In R & S Industries Inc. v R, 2017 TCC 75, both the CRA and the taxpayer agreed that they were bound by the elected amount shown on a T2059. That amount cannot be altered unless the CRA permits the filing of an amended election. The Court, however, held that that does not mean the elected amount won’t be altered if it can be shown by either the CRA or the taxpayer that the “key facts” (eg the amount of boot) were other than as recorded on the form. The “key facts” are not determined by what is recorded on the form, and the “key facts” engage the deeming rules in s 85, which can apply to alter the elected amount. The Court wrote:
[12] The Minister is bound by the agreed amount because it is something that the parties have elected. The Minister is not bound by the key facts because the facts are the facts. They exist independently from the election. So, if the Minister is not bound by the key facts stated in the election, why would the parties to the transaction be bound by them?
[13] There is no question that a taxpayer would face an uphill battle in court trying to prove that a key fact that both parties to the transaction certified in the T2059 election to be true is, in fact, not true. However, that does not mean that the taxpayer is not free to try to do so. More importantly, it does not mean that the Court lacks jurisdiction to hear such an appeal.
Interestingly, one of the “key facts” according to the Court is the allocation of the consideration among the transferred properties (¶11). Lawyers be aware: what you show in an agreement in this regard appears to be at least as important as what appears on the election form.
