRST PART:

LOUIS BISSON, of the City of Hull, in the Province of Quebec, Manager, hereinafter called the PARTY OF THE SECOND PART

OF THE SECOND PART:

WHEREAS the Party of the First Part is the beneficial owner of 49,000 issued and fully paid-up common shares of the capital stock of Transport Urbain De Hull Ltée—Hull City Transport Ltd.;

AND WHEREAS the Party of the First Part is presently indebted to the Party of the Second Part in the sum of TWENTY-SIX THOUSAND DOLLARS ($26,000.00) in respect of money loaned by the said Party of the Second Part to the Party of the First Part together with certain interest thereon;

AND WHEREAS the Party of the First Part might be contingently liable to the said Party of the Second Part in respect of other advances made by the said Party of the Second Part to the Party of the First Part, the amount thereof being unknown to the parties hereto and the liability for which is presently in dispute and contested by the Party of the First Part;

AND WHEREAS the said Party of the Second Part is desirous of acquiring by purchase the beneficial interest of the said Party of the First Part in and to the aforementioned 49,000 issued and outstanding common shares of Transport Urbain De Hull Ltée—Hull City Transport Ltd. and the said parties hereto are also desirous of finally settling all matters presently outstanding between them and have agreed to such sale and purchase of the aforesaid 49,000 shares of the issued and outstanding common stock of Transport Urbain De Hull Ltée—Hull City Transport Ltd. and the final settlement of all matters presently outstanding between them on the terms and conditions as hereinafter in this agreement expressed;

NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of the premises and the covenants hereinafter contained it is agreed between the parties hereto as follows:—

1. The Party of the First Part doth hereby agree to sell and the Party of the Second Part doth hereby agree to purchase all and singular the beneficial interest of the Party of the First Part, into and out of 49,000 issued, outstanding and fully paid up common shares of Transport Urbain De Hull Ltée— Hull City Transport Ltd., at and for the consideration hereinafter more particularly expressed and the further consideration of ONE DOLLAR ($1.00), and further, for the purpose of buying the peace and good will of the said Party of the First Part, the Party of the Second Part agrees to pay to the Party of the First Part the sum of SIXTY THOUSAND DOLLARS ($60,000.00) payable as follows:—

Three Thousand Dollars ($3,000.00) on the execution of the within agreement and Three Thousand Dollars ($3,000.00) on the 1st day of May, 1954, and like sums of Three Thousand Dollars ($3,000.00) on the 1st day of May in each of the years 1955, 1956 and 1957; Five Thousand Dollars ($5,000.00) on the 1st day of May, 1958, and a like sum of Five Thousand Dollars ($5,000.00) on the 1st day of May in each and every year thereafter until the balance of the said sum of Sixty Thousand Dollars ($60,000.00) has been fully paid and satisfied, without interest; PROVIDED however, and it is hereby agreed between the parties hereto that should default occur in the payment of any of the aforementioned sums the then balance owing by the Party of the Second Part to the Party of the First Part in respect of such Sixty Thousand Dollars ($60,000.00), shall at the option of the Party of the First Part, forthwith become due and payable.

2. In further consideration for the sale by the said Party of the First Part to the said Party of the Second Part of the said common shares of Transport Urbain De Hull Ltée—Hull City Transport Ltd., more particularly referred to in paragraph numbered I preceding, the Party of the Second Part doth hereby release and discharge the said Party of the First Part of and from all liability in connection with a loan made by the said Party of the Second Part to the said Party of the First Part in the sum of Twenty-Six Thousand Dollars ($26,000.00) as evidenced by a certain writing bearing date the 12th day of April, 1949, and the said Party of the Second Part doth covenant and agree to and with the Party of the First Part to execute and deliver to the said Party of the First Part a general release for such liability in such form as may required (sic) by the solicitors to the said Party of the First Part.

3. In further consideration for the sale by the said Party of ‘the First Part to the Party of the Second Part of the aforesaid 49,000 shares of the issued and. outstanding and fully paid up common stock of Transport Urbain de Hull Ltée—Hull City Transport Ltd., as more particularly referred to in paragraph number I preceding, the said Party of the Second Part doth hereby release and discharge the said Party of the First Part of and from all other liability either contingent or actual that may presently be existing from the Party of the First Part of and from all other liability either contingent or actual that may presently be existing from the Party of the First Part in favour of the said Party of the Second Part, and the said Party of the second Part doth hereby covenant and agree to and with the said Party of the First Part to execute a general release in respect of such contingent or other liability in such form as may be required by the solicitors to the said Party of the First Part.

4. In consideration of the premises and other good and valuable consideration the said Party of the First Part doth hereby release and discharge the said Party of the Second Part of and from all liabilities, either contingent or actual, that may presently be existing from the Party of the second Part to the Party of the First Part and the said Party of the First Part agrees to and with the said Party of the Second Part to execute and deliver to the Party of the Second Part a general release for such liabilities or other liabilities in such form as may required (sic) by the solicitor for the said Party of the Second Part.

5. The Party of the First Part doth hereby irrevocably appoint the Party of the Second Part as his lawful attorney for him and in his name, place and stead to transfer or cause to have transferred on the books of Transport Urbain De Hull Ltée—Hull City Transport Ltd. one issued and fully paid up common share of the said Company presently registered in the name of the said Party of the First Part.

THIS AGREEMENT and everything therein contained shall endure to the benefit of and shall be binding upon the parties hereto and their respective heirs, executors, administrators and assigns.

IN WITNESS WHEREOF the Parties hereto have hereunto set their hands and seals.

SIGNED, SEALED AND DELIVERED	)
In the presence of	)
R. E. B. Brocklesby as to execution	)	(S) WALTER F. THORN
by Walter F. Thorn	;
François Chevalier as to	)	(S) LOUIS BISSON
execution by Louis Bisson	)
	)

Finally, on May 14, 1953, the directors of Hull City Transport held another meeting and ratified the contract entered into by Bisson the previous day. It is worth citing the following extract from the minutes of that meeting:

. . . Mr. Louis Bisson reports to the shareholders that, in accordance with the resolution passed by the Board of Directors on the 12th of May 1953 concerning the continuance of the services of Mr. Thorn to the company, a satisfactory arrangement has been made with Mr. Thorn to that effect, which agreement has been made along the same terms and conditions as mentioned in the resolution.

It was moved and unanimously carried that the company confirms and ratifies all the commitments undertaken by Louis Bisson with Mr. Thorn and that said obligations shall and do hereby become the sole responsibility of the company. . . .

It is admitted that the annual payments of $3,000 and $5,000 which were to have been paid by Bisson under the contract of May 13, 1953 were in fact paid by Hull City Transport Ltd. The only problem raised in this case is whether these payments, which clearly were made with Bisson’s consent, were made for his benefit so that, under subsection 16(1), they should have been included in calculation of his income.

According to appellant, the contract of May 13, 1953 is a contract of transaction, within the meaning of the Civil Code, concluded between Thorn and Bisson personally. Under the terms of this contract, Bisson was personally obliged to pay Thorn the sums stipulated. In making these payments Hull City Transport Ltd thus paid the debt of respondent Bisson and thereby with his consent obtained a benefit for him. On that basis, the sums thus paid by Hull City Transport Ltd should, in accordance with subsection 16(1), have been included in respondent’s income, just as they would have been had they been paid to respondent himself.

To this respondent’s counsel replied that the document of May 13, 1953 was only a fictitious deed which concealed the real nature of the contract concluded on that day. In fact, he argued, two contracts were concluded on May 13. Under the first one, Bisson and Thorn mutually renounced to all claims that each might have against the other; in the second Bisson, acting as the agent of Hull City Transport, undertook to pay Thorn a salary so that the latter, though no longer president or shareholder in the company, would continue giving it the benefit of his experience and advice. If these agreements were concealed in the manner described, this, claimed respondent’s counsel, was because Thorn did not want to have to pay tax on the salary which the company was undertaking to pay him. In support of this argument respondent’s counsel relied on the following facts:

(a) the fact that Hull City Transport Ltd adopted the resolutions of May 12 and 14, 1953 would indicate that, in undertaking to pay Thorn, Bisson was acting as the company’s agent;

(b) the fact that Bisson stated that in signing the contract of May 13, 1953 he thought he was acting as representative of Hull City Transport Ltd; and the fact, also, that Bisson testified that he and the other directors of the company had felt it was in the company’s interest to make Thorn happy;

(c) finally, the fact that it is inconceivable that Bisson, in addition to waiving his claims against Thorn, would agree to pay him $60,000 for shares which, according to the evidence, were worthless.

While examining the evidence and giving it the interpretation more favourable to respondent, I find that the following facts have been established:

(a) as to the shares given to Bisson as security, Thorn had a good prima facie claim against him;

(b) after Thorn demanded the return of the shares given as security, Bisson had numerous discussions with the other directors of Hull City Transport Ltd; as a result, he finally concluded that, in pressing these claims, Thorn did not want to get the shares he was claiming, but really wanted monetary compensation; the other directors of the company had agreed that it was in the company’s interests for him to settle his dispute with Thorn, for if there was no such settlement there was a risk that Thorn would prevent the company from obtaining a renewal of its franchise (in 1956), and would not be forthcoming with advice and assistance which it needed to acquire a rival company; on this account it was agreed, long before the contract of May 13, 1953 was signed, that the company would pay the sums Thorn demanded in return for waiving his claim against Bisson;

(c) on May 13, 1953 Thorn undertook no obligation to Hull City Transport Ltd.; however, it appears that, as the company’s directors hoped, he did nothing to prevent the franchise from being renewed, and supported the purchase by Hull City Transport Ltd of the rival company it wished to absorb.

In my opinion only one inference can be drawn from these facts; it is that, as the price of waiving his claim against Bisson, Thorn required that he be paid a sum of money which Hull City Transport Ltd in fact paid him. In paying Thorn the sum of $60,000 stipulated in the contract of May 13, 1953, Hull City Transport Ltd thus paid part of the price Thorn was asking for waiving his claim against Bisson. By so doing the company made payments for respondent’s benefit within the meaning of subsection 16(1)), and as these payments were made with respondent’s consent, and would have formed part of his income if they had been made to him directly, I cannot but conclude that they should have been included in computing respondent’s income for the years in question.

I would add that I do not feel it is significant that it may have been in the company’s interest to make a financial contribution to settling the dispute between Thorn and Bisson. Anyone who pays another’s debt always has a reason for doing so; that does not change the nature of his payment, and does not prevent it from being made for the benefit of a third party.

The conclusion which I have just reached does not suffice to dispose of the appeal, which raises two further questions. The first is whether, despite the expiry of the four-year period prescribed in paragraph 46(4)(b), appellant could proceed with reassessments for the years 1955 to 1962; and the second involves determining whether respondent owes the penalties claimed from him under subsection 56(2).

Appellant could only proceed with reassessments for the years 1955 to 1962 if, in the words of clause 46(4)(a)(i), respondent had “made any misrepresentation or committed any fraud in filing” his return. It is clear that, when he declared his income for the years in question, respondent made an error in good faith; he did not know that the sums paid to Thorn by Hull City Transport Ltd formed part of his income. lt has been held on several occasions that a “misrepresentation”, though innocent, justifies the Minister in proceeding with a reassessment at any time. See: MNR v M Taylor, [1961] CTC 211; 61 DTC 1139; MNR v Appleby, [1964] CTC 323; 64 DTC 5199; MNR v Foot, 66 DTC 5072. However, in all cases where the courts have so found, the taxpayer, though he had acted in good faith, had been clearly negligent. The question thus remains undecided, whether the Minister may proceed with a reassessment after the period of four years, when the taxpayer has made an innocent misrepresentation involving no negligence on his part. If, as appellant’s counsel maintained, even errors committed by a taxpayer entailing no negligence justified the Minister in proceeding with a reassessment at any time, subsection 46(4) would provide wholly illusory protection to the taxpayer, since the only case in which he would benefit from it, undoubtedly very rare, would be where the reassessment was designed to correct an error attributable solely to the Department itself. If this had been the purpose Parliament had in mind when it enacted clause 46(4)(a)(i), it is not clear why it provided that the Minister may proceed with reassessments at any time if the taxpayer “has made any misrepresentation or committed any fraud in filing the return”. In effect, any fraud necessarily presupposes a “misrepresentation”, and if the latter word covered every type of inaccurate representation, the reference to fraud in the provision would be totally unnecessary. In my view, the fact that the legislator referred not only to “misrepresentation” but to “fraud” indicates that, by the first word, he meant innocent misrepresentations which, without being fraudulent, are still culpable in the sense that they would not have been made if the person committing them had not been negligent. I therefore conclude that a taxpayer who, without any negligence on his part, commits an error in declaring his income, does not make a misrepresentation within the meaning of clause 46(4)(a)(i). When the Minister seeks to rely on this provision to proceed with a reassessment after four years, he must therefore not only show that the taxpayer committed an error in declaring his income but also that that error is attributable to negligence on his part.

In the case at bar appellant, as noted above, has established that respondent committed an error in declaring his income for the years in question. I am not persuaded, however, that this error involved negligence. The situation resulting in the payments which respondent was charged with failing to include in his income was so confused that the Tax Appeal Board concluded respondent was right in acting as he did. In such circumstances, though I differ with the Board, I must hold that the error committed by respondent is one which a normally wise and cautious taxpayer could have committed. For these reasons I feel that the assessments for the years 1952 to 1962 inclusive should be cancelled.

As to the penalties claimed by the Minister for the years 1960 to 1965, they are due, according to subsection 56(2), only in cases where the taxpayer has been guilty of fraud or gross negligence. It is clear that, in view of what I have said above, these penalties are not due in the case at bar.

The appeal will therefore be allowed in part and the assessments for the years 1963 to 1965 inclusive will be referred back to the Minister for him to modify them so as not to claim any penalty from respondent. Each party will pay his own costs.