Because of lender requirements respecting the taxpayer’s purchase of a new home, on the closing of the purchase, a friend of the taxpayer (Dr. Akbari) acquired an undivided 1% interest in the home, with the taxpayer and his spouse acquiring the remaining undivided 99% interest. On the date of closing, the parties also signed a trust declaration in which Dr. Akbari acknowledged that he was holding the 1% interest in trust for them as beneficial owners and that he would convey that interest on demand (which subsequently occurred to their son with the mortgage lender’s approval).
In finding that the taxpayer was entitled to the new housing rebate (“NHR”) notwithstanding that Dr. Akbari (who never occupied the property) was a legal purchaser, Smith J. stated (at paras 54-55):
The notion of a bare trust as an agency relationship…is well known and well established, at least in the common law jurisdictions. … For tax purposes, a bare trust is considered a non-entity in the sense that a beneficiary as principal, is considered to deal directly with property through the trustee as agent or nominee… .
… Since I have concluded that Dr. Akbari was a bare trustee and that only the Appellant was a “particular individual” for the purposes of subsection 254(2) of the ETA, it necessarily follows that the Appellant was also the person “who was liable under the agreement to pay the consideration” for the purpose of the definition of a “recipient”. The fact that the builder may have had a legal recourse against Dr. Akbari for the consideration changes nothing to the notion that it is the Appellant, as legal and beneficial owner, who was ultimately liable for the consideration under the terms of the Trust Declaration.