Fin du débat : les fiducies présumées en matière de TPS-TVH sont jugées inopposables aux créanciers garantis pour la période postérieure à la faillite

Dans son arrêt du 8 novembre 2018, la Cour suprême du Canada a infirmé la décision de la Cour d'appel fédérale (Callidus Capital Corporation c. Canada, 2018 CSC 47). La Cour suprême a déclaré que les fiducies présumées en matière de TPS-TVH deviennent inopposables à un créancier garanti dès la date de la faillite du débiteur fiscal, lorsque le créancier garanti a reçu avant la date de la faillite, le produit de biens du débiteur fiscal qui étaient réputés détenus en fiducie pour la Couronne. Une traduction de ce billet sera disponible prochainement.

On November 8, 2018, the Supreme Court of Canada (“SCC”) reversed the Federal Court of Appeal decision in Callidus Capital Corporation v. Canada, 2018 SCC 47. The SCC held that GST/HST deemed trusts become ineffective, as of the date of a tax debtor's bankruptcy, against a secured creditor who received, prior to that date, proceeds from the assets of such tax debtor that were deemed to be held in trust for the Crown. The Callidus decision has been warmly received by secured creditors as well as insolvency and commodity tax practitioners, as it has been perceived as re-establishing confidence in the secured-financing business sector. However, as suggested by another recent ruling of the Federal Court, Canada v. Toronto-Dominion Bank, a GST/HST deemed trust will likely remain effective in cases where a bankruptcy has not intervened between the secured creditor's receipt of proceeds from a tax debtor's sale of assets and the Crown's enforcement action with respect to those proceeds. It remains to be seen how the SCC ruling in Callidus will impact, from a practical standpoint, the strategies implemented by secured lenders and tax authorities alike in the context of a tax debtor's insolvency. Background

In a unanimous decision delivered from the bench, the SCC recently reversed the decision of the Federal Court of Appeal (“FCA”) in Canada v. Callidus Capital Corporation. The SCC agreed with the dissenting judge on the FCA panel that the original ruling of the Federal Court (“FC”), dating from 2015, was correct.

As summarized by the SCC, the issue examined by all three courts was essentially whether:

“…the bankruptcy of a tax debtor and subsection 222(1.1) of the Excise Tax Act (“ETA”) render the deemed trust under section 222 of the ETA ineffective as against a secured creditor who received, prior to the bankruptcy, proceeds from the assets of the tax debtor that were deemed to be held in trust for the [Crown].”

The Crown holds an absolute priority with respect to proceeds remitted to a secured creditor from a tax debtor's assets, which proceeds are...