http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/108833/index.do 
Henao v. The Queen (March 30, 2015 – 2015 TCC 81, Lyons J.).
Précis: In 2011 the taxpayer and her aunt signed an agreement of purchase and sale to acquire a home (the “House”) closing in 2012. The aunt was later replaced by her uncle, Mr. Restrepo, due to credit issues. Mr. Restrepo never intended to occupy the House but rather acted as an accommodation party for his niece whose income was not sufficient to have obtained the necessary mortgage financing. The transaction closed with both the taxpayer and Mr. Restrepo on title. The taxpayer and Mr. Restrepo applied for the GST/HST New Housing Rebate which was denied by the Minister since the House was not the primary residence of Mr. Restrepo. The taxpayer argued that Mr. Restrepo was in substance a guarantor and had no beneficial ownership in the House. The Court rejected both arguments based on the evidence.
Decision: The point at issue in this decision was whether the taxpayer was entitled to the GST/HST New Housing Rebate:
[1] This is an appeal by Angela Maria Henao, the appellant, of the assessment made under the
Excise Tax Act (the “Act”) relating to the GST/HST New Housing Rebate (the “Rebate”) application that she and Carlos Restrepo, her uncle, had made with respect to the purchase of a house located on Quetico Crescent, Oakville, Ontario (the “House”).
[2] The Minister of National Revenue (the “Minister”) refused the Rebate on the basis the House was not acquired by Mr. Restrepo for use as his primary place of residence and failed to satisfy the requirement in paragraph 254(2)(b) of the Act.
[3] The issue in this appeal is the appellant’s entitlement to the Rebate.
I. Facts
[4] The appellant owned another property in Mississauga, which she retained, but wanted to buy the House to improve the quality of her life and for her daughter’s future. She occupied the House as her primary place of residence.
[5] On June 9, 2011, the appellant and her aunt entered into an agreement of purchase and sale for the House with a closing date of June 19, 2012. The appellant’s income was too low to qualify for the $472,000 mortgage.
[6] The agreement of purchase and sale was amended by replacing her aunt, due to credit issues, with Mr. Restrepo as a co-signer (the “Amended Purchase Agreement”). He and the appellant became the registered owners of the House. The appellant testified that her uncle was merely on title for mortgage purposes and she would have been on title on her own had she qualified for financing. She made all the payments relating to the House. In 2014, she renewed the mortgage. When the House is sold, the appellant will receive all the proceeds.
[7] Mr. Restrepo tesftified that he agreed to help by going on title for mortgage purposes and testified that he never owned, intended to occupy, occupied, made mortgage payments nor expects proceeds from the House when it is sold. He claims that he and his wife were neighbours of the appellant living in the same complex where the House is located and they have a close family bond with the appellant and her daughter.
[Footnotes omitted]
The Court rejected the argument that Mr. Restrepo acted as a form of guarantor:
[32] With respect to the portrayal of Mr. Restrepo as a form of a guarantor, in Sharp, it was argued that Mr. Da Silva’s status had changed from purchaser to guarantor as a result of a further amendment to the amended purchase agreement adding Ms. Sharp’s parents. The Court found that he remained a purchaser under the amended purchase agreement because the builder would not permit him to extricate himself from his obligations under that arrangement and even though Mr. Da Silva had directed in writing that he not be placed on title.
[33] The appellant’s testimony was the bank dictated the terms of financing for the purchase, she was unsophisticated in financial matters, had relied on her lawyer and was unfamiliar with the term guarantor. I accept her evidence. Clearly, the bank would want to minimize its exposure and optimize its security by dictating the terms to accomplish that, especially because of her low income. It insisted that Mr. Restrepo be placed on title as a registered owner and become a borrower and mortgagor. I find it highly improbable that the bank would entertain Mr. Restrepo as a mere guarantor (that generally steps in the event of default by the borrower) in these circumstances.
The Court similarly rejected the argument that Mr. Restrepo acted as a trustee:
[35] Appellant counsel conceded that there was no formal trust agreement. Statements were made by the appellant in her testimony that she had made all of the House-related payments and provided some documents. She also commented that she would eventually receive all the proceeds from the House but did not provide any further elaboration as to how that impacted Mr. Restrepo. Of some importance is the fact that the appellant and Mr. Restrepo were purchasers with the same rights accorded with that status and assumed liability. They were liable to the builder to pay for the House. Subsequently, they were legally liable to the bank to pay for the funds loaned to them under the Mortgage Loan with ongoing and continuing obligations plus they transferred security interest in the House to the bank, all of which point to incidents of ownership. On the application for the Rebate, the appellant and Mr. Restrepo are also identified as owners. I also note that no references to a trust were pled in the Amended Notice of Appeal. It appears to be an attempt to re‑characterize the transaction and find that there was no trust in place and the appellant was not the sole beneficial owner.
[Footnote omitted]
As a result the appeal was dismissed, with no order as to costs.