Who Needs Tickets?

Written on October 19, 2016 – 10:16 am | by Joanna Lindenberg

Who gets the Leaf tickets? This was the question the court had to determine in the recent case of Anspor Construction Ltd. v. Neuberger Estate (Trustee of)[1]. In this case, the court provided a good summary of the requirements to establish a bare trust and a purchase money resulting trust against a background of interesting facts.

The applicant partnership, Nuspor Investments (“Nuspor”) sought a declaration that Toronto Maple Leaf season tickets (the “Tickets”) were held in trust for Nuspor. At all material times, the Tickets were held in the name of the deceased, Chaim Neuberger (the “Deceased”), and then, his estate. Nuspor argued that despite the fact that the Tickets were in the Deceased’s name, they belonged to the applicant as they were paid for and controlled by it. The respondent, Edie Neuberger, who is one of the Deceased’s daughters and one of the estate trustees, submitted that the Tickets belonged to her late father and as such formed part of the estate.

The court reviewed the law with respect to bare trusts and restated the rule in Byers v. Foley[2] (“Byers”), which interestingly concerned the ownership of two field level seats in the Skydome for the Toronto Blue Jays. Specifically, there are three requirements to establish a bare trust: (1) certainty of intention; (2) certainty of subject matter; and (3) certainty of object.

A purchase money resulting trust can arise when one person pays for something but title is recorded in the name of a different person. There are three requirements to establish such a trust: (1) the trustee must have title to the property; (2) the claimant must have supplied the whole or a part of the purchase price at the time the property was being bought; and (3) the claimant must prove throughout he acted as purchaser.

The court concluded that the Tickets were held in trust by the Deceased for Nuspor and that Nuspor was the beneficial owner of the Tickets. The court accepted evidence from, among others, Harry Sporer (“Sporer”), who has long-standing control of Nuspor and was a partner of the Deceased. Sporer’s evidence provided, among other things, that he and the Deceased purchased the Tickets in the Deceased’s name, but always considered the Tickets to be Nuspor’s. Nuspor also paid for the Tickets every year. Sporer further deposed that the Tickets were used by both him and the Deceased, for business purposes. Evidence was also presented that in 2004, the Deceased signed an account information form updating the contact information for the Tickets from him personally at his home address to Nuspor at its office address.

It was found that the Deceased’s control of the Tickets was not on behalf of himself personally but on behalf of Nuspor and that the evidence established the essential elements for both a bare trust and a purchase money resulting trust. Sporer’s evidence of the initial acquisition of the Tickets, the reason why the Tickets were put in the Deceased’s name, coupled with the way in which their partnership operated together with the control of the Tickets over the years, all established a certainty of intention to create a trust in favour of Nuspor. The evidence also established that from the outset, Nuspor acted throughout as purchaser.

This case provides a helpful summary of the law of bare trusts and purchase money resulting trusts and demonstrates that courts will delve into the history of the treatment of specific assets, from date of acquisition to present day, to draw its conclusions.

[1] 2016 ONSC 75.

[2] [1993] O.J. No. 3140 (Ont. Gen. Div.)


Written on October 18, 2016 – 7:00 am | by Steven Frye

Recently the Canada Revenue Agency (the “CRA”) issued a technical interpretation on the application of the income attribution rules under the Income Tax Act (“ITA”) which serves as a good primer particularly when a personal representative is looking at the deceased’s prior year returns with joint accounts and the potential for additional taxes.

Mrs. Entrepreneur owned and sold shares of a Canadian-controlled private corporation that were “qualified small business corporation shares,” as defined in the ITA. The capital gain arising on the disposition of shares qualified for the capital gains exemption. The proceeds from the sale of the shares were placed in a non-registered joint investment account with Mrs. Entrepreneur’s spouse for the purpose of acquiring and holding financial instruments such as bonds and mutual funds.

Mrs. Entrepreneur asked the CRA to confirm that the capital gains and other income earned in the joint account and reported by the spouse would be attributed back to Mrs. Entrepreneur unless a prescribed loan is made from Mrs. Entrepreneur to her spouse.

The CRA confirmed that, except where fair market value consideration is paid by the spouse or the parties are living separate and apart by reason of a breakdown of their marriage, income earned and capital gains and losses realized on property transferred or loaned from an individual to the individual’s spouse (and on property substituted for that property) are generally deemed to be the income, gains or losses of the taxpayer and not of the individual’s spouse.

There are provisions in the Act to allow for the transfer of assets between spouses at cost; however the attribution rules in the ITA still apply. Any income realized from the assets after the transfer to the spouse, will be deemed to be the transferor’s income, and any capital gains or losses realized on the subsequent disposition of the property will be deemed to be the transferor’s capital gains or losses.

In circumstances where one spouse purchases property using funds which are provided solely from the assets or earnings of the other spouse (the “Contributing Spouse”), the Contributing Spouse is considered to have transferred property to the other spouse. However, the CRA believes the attribution rules would apply to property transferred by the Contributing Spouse to the other spouse.

Generally, if a Contributing Spouse loaned funds to his or her spouse and charged interest on the loan at a rate equal to or greater than the lesser of the prescribed rate that was in effect at the time the loan was made, and the rate, that would, having regard to all the circumstances, have been agreed on, at the time the loan was made, between parties dealing with each other at arm’s length, the attribution rules would not apply.

The CRA also confirmed that the anti-avoidance rules contained in the ITA may have application where it can be shown that the primary purpose, or one of the main purposes, of the transactions was to reduce the tax liability of the taxpayer or the spouse.

Happy reading

Tags: , , , , , , , ,