The Case Of Scott v Queen And The Importance Of Evidence: A Canadian Tax Lawyer's Perspective

In the recent case of Scott v Queen 2020 TCC 4, the Tax Court of Canada released yet another decision regarding section 160 of the Income Tax Act. To put it simply, the provisions of section 160 impose liability for tax on certain transfers of property between people who do not deal at arm's length between each other. In the case of such transfers, both the transferor and the transferee are liable for certain taxes for which the transferor might have solely been liable.

The Facts of Scott v Queen

In the case of Scott v Queen, the taxpayer received three transfers in the amount of $104,000.00, $500.00 and $120,000.00 between 2005 and 2006 from his brother. The taxpayer's brother was a Canadian airline pilot who had resided in the Turks and Caicos Islands since 1993. In 2013, the brother settled a lengthy appeal with the Canada Revenue Agency ("CRA") regarding income tax on his pilot earnings. He retired from Air Canada in 2005 and wound up his RRSP, paying the Part XIII withholding taxes in 2007. As the CRA had trouble collecting the tax debt from the pilot, in 2015, the CRA issued a Notice of Assessment against his brother, the taxpayer, under section 160 of the Income Tax Act based on the aforementioned transfers between 2005 and 2006.

The taxpayer objected to the section 160 assessment on the grounds that the funds were a loan that he borrowed from his brother. Since a repayable loan isn't "transferred property" under subsection 160(1), the CRA would not be able to pursue the amounts owed. According to the brothers, they had felt no need to document the loan due to their personal relationship. However, the judge presiding over the case found multiple discrepancies in their testimony. For example, the brother testified that there was no fixed term for repayment and that he would not have sued the taxpayer to secure repayment of the borrowed money. The latter fact threw into question whether the funds were truly a loan since one important hallmark of a loan is the obligation to repay either on a fixed-term basis or on demand. On the other hand, the taxpayer testified that he had believed that the loan was repayable on demand.

Additionally, the taxpayer also testified that the purpose of the alleged transfer was to pay off the balance of the purchase price of a newly constructed condo that was not already covered. However, upon cross-examination, the taxpayer admitted that he had used his own savings to pay for the balance. Even if the...