THE GAAR. Ed Kroft Q.C. Ian MacGregor, Q.C. Wayne Adams Ed Harris Q.C. Tax Law for Lawyers Niagara-on-the-Lake June 2, 2010

Transcription

1 THE GAAR Ed Kroft Q.C. Ian MacGregor, Q.C. Wayne Adams Ed Harris Q.C. Tax Law for Lawyers Niagara-on-the-Lake June 2, 2010

2 Introduction Over 20 years since GAAR was announced (June 1987 Tax Reform) and over 19 years since enactment (September 1988) Landmark decision of SCC in Canada Trustco and Kaulius on October 19, 2005 SCC decides Lipson case in January 2009 SCC to hear Copthorne case in November

3 Introduction (cont d) A number of lower court decisions have emerged in the last 5 years Desmarais, Overs, McMullen, CECO, MacKay, Evans, Copthorne, Univar Canada, MIL Investments, Collins & Aikman, Lehigh Cement, Remai, Garron, Antle, Landrus Provincial GAAR Assessment Being Raised (OGT Holdings) 3

4 The Current CRA Environment Tax avoidance = Aggressive Tax Planning Aggressive international tax planning initiatives (AITP) Challenges to international transactions Collaboration in CRA seems to have increased with the reorganization (ILBD) 4

5 The Current CRA Environment (cont d) Use of specific anti-avoidance rules (95(6)), 103, 237.1, 247) Univar Canada, Aventis (95(6)) Baxter (237.1) Penn West (103) 5

6 The Current GAAR Landscape Cases at Tax Court of Canada level at various stages Audit activity on various projects which involve the application of provincial GAAR legislation Rulings still being provided on GAAR Other countries contemplating adoption of a GAAR (US, UK) 6

7 Focus of the Presentation How have the courts interpreted the GAAR? Where might the jurisprudence be tending? What type of transactions are before the courts? What type of transactions are being challenged at the audit level? Some predictions about GAAR in tax practice 7

8 Does CRA Give Rulings on GAAR? 8 Yes (2005 BC Tax Conference Paper Adams/Sinclair) Ruling will be referred to GAAR Committee GAAR can be applied to transactions described in the ruling in a manner not contemplated by the specifically requested rulings CRA will warn taxpayers of caveats/limitations

9 GAAR Statistics as of March 2009 Issue Y N N/A Total % Surplus Strips % Kiddie Tax % Losses, Capital & Non-Capital % Part I.3 Tax % Loss Creation via Stock Dividend % Debt Forgiveness % Interest Deductibility % Capital Gain % Indirect Loan % Charitable Donations % Debt Parking % Losses, Stop Loss % Part XIII Tax % Offshore Trusts % Kiwi Loan % Losses, Rental % Cross-Border Lease % Treaty Exemption Claim % Provincial GAAR % Tower Structure % Miscellaneous (see page 2) % % Cases referred to GAAR committee: 867 * see note below GAAR Applied % GAAR Not Applied % GAAR as Primary Position % GAAR as Secondary Position % * Note: Statistics do not take into account the following: - RRSP Project 1363 files Legend - Barbados Spousal Trust project 76 files Y GAAR applicable In these cases GAAR was applied as a secondary position N GAAR not applicable N/A Technical Issue only, not referred to GC - More than 300 files to which the Provincial GAAR was applied 9

10 GAAR Statistics as of March Y N N/A Total Partnership Issues Income Splitting Foreign Tax Credits Losses - Other GST Capital Gain Reductions Credit Union Amalgamation FAPI Capital Cost Allowance Income Trust RRSP PUC issues Small Business Deduction ACB - Foreign Employee Stock Options Part IV tax RCA Stripped Debt Obligations Shareholder Benefits Rollover (6) ABIL Departure Trade Exempt Surplus Income Mark to Market Wind up Capital Dividend Account Amalgamations Commodity Straddles Deemed Association Insurance Corporations ITC - Refundable Leases Manufacturing and Processi Mutual Funds Part IV.1 and VI.1 tax Safe Income Term Preferred Shares Thin Capitalization Other

11 How Have The Courts Interpreted The GAAR? Categories of cases Cases decided before the Supreme Court of Canada in Canada Trustco and Kaulius (16 cases) The Supreme Court of Canada: Canada Trustco and Kaulius Post Trustco interpretation by the Tax Court and Federal Court of Appeal.(10 cases) Lipson in the Supreme Court of Canada 11

12 Canada Trustco: Summary of the SCC s approach Basic Principles To permit application of the GAAR, there must be (a) tax benefit, (b) avoidance transaction; and (c) abusive tax avoidance The burden is on the taxpayer to refute (a) and (b), and on the Minister to establish (c) 12

13 Canada Trustco: Summary of the SCC s approach (cont d) If abusive tax avoidance is unclear, the benefit of the doubt goes to the taxpayer The courts conduct a unified textual, contextual and purposive analysis of the provisions giving rise to the tax benefit 13

14 Canada Trustco Summary of the SCC s approach (cont d) Whether the transactions were undertaken for a non-tax purpose may be relevant but is by itself insufficient in establishing abusive tax avoidance The appellate courts should not interfere with the trial court s conclusion, absent a palpable and overriding error 14

15 Canada Trustco Summary of the SCC s approach (cont d) Abusive tax avoidance may be found where: documented relationships and transactions lack a proper basis relative to the object, spirit or purpose of the provisions conferring the benefit, or where they are dissimilar to the transactions contemplated by the provisions 15

16 Kaulius: Application of Canada Trustco Appeal of the taxpayer dismissed The use of the partnership rules by persons who deal at arm s length with the original vendor would frustrate or defeat the object, spirit or purpose of the statutory preservation of the losses on the transfer to the partnership The provisions of the Act establish a general policy against the transfer or sharing of losses between arm s-length taxpayers, subject to specific exceptions intended to promote a particular purpose 16

17 Tax Benefit 245(1) The tax benefit denied under the legislation: reduction avoidance or deferral of tax or other amount payable under the Act or an increase in a refund of tax or other amount under the Act 17

18 Canada Trustco: Tax Benefit Subsection 245(1) A tax benefit is a question of fact that would usually be determined at trial Magnitude of benefit is irrelevant The burden is on the taxpayer to show there is no tax benefit Taxpayer must have reduced, avoided or deferred Canadian income tax If a deduction against taxable income is claimed, the existence of the tax benefit is clear 18

19 Canada Trustco: Tax Benefit Subsection 245(1) (cont d) It may be necessary to compare the tax result obtained with that of an alternative/ normative arrangement (Para. 20) e.g., characterization of an amount as an annuity rather than as a wage, or as a capital gain rather than as business income, will result in differential tax treatment 19

20 Canada Trustco: Tax Benefit Subsection 245(1) (cont d) This analysis was done in Copthorne by the TCC (para ) Tax benefit said to have resulted from a series of transactions Tax benefit said to be the failure to remit Part XIII tax on deemed dividend TCC sees the amount of PUC preserved as the tax benefit when shares with high PUC were parked and not eliminated 20

21 Subsection 245(3) of the Act Subsection 245(3) of the Act states: An avoidance transaction means any transaction that, but for this section, would result, directly or indirectly, in a tax benefit, unless the transaction may reasonably be considered to have been undertaken or arranged primarily for bona fide purposes other than to obtain the tax benefit; or that is part of a series of transactions, which series, but for this section, would result, directly or indirectly, in a tax benefit, unless the transaction may reasonably be considered to have been undertaken or arranged primarily for bona fide purposes other than to obtain the tax benefit 21

22 Avoidance Transaction Canada Trustco The function of subsection 245(3) was found by the Supreme Court of Canada to be as follows: to remove from the ambit of the GAAR transactions or series of transactions that may reasonably be considered to have been undertaken or arranged primarily for a non-tax purpose. The majority of tax benefits claimed by taxpayers on their annual returns will be immune from the GAAR as a result of s. 245(3). Canada Trustco, supra, paragraph 21 22

23 Avoidance Transaction Canada Trustco Involves an examination of the relationships between the parties and the relevant transactions leading to an objective assessment of the relative importance of the purposes of the transaction Burden is on the taxpayer to prove these facts A non-tax purpose is broader than a business purpose and may include family or investment purposes 23

24 Avoidance Transaction Canada Trustco If at least one transaction in a series of transactions is an "avoidance transaction", then the tax benefit that results from the series may be denied under the GAAR. This is apparent from the wording of s. 245(3). Conversely, if each transaction in a series was carried out primarily for bona fide non-tax purposes, the GAAR cannot be applied to deny a tax benefit. Canada Trustco, supra, paragraph 34 24

25 Avoidance Transaction Judicial Consideration Subsection 245(3) has not been subject to extensive judicial consideration In many appeals to the Tax Court of Canada and the Federal Court of Appeal, the taxpayers have conceded that the transactions at issue were avoidance transactions within the meaning of ss. 245(3) of the Act (e.g. Canada Trustco, Kaulius, Lipson) 25

26 Avoidance Transaction Subsection 245(3): Recent Issues Issues recently considered and under consideration by the Courts: How does an objective determination of primary purpose occur? (MacKay, Copthorne) Does the overall purpose of the series affect the purpose of each transaction in the series? (MacKay, Copthorne) When is a transaction part of the series? (Copthorne, MIL Investments) 26

27 Avoidance Transaction Subsection 245(3): Responses Primary purpose determined through many objective factors (MacKay, Copthorne) The how of a transaction is subordinate to its why The why is the purpose The how is the way it was implemented (MIL, MacKay, Landrus) Has the how and why test survived Copthorne? 27

28 Avoidance Transaction Subsection 245(3): Responses If primary purpose of a transaction is non-tax, it does not matter that transaction is effected in tax effective manner (MIL, MacKay) Not every transaction forms part of the series (MIL) Degree of connectivity required for series Canada Trustco (MIL, Copthorne) Recent cases reject Taxpayer s submission on the facts (Landrus, Remai) 28

29 Avoidance Transaction Primary Purpose While the inquiry proceeds on the premise that both tax and non-tax purposes can be identified, these can be intertwined in the particular circumstances of the transaction at issue. It is not helpful to speak of the threshold imposed by s. 245(3) as high or low. The words of the section simply contemplate an objective assessment of the relative importance of the driving forces of the transaction. 29

30 Avoidance Transaction Primary Purpose The focus on the taxpayer s primary purpose is clearly intended to preserve the right of the taxpayer to structure a business-driven transaction in a tax effective manner. The recognition of tax planning as a legitimate and accepted part of Canadian tax law necessarily involves distinguishing between the purpose of a transaction and the structure or form used to implement the transaction Canada Trustco, paragraphs 30 and 31 30

31 Avoidance Transaction Primary Purpose The use of the term primarily in subsection 245(3) recognizes that there can be more than one purpose for a transaction Canada Trustco, paragraph 27 31

32 Avoidance Transaction Primary Purpose Again, this is a factual inquiry. The taxpayer cannot avoid the application of the GAAR by merely stating that the transaction was undertaken or arranged primarily for a non-tax purpose. The Tax Court judge must weigh the evidence to determine whether it is reasonable to conclude that the transaction was not undertaken or arranged primarily for a non-tax purpose. The determination invokes reasonableness, suggesting that the possibility of different interpretations of the events must be objectively considered. [emphasis added] Canada Trustco, supra, paragraphs 28 and 29 32

33 MacKay et al v. the Queen Facts Two of the taxpayers wished to buy a shopping centre for $10,000,000 Plan was to improve it and then sell it for $14,000,000 Bank was lender to owner of shopping centre Owner in default and shopping centre s value was less than principal amount of the receivable ($16,000,000) 33

34 MacKay et al v. the Queen (cont d) Bank agrees to sell shopping centre for $10,000,000 to taxpayers After basic terms were locked up, taxpayers obtained advice on how to structure transaction Other taxpayers join in to become participants in the transaction Some or all taxpayers had history of buying property/mortgage receivables and doing business in a partnership Taxpayers were all very experienced in the real estate industry and most had done transactions with each other previously 34

35 MacKay et al v. the Queen (cont d) Bank Bank Sub Taxpayers Transfer of Mortgage Partnership Forecloses and acquires Property Loss arose at year end when property written down to FMV of $10,000,000 from deemed cost of $16,000, Partnership continued to fix up property, stabilize rents and attempted to sell the property by 1996

36 MacKay et al v. the Queen (cont d) Transactions similar to those considered in Kaulius and OSFC Holdings Ltd. In those cases, MNR was held to have been correct to use GAAR to disallow the transfer of losses from a corporation to taxpayers unrelated to that corporation The transactions in issue in these twelve cases resulted in a similar transfer of losses 36

37 MacKay et al v. the Queen (cont d) TCC finds: Not an avoidance transaction 7 day case with 14 witnesses Witnesses credible and documents reliable Said to have considered each individual transaction and not just overall purpose (paras. 61, 79 and 126) Distinguished OSFC and Kaulius on the facts 37

38 MacKay: FCA (2008) Appeal by the Crown to FCA FCA allowed appeal and overturned TCC judgment 38

39 MacKay: FCA (2008) TCC did not reach the conclusion that each transaction within the series of transactions was undertaken primarily for purposes other than tax by determining separately the purpose of each transaction within the series Rather, TCC determined the primary purpose of the series of transactions and attributed that purpose to each transaction within the series. TCC considered that any other approach would undermine the object of subsection 245(3) 39

40 MacKay: FCA (2008) Paragraph 245(3)(b) requires a determination of the primary purpose of any transaction (or transactions) within a series of transactions that would result in a tax benefit. It follows that a subset of transactions within a series of transactions is an avoidance transaction unless the subset of transactions may reasonably be considered to have been undertaken or arranged primarily for bona fide purposes other than to obtain the tax benefit The conclusion that a series of transactions was undertaken primarily for bona fide non-tax purposes does not preclude a finding that the primary purpose of one or more steps within the series was to obtain a tax benefit 40

41 MacKay: FCA (2008) The TCC should have determined the primary purpose of the transactions by which the Bank became a partner of the Partnership at the outset, transferred the mortgage receivable to the Partnership before any of the respondents became partners, and remained a partner for more than 30 days after the transfer. Nothing in the record suggests that the non-tax business objectives of the respondents required those steps to be taken The primary purpose of those transactions was to transfer the $6 million accrued loss on the mortgage receivable from the Bank to the Partnership so that the loss could be deducted by the respondents in computing their income 41

42 42

43 STEP 1 Non-Resident $100 PUC $100 PUC Aco Sisterco $100 PUC Lossco 43

44 STEP Sale Non-Resident $100 PUC $100 PUC Aco $100 PUC Sisterco Lossco 44

45 STEP (Redemption of Shares for $200 after Amalgamation) Non-Resident $100 PUC $200 PUC Aco Amalco 45

46 FCA 46

47 FCA 47

48 FCA 48

49 FCA 49

50 SCC 50

51 Subsection 245(3): Series of Transactions Canada Trustco (para 23-26) briefly discussed this concept not clear on face agreement with FCA in OSFC (Rothstein, J.) and H.L. concept (Craven, Ramsay) Common Law Test preordained to produce a given result not practical likelihood that the pre-planned events would not take place in order ordained 51

52 Subsection 245(3): Series of Transactions Expansion of Common Law Test by Subsection 248(10) Acceptance of para.36 in OSFC re subsection 248(10) Parties know of series Took it into account when deciding to complete it 52

53 Subsection 245(3): Series of Transactions SCC in Trustco (para. 26): in contemplation of = because of or in relation to the series events before or after the basic avoidance transaction 53

54 Subsection 245(3): Series of Transactions Series considered in both MIL Investments and Copthorne Copthorne distinguished MIL (para.41) Copthorne analysis in paras of the Reasons 54

55 Subsection 245(3): Series of Transactions Copthorne Crown argues 1993 and 1995 events are a series: connected by subsection 248(10) and not Common Law Test TCC finds a strong nexus and not independent events 55

56 Subsection 245(3): Series of Transactions Redemption done in 1995 in contemplation of the first series in 1993 even though 1995 redemption not planned in 1993 First series in 1993 related to redemption in 1995 in the sense that taxpayer had knowledge of the prior preservation of PUC and took into account when completing the redemption 56

57 LANDRUS Partnership 1 Partnership 2 UCC less than FMV (potential terminal loss) Condo Rental Pool Condo Rental Pool 57

58 LANDRUS Sale of Assets for Units Partners Partners Partnership 1 Distribution of Partnership 2 Partnership 3 units Sale of assets for units Partnership 3 Sale of assets for units Condo Rental Pool Condo Rental Pool 58

59 LANDRUS Subsection 85(5.1) n/a to Deny Terminal Losses allocate terminal loss partners partners Partnership 1 Partnership 2 Partnership 3 Condo Rental Pool Condo Rental Pool 59

60 LANDRUS Misuse or Abuse? Then 85(5.1) did not apply to stop loss The Income Tax Act is a statute that is remarkable for its specificity and replete with anti-avoidance provisions designed to counteract specific perceived abuses. Where a taxpayer applies those provisions and manages to avoid the pitfalls the Minister cannot say Because you have avoided the shoals and traps of the Act and have not carried out your commercial transaction in a manner that maximizes your tax, I will use GAAR to fill in any gaps not covered by the multitude of specific anti-avoidance provisions 60

61 Landrus F.C.A. Decision The Tax Court decision denying application of the GAAR was affirmed by the Federal Court of Appeal Several specific anti-avoidance rules that might deny a terminal deduction under 20(16) did not apply here where it can be shown that an anti-avoidance provision has been carefully crafted to include some situations and exclude others, it is reasonable to infer that Parliament chose to limit their scope accordingly The appellant s economic interest did change: he became a member of a different and larger partnership, which had more partners Unlike in Lipson, no specific anti-avoidance provision was used to obtain a tax benefit The terminal deduction claimed by the appellant reflected a real economic loss Consequently there was no misuse or abuse 61

62 REMAI Mr. Remai management fees = promissory notes Managementco 62

63 REMAI Mr. Remai donate notes credit disallowed under 118.1(13)(a) Remai Foundation Managementco 63

64 REMAI Mr. Remai (2) credit allowed under 118.1(13)(c) Remai Foundation (1) sell Managementco Notes to Sweet for equal notes Managementco Sweet 100% Nephew 64

65 REMAI (cont'd) Sweet and Foundation said to deal at arm s length Tax benefit conceded Sale of Note to Sweet an avoidance transaction Only reason Foundation sold the notes was to allow Remai the charitable tax credit Transaction would not have occurred but for Is this a reason or a purpose? Not abusive tax avoidance Quoted Bowman, C.J. in Jabs Construction Where a taxpayer structure a transaction to take advantage of a specific provision (non anti-avoidance Interpretation of the Act) no misuse or abuse of the Act 65

66 Remai (FCA) The Tax Court decision was upheld on appeal Its conclusion that uncle and nephew dealt at arm s length was a mixed question of law and fact and should not be disturbed The only GAAR issue was whether there was a misuse or abuse There was no abuse of 118.1(13)(c) Rejects Crown s argument that the provisions relating to non-qualifying securities were intended to prevent taxpayers from receiving a charitable tax credit while retaining the use of the related funds 66

67 Subsection 245(4) of the Act Subsection 245(4) of the Act states: Subsection (2) applies to a transaction only if it may reasonably be considered that the transaction: would, if this Act were read without reference to this section, result directly or indirectly in a misuse of the provisions if any one or more of (i) this Act, (ii) the Income Tax Regulations, (iii) the Income Tax Application Rules, (iv) a tax treaty, or (v) any other enactment that is relevant in computing tax or any other amount payable by or refundable to a person under this Act or in determining any amount that is relevant for the purpose of that computation; or would result directly or indirectly in an abuse having regard to those provisions, other than this section, read as a whole 67

68 Abuse or Misuse Issues Subsection 245(4) Some issues emerging from the case law: What is abusive? Why do similar cases get decided differently? Who has to prove it? What is the role of economic substance? 68

69 Canada Trustco: Misuse or Abuse Subsection 245(4) The analysis of a misuse and abuse is inseparable Specific provisions must be interpreted in their legislative context The economic substance is only relevant where the statutory provisions focus on economic concepts 69

70 Canada Trustco: Misuse or Abuse Subsection 245(4) Whether the transactions were motivated by a non-tax purpose may be relevant but is by itself insufficient to establish abusive tax avoidance The Crown has the onus of proving abusive tax avoidance 70

71 Abuse or Misuse Issues Subsection 245(4) The Supreme Court notes that subsection 245(4) "has given rise to the most difficulty in the interpretation and application of the GAAR" Notwithstanding both the former and the current wording, it held that "abuse" and "misuse" are part of the same concept A court's task is to interpret the allegedly abused or misused statutory provisions in light of their purpose, determined by reference to their text and context 71

72 Lipson: Facts Parties to the Tax Court Appeal concluded an Agreed Statement of Facts (ASF) Agreement also made about the basis of the assessing positions taken by the CRA 72

73 Lipson: Facts (cont d) Mr. & Mrs. Lipson purchased a residence for $750,000 Mr. & Mrs. Lipson had secured a mortgage for $562,500 from financial institution Mrs. Lipson borrowed $562,500 from same financial institution in exchange for a promissory note and used the proceeds to purchase family corporation shares from Mr. Lipson for a fair market value price 73

74 Lipson: Facts (cont d) Mr. & Mrs. Lipson then used mortgage advance to pay off the promissory note Mr. Lipson admitted that all transactions were avoidance transactions Mr. Lipson argued that, by virtue of subsections 73(1) and 74.1(1), Mrs. Lipson s income from the dividends on the shares and loss from the payment of interest was attributed to Mr. Lipson, who claimed the interest expense net of the dividends as income (1995) or loss (1994 and 1996) from the shares 74

75 Lipson: Facts (cont d) History of reassessments important Crown argued interest expense first denied by Singleton Crown changed to GAAR as sole basis for challenge after Singleton wins in 2001 Crown never raised subsection 74.5(11) to deny attribution rules and acknowledged in ASF that attribution rules applied but for GAAR 75

76 Lipson v. The Queen Bank Step 1 $562,500 Loan ( Loan 1 ) Wife Step 2 Share Purchase $562,500 Husband Step 4 $562,500 Loan Secured by House ( Loan 2 ) Step 3 House Purchase $562, Step 5 Repayment of Loan 1 with Loan 2 Proceeds Vendor Share Purchase Transaction House Purchase Transaction

77 Lipson: Decision of TCC Chief Justice Bowman Reviewed the purpose of paragraph 20(1)(c), subsections 20(3) and 73(1), and section 74.1 and found that the transactions resulted in a misuse of these provisions Not one of the purposes of these provisions was being fulfilled by the series of transactions 77

78 Lipson: Decision of TCC Chief Justice Bowman (cont d) The overall purpose as well as the use to which each individual provision was put was to make interest on money used to buy a personal residence deductible The Court did not look to any overarching policy superseding the specific provisions of the Act 78

79 Lipson: Decision of TCC Cited 7 basic principles summarized in Canada Trustco and noted: The SCC directs a unified textual, contextual and purposive analysis not only of the sections giving rise to the tax benefit, but of the very section which can deny the benefit, i.e., section 245 This textual, contextual and purposive analysis is a general principle of statutory interpretation of broad application that should be applied to section 245 as well as to any other section of the Act 79

80 Lipson: FCA Decision (March 16, 2007) In affirming the TCC s decision in Lipson, the Federal Court of Appeal (FCA): indicated that the overall purpose of the series of transactions as a whole was relevant in determining "abuse" or "misuse (para ) followed Canada Trustco in giving weight to the TCC s conclusion on the "abuse" or "misuse" issue 80

81 Lipson: FCA Decision (March 16, 2007) (cont'd) FCA said that if transactions are considered without overall purpose, no misuse or abuse of any provisions relied on (paras ) FCA acknowledged that the transactions were real from a legal and economic perspective (para. 39) 81

82 Lipson: The Supreme Court of Canada Leave and Hearing SCC granted leave on October 25, 2007 (Chief Justice, Rothstein and Charron) SCC heard appeal on April 23, 2008 (Chief Justice and Bastarache not sitting 7 justices only) 82

83 Lipson: The Supreme Court of Canada (cont d) Lipson: Issues Raised in the SCC Hearing Is the application of GAAR a smell test? Are the choice of method and Duke of Westminster principles alive under GAAR? To what extent is economic substance relevant when GAAR is applied? What is the role of GAAR when a specific anti-avoidance rule (subsection 74.5(11)) does not apply? What is the effect of Lipson on Singleton and Ludmer? 83

84 Lipson: The Supreme Court of Canada (cont d) Lipson: Issues Raised in the SCC Hearing Is the overall purpose of series of transactions relevant in an abuse analysis under subsection 245(4)? Does the use of an overall purpose analysis under subsection 245(4) amount to a recharacterization? What is the interaction between subsection 245(3) and 245(4) as they relate to the purpose of a series of transactions? 84

85 Lipson: The Supreme Court of Canada (cont d) Lipson: Issues Raised in the SCC Hearing To what extent is abuse a question of fact rather than one of mixed fact and law? Are there inconsistencies in decisions of the lower courts and can there be certainty, predictability and fairness ( CPF concept) with GAAR? 85

86 Lipson: The Supreme Court of Canada (cont d) Lipson: The Supreme Court of Canada Majority Decision (January 8, 2009) The Majority Decision of Mr. Justice LeBel (Charron, Abella, Fish JJ) (53 paragraphs) Minister proved abusive tax avoidance Singleton not dispositive 2 Tax Benefits: Interest Expense for Mrs. Lipson and Attribution of Expense to Mr. Lipson Followed Canada Trustco methodology 86

87 Lipson: The Supreme Court of Canada (cont d) Lipson: The Supreme Court of Canada Majority Decision (January 8, 2009) Identify tax benefits, identify tax provisions giving rise to the benefits, identify object, spirit & purpose of the tax provisions, identify whether the overall result abuses the tax provisions No abuse of interest expense provisions 20(1)(c) and 20(3) (para. 41) Abuse of section 74.1 (paras ) 87

88 Lipson: The Supreme Court of Canada (cont d) Lipson: The Supreme Court of Canada Majority Decision (January 8, 2009) Reasonable consequences under 245(5) to deny attribution of interest expense but leave Mr. Lipson with dividends Subsection 74.5(11) not applicable on the facts Subsection 245(4) is not concerned with overall purpose (paras ) 88

89 Lipson: The Supreme Court of Canada (cont d) No collapse of transactions into one transaction or recharacterization (para. 33) Abuse must be related to specific transactions forming part of the series (para. 34) Entire series of transactions should be considered to determine abuse of provisions (paras ) 89

90 Lipson: The Supreme Court of Canada (cont d) Lipson: The Supreme Court of Canada Majority Decision (January 8, 2009) GAAR intended to create uncertainty but the Duke principle still alive (paras. 21, 52) Role of GAAR in the Act (para. 52) The GAAR overrides specific anti-avoidance rules (paras ) The abuse is the offset of net losses attributed against income from other sources (paras. 47, 117) Abuse to be proven on a balance of probabilities? (para. 21) 90

91 Lipson: The Supreme Court of Canada (cont d) Lipson: The Supreme Court of Canada Dissent #1 The Dissenting Reasons of Mr. Justice Binnie (Deschamps J.) (47 paragraphs) Crown admitted GAAR n/a to Singleton (paras ) Not abusive of section 74.1 to have GAAR with a spousal twist (para. 59) Interaction of sections 73 and 74.1 show result was what Parliament intended (paras ) Parliament didn t intend that only income and not loss be attributed (paras. 62, 78, 83) Subsection 74.5(11) n/a on facts (paras. 61 and 79) 91

92 Lipson: The Supreme Court of Canada (cont d) Minister had not proved the abuse of the statutory provisions clearly (paras. 96, 98) Rejection of overall purpose as a component of subsection 245(4) Analysis consistent with Canada Trustco principles (paras ) 92

93 Lipson: The Supreme Court of Canada (cont d) Lipson: The Supreme Court of Canada Dissent #2 (cont d) The Dissenting Reasons of Mr. Justice Rothstein (24 paragraphs) No abuse of the interest expense rules (para. 100) Taxpayers may arrange affairs to finance personal assets out of equity and income-earning assets out of debt (para. 100) GAAR not applicable because a specific rule preempted application (para. 102) 93

94 Lipson: The Supreme Court of Canada (cont d) Lipson: The Supreme Court of Canada Dissent #2 (cont d) Attribution of losses can occur from one spouse to another when Subsection 74.5(11) not applicable (para. 103) GAAR only available when no other recourse for Minister (para. 104) GAAR NOT intended to introduce uncertainty in tax planning (para. 104) 94

95 Lipson: The Supreme Court of Canada (cont d) Lipson: The Supreme Court of Canada Dissent #2 (cont d) GAAR a provision of last resort (paras. 104, , 116, 119) GAAR can only apply once Act read without GAAR Reading Act requires a review of enabling rule and the related specific anti-avoidance rule (para. 108) 95

96 Lipson: The Supreme Court of Canada (cont d) Lipson: The Supreme Court of Canada Dissent #2 (cont d) Reasonable to conclude that one of the main reasons for transferring shares was to reduce Mr. Lipson s tax on the dividends (para. 110) Subsection 74.5(11) not applicable to catch use of attribution rules to reduce income from other sources through attribution of loss (para. 112) 96

97 Lipson: The Supreme Court of Canada (cont d) Lipson: The Supreme Court of Canada Dissent #2 (cont d) Subsection 74.5(11) precluded application of attribution rules and therefore there would have been no abuse/misuse and GAAR not applicable (para. 113) Must apply a specific rule that could apply and cannot then rely on the GAAR to assist the CRA (paras , 118) 97

98 Lipson: The Supreme Court of Canada (cont d) Lipson: The Supreme Court of Canada Dissent #2 (cont d) GAAR and a specific anti-avoidance rule cannot apply concurrently (para. 116) GAAR not a catch-all provision to apply when abusive tax avoidance is suspected (para. 116) Parties cannot agree that a provision of the law did not apply (para. 118) 98

99 Lipson: The Supreme Court of Canada (cont d) Lipson: The Supreme Court of Canada Dissent #2 (cont d) The analysis of Binnie, J. was flawed (paras ) The analysis of LeBel, J. was flawed (paras ) Minister could only deny interest expense under GAAR (para. 121) 99

100 Lipson: The Supreme Court of Canada (cont d) Lipson: The Supreme Court of Canada Dissent #2 (cont d) Minister could only deny attribution under subsection 74.5(11) (para. 121) Seems anomalous that subsection 74.5(11) would deny attribution yet the rollover under subsection 73(1) would still be available to the transferor (para. 123) 100

101 Common Ground and Themes in the Lipson Sets of Reasons The Role of the Entire Series of Transactions No Recharacterization or Regard for Economic Substance The Continued Application of Canada Trustco and Kaulius Relevance of Overall Purpose 101

102 Common Ground and Themes in the Lipson Sets of Reasons (cont.) The Role of Subsection 74.5(11) The Deductibility of Interest Expense The GAAR is a Provision of Last Resort The GAAR is Not a Penal Provision or a Hammer to Pound Taxpayers into Submission The GAAR was Designed to Restrain Abusive Tax Avoidance But to Maintain Certainty and Fairness 102

103 Common Ground and Themes in the Lipson Sets of Reasons The Role of the Entire Series of Transactions Individual transactions must be viewed within the context of the series (paras. 22, 34) This gives context for the individual parts of the series (paras. 34, 36-37, 40) Affirms Kaulius comments (paras. 46, 56) Binnie, J. (para. 68) also agrees 103

104 Common Ground and Themes in the Lipson Sets of Reasons No Recharacterization or Regard for Economic Substance Discussion by LeBel, J. at paras , 38, 39 and 51 acknowledges this Binnie, J. affirms this (paras. 62, 64, 69, 87, 90 and 91) Crown fails in its argument that the interest expense was a personal expense and the interest was not deductible at all 104

105 Common Ground and Themes in the Lipson Sets of Reasons The Continued Application of Canada Trustco and Kaulius 19 Different paragraphs of Canada Trustco and six of Kaulius mentioned Methodology same (paras ) Interpret statutory provisions in issue (para. 27) Determine their essential object, spirit, purpose (para. 27) 105

106 Common Ground and Themes in the Lipson Sets of Reasons The Continued Application of Canada Trustco and Kaulius (cont d) Identify the tax benefits Identify which statutory provisions associated with which tax benefit (para. 28) Determine if avoidance transaction frustrates the object, spirit or purpose of relevant provisions (para. 33) Determine reasonable consequences under subsection 245(5) (paras ) 106

107 Common Ground and Themes in the Lipson Sets of Reasons Relevance of Overall Purpose Considered to be an error of law by LeBel, J. (para. 38) and Binnie, J. (para. 86) Not determinative in an analysis under subsection 245(4) Motivation, purpose and economic substance only relevant to the extent that they establish whether transaction frustrates purpose of a relevant provision (paras Canada Trustco) 107

108 Common Ground and Themes in the Lipson Sets of Reasons The Role of Subsection 74.5(11) All justice referred to it but NO consensus about its role in GAAR Analysis LeBel, J. (paras ) Binnie, J. (paras. 61 and 79) Rothstein, J. (paras ) 108

109 Common Ground and Themes in the Lipson Sets of Reasons The Deductibility of Interest Expense LeBel, J. (para. 41) says NO abuse of subsection 20(3) and paragraph 20(1)(c) Binnie, J. (paras , 60, and 70-73) says there is NO abuse Rothstein, J. (para. 100) reaches a clear conclusion after reading the reasons of LeBel, J. and Binnie, J. 109

110 Common Ground and Themes in the Lipson Sets of Reasons The GAAR is a Provision of Last Resort LeBel, J. (para. 47) a residual provision Binnie, J. (para. 94) and Rothstein, J. (para. 104) quote para. 21 in Canada Trustco Rothstein, J. emphasizes this point many times (paras. 104, , 116, 119) 110

111 Common Ground and Themes in the Lipson Sets of Reasons The GAAR is Not a Penal Provision or a Hammer to Pound Taxpayers into Submission LeBel, J. (para. 52) Rothstein, J. (para. 116) Not a catch-all provision for suspicion of abusive tax avoidance Binnie, J. (para. 55) a weapon that must be given a meaningful role 111

112 Common Ground and Themes in the Lipson Sets of Reasons The GAAR was Designed to Restrain Abusive Tax Avoidance But to Maintain Certainty and Fairness LeBel, J. (para. 52) Binnie, J. (para ) Rothstein, J. (para. 116) Uncertainty results because not obvious whether purpose of a statutory provision frustrated by an avoidance transaction 112

113 Points of Disagreement in the Reasons Did the Minister Establish Abusive Tax Avoidance? Binnie, J. highlights the issue (paras. 59, 65, 94-98) LeBel, J. makes reference to this issue (paras. 3 and 21) LeBel, J. agrees NO abuse regarding interest expense (para. 100) BUT NO demonstration of abusive tax avoidance without proper consideration of subsection 74.5(11) 113

114 Points of Disagreement in the Reasons The GAAR and Specific Anti-Avoidance Rules? LeBel, J. (para. 47) GAAR designed to address the complexity of provisions which fall outside the scope of specific anti-avoidance provisions Relates to impact of complex series of transactions which often depend on interplay of discrete provisions of the Act Rothstein, J. (para. 116) responds to LeBel, J. Binnie, J. (paras. 61 and 79) 114

115 Points of Disagreement in the Reasons GAAR can only be relied upon when a relevant specific Anti-Avoidance rule does not apply (Rothstein, J.) LeBel, J. (para. 45) If GAAR might apply, then courts should not refuse to apply it on ground that a more specific provision might also apply (Even if the parties considered it did not) 115

116 Points of Disagreement in the Reasons Reasonable Consequences Subsection 245(5) of the Act First case to really apply the provision 4 possible results could have occurred: LeBel, J. : Mr. (Dividends) Mrs. (interest expense) Binnie, J. : Mr. (Dividends and interest expense) Rothstein, J. : Mrs. (Dividends an interest expense) Crown : Mr. (Dividends) No one (interest expense) 116

117 What s New or Different in Lipson from Canada Trustco / Kaulius? Rejection of Overall Purpose Test Considered to be an error of law by LeBel, J. (para. 38) and Binnie, J. (para. 86) Not determinative in an analysis under subsection 245(4) Motivation, purpose and economic substance only relevant to the extent that they establish whether transaction frustrates purpose of a relevant provision (paras Canada Trustco) 117

118 What s New or Different in Lipson from Canada Trustco / Kaulius? Onus of Establishing Misuse or Abuse Binnie, J. highlights the issue (paras. 59, 65, 94-98) LeBel, J. makes reference to this issue (paras. 3 and 21) LeBel, J. agrees NO abuse regarding interest expense (para. 100) BUT NO demonstration of abusive tax avoidance without proper consideration of subsection 74.5(11) 118

119 What s New or Different in Lipson from Canada Trustco / Kaulius? The Retreat from the Requirement and Desirability for Certainty LeBel, J. (para. 52) Binnie, J. (para ) Rothstein, J. (para. 116) Why does uncertainty occur? Abuse not obvious whether purpose of a statutory provision frustrated by an avoidance transaction 119

120 What s New or Different in Lipson from Canada Trustco / Kaulius? Reasonable Consequences Subsection 245(5) of the Act First case to really apply the provision 4 possible results could have occurred: LeBel, J. : Mr. (Dividends) Mrs. (interest expense) Binnie, J. : Mr. (Dividends and interest expense) Rothstein, J. : Mrs. (Dividends an interest expense) Crown : Mr. (Dividends) No one (interest expense) 120

121 What s New or Different in Lipson from Canada Trustco / Kaulius? Specific Anti-Avoidance Rule v. the GAAR? LeBel, J. (para. 47) GAAR designed to address the complexity of provisions which fall outside the scope of specific anti-avoidance provisions Relates to impact of complex series of transactions which often depend on interplay of discrete provisions of the Act Rothstein, J. (para. 116) responds to LeBel, J. Binnie, J. (paras. 61 and 79) 121

122 The Significance of Lipson General Comments Impact of Lipson on the Duke of Westminster Principle LeBel, J. (para. 21) Principle remains but not absolute Binnie, J. (para. 54) How healthy? Principle tempered Rothstein, J. (para. 100) - Use words arrange affairs 122

123 The Significance of Lipson General Comments Interest Deductibility, Interpretation Bulletin IT 533 and Singleton Singleton shuffle still alive? Yes Binnie, J. refers to and endorses Singleton (paras , 62, 81, 87) Rothstein, J. endorses it in para. 100 LeBel, J. (paras. 19, 20 and 52) says Singleton and tracing not dispositive or determinative of the appeal no rejection of Singleton or tracing 123

124 The Significance of Lipson General Comments LeBel, J. refers to Singleton as an otherwise valid transaction Are IT 533 comments still applicable? Should be, possibly with some new reference to GAAR in the IT Will tracing immunize transactions from GAAR? not entirely (para. 52) Cash damming ok? Should be OK Impact on section 18.2? 124

125 The Significance of Lipson General Comments Impact on Tax Advice, Planning and Opinions Opinions will be given: Yet Lipson will require comment May result in qualifications Some transactions may not be the subject of favourable opinions Overall result will be an area requiring comment Will tax rulings be sought more frequently? 125

126 The Significance of Lipson General Comments The CRA s Possible Future Approach to Tax Audits and Tax Disputes Litigation risk exists for CRA and taxpayers Prospects for settlement should get better Crown lost many elements of the battle 126

127 The Significance of Lipson General Comments Both taxpayers and the Crown lost certainty How aggressively will CRA apply the GAAR? The justices warn against indiscriminate application Specific anti-avoidance rules will be applied frequently less defences and more certainty of result GAAR is uncertain because not always obvious if the purpose of a provision is frustrated Lipson shows this 127

128 The Significance of Lipson General Comments Possible Impact of Lipson on the Lower Courts Lipson principles will be followed - YET How will they be applied? Will a smell test emerge under the guise of applying Canada Trustco? 128

129 Collins & Aikman Products Co. V. The Queen, 2009 TCC

130 FACTS 130

131 FACTS 131

132 ISSUE 132

133 TAX COURT OF CANADA 133

134 TAX COURT OF CANADA 134

135 TAX COURT OF CANADA 135

136 Garron (now St. Michael Trust Corp.) Facts In 1992, PMPL Holdings Inc. ( PMPL ) was formed to hold shares of two operating companies 50% of PMPL shares were owned by Mr. Dunin and 50% of shares were owned by Garron Holdings Ltd. (GHL ) Mr. Garron ( Garron ) and other family members held all of the shares of GHL 136

137 Garron Facts In 1998, PMLP underwent a reorganization Dunin transferred his PMPL shares to a newlyincorporated holding company ( DHI ) GHL and DHI exchanged their common shares of PMPL for preferred shares with a redemption amount equal to FMV or $50 million 137

138 Garron Facts Common shares of PMPL were issued to Ontario Ltd. ( 325 ) and to Ontario Ltd. ( 333) for nominal consideration Shares of 325 were issued to Summersby Settlement (a Dunin family trust) and shares of 333 were issued to Fundy Settlement (a Garron family trust) (the Trusts ) 138

139 Garron Facts The Trustee of Summersby and Fundy was St. Michael Trust Corp., a company incorporated and licensed in Barbados Each Trust had a protector who had the power to remove and replace the trustee During 2000, the shares of PMPL were sold to an arm s length purchaser for $532 million 139

140 Garron Facts As a result of the sale of PMPL, the trusts disposed of the majority of the shares of 325 and 333 Summersby and Fundy each realized capital gain on their respective dispositions of 325 and 333 The Trusts claimed that the capital gain was exempt from Canadian income tax by virtue of provisions of the Treaty 140

141 Garron Facts Treaty Provision relied on by the Trusts - Article XIV(4) Gains from the alienation of any property, other than those mentioned in paragraphs 1, 2 and 3 may be taxed only in the Contracting State of which the alienator is a resident The Trusts were not subject to Barbadian income tax on the capital gains realized on the disposition of shares of 325 and

142 Garron Facts CRA issued reassessments on the basis that the capital gains were subject to Canadian tax because, among other things, the trusts were resident in Canada and GAAR should apply on the basis that there was a misuse or abuse of the Treaty Residence tie-breaking rule in the Treaty was not engaged by agreement of Canadian and Barbadian competent authorities 142

143 Garron Corporate Structure Prior to April 6, 1998 BERNA GARRON MYRON GARRON Garron Family Trust ANDREW DUNIN Garron Holdings Ltd. PMPL 143

144 Garron Corporate Structure As At April 6, 1998 Barbados Canada Summersby Settlement Fundy Settlement ANDREW DUNIN BERNA GARRON MYRON GARRON Garron Family Trust Dunin Holdings Inc. Garron Holdings Ltd. PMPL 144

145 Garron Key arguments that GAAR applies There was an abuse of the Treaty because the Treaty was used to avoid a specific anti-avoidance rule in the ITA which would result in the capital gain being subject to Canadian income tax The Treaty is designed to exempt only true residents of Barbados from Canada tax and the Trusts were not true residents of Barbados The capital gains realized by the Trusts were not not intended to be exempt from Canadian tax 145

146 Garron Key arguments that GAAR applies The Treaty provision dealing taxation of gains from the alienation of property is only intended to prevent double taxation and Barbados did not tax the capital gains realized by the Trusts The Treaty is not intended to permit an erosion of the Canadian tax base that could occur with widespread use of this type of tax planning 146

147 Garron TCC Decision The Taxpayer prevailed on all issues raised at trial, including GAAR, except the residence of the Trusts With respect to GAAR, the Taxpayers acknowledged that the transactions gave rise to a tax benefit and that the transactions were avoidance transactions 147

148 Garron TCC Decision - GAAR It is not an abuse of a tax treaty to use a provision of the treaty to avoid an antiavoidance rule in the ITA Tax treaties are not intended to assist tax avoidance but, in line with the OECD Commentary to the Model Double Taxation Convention, tax treaties should be amended to take account of domestic anti-avoidance legislation 148

149 Garron TCC Decision GAAR Treaty abuse is not established just because a provision of the ITA which would result in the capital gains of the Trusts being taxable is found to be inapplicable The Treaty applies to exclude the taxation of capital gains from Canadian taxation provided a taxpayer is a resident of Barbados it does not matter that the taxpayer s connection with Barbados is minimal 149

150 Garron TCC Decision GAAR A tax treaty allocates the right to tax it does not compel taxation of an amount in order for the amount to be exempted from tax in the other jurisdiction Erosion of the tax base is not a sufficient basis to find on which to find a tax treaty has been abused 150

151 Garron TCC Decision Residence TCC determined that the Trusts were resident in Canada and subject to Canadian tax on the capital gain realized on the disposition of shares of 325 and

152 Garron TCC Decision Residence The ITA does not contain specific provisions determining residence of a trust Under common law, residence of a corporation is determined by the location of its central management and control The common law tests for determining residence of a corporation are equally applicable in a trust context Adopting the corporate tests of residency for trusts will promote consistency, predictability and fairness in tax law 152

153 Garron TCC Decision Residence Relevant time of determining residency is when the Trusts disposed of the shares of 325 and 333 Key reasons why the central management and control of the Trusts abided in Canada The Trustee provided only administrative services to the Trusts It was not expected that the Trustee would have decision making responsibility beyond administrative matters 153

154 Garron TCC Decision Residence The protector could replace the Trustee and Dunin and Garron could replace the protector There was at least some evidence that which suggested that investment of cash proceeds received from the sale of shares of 325 and 333 was under the direction of Dunin and Garron The beneficiaries of the Trusts (all located in Canada) effectively chose the Trusts investment advisors 154

155 Garron TCC Decision Residence Tax minimization strategies were under the direction of Dunin for Summersby and Garron for Fundy The Taxpayers introduced virtually no documentation in support of the view that the Trustee actively managed the Trusts The Minister s evidence was consistent with the conclusion that the Trustee did not actively manage the Trusts 155