In a February 27, 2018 Federal Court of Appeal case (H.M.Q. vs. Cheema, A-447-16), the taxpayer had claimed a new housing rebate. The property on which the rebate was claimed was owned 99% by the taxpayer (C) who occupied the house with his family and 1% by an unrelated person (A) who did not live in the house. The Tax Court had determined that A held his interest as a bare trustee for C, and his ownership did not prevent C from qualifying for the new housing rebate (Cheema vs. H.M.Q., 2015-5407(GST)I). See VTN 431(15), 423(16) and 406(18) for similar Tax Court decisions.

how each purchaser is related to the persons who will occupy the house

Taxpayer loses
The FCA held that, where a property is acquired by two or more individuals, they must each meet the requirement of acquiring the property for use as the primary place of residence of the individual or a related person (Excise Tax Act Paragraph 254(2)(b)). It was not relevant that A had no beneficial interest in the property. There is no exception for bare trustees. The Tax Court’s decision was overturned – the rebate was not available.

The Court noted that, had A been related to C, the rebate would have been available, as the legislation permits property occupied by a person related to the purchaser to qualify for the rebate. As such, the rebate would still be available on property acquired (in whole or in part) by a parent, and occupied by a child.

Editors’ Comment
The definition of “related persons” in the Excise Tax Act (Subsection 126(2)) applies the same rules as the Income Tax Act (Subsections 251(2) to (6)). As a result, an individual would not be related to aunts, uncles, nieces, nephews or cousins. They would be related to parents, grandparents, children, grandchildren, siblings, spouses and common-law partners.