Date: 20090220
Docket: A-422-07
Citation: 2009 FCA 50
CORAM: DESJARDINS
J.A.
NADON
J.A.
BLAIS
J.A.
BETWEEN:
DEBRA YATES
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
Desjardins
J.a.
[1]
It
is my view that the appeal should be dismissed. My reasons for this conclusion
are the following.
[2]
The
facts are not in dispute. In brief, Mr. Yates had an outstanding tax liability,
at all relevant times, in excess of $485,000. On December 23, 2002, he released
his joint interest in two bank accounts for amounts of $4,972.30 and $2,406.45
in favour of his wife, the appellant. Also, as of December 23,
2002,
and throughout 2003, Mr. Yates deposited his paycheques for a total amount of
$54,406.20 in a bank account owned by his wife. This account had been used by
both to pay their household expenses for many years prior to December 23, 2002.
The appellant customarily took care of these expenditures. Between December 23, 2002, and October
31, 2003, the total household expenses set out by the appellant amounted to a
total of $151,248.08. Mr. Yates filed for bankruptcy on February 16, 2004.
[3]
The
Minister issued three reassessments against Ms. Yates under subsection 160(1)
of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the
Act) on September 12, 2004, for a total of $61,784.95.
[4]
The
Tax Court Judge whose judgment is reported as Yates and Her Majesty the
Queen, 2007 TCC 498, [2007] T.C.J. No. 328 (QL), found at paragraph 12 of
his reasons that, of the four requirements which must be satisfied under
subsection 160(1) of the Act, only the following two were in question, namely
that:
a.
there
must be a transfer of property; and
b.
there
must be no or inadequate consideration flowing from the transfer to the
transferor.
[5]
The
Tax Court Judge had no difficulty in concluding on the first point that there
had been a transfer of property since Mr. Yates had divested himself of property,
firstly by the removal of his name from the two joint accounts and, secondly,
by the deposits of his paycheques into his wife’s account. In doing so, he
applied Fasken Estate v. MNR, [1948] Ex.C.R. 580, endorsed by this Court
in Medland v. Canada, [1998] F.C.J. No. 708, at paragraph 14. His
approach was consistent with the decision of this Court in Livingston v.
Canada, 2008 FCA 89, at paragraph 21, where it was held that “The deposit
of funds into another person’s account constitutes a transfer of property”.
[6]
The
more difficult issue was whether Ms. Yates had given consideration for these
transfers.
[7]
The
Tax Court Judge explained at paragraph 16 of his reasons:
The more difficult issue is whether there was consideration
rendered by the Appellant for these transfers from Mr. Yates. This boils down
to whether these transfers were merely his satisfying his legal obligation to
support his wife and family. If so, then the payments in certain restricted
circumstances are not subject to section 160 liability. To find in the
Appellant's favour, I must find there was adequate consideration flowing from
her to Mr. Yates. I agree with the Appellant that there is a legal obligation
for support under the Family Law Act of Ontario. The greatest disparity between the submission of counsel
for the Appellant and the present case law is latitude given to the legal
obligation.
[8]
He
further explained at paragraph 19 of his reasons.
I accept the
second approach to the effect that certain limited payments made for some household
expenses by a spouse, who is obligated to support his or her family, are not
subject to subsection 160(1). I believe these expenditures should be for daily
living necessities as opposed to permitting an accustomed lavish standard of
living. The Appellant cited the following cases which support this: Michaud v. Canada, Ferracuti v. Canada,
Laframboise v. Canada and Ducharme
v. Canada.
[9]
He
reviewed the line of cases cited by the appellant and stated at paragraph 29 of
his reasons:
I agree that the function of this Court under section 160
is not to parse a taxpayer's grocery bills in order to determine which food
items are reasonable and which are not. Each case must be considered on its own
merits. The Court must examine the evidence of the taxpayer with respect to
household expenditures to determine which expenses, if any, are the vital
household expenses that may be excluded from the reach of section 160. I say
this because section 160 is a far-reaching collection tool in the Act. It has
been described as draconian and Parliament drafted it as such. Accordingly, the
exceptions to the reach of this section are narrow. In Ferracuti,
I attempted to determine which expenditures were made in satisfaction of the
person's legal obligation to support his family.
[10]
The
Tax Court Judge concluded that the expenditures made in the case at bar were
not the vital household expenses envisaged in the above line of cases. They
went beyond the expenditures permitted in satisfaction of a person’s legal
obligation to support his family. He consequently dismissed the appeals of Ms.
Yates against the Minister’s reassessments.
[11]
The
appellant claims that the Tax Court Judge, although recognizing that at least
some payments made by a spouse towards supporting his or her family were beyond
the reach of subsection 160(1) of the Act, erred by failing to consider or
articulate an appropriate framework for determining the appropriate quantum of
such payments. He should, submits the appellant, have adopted an approach
consistent with the jurisprudence developed in connection with family law for
the determination of support. Indeed, subsection 160(4) of the Act expressly
exempts from capture any payments made on account of support pursuant to a
separation agreement or judgment of the court. Couples who remained married
should be no worse off than those who have separated. Hence, says the
appellant, the calculation of support payments should be guided by principles
articulated in the family legislation in each province and in the Divorce
Act, R.S.C. 1985, c. 3 (2nd Supp.).
[12]
Section
160 of the Act is unquestionably a draconian measure. But the issue is whether
a court of law is permitted to read in a taxation statute provisions that are
inexistent in the legislation.
[13]
The
Court in Medland at paragraph 14 has explained the policy behind this
provision in the following manner:
It is not disputed
that the tax policy embodied in, or the object and spirit of subsection 160(1),
is to prevent a taxpayer from transferring his property to his spouse in order
to thwart the Minister's efforts to collect the money which is owned [sic]
to him. …
[14]
Again,
in Wannan v. Canada (2003 FCA 423) at paragraph 3, this Court recognized
that “[s]ection 160 of the Income Tax Act is an important collection
tool, because it thwarts attempts to move money or
other property beyond the tax collector's reach by placing it in presumably
friendly hands”.
[15]
In
Livingston, this Court explained at paragraph 27 that “a transferee of property will be liable to the CRA to the
extent that the fair market value of the consideration given for the property
falls short of the fair market value of that property”. The Court stated in the
same paragraph that the “very purpose of subsection 160(1) is to preserve the
value of the existing assets in the taxpayer for collection by the CRA”.
[16]
A
reading of section 160 makes it clear that the only exception provided under
the Act is that of subsection 160(4) of the Act.
[17]
The
line of cases illustrated by Michaud v. Canada. [1998] T.C.J. 908 (QL); Ferracuti
v. Canada. [1998]
T.C.J. No. 883 (QL); and Laframboise v. Canada, [2002] T.C.J. No. 628,
which takes the position that payments made by one spouse to another in
satisfaction of a legal obligation to support his or her family are beyond the
reach of section 160, is not supported by the legislation.
[18]
The
respondent cited the decision of the Supreme Court of Canada in Canada v.
Addison & Leyen Ltd., 2007 SCC 33, [2007] S.C.J. No. 33 (QL) in support
of a strict interpretation of section 160 of the Act. That case arose out of a
dispute as to whether the Minister was barred from acting under section 160 of
the Act, due to some limitation period.
[19]
The
Supreme Court of Canada held in that case that judicial review was not
available because the Minister, under section 160 of the Act, could assess at
any time since there was no limitation period provided. The Supreme Court of
Canada indicated its preference for the minority view expressed in the court
below, the Federal Court of Appeal, by Rothstein J.A. as he then was. At
paragraph 9, the Supreme Court of Canada stated the following:
Nevertheless,
we find that judicial review was not available on the facts of this case. As
Rothstein J.A. pointed out, the interpretation of s. 160 by the majority of the
Federal Court of Appeal amounted to reading into that provision a limitation
period that was simply not there. The Minister can reassess a taxpayer at any
time. In the words of Rothstein J.A.:
While in the sense identified by the majority, subsection 160(1) may be
considered a harsh collection remedy, it is also narrowly targeted. It only
affects transfers of property to persons in specified relationships or
capacities and only when the transfer is for less than fair market value.
Having regard to the application of subsection 160(1) in specific and limited
circumstances, Parliament's intent is not obscure. Parliament intended that the
Minister be able to recover amounts transferred in these limited circumstances
for the purpose of satisfying the tax liability of the primary taxpayer
transferor. The circumstances of such transactions mak[e] it clear that
Parliament intended that there be no applicable limitation period and no
other condition on when the Minister might assess. [para. 92]
[Emphasis added.]
[20]
The
words “no other condition” followed by the words “on when the Minister might
assess” make it clear that the Leyen case is directed to the concept of
a limitation period only. We are not dealing, in the case at bar, with a
limitation period but with whether family obligations should be read in
subsection 160(1) of the Act. The case does not assist the respondent in his
demonstration that Parliament’s intent is to exclude family obligations from
the purview of the legislation. The Leyen case cannot be read in such a
manner.
[21]
The
appellant claims in his favour the decision of this Court in Ducharme v.
Canada (2005 FCA 137), Rothstein J.A., as he then was, writing for the
Court, relied essentially on a finding of fact of the Tax Court Judge. At the
time, Mr. Vienneau, the common-law partner of Ms. Ducharme, paid the mortgage
payments. As found by the Tax Court Judge, the rent for an equivalent (and
apparently average) house in the area the couple was living in ranged two times
the amount of money transferred by Mr. Vienneau to Ms. Ducharme. Rothstein J.A.
felt a reasonable inference could be drawn from these facts, namely that Ms.
Ducharme gave to Mr. Vienneau the availability and use of the house she owned
in consideration for his payments on the mortgage. The amounts paid by Mr.
Vienneau were considered tantamount to rent. Rothstein J.A. was careful to add
that identifying the amounts paid by Mr. Vienneau as rent was not a
re-characterization of the legal effects of transactions. It was simply a way
of explaining that Mr. Vienneau received consideration equivalent to or greater
than the amounts he transferred to Ms. Ducharme.
[22]
Rothstein
J.A. made it clear that in view of the conclusion he had arrived at, it was
unnecessary to address Ms. Ducharme’s other arguments based on valuing domestic
services or “domestic obligations” of spouses.
[23]
The
Ducharme case rests therefore on its own facts.
[24]
For
the same reason, I cannot agree with the respondent that Rothstein J.A.
implicitly found that there was a legally enforceable agreement between Ms.
Ducharme and Mr. Vienneau according to which each had promised to give the
other something they did not already have under the British Columbia
legislation which did not give common law spouses the right to use and enjoy
the matrimonial home (Family Relations Act [R.S.B.C. 1996] c. 128).
[25]
I
find on the whole that it is for Parliament to articulate an appropriate
framework that would give married couples the equal treatment the appellant
wishes they should enjoy by comparison to those who come under the purview of
subsection 160(4) of the Act.
[26]
I
would dismiss this appeal with costs.
“Alice Desjardins”
NADON J.A (Concurring Reasons)
[27]
I am
entirely in agreement with the reasons which Desjardins J.A. gives in support
of her view that the appeal cannot succeed. I wish only to elaborate on the
following points.
[28]
Mr. Yates
transferred to his wife's account the sum of $61,784.95. The appellant says
that in releasing his joint interest in two bank accounts in favour of his wife
and in depositing his paycheques in a bank account owned by his wife, Mr. Yates
did not transfer property which falls within the purview of subsection 160(1)
of the Income Tax Act, 1985, c.1 (5th supplement) (the
"Act") and that, in any event, if there is a transfer within the
purview of the subsection, adequate consideration was given for the transfer.
[29]
In support
of her argument that there was no transfer within the meaning of subsection
160(1), the appellant says that by reason of her husband’s obligation pursuant to
sections 30, 31 and 33 of the Ontario Family Law Act, R.S.O. 1990, c. F.3, to support his family, the deposits made
to her account were for the purpose of paying household expenses and that she
did pay such expenses, pointing out that the total household expenses during
the period at issue exceeded the sum transferred to her by her husband.
[30]
With
respect to consideration, the appellant again says that her husband transferred
money to her by reason of his legal obligation to support his family. She
further says that Mr. Yates was allowed to use the matrimonial home during the
time that he was making the payments. Thus, she submits that her husband
received consideration equal to the funds transferred by him into her bank
account.
[31]
In my
view, these submissions are without merit. As Desjardins J.A. makes clear in
her Reasons (paragraph 5), only two of the four requirements to be met under
subsection 160(1) are at issue in this appeal:
1.
whether
there is a transfer of property to a spouse and if so,
2.
whether the
spouse gave consideration amounting to fair market value.
[32]
On the
facts of the case before us, the answer can only be that there was a transfer
and that no consideration at fair market value was given.
[33]
At
paragraph 47 of her memorandum of fact and law, the appellant summarizes her
position as to why subsection 160(1) does not find application in the present
matter:
a.
the
deposit of John Yates pay cheque net of deductions for tax does not constitute
a transfer;
b.
the
payments made were made pursuant to Mr. Yates' obligation to support his
family;
c.
the Yates'
family had significant living expenses during the relevant time that the
payments were made that exceed the amount deposited;
d.
thus,
there was no "unjust enrichment" as contemplated by section 160 of
the Act;
e.
in the
alternative and, in any event, the amounts paid were for living expenses that
John Yates was duty bound to provide for his family;
f.
in the
further alternative, John Yates received consideration for the transfer in
light of the fact that he enjoyed the use of the matrimonial home in exchange
for the payments made; and
g.
in the
further alternative and, in any event, no tax was payable by John Yates at the
time that the deposits were made.
[34]
What the
appellant is clearly asking us is, in my respectful view, to read subsection
160(1) as if the exception provided at subsection 160(4) applied to spouses who
were not separated and living together. At paragraph 50 of the appellant's
memorandum of fact and law the appellant clearly invokes the benefit of subsection
160(4):
The appellant
contends that the Court should adopt an approach consistent with the
jurisprudence developed in connection with family law for the determination of
support. Indeed, subsection 160(4) of the Income Tax Act expressly
exempts from capture any payments made on account of support pursuant to a
separation agreement or judgment of the court. Couples who remain married
should be no worse off than couples that have separated when considering the
effect of section 160.
[35]
Subsection
160(1) is clear and unambiguous and the Act does not provide for any exception,
other than the one found at subsection 160(4), i.e. that transfers made between
spouses "separated and living apart" shall not render them liable
under subsection 160(1) to "pay any amount with respect to any income
from, or gain from the disposition of, the property so transferred or property
substituted therefore, …". The provision also provides that for the
purposes of paragraph 160(1)(e), the fair market value of property
transferred after February 15, 1984, shall be deemed to be nil.
[36]
The
question raised by the appellant is clearly a question of law which calls for
review on a standard of correctness. In effect, what we have to decide in this
appeal is whether a family law exception can be read into subsection 160(1).
[37]
As my
colleague Desjardins J.A. says at paragraph 13 of her Reasons, "section
160 of the Act is unquestionably a draconian measure. But the issue is whether
a court of law is permitted to read in a taxation statute provisions that are
inexistent in the legislation". The answer to that question is clearly a
no.
[38]
Whether
Mrs. Yates spent the $61,784.95 transferred to her by her husband on holidays,
personal items, groceries or other household expenditures is, in my respectful
view, of no relevance to the determination of whether there was a transfer. Let
us assume, for example, that Mr. Yates had given Mrs. Yates an automobile
valued at $61,784.95. Let us also assume that on the day following the gift,
Mrs. Yates sells the automobile for its full value and proceeds to defray
household expenses with that money. Would we seriously entertain an argument
that the gift of the automobile does not constitute a transfer because the
monies resulting from its sale served to defray the family's living expenses? I
suspect that we would have no difficulty in dismissing such an argument.
[39]
Consequently,
I see absolutely no basis for the appellant's argument that the nature of the
expenses incurred with the money transferred to her by her husband is a
relevant factor in determining whether she is subject to subsection 160(1) of
the Act.
[40]
The Judge
correctly concluded that there had been a transfer by Mr. Yates to the
appellant in the sum of $61,784.95. He then turned his attention to the issue
of consideration, which he considered to be the more troublesome issue. He
stated the issue as follows at paragraph 16:
[16] …
This boils down to whether these transfers were merely his satisfying his legal
obligation to support his wife and family. If so, then the payments in certain
restricted circumstances are not subject to section 160 liability. To find in
the Appellant’s favour, I must find there was adequate consideration flowing
from her to Mr. Yates. I agree with the Appellant that there is a legal
obligation for support under the Family Law Act of Ontario. The greatest
disparity between the submission of counsel for the Appellant and the present
case law is latitude given to the legal obligation.
[41]
In my
view, the Judge’s approach is clearly in error. As I have already indicated,
subsection 160(1) does not contain any ambiguity. If there is a transfer within
the purview of the provision, then the transferee must satisfy the Court that
he or she provided consideration at fair market value. In view of the wording
of subsection 160(1), there is simply no basis for the position taken by the
Judge.
[42]
The Judge
had to determine whether Mrs. Yates had provided consideration at fair market
value and, in my view, on the record before him, it is clear that the appellant
did not provide such consideration. The Judge reached this conclusion based
upon the view that only those household expenses which could be considered as
“vital household expenses” were beyond the reach of subsection 160(1). In my
respectful view, that approach is clearly erroneous.
[43]
To
conclude, the appellant submits that she gave consideration at fair market
value for the sums received from her husband. I see no evidence in the record
to support that view. To make things perfectly clear, let me say that in
allowing her husband to live in the family residence, the appellant did not
provide consideration at fair market value. This is simply another attempt by
Mrs. Yates to benefit from the exception found at subsection 160(4).
[44]
I
therefore agree that the appeal should be dismissed with costs.
“Marc Nadon”
BLAIS J.A. (Concurring Reasons)
[45]
I am in
agreement with the disposition of this matter proposed by my colleague
Desjardins J.A.; I am of the view that this appeal should be dismissed.
[46]
This is an
appeal from a decision of the Tax Court of Canada dated August 27, 2007
dismissing the appeals from reassessments made under section 160 of the Income
Tax Act, R.S.C. 1985 (5th Supp.), c. 1 (the Act).
Relevant Facts
[47]
John Yates,
the appellant’s husband was a tax debtor who owed the Minister of National
Revenue (the Minister) more than $485,000. As of December 2002 and throughout
2003, while he was indebted to the Minister, he transferred money to his wife.
The Minister assessed his wife, the appellant, under subsection 160(1) of the
Act. The assessment concluded that the appellant should be jointly and
severally liable for her husband’s tax debt in an amount equivalent to the
value of the transferred property. According to the Minister, the appellant is
liable to pay $61,784 of her husband’s income tax liability because there was a
transfer from Mr. Yates to her without adequate consideration, pursuant to
subsection 160(1). Mr. Yates filed a personal assignment in bankruptcy in February
2004.
Decision Below
[48]
The trial
judge applied a correct test and reached the correct result in holding that
John Yates’ removal of his name from the joint bank accounts and deposits of
his pay cheques into Debra Yates’ account constituted transfers within meaning
of subsection 160(1).
[49]
The trial
judge also decided that certain limited payments made for household expenses by
John Yates to Debra Yates are not subject to section 160; specifically, at
paragraph 29 of his judgment, he wrote:
[29] …the
Court must examine the evidence of the taxpayer with respect to household
expenditures to determine which expenses, if any, are the vital household
expenses that may be excluded from the reach of section 160. I say this because
section 160 is a far-reaching collection tool in the Act. It has been described
as draconian and Parliament drafted it as such. Accordingly, the exceptions to
the reach of this section are narrow. In Ferracuti, I attempted to
determine which expenditures were made in satisfaction of the person’s legal
obligation to support his family.
Applicable Legislation
[50]
Subsections
160(1) and 160(4) read:
|
Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1
160. (1) Where a person has, on or after May 1, 1951, transferred
property, either directly or indirectly, by means of a trust or by any other
means whatever, to
(a)
the person’s spouse or common-law partner or a person who has since become
the person’s spouse or common- law partner,
(b)
a person who was under 18 years of age, or
(c)
a person with whom the person was not dealing at arm’s length,
the
following rules apply:
(d)
the transferee and transferor are jointly and severally liable to pay a part
of the transferor’s tax under this Part for each taxation year equal to the
amount by which the tax for the year is greater than it would have been if it
were not for the operation of sections 74.1 to 75.1 of this Act and section
74 of the Income Tax Act, chapter 148 of the Revised Statutes of
Canada, 1952, in respect of any income from, or gain from the disposition of,
the property so transferred or property substituted therefor, and
(e)
the transferee and transferor are jointly and severally liable to pay under
this Act an amount equal to the lesser of
(i) the amount, if any, by which the fair
market value of the property at the time it was transferred exceeds the fair
market value at that time of the consideration given for the property, and
(ii) the total of all amounts each of which is
an amount that the transferor is liable to pay under this Act in or in
respect of the taxation year in which the property was transferred or any
preceding taxation year,
but
nothing in this subsection shall be deemed to limit the liability of the
transferor under any other provision of this Act.
|
Loi de l’impôt sur le revenu, L.R.C. 1985 (5e supp.), c. 1
160. (1) Lorsqu’une personne a, depuis le 1er mai 1951,
transféré des biens, directement ou indirectement, au moyen d’une fiducie ou
de toute autre façon à l’une des personnes suivantes :
a) son époux
ou conjoint de fait ou une personne devenue depuis son époux ou conjoint de
fait;
b) une
personne qui était âgée de moins de 18 ans;
c) une
personne avec laquelle elle avait un lien de dépendance,
les
règles suivantes s’appliquent :
d) le
bénéficiaire et l’auteur du transfert sont solidairement responsables du
paiement d’une partie de l’impôt de l’auteur du transfert en vertu de la
présente partie pour chaque année d’imposition égale à l’excédent de l’impôt
pour l’année sur ce que cet impôt aurait été sans l’application des articles
74.1 à 75.1 de la présente loi et de l’article 74 de la Loi de l’impôt sur
le revenu, chapitre 148 des Statuts révisés du Canada de 1952, à l’égard
de tout revenu tiré des biens ainsi transférés ou des biens y substitués ou à
l’égard de tout gain tiré de la disposition de tels biens;
e) le
bénéficiaire et l’auteur du transfert sont solidairement responsables du
paiement en vertu de la présente loi d’un montant égal au moins élevé des
montants suivants :
(i) l’excédent éventuel de la juste valeur
marchande des biens au moment du transfert sur la juste valeur marchande à ce
moment de la contrepartie donnée pour le bien,
(ii) le total des montants dont chacun
représente un montant que l’auteur du transfert doit payer en vertu de la
présente loi au cours de l’année d’imposition dans laquelle les biens ont été
transférés ou d’une année d’imposition antérieure ou pour une de ces années;
aucune
disposition du présent paragraphe n’est toutefois réputée limiter la
responsabilité de l’auteur du transfert en vertu de quelque autre disposition
de la présente loi.
|
|
(4) Notwithstanding subsection 160(1), where at any time
a taxpayer has transferred property to the taxpayer’s spouse or common-law
partner pursuant to a decree, order or judgment of a competent tribunal or
pursuant to a written separation agreement and, at that time, the taxpayer
and the spouse or common-law partner were separated and living apart as a
result of the breakdown of their marriage or common-law partnership, the
following rules apply:
(a)
in respect of property so transferred after February 15, 1984,
(i) the spouse or common-law partner shall not be liable
under subsection 160(1) to pay any amount with respect to any income from, or
gain from the disposition of, the property so transferred or property
substituted therefor, and
(ii) for the purposes of paragraph 160(1)(e), the
fair market value of the property at the time it was transferred shall be
deemed to be nil, and
(b)
in respect of property so transferred before February 16, 1984, where the
spouse common-law partner would, but for this paragraph, be liable to pay an
amount under this Act by virtue of subsection 160(1), the spouse’s or
common-law partner’s liability in respect of that amount shall be deemed to
have been discharged on February 16, 1984,
but nothing in this subsection shall operate to reduce
the taxpayer’s liability under any other provision of this Act.
|
(4) Malgré le paragraphe (1), lorsqu’un contribuable a
transféré un bien à son époux ou conjoint de fait en vertu d’une ordonnance
ou d’un jugement d’un tribunal compétent ou en vertu d’un accord écrit de
séparation et que, au moment du transfert, le contribuable et son époux ou
conjoint de fait vivaient séparément par suite de la rupture de leur mariage
ou union de fait, les règles suivantes s’appliquent :
a) relativement à un bien ainsi transféré après le 15
février 1984:
(i) l’époux ou conjoint de
fait ne peut être tenu, en vertu du paragraphe (1), de payer un montant
relatif au revenu provenant du bien transféré ou du bien qui y est substitué
ou un montant relatif au gain provenant de la disposition du bien transféré
ou du bien qui y est substitué,
(ii) pour l’application de
l’alinéa (1)e), la juste valeur marchande du bien au moment du
transfert est réputée être nulle;
b) relativement à un bien ainsi transféré avant le 16
février 1984, lorsque l’époux ou conjoint de fait serait, sans le présent
alinéa, tenu de payer un montant en application de la présente loi en vertu
du paragraphe (1), il est réputé s’être acquitté de son obligation
relativement à ce montant le 16 février 1984;
aucune disposition du présent paragraphe n’a toutefois
pour effet de réduire les obligations du contribuable en vertu d’une autre
disposition de la présente loi.
|
Issue
[51]
In
conducting the analysis as to whether a fair market value consideration for the
property transferred was given, is the judge entitled to exclude some household
expenses from the reach of subsection 160(1)?
Standard of Review
[52]
The
standard of review applicable depends on the nature of the question. Housen
v. Nikolaisen, 2002 SCC 33, 2002 S.C.J. No. 31, [2002] 2 S.C.R. 235 (QL),
teaches us that questions of law are generally reviewed on a standard of
correctness, while finding of fact or mixed fact and law will be set aside only
if the trial judge has made an overriding and palpable error.
Analysis
[53]
Pursuant
to subsection 160(1), when a tax debtor transfers property to a non arm’s
length person, that person becomes jointly and severally liable with the tax
debtor for the tax debt in an amount equal to the difference between the fair
market value of the transferred property and the consideration given for the
transferred property.
[54]
There is
nothing in subsection 160(1) that permits a court to excuse a spouse from
liability where the conditions of the provision are met; in fact, there is no
mention of a family law exception in this provision.
[55]
Subsection
160(4) deals specifically with a transfer of property between spouses who are
separated and living apart, which shows Parliament’s intention to exempt
specific transfers in a matrimonial context from the application of subsection
160(1). In my view, our case does not fall under this particular exemption.
[56]
The trial
judge erred in law by following the line of jurisprudence which concludes that
certain limited payments made for household expenses by a spouse are not
subject to section 160 (see Reasons for Judgment, paragraphs 19 and 29).
[57]
The trial
judge failed in this case to conduct the proper analysis as to whether John
Yates was given fair market value consideration for the property that was
transferred. In fact, he made a palpable and overriding error by concluding
that the Court must examine the evidence of the taxpayer with respect to
household expenditures to determine which expenses, if any, are the vital
household expenses that may be excluded from the reach of section 160.
[58]
In my
view, there is no ambiguity in the reading of subsection 160(1); nevertheless,
several decisions of the Tax Court of Canada have read a “family law exception”
into it.
[59]
In Livingston
v. Canada, 2008 FCA 89, [2008] F.C.J.
No. 360 (QL) (Livingston), Sexton J.A. held at paragraphs 27 and 28:
27. Under
subsection 160(1), a transferee of property will be liable to the CRA to the
extent that the fair market value of the consideration given for the property
falls short of the fair market value of that property. The very purpose of
subsection 160(1) is to preserve the value of the existing assets in the
taxpayer for collection by the CRA. […] However, subsection 160(1) will not
apply where an amount equivalent in value to the original property transferred
was given to the transferor at the time of transfer: that is, fair market value
consideration. This is because after such a transaction, the CRA has not been prejudiced
as a creditor. […]
28. The
Tax Court Judge erred in law by failing to conduct any analysis
of the fair market value of the consideration. He simply concluded that it was
“adequate.” I fail to see how the fair market value of the consideration, if any
did exist, would be equivalent to the funds deposited. […] There was no
evidence on which the Tax Court Judge could conclude that what was provided by
the respondent was equal to the fair market value of the money put into the
account.
In that case, my colleague Sexton J.A. made clear that the
trial judge must conduct a proper analysis of the fair market value of the
consideration.
[60]
In Medland
v. Canada, [1998] F.C.J. No. 708 (QL) (Medland), Desjardins J.A.
held at paragraph 14:
14. It
is not disputed that the tax policy embodied in, or the object and spirit of
subsection 160(1), is to prevent a taxpayer from transferring his property to
his spouse in order to thwart the Minister’s efforts to collect the money which
is owned to him. […]
[61]
In Wannan
v. Canada, 2003 FCA 423, [2003] F.C.J.
No. 1693 (QL) (Wannan), Sharlow J.A. held at paragraph 3:
3. Section
160 of the Income Tax Act is an important tax collection tool, because it
thwarts attempts to move money or other property beyond the tax collector’s reach
by placing it in presumably friendly hands. […]
[62]
I have no
hesitation in concluding that the narrow interpretation provided by the
decisions in Livingston, Medland and Wannan,
should be followed.
[63]
A recent
decision of the Supreme Court of Canada, Canada v. Addison & Leyen Ltd., 2007 SCC 33, [2007] S.C.J.
No. 33 (QL), favoured the dissenting reasons of Justice Rothstein of the Court
of Appeal, (as he then was), with respect to subsection 160(1). The Supreme
Court’s decision reflects the narrow approach regarding Parliament’s intent. At
paragraph 9, the Supreme Court of Canada quoted Justice Rothstein:
[…] As
Rothstein J.A. pointed out, the interpretation of s. 160 by the majority of the
Federal Court of Appeal amounted to reading into that provision a limitation
period that was simply not there. The Minister can reassess a taxpayer at any
time. In the words of Rothstein J.A.:
While in the sense
identified by the majority, subsection 160(1) may be considered a harsh
collection remedy, it is also narrowly targeted. It only affects transfers of
property to persons in specified relationships or capacities and only when the
transfer is for less than fair market value.
Having regard to the
application of subsection 160(1) in specific and limited circumstances, Parliament’s
intent is not obscure. Parliament intended that the Minister be able to recover
amounts transferred in these limited circumstances for the purpose of
satisfying the tax liability of the primary taxpayer transferor. The
circumstances of such transactions mak[e] it clear that Parliament intended
that there be no applicable limitation period and no other condition on when
the Minister might assess. [para. 92]
[My emphasis]
[64]
Even if
Justice Rothstein’s comment on section 160 refers to whether a limitation
period should apply, he nevertheless mentioned that section 160 provides: “no
other condition on when the Minister might assess”. This again reflects the
narrow approach followed so far by our Court, and I see no reason to depart
from it.
[65]
I believe
that the approach taken by our Court in Ducharme v. Canada, 2005 FCA
137, [2005] F.C.J. No. 713 (QL), should be distinguished on the basis that the
trial judge’s conclusion was motivated by a very fact-specific situation with
which Court of Appeal decided not to interfere.
[66]
There is
some confusion in jurisprudence since provincial legislation on family law
regarding property, family definition, common law partners and matrimonial
homes varies from one province to another. Nevertheless, subsection 160(1) should
apply equally everywhere in Canada without exception apart from
those specifically described in subsection 160(4).
Conclusion
[67]
In my
view, the trial judge arrived at the correct conclusion in dismissing the
appeal but based his decision on some questionable reasoning. A plain language
interpretation of subsection 160(1) does not allow for a family law exception,
nor does it allow for an exception for household expenses. If Parliament had
wanted to provide for such exemptions, it would have done so expressly. It is
not for our Court to read these exemptions into the Act.
[68]
Therefore,
I would dismiss the appeal with costs.
“Pierre
Blais”
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