Malamute Contracting Inc. v His Majesty the King, 2025 TCC 47
Kelsey Horning, Toronto, Gael Melville and Jeanne Posey, Vancouver
In Malamute Contracting Inc. v The King, the Tax Court of Canada considered whether cheques a corporation issued were either employee salary payments subject to withholding tax or payments to shareholders and therefore not subject to withholding tax.
The court determined that on the facts of the case, the cheques were intended to be payments to shareholders and the corporation was not required to withhold and remit income tax and CPP source deductions.
Background and facts
A corporation may pay its shareholder-employees in salary or dividends, or a combination of both. The corporation may also make payments to a shareholder-employee that are treated as shareholder loans. Only salary payments require the corporation to withhold and remit income tax and CPP source deductions, underscoring the importance of identifying payments correctly.
Prior case law has established that the nature of a payment for tax purposes is determined at the time the payment is made, meaning that if a salary payment is made it cannot later be recharacterized as a dividend.
Malamute Contracting Inc. was a small contracting company that specialized in kitchen and bathroom renovations. The principal shareholder, Mr. L, performed most of the work, while his spouse, Mrs. L, handled the bookkeeping at the relevant time and was also a shareholder.
The company had a taxation year end of October 31. The CRA reassessed the taxation years ending October 31, 2018 and 2019 on the grounds that the company had failed to withhold and remit income tax and CPP deductions. In addition, the CRA imposed various penalties for noncompliance under the Income Tax Act.
The basis for the reassessments was that certain cheques MC Inc. issued to Mr. and Mrs. L between January 2018 and February 2019 were payments of salary and were therefore subject to income tax and CPP withholding and remittance requirements. MC Inc. had generally not remitted withholdings to the CRA, except in respect of the January 2018 and February 2018 cheques.
A number of features of the cheques were similar to those that would be expected for salary payments. For example, the cheques contained notes indicating they were “payroll.” The amounts of the cheques were also what was described as “uneven amounts,” meaning they appeared to be obtained by deducting withholdings from an even gross salary number. The cheques were also generally consistent amounts that were paid on a biweekly basis.
MC Inc. appealed the reassessments for the 2018 and 2019 taxation years to the Tax Court of Canada.
Arguments and decision
The CRA argued that MC Inc. had paid a salary to its shareholder-employees and that the corporation was trying to change the treatment of the payments after the fact. On the other hand, MC Inc. argued that the amounts were always intended to be payments to shareholders.
At trial, Mrs. L and MC Inc.’s accountant testified that the cheques were intended as shareholder payments rather than salary payments. Errors in using the “payroll” notation and in the January and February 2018 remittances were due to Mrs. L’s lack of bookkeeping knowledge and experience.
Mrs. L explained that the “payroll” notation was to distinguish the cheques from other amounts paid to her and to Mr. L that were intended to be loans that they would have to repay to MC Inc. She was also concerned about a large end-of-year tax bill and so she used an online calculator to estimate the amount of tax, apparently leading to the uneven amounts. This also led to her mistakenly making the January and February 2018 remittances.
Other factors were also consistent with a shareholder payment characterization. MC Inc.’s financial statements recorded the cheques as draws on the shareholder loan account and not as employment income. MC Inc.’s corporate income tax return and Mr. and Mrs. L’s personal income tax returns, which were all filed before the CRA’s examination began, were consistent with the amounts not being payments of salary.
The court’s decision ultimately turned on the facts. The court found the testimony of Mrs. L and MC Inc.’s accountant to be credible and consistent with the financial statements and income tax returns. Although MC Inc. mistakenly made remittances for January and February 2018, those represented only two of the 14 months where MC Inc. issued the disputed cheques – the CRA’s assumption that those two months should set the treatment for the whole period did not properly account for the whole factual context. The court ruled that the cheques were shareholder payments not subject to withholdings.
Lessons learned
This case highlights the importance of ensuring that payments to shareholder-employees of a corporation are carefully recorded to reflect their intended character and are described accordingly. It also highlights the potential dangers of taxpayers trying to address tax and accounting matters on their own.
This case acts as a good reminder to consult professional tax and accounting advisors when undertaking corporate remuneration planning.