Walsh, J:
1 This is an appeal against a reassessment of plaintiff's income tax dated May 20, 1971 which included in his taxable income for the 1968 and 1969 taxation years the amounts of $4,804.90 and $5,765.88 respectively as the income portion of certain payments considered to be annuities, and in addition levied tax on tax by virtue of an agreement whereby purchasers of shares of a company from plaintiff had undertaken to pay him an additional amount to indemnify him against any income tax which would become payable as a result of the terms of the said purchase agreement. By an agreement dated October 9, 1968 five of the sons of the late Pierre Thibault sold the shares in Pierre Thibault (Canada) Ltée which they had inherited from him to Guy Charron Limitée acting for itself and on behalf of Finco Limitée for $610,000 cash. By an agreement dated March 11, 1968 the other four sons, namely the plaintiff Gilles, and his brothers Pierre-Paul, Réjean and Guy sold their shares similarly inherited to the same purchasers for the total sum of $560,000 or $140,000 each. By a second agreement dated March 11, 1968 the daughter of the late Pierre Thibault and his widow sold the shares which they held jointly (a different number of shares) to the same purchasers for the sum of $100,000. Both agreements of March 11, 1968 provided for the payment to the present plaintiff Gilles, his brothers Pierre-Paul, Réjean and Guy, his mother Julia Thibault and his sister Pierrette Thibault Dufault of the purchase price by means of monthly annuities guaranteed for fifteen years but since the brothers were of different ages and also the capital sum to be paid to the sister and mother was a lesser amount, the monthly annuity payments were in different amounts, but if the annuity payments had been made for a minimum period of fifteen years in each case, each recipient would have received substantially more than the sale price of his or her shares. The two women demanded and received a life annuity guaranteed for a 15-year term which was purchased for them by Finco Limitée and Guy Charron Limitée from the Provincial Life Assurance Company Limited with the payment of a single premium amounting to $103,873. The four brothers concerned who had not sold their shares for cash were content to receive their monthly annuity payments from the purchasers. The monthly payments were received by all the vendors in the 1968 and 1969 taxation years and although the taxpayers claimed that amounts received were instalment payments on account of a capital sum for which they had sold their shares, the Minister considered that in view of the fact that the purchase price was to be paid by monthly instalments, the amount being calculated on an annuity basis, the interest portion of each payment was assessable as income and made the calculation accordingly which resulted in the reassessment. This was appealed and by decision of the Tax Review Board the appeal was dismissed. The taxpayers then initiated appeal proceedings in this Court.
2 At the commencement of the hearings it was agreed that the decision in the present case should apply to the five other appeals. Counsel for plaintiff also stated that plaintiff was no longer appealing the assessment of the interest portion of the payments on an annuity basis, the appeal now being limited to assessment of tax on tax pursuant to the third agreement.
3 This agreement, also dated March 11, 1968, read as follows:
Translation
Guy Charron Limitée, Finco Limitée, and Guy Charon personally undertake jointly and severally to Messrs. Pierre-Paul Thibault, Gilles Thibault, Réjean-Paul Thibault and Guy Thibault, all of Pierreville in the County of Yamaska that the manner of payment which they have accepted for the transfer of shares, that is to say a capital annuity payable monthly with a guaranteed term of fifteen years on the basis indicated in paragraph 2 of the agreement signed the 11th March, 1968, will not be taxable by virtue of the income tax laws. If it should be otherwise, we undertake to indemnify you. We make this firm undertaking. The present agreement applies also to the annuity payable to Mesdames Thibault and Dufault.
Unfortunately for the four brothers involved in these appeals who neither sold their shares for cash nor arranged for the purchasers to buy annuities for them from an insurance company as Julia Thibault and Pierrette Thibault Dufault had done, the payments terminated in June 1972. Guy Charron Limitée never had any assets. When the tax assessment was made which resulted in additional taxes being assessed in the amount of $10,925.20 for the six Thibaults, they paid them and filed their claim in the bankruptcy proceedings. In addition to this, all of them with the exception of Pierrette Thibault Dufault whose reassessment was for a comparatively trivial amount, commenced proceedings in 1971 in the Superior Court or Provincial Court as the case might be in Montreal against Guy Charron personally as a result of his personal guarantee of the annuity payments and taxes, if any, due thereon. Guy Charron testified and stated that he was in no better position to make the payments personally than was the bankrupt company and on the threat of making a personal assignment in bankruptcy, a settlement was made on April 11, 1973 between him, the four brothers, Gilles, Pierre-Paul, Réjean and Guy, and the mother Julia Thibault, whereby they were paid the sum of $17,000 in full settlement of all claims existing or future in connection with the agreements of March 11, 1968. The proceedings in the Quebec courts were withdrawn and Charron agreed to pay the fees of counsel in connection with the notices of opposition to the tax assessments and that if any amounts were received by the Thibaults from the Minister of National Revenue as a result of these oppositions or any future oppositions, these sums would remain the entire property of the Thibaults. Since Gilles Thibault was supposed to receive $1,016 per month, Pierre-Paul $1,130, Réjean $937 and Guy $930 for life and the tax involved in the 1968 and 1969 assessments amounted to $10,925.20 as already stated, it is evident that the amount of the settlement would not even cover annuity payments for two months plus the amount of tax assessed on the income portion of the annuity payments for 1968 and 1969. No break-down was made or attempted as to what portion of the settlement was attributable to tax liability and what portion to annuity payments, this evidence only having been presented with a view to establishing that all possible efforts had been made to collect not only the annuity payments but the additional tax on the tax assessed on the income portion thereof, and that these efforts had yielded minimal results, no dividend having been paid or anticipated in connection with the claim against Guy Charron Limitée.4 The only issues before the Court in the present appeal are first, whether tax can be assessed on amounts which a taxpayer is entitled to claim by virtue of a contract but which he is unable to collect, and second, whether the agreement to indemnify the taxpayer against any income tax assessed as a result of the annuity payment would only come into play when such an assessment was made—in the present case in 1971—or whether, since the tax was allegedly due for the 1968 and 1969 years, the right to claim indemnity should be considered as applicable to those years even though no reassessment was made by the Minister of National Revenue until 1971.
5 There is some jurisprudence which, although not directly in point, throws some light on the matter. The case which is most closely in point is a Tax Appeal Board judgment, The New York Central Railroad Company v. MNR (1952), 7 Tax A.B.C. 334, 53 D.T.C. 5, which carefully examines existing Canadian and British jurisprudence respecting the assessment of tax on tax. The headnote sets out the facts as follows:
The appellant was the lessee of the property of another railway company and as such took over the management of the properties of two other companies, incurring, inter alia, the obligation to pay all taxes levied on the said companies. In 1950 the appellant was assessed in respect of the year 1948 in a manner whereby the full amount of the total tax to be paid on behalf of the two companies was added to the taxable income of the companies, i.e. the appellant was called upon to pay tax on tax. To arrive at the exact tax so payable, sixteen computations were necessary to reach the point where income tax had been assessed in respect of every dollar paid by the appellant for the two companies and treated as additional taxable income to them. The appellant submitted that this method of assessment had no legitimate place in applying the provisions of the Act, and that it was a departure from the departmental practice formerly followed.
At page 337 [7] three methods of computation are set out. In the first the lessee was not permitted a deduction of the tax paid on behalf of the two lessors and the amount so paid was not added to the lessors' taxable income. In the second method the tax paid for the two lessors was added to their income and the lessee was only permitted to deduct the initial tax chargeable and paid and not the further tax imposed. In the third method the tax was recomputed 15 times before the amount added to the lessors' income became less than one cent and the tax finally calculated was added to the lessors' taxable income, the lessee deducting the full amount paid on behalf of the lessors. The Board in pointing out the apparent unfairness of the third method stated at page 342 [9]:This method does not commend itself and its adoption at this late date, as though an afterthought, cannot fail to impress one as unfortunate. It is regrettable that the Board is not in a position to interfere. Legislative enactment, if it should appear indicated, would seem to be the appellant's only remedy.
In this case two British judgments were referred to at page 340 [8], namely, Kliman v. Winckworth (1933), 17 TC 569at 572, in which Finlay, J said:There is no room, of course, in a taxing Act for equitable considerations ... It is, of course, for the Legislature and not for the Courts to consider matters of that sort.
Reference is also made to a statement by Lord Blackburn in 1927 in Commissioners of Inland Revenue v. The Granite City Steamship CoLtd, 13 TC 1 at 16, in which he said: “Equity and income tax are strangers.” Quite possibly as a result of this decision, an amendment was made to the Income Tax Act in 1953 by SC 1952–53, c 40, section 43 which reads as follows:43. (1) Where under a contract, will or trust, made or created before the coming into force of this Part, a person is required to make a payment and is required by the terms of the contract, will or trust to pay an additional amount measured by reference to tax payable by the payee under Part I of the Income Tax Act by reason of the payment,- (a) the tax payable by the payee under the said Part I for the taxation year in or in respect of which such a payment is paid or payable is the amount that the payee's tax under the said Part I for the year would be if no amount under the contract were included in computing his income for the year plus
(i) the amount by which his tax under the said Part I would be increased by including the payment in computing his income, and
(ii) the amount by which the payee's tax under Part I for the year would be further increased by including, in the computation of his income for the year, the amount fixed by sub-paragraph (i) or the additional payment, whichever is the lesser, and
(b) if the payer would otherwise be entitled to deduct the amounts payable under such a contract, in computing his income for a taxation year, he is not entitled to deduct the amount determined under sub-paragraph (ii) of paragraph (a).
(2) This section is applicable to the 1953 and subsequent taxation years.
By the use of the words “paid or payable” in reference to the additional amount being included in computing the taxpayer's income for a taxation year, it would appear that the claim for payment in a subsequent year nevertheless increases the taxpayer's income for the taxation year in question.6 Counsel argued that the purpose of this amendment was to eliminate the application of the third method of calculation used in the New York Central Railway case and its infinite computations and to give legislative sanction to the second method whereby the tax paid or payable on behalf of the taxpayer is added to his taxable income and tax is then paid on same without carrying the process further. It was pointed out, however, that subsection 43(1) applies only to a “contract, will or trust, made or created before the coming into force of this Part” (italics mine) and that subsection (2), making the section applicable to the 1953 and subsequent taxation years merely means that the method of calculation set out in subsection (1) would be applied in any taxation year commencing with the 1953 year, but does not affect the limitation in subsection (1) that it only applies to contracts created before the coming into force of the section. If it had been intended to apply it to all contracts made thereafter, subsection (1) should have read “before or after the coming into force of this Part”. I agree with this interpretation but it does not help plaintiff's contention since, even though this section may not have been applicable to the present agreement, the Minister has assessed tax on this basis without pyramiding it as he might well have done as this section does not apply to the present case. Moreover, there is in any event nothing in this section which would indicate that tax is not collectable on amounts received by a taxpayer by virtue of a contract to indemnify him against income tax which he may be called upon to pay. It is rather a confirmation of the existing practice to add this tax so paid on his behalf to the taxpayer's taxable income. See, for example, Hartland v. Diggines, [1926] A.C. 289; Salter v Minister of National Revenue, [1947] Ex. C.R. 634, [1947] C.T.C. 29, 2 D.T.C. 918, which approved Hartland v. Diggines, and Commissioners of Inland Revenue v. Baillie (1936), 20 TC 187, all of which are referred to in the New York Central Railway case (supra).
7 Two other cases, although they deal primarily with interpretation of wills, are also of interest. In the case of In the Matter of the Trusts under the Will of the Honourable Sir Albert Edward Kemp, KCMG, Deceased, [1940–41] CTC 53;1 D.T.C. 499-96, the Supreme Court of Canada held that whether the trustees of an estate paid the money to meet the income tax payments of the widow before they became due or recouped the widow thereafterwards, the money, under the provisions of the Income War Tax Act, was part of her income for income tax purposes. In the case of Re Wood, [1943] C.T.C. 199, an annuity was left to the widow free and clear of all taxes which were to be paid each year out of the estate and it was further provided that should the widow pay any such taxes with respect to her income either before or after receipt of such income the tax so paid by her should be repaid to her out of the estate. This case followed the decision in Re Kemp (supra) and, while the editorial note points out that presumably because the point was not raised for consideration, the Court omitted to pass upon the question of whether the payment of part of the widow's income tax by the executors constituted additional taxable income to her, this proposition is not new to Canadian tax law. A reference is made to the case of His Majesty the King v Montreal Telegraph Company and Great North Western Telegraph Company of Canada, [1925] Ex. C.R. 79; [1917–27] CTC 264;1 D.T.C. 63, where at page 83 [268] Audette, J remarked:
The tax is a personal tax upon the person of company. Were the contractors remitting, as contended by the defendant company, this sum of $165,000 together with $16,599.69 and interest, to cover the defendant's income tax, what would be the position of the defendant? Clearly the defendant would receive a higher revenue and would thereby become liable to pay their income tax upon $165,000 and $16,599.69, the amount of their revenue or income. This view is supported by a number of decisions.
See also the case of Aimée Lady Michelham's Executors v. Commissioners of Inland Revenue, 15 TC 737, in which Lord Hanworth, MR said at page 748:Lady Michelham has to pay her Income Tax. She has to pay Income Tax in respect of £25,000 which she receives in the year, and she has also to pay, as being part of her income, the amount in respect of which she receives immunity, by reason of the trustees, to avoid circuitry, paying the Income Tax charged upon her.
8 In the light of the foregoing jurisprudence I find that both issues must be resolved against plaintiff. While plaintiff contends that the doctrine of constructive receipt can only be applied if the tax to be paid by purchasers on his behalf was actually collected by him, and that the mere right which he had in 1968 and 1969 to claim indemnity for any tax imposed as a result of the sale agreement when payment of same was demanded of him by the Minister in 1971 does not add this tax to his income if he never received payment of same, there is an indication that some if not all of it was in fact collected as a result of the settlement with Guy Charron, depending on how the attribution of the sums received by virtue of this settlement is made. On the second issue, although the actual claim for this tax on tax was only made by the Minister in the reassessment in 1971 and hence it was not until after that reassessment that plaintiff could in turn avail himself of the provisions of the indemnity agreement to reclaim same from the guarantor, nevertheless, the additional taxes assessed were payable for the 1968 and 1969 taxation years respectively by virtue of the indemnity agreement and the right to claim same from the guarantor constituted additional income for the plaintiff in each of those years even though the actual amount of same was not determined until subsequently following the reassessment. (See, for example, New York Central Railway (supra) where the assessment which was upheld was made in 1950 adding the tax as income for the 1948 taxation year.) I therefore find that the reassessment was properly made and plaintiff's action is dismissed, with costs. Although the other five actions were not before the Court for trial, by agreement between the parties the same disposition will be made by all of them, save that in the other five actions there will, of course, be no costs allowed for proof and hearing.
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