The Minister assessed the taxpayer for CPP contributions on income from its trusteeship of an employee profits sharing plan. The trustees' compensation under the plan was to be one of two options, in the discretion of the employer: either $100 per participating beneficiary, or a formula to be set by the employer's directors (which they never did). The compensation was also to be a minimum of 1% of profits.
Webb JA found that these terms did not amount to payments computed by reference to the employer's profits. The amounts the trustees actually received were essentially arbitrary, being within the discretion of the employer.
Since no election had been filed under s. 144(10), the payments had to be payments that the appellant was required to make and that were computed with reference to profits (para. 17). Notwithstanding the 1% minimum, it could not be said that the payments the trustees received were required to be made. The Minister's decision to charge CPP contributions was therefore correct.