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Citation: 2005TCC67
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Date: 20050119
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Docket: 2000-4822(IT)G
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BETWEEN:
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HEXALOG LTD,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Dussault J.
[1] These are appeals of assessments established for 1995, 1996, 1997 and 1998 in accordance with subsection 227(10) of the Income Tax Act (the "Act") regarding the penalty set out in subsection 237.1(7.4) of the Act. This penalty was imposed on the Appellant for having violated the provisions in subsection 237.1(4) of the Act, having sold a "tax shelter" before the Minister of National Revenue (the "Minister") issued an identification number for the "tax shelter."
[2] In establishing the assessments, the Minister relied on the following facts stated in subparagraphs (a) to (l) of paragraph 5 of the Reply to the Notice of Appeal:
[translation]
(a) The Appellant is a Canadian-controlled private corporation;
(b) The Appellant promotes investment in a teakwood farm or plantation in Costa Rica, as an agent of Maya Forestales S.A. (hereinafter called "the Company");
(c) According to the Company's statement or proposal (hereinafter called "the Statement"), the investor acquired a wood lot to reforest and the planting rights on this lot in Costa Rica for $100;
(d) According to the Statement, the investor mandates the Company to manage the lot, spread herbicides and fertilizer, prepare the seedlings, plant them on the lot, etc. and pays it management and development fees of $9,900;
(e) According to the Statement, the $9,900 in subparagraph (d) is deductible in the year the expenses in subparagraph (d) are paid;
(f) According to the Statement, the Company issues a buyback offer, for which a minimum value (70%) of the purchase is accompanied by a bank letter of guarantee;
(g) The amount required to execute the guarantee is deposited into a trust account on behalf of the investor, in a Canadian financial institution;
(h) According to the Statement, for 1995 and 1996, acquiring a share in the teakwood plantation would give the investor a deduction equal to 99% of the cost of a share in the teakwood plantation for the first year; this is higher than the cost of a share (100%) minus the buyback offer of 70% of a share and as a result, a share in the teakwood plantation represents a tax shelter;
(i) There was no application to obtain an identification number for the tax shelter described in subparagraph (h) filed with the Minister for any of the years in question;
(j) The amounts of the sales of the tax shelters were:
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1995:
1996:
1997:
1998 :
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$30,000
$192,000
$40,000
$30,000
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(k) For 1995 and 1996, according to the Statement, in the case of a $10,000 investment, the deductible amount in the first four years would be $9,400, an amount higher than the surplus of the $10,000 cost minus the $7,000 guarantee.
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$9,900 > $10,000 - (70% of $10,000) = $3,000
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$9,900 > $3,000
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(l) For 1997 and 1998, the investor was allowed an additional 2% in the years following the purchase, so that the total deductions in the four years following acquisition would be 99% + 2% for three years, for 105%. This total is greater than the excess of the 106% cost that represented (100% + 2% annual fees for 3 years) - the amount payable to Maya Forestales (6%).
[3] At the beginning of the hearing, counsel for the Appellant stated that the only issue was whether the Appellant did or did not sell a "tax shelter" within the meaning of subsection 237.1(1) of the Act and subsection 231(6) of the Income Tax Regulations (the "Regulations").
[4] However, in his arguments, he stated that 1995 and 1996 were statute-barred and it was the Respondent's responsibility to prove that the Appellant made an erroneous representation of facts and to show that the penalty applied to the total amount of sales and not only to the part that corresponded to the cost of the lot's sale.
[5] On these additional issues relating to the limitation period and burden of proof for penalties, counsel for the Appellant relied particularly on Bigayan v. Canada, [1999] T.C.J. No. 778 (Q.L.), [2000] 1 C.T.C. 2229, 2000 DTC 1619, and Hans v. Canada, [2003] T.C.J. No. 464 (Q.L.), [2004] 1 C.T.C. 2078, 2003 DTC 1065. However, these decisions deal mainly with income tax assessments established after the end of the usual reassessment period under subparagraph 152(4)(a)(i) of the Act; it is known that in such cases, the Minister is responsible for establishing the facts that led him to perform an assessment after the end of this period, meaning he must show that the taxpayer made an erroneous claim through negligence, inattention or voluntary omission, or committed some sort of fraud when making a claim or providing information under the Act. These decisions also deal with the penalty that, in cases of omissions or false statements made knowingly or in circumstances that equal gross negligence, is imposed in accordance with subsection 163(2) of the Act; a penalty for which subsection 163(3) specifically states that the Minister is responsible for establishing the facts that justify the assessment.
[6] However, the assessments in this appeal are not ordinary tax assessments that can include the penalty set out in subsection 163(2) of the Act; they are a different type. First, these assessments were established under subsection 227(10) of the Act, not under subparagraph 152(4)(a)(i). Paragraph 227(10)(b) specifically authorizes establishing an assessment for the amount of the penalty set out in subsection 237.1(7.4) of the Act, regarding a "tax shelter," and such an assessment may be established at any time. Paragraph 227(10)(b) states:
227(10)
(10) Assessment. Then Minister may at any time assess any amount payable under:
(a) . . .
(b) subsection 237.1(7.4) by a person or partnership;
(c) . . .
(d) . . .
. . .
[7] Moreover, this penalty set out in subsection 237.1(7.4) is very different than the one set out in subsection 163(2) of the Act. Although it can be imposed when a person provides false or misleading information to the Minister in an application for an identification number for a "tax shelter," it can also be imposed, as in this case, when a person violates subsection 237.1(4) of the Act. Under this provision, no person shall sell or issue a "tax shelter" or accept consideration in respect of a "tax shelter" before the Minister has issued an identification number for the "tax shelter." In short, the assessments regarding the penalty set out in subsection 237.1(7.4) are not related to an income tax assessment established after the usual period for a reassessment under subparagraph 152(4)(a)(i) or with the penalty set out in subsection 163(2) of the Act. There is therefore no issue of limitation period or reversing the initial burden of proof that lies with the Appellant.
[8] This being said, I will deal with the specific case of applying the penalty set out in subsection 237.1(7.4) to the amounts in question after dealing with the definition of "tax shelter" and its application to the present case.
[9] Subsection 237.1(1) of the Act provides the definition of "tax shelter." For the years in question, the definition read:
"tax shelter" - "tax shelter" means any property (including, for greater certainty, any right to income) in respect of which it can reasonably be considered, having regard to statements or representations made or proposed to be made in connection with the property, that, if the person were to acquire an interest in the property, at the end of a particular taxation year that ends within 4 years after the day on which the interest is acquired:
(a) the total of all amounts each of which is:
(i) an amount, or a loss in the case of a partnership interest, represented to be deductible in computing income in respect of the interest in the property (including, where the property is a right to income, an amount or loss in respect of that right that is represented to be deductible) and expected o be incurred by or allocated to the person for the particular year or any preceding taxation year, or
(ii) any other amount represented to be deductible in computing income or taxable income in respect of the interest in the property and expected to be incurred by or allocated to the person for the particular year or any preceding taxation year, other than any amount included in computing a loss described in subparagraph (i);
would equal or exceed
(b) the amount, if any, by which:
(i) the cost to the person of the interest in the property at the end of the particular year, determined without reference to section 143.2,
would exceed
(ii) the total of all amounts each of which is the amount of any prescribed benefit that is expected to be received or enjoyed, directly or indirectly, in respect of the interest in the property by the person or another person with whom the person does not deal at arm's length,
but does not include property that is a flow-through share or a prescribed property.
[10] Moreover, subsection 231(6) of the Regulations stated:
(6) For the purposes of paragraph (b) of the definition "tax shelter" in subsection 237.1(1) of the Act, "prescribed benefit" in respect of an interest in a property means any amount that may reasonably be expected having regard to statements or representations made in respect of the interest, to be received or enjoyed by a person (in this subsection referred to as "the purchaser") who acquires the interest, or a person with whom the purchaser does not deal at arm's length which receipt or enjoyment would have the effect of reducing the impact of any loss that the purchaser may sustain in respect o the interest, and includes such an amount:
(a) that is, either immediately or in the future owed to any other person by the purchaser or person with whom the purchaser does not deal at arm's length, to the extent that:
(i) liability to pay that amount is contingent,
(ii) payment of that amount is or will be guaranteed by security is or will be provided by or in agreement to indemnify the other person to whom the amount is owed is or will be entered into by:
(A) a promoter in respect of the interest,
(B) a person with whom the promoter does not deal at arm's length, or
(C) a person who is to receive a payment (other than a payment made by the purchaser) in respect of the guarantee, security or agreement to indemnify,
(iii) the rights of that other person against the purchaser or against a person with whom the purchaser does not deal at arm's length in respect of the collection of all or part of the purchase price are limited to a maximum amount, are enforceable only against certain property, or are otherwise limited by agreement, or
(iv) payment of that amount is to be made in a foreign currency or is to be determined by reference to its value in a foreign currency and it may reasonably be considered, having regard to the history of the exchange rate between the foreign currency and Canadian currency that the aggregate of all such payments when converted to Canadian currency at the exchange rate expected to prevail at the date on which each such payment would be required to be made, will be substantially less than that aggregate would be if each such payment was converted to Canadian currency at the time that each such payment became owing,
(b) that the purchaser or a person with whom the purchaser does not deal at arm's length is entitled at any time to, directly or indirectly, receive or have available
(i) as a form of assistance from a government, municipality or other public authority, whether as a grant, subsidy, forgiveable loan, deduction from tax or investment allowance, or as any other form of assistance, or
(ii) by reason of a revenue guarantee or other agreement in respect of which revenue may be earned by the purchaser or a person with whom the purchaser does not deal at arm's length to the extent that the revenue guarantee or other agreement may reasonably be considered to ensure that the purchaser or person will receive a return of all or a portion of the purchaser's outlays in respect of the interest;
(c) that is the proceeds of disposition to which the purchaser may be entitled by way of an agreement or other arrangement under which the purchaser has a right, either absolutely or contingently, to dispose of the interest (otherwise than as a consequence of the purchaser's death) including the fair market value of any property that the agreement or arrangement provides for the acquisition of in exchange for all or any part of the interest, and
(d) that is owed to a promoter, or a person with whom the promoter does not deal at arm's length, by the purchaser or a person with whom the purchaser does not deal at arm's length in respect of the interest,
but, except as otherwise provided in subparagraph (b)(ii), does not include profits earned in respect of the interest.
[11] The promotional documents regarding the investment in the teakwood plantation for which Maya Forestales was the registered owner in Costa Rica, directed at Canadian buyers, were all different. On the first page of Exhibit I-1 we find:
[translation]
TEAKWOOD LOTS
• Purchase • Development • Production
• 99% tax deductible
• 100% yield per year
• Complete, binding buyback guarantee
. . .
On the second page of the same exhibit:
[translation]
Now and then you think
about all the things you But how can you with
will do when you retire. all these taxes?
Here is a GREEN investment that will grow
like GOLD in a tax shelter.
Do what we are doing.
Build your own
TEAKWOOD company.
• Each person who buys a lot to develop with teakwood mandates management of the resulting precious wood production company to Maya Forestales S.A. in San José.
• The "statement of earnings" (expenses or income) of this precious wood production company is "transferred" annually to the owners who are required to disclose the results, losses and profits, to the ministry of revenue of their country.
• Maya Forestales S.A. guarantees the "due performance" of its mandate by providing a buyback offer on the lot, whose minimum value (70%), accompanied by a binding bank letter of guarantee or equivalent.
• A "teakwood" lot makes up the best annuity value for your retirement or the nicest value to pass on to your heirs.
Retirement . . .
We have thought about it too!
Maya Forestales S.A.
[12] The third page of Exhibit I-1, called [translation] "Profit projections," refers to a certain number of calculations for a [translation] "teakwood company or 100 trees (for CAN$100)."
[13] Exhibit I-2, another promotional document, has the following on the first page:
[translation]
A teakwood company brings:
• 99% deductible expenses.
• 100% yield per year.
• A complete, binding guarantee.
...
[14] Page 2 of Exhibit I-2 states, among others:
[translation]
THE COMPANY:
1- You purchase a lot to be planted, and the planting rights.
2- You mandate Maya Forestales S.A. to develop the woodlot.
3- You become a teakwood producer. (Code 0410).
THE RESULTS:
1- All development expenses are deductible from other sources.
2- The "statement of earnings" (profits or losses) from this precious wood production company is "transferred" annually to the owner, who is responsible for disclosing the profits or losses to the ministry of revenue of their country.
3- All profits are tax exempt for life in Costa Rica (Act 7174).
THE GUARANTEE: (Copyrights filed in Canada)
1- Maya Forestales S.A. guarantees the "due performance" of its mandate by providing a buyback offer on the lot, whose minimum value (70%), is accompanied by a binding bank letter of guarantee or equivalent.
THE INVESTMENT'S VALUE:
1- A "teakwood" lot provides the best value for your retirement or to pass on to your heirs. It will bring a 100% yield per year not considering inflation.
[15] Exhibit I-3 is another promotional document stating, on page 2, that all development expenses were deductible from other sources and that the company Maya Forestales S.A. offered the investor a comprehensive insurance, with financial compensation of 100% of initial costs.
[16] Exhibit I-4 is another promotional document, allegedly used in 1998. In it, on page 2, it states that it is an investment in [translation] "a three-year-old teakwood lot" and, on page 4, that all operational expenses were deductible in the owner's country.
[17] Exhibits I-5 and I-6 are examples of pre-printed contracts that were proposed to investors in 1997 and 1998. Attached to the purchasing contract, for the price of $100 for a lot to plant 100 trees, and to the contract to develop the lot for $9,900, was another contract to maintain the teakwood lots and for cutting and commercializing the wood, for an eight-year period. Specifically mentioned in this contract, are the maintenance and forest engineering fees of 2%, payable in US currency, payable annually and included in the 40% of the net sale price that Maya Forestales S.A. would keep when the trees were cut at the end of the eight-year period. In Exhibit I-6, it is specifically stated, on page 3, that the annual maintenance and forest engineering fees of 2 %, payable in US currency, were deductible annually.
[18] These various documents can be summarized by stating that the investment proposed to Canadians in the teakwood plantation, for which Maya Forestales S.A. was the registered owner in Costa Rica, had two components. First, there was a lot or part of a lot of this plantation for an amount representing 1% of the investment, namely $100 in the case of a $10,000 investment. Then, there was the payment for the management fees of this lot or part of a lot, representing 99% of the investment, namely $9,900 in this $10,000 investment case.
[19] According to the contracts signed in 1996, investors could exercise an option to transfer their lots to Maya Forestales S.A. at the end of the eight-year period, within 180 days of the end of this period. Maya Forestales guaranteed the buyback of the lot for an amount equal to 70% of the original cost, including the lot purchase (1%) and management fees (99%), for $7,000 in the case of a $10,000 investment. If, at the end of the eight-year period, the investor decided to proceed to cut and sell the wood, Maya Forestales S.A. kept an amount equal to 40% of the net sale of the wood, in logging and commercialization fees.
[20] In 1997 and 1998, this buyback guarantee for 70% of the investment was no longer in the contracts. However, in addition to the initial cost of the investment, the investors were asked to pay additional maintenance and forest engineering fees of 2% per year, payable in UScurrency. These were included in the 40% in logging and commercialization fees that Maya Forestales S.A. kept. There is no indication of the amount used to calculate these additional fees, but it seems that they were calculated based on the amount of the initial investment. In Exhibit I-6, an example of a contract signed in 1998, it is specifically mentioned that these fees were deductible annually.
[21] Counsel for the Appellant claims that a clear distinction must be made between the two components of the investment, since there is first the acquisition of an asset, and then payment for services. In his opinion, applying the formula found in the definition of "tax shelter" cannot give the result the Respondent is claiming, since no amount is deductible in respect of the property itself, the lot or part of a lot acquired for 1% of the investment amount or $100 in the case of a $10,000 investment. So, the development fee of 99%, or $9,900 in the case of a $10,000 investment, would be a deductible amount, not in respect of the property acquired (the lot or part of a lot), but essentially, for services to be rendered by Maya Forestales S.A. under the terms of a mandate entrusted by the investor. As for the issue of the buyback guarantee equal to 70% of the initial investment amount, $7,000 for a $10,000 investment, applicable for 1995 and 1996, counsel for the Appellant claims that this is in no way a guarantee to buy back the acquired property, namely the lot or the part of the lot in the plantation, but rather a guarantee, after an eight-year period, to buy back the trees that would have grown on this lot or part of the lot, so that there was no benefit under subsection 231(6) of the Regulations that would reduce the cost of the acquired property by applying subparagraph (b)(ii) of the definition of "tax shelter." Regarding the additional development fee of 2% per year payable after the first year, here again, counsel for the Appellant claims that these are amounts deductible not in respect of property acquired but essentially for services, so that the proposed investment cannot be considered a "tax shelter" within the meaning of subsection 237.1(1) of the Act.
[22] While recognizing that the proposed investment consists of two components, namely, for the investor, purchasing a lot or a part of a lot and payment in advance for development fees for this lot, I feel that the two components are part of an inseparable whole, a package deal, that was represented as such in the promotional documents. According to these documents, investors acquired "a teakwood lot," or a forestry company for which they could deduct all development and maintenance fees for tax purposes. The cost of the interest the investors gain in "their teakwood lot" included both the cost of the lot or part of a lot and the trees to be planted, and all the development and management fees. Obviously, the way the investment was structured and presented held out the prospect of the most possible tax deductions to the potential investors, taking into consideration their investment. It is clear that an investor would not only be interested in buying a lot or part of a lot in a plantation in Costa Rica and the right to plant 100 trees there for $100 with nothing else, meaning without the additional amount of $9,900, which was presented as tax deductible in its entirety. Common sense would not allow such a theory. The opposite is also true: paying development fees would only be done if the lot or part of a lot to develop had been purchased. This is how the two components are inseparable and form a whole. This whole was, in fact, proposed and sold as such to investors, and for which they paid a comprehensive amount.
[23] I do not have to make a decision on the issue of whether the development fees that correspond to 99% of the investment amount could actually be deductible or entirely deductible for tax purposes; I am only deciding on the issue of which amounts were presented as deductible. In the circumstances, I feel that it is 99% of the cost of the teakwood lot in Costa Rica, or 99% of the total cost of the share acquired in the property, which was advertised as being deductible, that is the number to consider in accordance with the terms of subparagraph (a)(ii) of the definition of "tax shelter" in subsection 237.1(1) of the Act. This corresponds to the expression "in respect of the interest in the property." In the various parts of section 237.1 of the Act, the expression "in respect of" appears more than 30 times and is rendered by the following expressions in French: "au titre de," "relativement à," "en ce qui concerne" and "quant à." In my opinion, these expressions should be treated as equivalents and the French text should be interpreted as having the broadest possible meaning of the English expression "in respect of" that expresses some kind of tie or connection between two subjects or two things. In the Supreme Court of Canada judgment Nowegijick v. The Queen, [1983] 1 S.C.R. 29, Dickson J. stated the following, regarding the meaning of this expression, at page 39 of the judgment;
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The words "in respect of" are, in my opinion, words of the widest possible scope. They import such meanings as "in relation to", "with reference to" or "in connection with". The phrase "in respect of" is probably the widest of any expression intended to convey some connection between two related subject matters.
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[24] These comments were restated by Iacobucci J. speaking for the majority in the Supreme Court of Canada decision Slattery (Trustee of)v. Slattery, [1993] 3 S.C.R. 430, at page 445, and by Major J. also speaking for the majority in the Supreme Court decision Markevich v. Canada, [2003] 1 S.C.R. 94, at paragraph 26, pages 111 and 112. Therefore, in my opinion, by interpreting subparagraph (a)(ii) of the definition of "tax shelter," any amount advertised as deductible and that has some kind of connection with the acquired property or the acquisition of a share in the property must be considered.
[25] For 1995 and 1996, it must be determined whether the amount advertised as deductible, 99% of the total investment cost, or $9,900 for a $10,000 investment, is greater than or equal to the reduced total cost of the value of the interest set out in the Regulations. I must first point out that, contrary to the claim made by counsel for the Appellant, the contracts clearly state that the guarantee is for the buyback of the lot. However, this buyback guarantee for the lot and therefore the trees that would have grown on it as advertised in the promotional documents, a guarantee equal to 70% of the total investment amount, $7,000 in the $10,000 investment case, is, in my opinion, falls under the scope of subsection 231(6) of the Regulations because it is an amount the investor could reasonably expect to receive. This would reduce the effect of a loss that might occur by selling the share in the property considering the total cost of the share. For 1995 and 1996, I find that the property sold by the Appellant as an agent of Maya Forestales S.A. corresponds to a "tax shelter" as defined in subsection 237.1(1) of the Act.
[26] For 1997 and 1998, it is not contested that Maya Forestales S.A. no longer provided the buyback guarantee for 70% of the total investment cost. It is also uncontested that there were additional maintenance and forest engineering fees of 2% per year, payable in US currency, and that these fees were presented as being deductible for the investor as were the initial development fees for the lot or part of a lot bought by the investor for an amount equal to 99% of the cost of the investment, $9,900 in the $10,000 investment case. These 2% annual fees, payable in US currency, made the total amount regarding the acquired property that was presented as deductible greater than the total cost of the acquisition, at the end of the four years after acquisition. The fact that these additional 2% fees are in US currency also increases the amount deductible in excess of the cost. However, in this case it is not appropriate to refer to the interests set out in the Regulations and more particularly in subparagraph 231(6)(a)(i) of the Regulations, as counsel for the Respondent did, because the promotion was that the additional fees of 2% annually in US currency was part of the 40% of the net sale of the wood that would be cut and commercialized by Maya Forestales S.A. in accordance with the eight-year mandate granted by the investor. The obligation to pay these fees is not, strictly speaking, conditional. However, as I said, adding these additional fees to the initial fees makes the investment sold by the Appellant as an agent of Maya Forestales S.A. during 1997 and 1998 also corresponds to the definition of a "tax shelter" as stated in subsection 237.1(1) of the Act.
[27] Since it is not contested that the Appellant sold a "tax shelter" as an agent for Maya Forestales or that no identification number for a "tax shelter" was issued, the only issue that remains is determining the amount for which the penalty set out in subsection 237.1(7.4) of the Act is to be calculated.
[28] This provision states:
237.1(7.4)
(7.4) Penalty. Every person who files false or misleading information with the Minister in respect of an application under subsection 237.1(2) or, whether as a principal or as an agent, sells, issues or accepts consideration in respect of a tax shelter before the Minister has issued an identification number for the tax shelter is liable to a penalty equal to the greater of
(a) $500, and
(b) 25% of the total of all amounts each of which is the consideration received or receivable from a person in respect of the tax shelter before the correct information is filed with the Minister or the identification number is issued, as the case may be.
[29] I already explained that the proposition made to the investors was an inseparable whole that included the purchase of a lot or part of a lot in a teakwood plantation in Costa Rica and the payment of development fees for this lot or part of a lot, and the investors were sold this whole, including goods and services for a total amount, of which 1% was applied to the purchase of the lot or part of a lot, and 99% to the development fees. In my opinion, this whole proposed to the investors is the "tax shelter" as set out in subsection 237.1(1) and it was for this whole that they paid upon signing the contracts, the consideration required was equal to 100% of the investment. Therefore, the 25% penalty should be, and was, calculated using this overall consideration, received in respect of the "tax shelter."
[30] Considering the above, the appeals are denied with costs in favour of the Respondent.
Signed at Ottawa, Canada, this 19th day of January 2005.
Dussault J.
Translation certified true
on this 24th day of May 2005.
Elizabeth Tan, Translator
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