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Agency is a acknowledged accord whereby parties accede that one (the agent) shall act in accordance with the administration of the other (the principal). The employee-employer accord is conceivably the best apparent bureau relationship.



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One acute aspect about the bureau accord is that the agent’s diplomacy are attributed anon to the principal. For example, aback an abettor holds acreage on the principal’s behalf, the abettor is ignored, and the acreage is advised as though it were captivated anon by the principal. Likewise, if an agent receives the principal’s funds, those funds are the principal’s income, not the agent’s. And a arch may acquire abomination accountability for an agent’s behindhand conduct.

After reviewing the acknowledged abstraction of agency, this commodity looks at three examples in Canadian tax law area the actuality of a principal-agent accord proves significant: (i) the beneficial-owner analysis in Canada’s tax treaties; (ii) derivative tax accountability beneath area 160 of the Assets Tax Act and section 325 of the Excise Tax Act; and (iii) the GST/HST new apartment rebate beneath area 254 of the Excise Tax Act.



The appellation bureau has been authentic as “a fiduciary accord which exists amid two persons, one of whom especially or impliedly consents that the added should act on his annual so as to affect his relations with third parties, and the added of whom analogously consents so to act or so acts.” (Kinguk Trawl Inc. v. Canada, 2003 FCA 85).



An bureau accord has three capital ingredients: (1) the accord of both the arch and the agent; (2) the agent’s ascendancy to affect the principal’s acknowledged position; and (3) the principal’s ascendancy over the agent’s actions. (Royal Securities Corp. Ltd. v. Montreal Assurance Co. et. al, 1966 CanLII 173 (ONSC)).

An bureau accord may appear in at atomic one of two ways:

If no accounting bureau acceding exists, the parties’ conduct determines whether they advised to actualize an bureau relationship. The key affection is the akin of ascendancy that the declared principal exerts over the declared agent. (Fourney, ibid., at para 45.)

In an bureau relationship, the arch retains beneficial buying of any acreage accountable to that relationship. For example, in Prvost Car Inc. v. The Queen, 2008 TCC 231; aff’d 2009 FCA 57, the Tax Cloister of Canada held, and the Federal Cloister of Address affirmed, that:

The Tax Cloister of Canada has additionally again affirmed that a property’s benign buyer is the actuality who may use, enjoy, possess, actuate of, and abort the property:

The Tax Court’s comments reflect the private-law decisions about agency. Trident Holdings Ltd v Danand Investments Ltd., (1988) 49 DLR (4th) (ONCA), illustrates that a advocate is only an abettor if the advocate cannot use, actuate of, enjoy, or acquire the property. Moreover, Trident shows that the titleholder cannot alike be advised a trustee if the advocate has no absolute power, discretion, or responsibility. In Trident, the Ontario Cloister of Address captivated that the defendant, Danand, captivated title to acreage as an abettor and not a trustee because Danand acclimatized no ability or buying rights over the land. Danand’s sole function was to “hold acknowledged appellation to the acreage and to do the behest of the beneficiaries.”

To that end, the attack of bureau law—not the attack of assurance law—govern a bare-trust relationship. A bald assurance is a assurance area the trustee accurately owns a property with the sole assignment of accustomed appellation to the almsman upon demand. Otherwise, a bald trustee has no absolute power, discretion, or responsibility. (see: Trident, ibid.). In these circumstances, bureau law applies because accord amid the trustee and almsman is chiefly an agent-principal relationship:

As a result, Canada’s tax laws about attending through a bare trust—that is, they abstain the bald trustee and amusement the almsman as accepting dealt anon with the assurance property. Annex 104(1) of the Assets Tax Act says that “a assurance is accounted not to accommodate an adjustment beneath which the assurance can analytic be advised to act as abettor for all beneficiaries beneath the trust.” Various commentators—including the Canada Revenue Agency—have interpreted this article as Parliament’s way of acknowledging that the Assets Tax Act’s assurance rules don’t administer to a bald trust.

Canada’s tax law about aims to reflect how the private law would amusement an agent. It does so by blank the abettor and by alleviative the assets or acreage as that of the principal. And Canadian assembly accept advancing situations area a taxpayer ability attack to abstain tax by invoking an abettor to access an bogus transaction.

An archetype of this is the beneficial-owner test, which seeks to anticipate taxpayers from treaty-shopping favorable tax ante by accumulation a bald abettor in a accord country.

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A tax accord is a mutual acceding amid Canada and another country. These treaties circumscribe tax administration amid the application countries with annual to taxpayers who are accountable to both countries’ tax regimes. As a result, Canada’s tax treaties ensure that taxpayers don’t acquire bifold tax.

To do this, a tax accord might, say, abate the bulk at which Canada may tax the Canadian-sourced assets of a tax citizen in the added country. For instance, if a Canadian association pays a allotment to a US corporation, Commodity X in the Canada-US Tax Treaty banned the bulk at which Canada may tax the US resident’s allotment income. Specifically, Canada cannot allegation added than 5% denial tax on the allotment if the US association is the “beneficial owner” of that dividend.

The beneficial-owner affirmation prevents a taxpayer—who contrarily has no affiliation to either accord country—from inserting an abettor in a accord country to adore the favorable tax rate. Suppose that a association in a non-treaty country expected to accept a allotment from its Canadian subsidiary. If the dividend were paid anon to the ancestor corporation, the Canadian accessory charge abstain 25% for Canadian tax. (Unless a tax treaty specifies a lower rate, the 25% bulk is the absence withholding bulk beneath Canada’s Assets Tax Act.) Hoping to access the 5% withholding-tax bulk beneath the Canada-US Tax Treaty, the parent association ability alteration its shares in the Canadian corporation to a wholly endemic US corporation. Now, if it weren’t for the beneficial-owner requirement, the allotment could breeze from Canadian association through the US association to the non-treaty parent, and the Canadian association charge alone abstain 5% Canadian tax on the dividend.

The Canada Revenue Bureau challenged a agnate transaction in Prevost Car Inc. v The Queen, 2008 TCC 231; aff’d 2009 FCA 57. In this case, a Canadian association paid assets to its Dutch ancestor company, which in about-face paid almost the aforementioned absolute bulk to its own shareholders: a Swedish aggregation and a UK company. When advantageous the assets to its Dutch parent, the Canadian company withheld 5% for Canadian assets tax in accordance with the Canada-Netherlands Tax Treaty.

When the CRA adjourned the Canadian corporation, however, it activated the denial ante from the Canada-Sweden Tax Treaty (15%) and the Canada-UK Tax Accord (10%). The Canada Revenue Agency declared that the Dutch ancestor was alone an agent, and that the UK aggregation and the Swedish aggregation were the “beneficial owners” of the dividend. Therefore, the CRA reasoned, the Canada-Netherlands Tax Accord didn’t apply, nor did its 5% income-tax denial rate.

The Canadian association appealed the CRA’s appraisal to the Tax Cloister of Canada.

The Tax Cloister of Canada ultimately alone the Canada Revenue Agency’s position. The Tax Cloister assured that the Dutch aggregation was not an abettor but the “beneficial owner” of the assets paid by its Canadian subsidiary. The cloister based its cessation on the afterward findings:

As a result, the cloister accustomed the taxpayer’s appeal, alone the CRA’s assessment, and reinstated the 5% income-tax denial rate. The Federal Cloister of Address afterwards affirmed the Tax Court’s decision.

The Prevost accommodation illustrates the factors that a cloister may accede to anticipate whether an bureau accord exists.

Section 160 of the Assets Tax Act is a tax accumulating tool. It thwarts a aborigine who attempts to adumbrate assets from the CRA’s tax collectors by appointment those assets to a non-arm’s-length party. If the aphorism applies, the recipient becomes “jointly and severally liable” for an amount according to the bottom of:

This bureau that income-tax debts can canyon from one aborigine to addition as a aftereffect of a non-arm’s-length alteration involving below-market consideration.

Section 325 of the Excise Tax Act contains a agnate aphorism in affiliation to GST/HST. So, like income-tax debts, GST/HST debts can canyon from one aborigine to addition as a aftereffect of a non-arm’s-length alteration involving below-market consideration.

Courts readily accept that this tax aphorism may advance to a patently biased result. The Federal Cloister of Address has gone so far as to alarm area 160 a “draconian provision” (Wannan v. Canada, 2003 FCA 423, at para. 3).

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So, it’s no abruptness that a cloister may attending to adios the accouterment aback faced with a actual affectionate case. To this end, courts accept about relied on the actuality of an agency relationship.

For instance, in LeBlanc v The Queen, 99 DTC 410 (TCC), a taxpayer’s wife took over his banking diplomacy aback he became actual ill. The wife deposited the taxpayer’s RRSP into their collective coffer annual and acclimated the funds alone for her husband’s finances. The aborigine owed money to the CRA aback his wife transferred his RRSP into their collective account. So, the CRA assessed the wife beneath area 160 of the Assets Tax Act. Notably, the rule applies alone if the aboriginal tax debtor aborigine “transferred property, either anon or indirectly, by bureau of a assurance or by any added bureau whatever.” This across-the-board accent would advance that the wife was bent by the rule. Yet the Tax Cloister of Canada captivated that no alteration took place. In particular, the court absitively that the funds did not belong in the wife because she only dealt with the funds as her husband’s agent. Annex 160(1) accordingly did not apply.

After the LeBlanc decision, the Tax Cloister of Canada and the Federal Cloister of Address appear several adverse decisions about whether area 160 activated to a actuality who acquired property alone as an agent.

Some decisions advance that accepting acreage alone as an abettor doesn’t thereby cede one allowed from area 160. In The Queen v Livingston, 2008 FCA 89, a tax debtor deposited funds into his friend’s coffer account. The CRA adjourned the friend beneath area 160. In response, the acquaintance appealed, arguing that she had acted as a bald abettor aback accepting the funds. She based her position on the Tax Court’s LeBlanc decision. The Federal Cloister of Address alone her arguments and questioned the LeBlanc decision:

The appellate cloister captivated that the drop constituted a transfer to the acquaintance because the coffer annual was alone beneath the friend’s name and appropriately “permitted [her] to abjure those funds herself anytime.” The cloister assured that area 160 accordingly activated to the friend.

Yet added decisions advance that an abettor isn’t accountable when accepting acreage in that capacity. In Lemire v The Queen, 2012 TCC 367, a tax debtor and his acquaintance fabricated an articulate agreement: the tax debtor would address cheques to his friend, who would then drop the cheques into her claimed coffer account, abjure the agnate in cash, and promptly pay that banknote aback to the tax debtor. The CRA adjourned the acquaintance beneath area 160 for the amounts she deposited into her claimed coffer account. The Tax Court of Canada captivated that area 160 didn’t administer because no alteration took place. The acceding amid the debtor and his acquaintance meant that “[a]t no time did the [friend] accept the adapted to use, adore or actuate of the gain of the deposited cheques as she saw fit.” Moreover, the acquaintance “never believed that the deposits would accumulation her, or alike that she could adapted them, in accomplished or in part.” The Tax Court explained that, admitting the Federal Cloister of Appeal’s comments in Livingston, the angle of bureau still accepted accordant in free whether a alteration absolutely took place:

And aback the Crown appealed the Tax Court’s accommodation to the Federal Cloister of Appeal, the appellate cloister upheld the lower court’s accommodation (see: Lemire, 2013 FCA 242).

None of these decisions, however, advised the admeasurement of the declared agent’s accountability accustomed the amount of the acreage that was transferred. The above-noted jurisprudence focused on the catechism whether a conveyance from an declared arch to an declared abettor constituted a “transfer” for the purpose of area 160.

Yet alike if such an adjustment constitutes a “transfer,” a cogent catechism remains: What property has been transferred? Recall that a taxpayer’s accountability under area 160 is capped at the fair bazaar amount of the transferred property. And in an bureau relationship, the arch retains benign buying of any acreage accountable to that relationship. So, if the abettor obtains acknowledged appellation to that property, again the transferred acreage is the adapted consisting of acknowledged appellation absent the rights that appear with benign ownership.

This bureau that, behindhand of whether a alteration occurred, an agent’s accountability beneath area 160 should be nominal. For acknowledged appellation is arguably of nominal amount if it doesn’t come with the added rights that commonly accompany true ownership—e.g., the adapted of disposition, the adapted of possession, the adapted of use and control, the adapted of enjoyment, the adapted of exclusion, etc. Yet this arid acknowledged appellation is exactly what an abettor acquires in the ambience of an bureau relationship. Because the accountability beneath area 160 cannot beat the amount of the transferred property, the abettor should acutely acquire minimal accountability as a aftereffect of a area 160 assessment.

Unfortunately, Canada’s tax jurisprudence has yet to address this question.

In The Queen v Cheema, 2018 FCA 45, a majority of the Federal Cloister of Address captivated that a new-home client cannot affirmation the GST/HST New Apartment Abatement if a co-signer of the acquirement agreement doesn’t additionally absorb the home—even if the co-signer acted as a bald trustee for the purchaser’s benefit.

This accommodation stands in aciculate adverse to the analysis of bare trusts in Canadian tax law, which about ignores such a trust because it constitutes an bureau accord (DeMond v The Queen, [1999] 4 CTC 2007 (TCC), at para 37).

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Mr. Cheema capital to buy a new-build residential property. But he couldn’t defended a mortgage by himself. So, Cheema asked his friend, Dr. Akbari, for help.

To this end, Dr. Akbari active the acceding of acquirement and auction as a purchaser—along with Cheema and his spouse. Cheema and Akbari additionally agreed that Akbari wouldn’t accept any absolute absorption in the property, wouldn’t pay any of the acquirement amount or expenses, and wouldn’t alive in the house.

On closing, Cheema and his apron acquired an absorbed 99% absorption in the property; Akbari acquired a 1% interest. The parties additionally active a bare-trust acceding documenting the nature of their relationship. The acceding declared that:

The Canada Revenue Bureau alone Cheema’s GST/HST New Apartment Rebate. Area 254(2) of the Excise Tax Act confined the abatement unless (among added conditions):

Although Akbari active the acquirement and auction agreement, he didn’t use the acreage as his primary residence, and he didn’t alone absorb the home. So, he didn’t accommodated the altitude in area 254(2) of the Excise Tax Act. As a result, the CRA denied Cheema’s GST/HST New Apartment Rebate.

Cheema appealed the CRA’s analysis to the Tax Cloister of Canada.

Appearing afore the Tax Cloister of Canada, Cheema argued that Akbari wasn’t accountable to the altitude set out in subsection 254(2) of the Excise Tax Act because Akbari was a bald trustee. In added words, those altitude alone administer to the beneficial owners—namely, Cheema and his spouse.

The Crown didn’t altercation the actuality that Cheema and his spouse annoyed the abatement conditions. But, the Crown argued, because Akbari active the acceding of acquirement and sale, he was required to absorb the property. Since Akbari didn’t absorb the property, the abatement was unavailable.

The Tax Cloister of Canada sided with Cheema. Drawing from the acceptable tax analysis of bald trusts, the cloister articular that a bald trustee charge not accommodated the altitude set out in subsection 254(2) of the Excise Tax Act. As a result, the cloister allowed Cheema’s address and acceptable the GST/HST New Housing Rebate.

In response, the Crown appealed the Tax Court’s accommodation to the Federal Cloister of Appeal.

A breach Federal Cloister of Address chaotic the Tax Cloister of Canada’s accommodation and absitively that a aborigine couldn’t authorize for the GST/HST New Apartment Abatement unless anybody who active the acquirement acceding active the home as a primary place of residence. Stratas J.A. delivered the majority opinion; Nadon J.A. concurred. Webb J.A., however, produced a forceful dissent.

The majority articular that the Tax Cloister erred by relying on the bare-trust acceding aback apprehension its decision. According to the majority Federal Cloister of Appeal, annex 254(2) of the Excise Tax Act doesn’t analyze amid benign and legal ownership; it requires that anniversary alone who assumes legal accountability to the architect beneath the acquirement acceding to satisfy the abatement conditions.

Justice Webb, however, offered a able-bodied bone opinion. He assured that Akbari needn’t amuse the abatement conditions annex 254(2) of the Excise Tax Act.

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