A taxpayer acquired a property jointly with her stepfather and mother, who appeared on the notarized contract for mortgage financing purposes. Immediately thereafter, the three co-owners signed an agreement to modify their undivided share in the property to 98% for the taxpayer, and 1% for each of the other co-owners. CRA stated:
According to Article 1451 of the Civil Code of Québec, simulation exists where the parties agree to express their true intent, not in an apparent contract, but in a secret contract, also called a counter letter. Between the parties, a counter letter prevails over an apparent contract. …
With respect to the issue of the enforceability of a counter letter against a taxing authority, the Federal Court of Appeal held that, in its role as assessor, the taxing authority … must satisfy itself of the true legal relationship between the parties and assess accordingly. Thus, before deciding whether to agree to be bound by a counter-letter, the CRA should consider all the facts, including whether the party wishing to transfer its interest has acted as a beneficial co-owner or whether the transferee should be considered to be the sole owner since the original acquisition date.
In this case, if a counter letter exists between the taxpayer and her parents, the CRA will have to determine whether she agreed to be bound by that counter letter.