In Dimane Enterprises Ltd. v. The Queen [Amended Judgment] (TCC) 2014 TCC 334, the taxpayer (an engineer) operated a Calgary home-based consulting business with major oil and gas companies as clients. He put his spouse and four children, aged 13 through 21 on the payroll. The children carried out duties such as mowing the lawn, shovelling the walk, sorting mail, shredding documents, and taking out the garbage around the family home/home-office. For their efforts, the children were paid modest wages of between $600 and $1200 per year. In addition, the spouse and children were collectively allocated much more significant sums - up to $158,000 per year - out of an Employee Profit Sharing Plan (EPSP) established by the engineer. (The requirements of an EPSP are set out at ss. 144(1) of the Income Tax Act.) Interestingly in this case, the Tax Court did not question whether the family members were truly employees, nor whether their chores around the house were in the nature of employment duties. Rather, the Court's focus was entirely on the flow of funds between the engineer/father and the children through a series of bank accounts. The Court determined that the father never actually gave up control of the $158,000 because he controlled all of the accounts. The funds were in effect shuffled between the father's own accounts, and no amounts were ever allocated to the children as required under the terms of the EPSP. The Court thus concluded the arrangement was a "sham", which in law requires an element of deceit, or misrepresentation about the actual transaction taking place. The take-away from this decision is that execution in tax minimization transactions must be as meticulous as planning in all contexts, including in the context of businesses that employ and allocate profits to family members.

Tax Law