The taxpayer was a trustee for a family trust, which received a dividend in 2001 of over $2 million. The trust adopted an unconditional resolution on 11 September 2001 to pay a distribution of the dividend to the non-resident capital beneficiary, with the beneficiary having the right to require payment to himself at any time. The taxpayer then resigned as a trustee on 12 January 2002 and the beneficiary was paid on 18 January 2002. The trust failed to withhold and remit the 25% Part XIII tax.
Bédard J. found that the taxpayer was not liable under s. 215(6) for the failure to remit because s. 212(1) specifies that the trustee's withholding obligation arises in respect of amounts paid or credited rather than payable. While the dividend was payable from the date of the resolution, the taxpayer resigned before it was actually paid.
Bédard J. rejected the Minister's contention that "to credit" in s. 212(1) "refers to a situation where a creditor has the right to enforce payment of a sum but grants the debtor deferral" to a later time (para. 11). If a person has a right to enforce payment of an amount, then the amount is, by definition, payable to that person. The Minister's definition of "to credit" would therefore have the effect of replacing the phrase "pays or credits" in s. 212 with "makes payable" (para. 41). Bédard J. concluded (at para. 61):
[T]he Court should adopt the definition of "credited" suggested by the CRA and interpret it as meaning: the unconditional placing of funds - on a practical level - at the disposal of the Beneficiary in fulfilment of the Trust's obligation to pay.