The taxpayer's wife ("Jordanna") borrowed $562,500 from the Bank of Montreal under an interest-bearing demand promissory note in order to purchase some of the shares of a family corporation from the taxpayer for that sum, with the sale proceeds being used by the taxpayer to purchase a family home. The inter-spousal rollover in s. 73(1) applied to this purchase. The next day, a mortgage loan on the home received from the Bank was used to retire the demand promissory note. The taxpayer included in the computation of his income both the dividends on the shares, and the interest expense incurred by her on the mortgage loan, on the basis that the attribution rules in s. 74.1(1) applied.
After stating (at para. 32) that “the attribution rules in ss. 74.1 to 74.5 are anti-avoidance provisions whose purpose is to prevent spouses (and other related persons) from reducing tax by taking advantage of their non-arm’s length status when transferring property between themselves,” Lebel J. found (at para. 42):
As ... the purpose of s. 74.1(1) is to prevent spouses from reducing tax by taking advantage of their non arm's length relationship when transferring property between themselves ..., the attribution by operation of s. 74.1(1) that allowed Mr. Lipson to deduct the interest in order to reduce the tax payable on the dividend income from the shares, and other income, which he would not have been able to do were Mrs. Lipson dealing with him at arm's length, qualifies as abusive tax avoidance ... .