Words and Phrases - "payment"
Odette (Estate) v. The Queen, 2021 TCC 65
The appellant estate donated shares of a private company (Edmette), which were non-qualifying securities, to a private foundation with which it did not deal at arm’s length. Shortly thereafter, those shares were purchased for cancellation in exchange for a promissory note of Edmette for $17.7 million, which then was repaid in cash by Edmette between four and eight months later. The donation of the Edmette shares was deemed by s. 118.1(13)(a) to not be a gift except to the extent “of the fair market value of any consideration (other than a non-qualifying security of any person) received by the donee [i.e., the foundation] for the disposition” by it of the Edmette shares. The estate argued that for these purposes, the consideration received by the foundation for such shares should be considered to be the subsequent cash repayments of $17.7 million rather than the promissory note (which clearly was also a non-qualifying security), so that the estate’s previous donation was deemed by s. 118.1(13)(c) to be of $17.7 million rather than nil.
In rejecting this submission and finding that s. 118.1(13)(a) deemed there to be no gift, Rossiter CJ stated (at paras. 46, 59):
The consideration could not be both the Promissory Note and the corresponding cash payments. The cash payments were made approximately eight months after the disposition occurred, not at the time of the disposition. The only consideration received at the time of the disposition was the Promissory Note.
… Parliament does not want to grant a tax credit where the donor is not impoverished and the charity is not enriched. A non-arm’s length promissory note creates no real obligation to pay. Non-arm’s length parties can artificially enter into similar transactions, claim a donation tax credit and never actually make payments. For this reason, it is important to show that the charity is actually enriched and the donor is in fact impoverished. A promissory note between non‑arm’s length parties is not convincing enough.
Canada v. Gillette Canada Inc., 2003 DTC 5078, 2003 FCA 22
Some of the shares held by the taxpayer in its French subsidiary were purchased for cancellation by the subsidiary in consideration for the assignment to the taxpayer of a note (denominated in French-francs) owing to the subsidiary by a French partnership whose principal partner was the U.S. parent of the taxpayer. A month later, the note was converted into indebtedness denominated in Canadian dollars.
The conversion of the note to Canadian dollars did not give rise to a payment, credit or loan given that the Canadian dollar note was issued and accepted as replacement for the original note in circumstances where the terms were remained the same except the currency of payment.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - General Concepts - Payment & Receipt | replacement with different currency note | 60 |
| Tax Topics - Income Tax Act - Section 15 - Subsection 15(2) | 150 |