| Citation: |
Antle v. canada, 2010 FCA 280, [2011] 1 F.C.R. D-2 |
A-428-09 A-429-09 |
Income Tax
Reassessment
Consolidated appeals from Tax Court of Canada decision (2009 TCC 465) dismissing appeals from assessments for 1999 taxation year—Assessments arising from sale of shares by appellant to Canadian arm’s length purchaser—Appellant embarking on capital step-up strategy, setting up trust in favour of wife, conveying shares to trust—Trust then selling shares to wife, in turn selling to purchaser—Capital gain taxable without such plan—Tax Court Judge holding trust not validly constituted, lacking certainty of intention, subject-matter, therefore upholding assessments—However not finding trust to be a sham—Appellant contending trust deed clear, unambiguous, Tax Court Judge’s conclusions based on circumstances external to trust—Test requiring courts to look at all circumstances, not just words of trust deed—Open to Tax Court Judge to consider actions of appellant, surrounding circumstances in determining whether certainty of intention present despite clarity of trust deed—However, Tax Court Judge misconstruing notion of intentional deception in context of sham—Required intent not equivalent to mens rea, need not go as far as tort of deceit—Suffices that parties to transaction present it as being different from what they know it to be—Tax Court Judge bound to conclude plan was a sham based on his findings—Appeal dismissed.
Antle v. Canada (A-428-09, A-429-09, 2010 FCA 280, Noël J.A., judgment dated October 21, 2010, 10 pp.)