At issue was whether a start-up Canadian private corporation engaged in SR&ED was a Canadian-controlled private corporation (“CCPC”), which turned on whether it was controlled by a non-resident (X), which indirectly held over 60% of the participating shares, but with a majority of the nominal-value voting shares being held by a resident trust. After referring to the tests of agency set out in Kinguk Trawl, Headquarters indicated to that it appeared doubtful that the trustees of the Trust held the voting shares as agent for X, stating:
If you cannot demonstrate that the Trust, through its trustees, acted as X's agent for the acquisition of the voting shares of Corporation and at meetings of shareholders taking into account the essential elements of an agency relationship, you could not use this argument to conclude that X owned the voting shares held by Trust and thus had de jure control of Corporation.