On the basis of allegations accepted in the pleadings, the applicant, which was the trustee of RRSPs and RRIFs, purchased shares (that were taxable Canadian property) of Canadian companies from non-resident vendors at prices which (unbeknownst to it) were substantially in excess of those shares' fair market value, with the result that the RRSPs and RRIFs were stripped of funds which ended up in offshore accounts or were applied to pay the fees of the "promoters." The applicant was assessed under s. 116(5) for failure to withhold.
V. Miller J. denied a requested amendment to the applicant's Notice of Appeal asserting that the sale transactions were a sham (intended to deceive the applicant), stating (at paras. 22, 24, 27):
[I]n a tax case, a court will make a finding of "sham", only when it is the Minister who is deceived… . [I]t is only the Minister who can plead "sham" and rely on the "sham" argument to have the courts disregard a transaction. …
It is clear that both the Annuitants and the Promoters intended the purchase price for the shares be the stated purchase price. … They misled the Applicant with respect to the value of the shares purchased by the RRSPs but this is not a "sham." It is fraud.
See summary under s. 116(5).