LBL Holdings – Tax Court of Canada finds that “flash” sales occurring on a reserve for immediate delivery to the trucks of non-Indians were exempted from GST
A Sobeys subsidiary (“LBL”) sold $98 million of tobacco products during the 14 months starting in January 1999 to a status Indian (Roberta MacNaughton) operating a variety store on an Indian reserve. As soon as LBL delivered the products to the store vicinity, and it received the cash consideration, the products were loaded onto the waiting trucks of customers, in turn, of Roberta MacNaughton. The Minister’s position was that LBL sold the tobacco products to such third-party customers who were not status Indians, with MacNaughton being compensated for her involvement in this scheme through volume rebates – so that such sales were not exempted under s. 87 of the Indian Act.
Visser J found that MacNaughton was the “recipient” of such sales as defined in ETA s. 123(1), i.e., there was an oral agreement between her and LBL to purchase the products and she was liable under that agreement to pay LBL therefor. He further stated (at para. 142):
I also note that the sale of the Tobacco Products from [LBL] to Roberta MacNaughton often resulted in a resale to her customers almost simultaneously. They were in essence flash sales, which are common types of sales.
Neal Armstrong. Summary of LBL Holdings Limited v. The King, 2023 TCC 130 under ETA s. 123(1) – recipient.