Henderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
IN THE MATTER OF THE JOSEPH S. STAUFFER FOUNDATION
AND IN THE MATTER OF THE TRUSTS LAW (2001 REVISION)
BETWEEN:
(1) BANK OF AMERICA TRUST AND BANKING CORPORATION (BAHAMAS) LIMITED
(2) BANK OF AMERICA TRUST AND BANKING CORPORATION (CAYMAN) LIMITED
Plaintiffs
AND
(1) THE ATTORNEY GENERAL
(2) THE PERSONAL REPRESENTATIVE OF MR JOSEPH S. STAUFFER DECEASED
Defendants
Appearances: Ms. Ziva Robertson of Maples and Calder for the Plaintiffs
Mr. Douglas Schofield for the Attorney General, the Defendant
Before: Hon. Justice Henderson
Heard: June 4, 2007
JUDGMENT
The originating summons requests a declaration as to the validity of the Joseph S. Stauffer Foundation as a charitable trust. The plaintiffs and the Attorney General, the
only parties before me today, have joined in requesting an order that "notice of these proceedings be served on the Canadian Revenue Authorities pursuant to Grand Court Rules Order 15, Rule 13A." I regret that I must refuse this request. These are my reasons for doing so.
Order 15, Rule 13A of the Grand Court Rules permits the court to direct that notice of the action be served on any person who is not a party but "who will or may be affected by any judgment given therein." The person served may acknowledge service of the originating summons and become a party to the action. The plaintiffs and the Attorney General wish to provide this opportunity to the Canada Customs and Revenue Agency ("CCRA"), which is charged with collecting income tax from Canadian residents, so that it will be bound by the result. They say it is important to the trust and its beneficiaries that the judgment of this court on the validity of the charitable trust be accepted by the CCRA. If the CCRA is a party to the action, it will necessarily be bound by the result; if not, the CCRA is unlikely to accept a ruling of this court as determinative of the trust's validity in Canada for income tax purposes.
In effect, the plaintiffs and the Attorney General have requested that I permit a foreign revenue authority to argue against the validity of a charitable trust established in the Cayman Islands for the purpose of assisting the tax gathering efforts of that authority. The indirect purpose of any such participation would be the enforcement of a foreign tax claim. The CCRA could not sue on such a claim in this court. Moreover, if an action is in substance an indirect attempt to collect tax by or on behalf of a foreign revenue
authority like the CCRA, the court will not permit it to proceed. My recent judgment in Wahr-Hansen and others v. Compass Trust Co. Limited and others (unreported) Cause 350/04, January 8, 2007, reviews the authorities on this question.
Permitting the CCRA to oppose the validity of the charitable trust would, in substance, be to allow the CCRA to attempt to influence the judgment of the court for the purpose of, ultimately, collecting income tax in Canada. For that reason, the application must be refused.
Dated this 4th day of June, 2007
Henderson, J.
Judge of the Grand Court