Judgments

Decision Information

Decision Content

T-5139-73
G.T.E. Sylvania Canada Limited (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Cattanach J.—Montreal, May 2; Ottawa, May 27, 1974.
Income tax—Capital cost allowance—Deductions from revenue permitted in province—Whether `grant, subsidy or other assistance"—Income Tax Act, R.S.C. 1952, c. 148, s. 11, Reg. 1100(1XaXviii) and Sch. B; s. 20(6)(h) —Corpora- tion Tax Act, R.S.Q. 1964, c. 67, s. 16a, en. 1967-68, c. 28, s. 1, amended 1971, c. 23, s. 1.
For the purpose of computing its income for the year 1971, the plaintiff ' company proceeded under section 11(lxa) of the Income Tax Act permitting the taxpayer, in computing income, to deduct such amount of the capital cost as is allowed by regulation. Reg. 1100(lxaxviii) and Schedule B provided for allowance to a maximum of 20 per cent of the capital cost. The plaintiff claimed the full allow ance thereunder.
The Minister re-assessed the plaintiff by adding to its income the sum of $18,233 which was 20 per cent of $91,166, the net Quebec tax reduction allowed the plaintiff under section 16a of the Corporation Tax Act (Que.) as amended. This section, for the encouragement of manufac turers and processors in the Province, allowed deduction, in computing net revenue during the period 1968-71, of sums invested in the acquisition of new machinery.
In re-assessing, the Minister assumed that the deductions made by the plaintiff in computing net revenue under the Corporation Tax Act (Que.) and the resulting saving there- under by the plaintiff in the sum of $91,166 was for the acquisition of property and therefore the capital cost of the property was deemed to be the capital cost thereof, minus the deductions allowed to the plaintiff in Quebec, as a "grant, subsidy or other ,assistance" within the meaning of section 20(6Xh) of the Income Tax Act.
Held, allowing the plaintiff's appeal from re-assessment, the phrase "grant, subsidy or other assistance" was to be construed in accordance with the ejusdem generis rule. "Grant" and "subsidy" each contemplated the gift of money from a fund by a Government to a person for the public weal. "Or other assistance" must be coloured by the mean ing of these words. The forbearance of the Quebec Govern ment to exact a maximum tax is different from the act of making a grant or subsidy available to such persons to enable them to locate in the Province. Hence the tax advan tage given by the Quebec Government to the plaintiff was not "other assistance", within the limited sense of those words in section 20(6)(h) of the Income Tax Act.
United Towns Electric Company Ltd. v. Attorney Gen eral of Newfoundland [1939] 1 All E.R. 423, considered.
INCOME tax appeal. COUNSEL:
R. W. Pound and Robert Couzin for plaintiff.
N. A. Chalmers, Q.C., and W. Lefebvre for defendant.
SOLICITORS:
Stikeman, Elliott & Co., Montreal, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment delivered in English by
CATTANACH J.: This is an appeal by way of statement of claim by the plaintiff from an assessment to income tax for its 1971 taxation year by the Minister of National Revenue.
Prior to trial the parties agreed upon a state ment of facts as follows:
AGREED STATEMENT OF FACTS
The parties hereto, by their respective solicitors, hereby admit the following facts, provided that such admission is made for the purpose of this appeal only and may - not be used against either party on any other occasion or by any other party.
1. The Plaintiff is a corporation having its head office and principal place of business at Montreal, in the Province of Quebec and is engaged in the electronics and related business.
2. In each of its taxation years from 1968 through 1971 the Plaintiff was liable to tax by the Province of Quebec under the Quebec Corporation Tax Act, R.S.Q. 1964, c. 67, as amended.
3. During the same period the Plaintiff was a company engaged in the operation of a manufacturing or processing business in the Province of Quebec within the meaning of subsection 16a(2) of the Quebec Corporation Tax Act, and, in conformity with the limitations and conditions imposed therein, deducted in computing its net revenue for purposes of the said Act an amount in respect of "investments" made by it in such business, as defined in paragraph 16a(lxc), which deduction was made in respect of the acquisition of
new machinery included in class 8 of Schedule B of the Income Tax Regulations.
4. Such deductions resulted in a reduction of Plaintiff's net revenue for purposes of the Quebec Corporation Tax Act as follows:
Year Amount
1968 $ 48,495
1969 172,820
1970 178,164
1971 427,413
$ 826,892
5. The Plaintiff paid $91,166 less tax under the Quebec Corporation Tax Act for the taxation years in question than it would have paid in the absence of the deduction contem plated in section 16a of the said Act, as follows:
Total deductions claimed $ 826,892
apply tax rate of 12% under Quebec Corpora tion Tax Act
Quebec tax reduction claimed 99,227
less: adjustments per assessments
1968 taxation year. $ 81
1969 taxation year ........ .. 7,980 (8,061)
Net Quebec tax reduction . .. . $ 91,166
6. In computing the undepreciated capital cost to the Plain tiff of class 8 depreciable property owned by it as at the end of its 1971 taxation year for purposes of computing its income under the Income Tax Act, the Plaintiff did not take into account the net Quebec tax reduction as determined in paragraph 5 above.
7. By Notice of Re-assessment dated Mar 8, 1973 the Minister of National Revenue added to the Plaintiff's income for its 1971 taxation year, inter alia, the amount of $18,233 which was described as excess capital cost allow ance in respect of class 8 depreciable property, and which was determined by reducing the undepreciated capital cost of property in class 8 by $91,166.
8. The Plaintiff duly objected to the said re-assessment by notice dated May 29, 1973 and the re-assessment was confirmed by the Minister of National Revenue by notifica tion dated September 25, 1973.
The plaintiff in its 1971 taxation year, and in its antecedent taxation years, was subject to tax by the Province of Quebec under the Corpora tion Tax Act (R.S.Q. 1964, c. 67) hereinafter sometimes referred to as "The Provincial Act".
Under that Act the scheme of taxation is similar to that under the Income Tax Act (chap- ter 148, R.S.C. 1952).
The Provincial Act imposes upon every com pany subject to that Act an annual tax equiva lent to 12% of the net revenue in each of its financial years. Net revenue under the Provin cial Act is analogous to taxable income under the Income Tax Act in that in each instance the taxpayer first determines its income or profits taking into account those deductions permitted by law in earning that profit and when that amount is determined then that amount may be reduced by deductions permitted under the respective statutes.
Under the Provincial Act the deduction which gives rise to the controversy in this appeal is a deduction under section 16a added to the Pro vincial Act by 1967-68, S.Q., c. 28, s. 1, which reads:
16a. (1) For the purposes of this section the following expressions and words mean:
(a) "company": in addition to its ordinary meaning, a company contemplated in sub-paragraph a of paragraph 4 of section 2, except a company engaged in a business excluded in sub-paragraph 6;
(6) "manufacturing or processing business": a manufac turing or processing business within the meaning of the regulations, except however any business for the opera tion of gas or oil wells, or for mining, logging or farming operations, any construction or fishery business and any business whose principal activity is the wrapping, packag ing, washing or sorting of products or merchandise;
(c) "investment": the portion exceeding $50,000 of the amounts of money which have been invested by a com pany in a manufacturing or processing business, during any of its financial years, for the construction or exten sion of works or manufactories or the purchase of new machinery, tools or equipment for operating works or manufactories, to the extent allowed by the regulations.
(2) Every company engaged in the operation of a manu facturing or processing business in the Province of Quebec may, in computing its net revenue, deduct an amount equal to thirty per cent of the investments made by it in such business during the period commencing on the 1st of April 1968 and ending on the 31st of March 1971.
(3) Any amount which may be deducted under this section during a financial year but is not deducted may be deducted during subsequent financial years.
(4) The amount which a company may deduct under this section for one of its financial years shall not exceed one-
half of its net revenue established for the financial year concerned before such deduction is made.
(5) The tax reduction obtained under this section shall not exceed twelve per cent of the amount which may be so deducted in computing the net revenue.
(6) No subsidy or premium paid to a company under the Regional Industrial Development Assistance Act (17 Eliz- abeth II, chapter 27) or under an equivalent plan within the meaning of such act shall be included in computing the company's revenue, and it shall not reduce the cost of any property for the purpose of the capital cost allowance.
Section 16a quoted above was amended by 1971 S.Q., c. 23, s. 1, as follows:
1. Section 16a of the Corporation Tax Act (Revised Statutes, 1964, chapter 67), enacted by section 1 of chapter 28 of the statutes of 1968, is amended:
(a) by replacing paragraph c of subsection 1 by the following:
"(c) "investment": the sum of the amounts of money which have been invested by a company in a manufactur ing or processing business, during any of its financial years, for the construction or extension of works or manufactories or the purchase of new machinery, tools or equipment for operating works or manufactories, to the extent allowed by the regulations but solely with respect to the portion of such sum which exceeds $50,000 if such amounts were invested during the period commencing on the 1st of April 1968 and ending on the 31st of March 1971, and if such amounts were invested during the period beginning on the 1st of April 1971 and ending on the 31st of March 1974, with respect to the entire sum so invested, up to $10,000,000, provided however that the sum so invested is at least $150,000;"
(b) by inserting after subsection 2 the following:
(2a) Every company which is engaged in the operation of a manufacturing or processing business in the province of Québec and which makes an investment contemplated in paragraph a of section 2 of the Québec Industrial Develop ment Assistance Act (1971, chapter 64) may, if a certificate has been issued with respect to such investment by the Minister of Industry and Commerce in accordance with subsection 26, in computing its net revenue, deduct:
(a) an amount equal to thirty per cent of such investment if it was made in zone I during the period commencing on the 1st of April 1971 and ending on the 31st of March 1974,
(b) an amount equal to fifty per cent of such investment if it was made in zone II during the period contemplated in paragraph a, or
(c) an amount equal to one hundred per cent of such investment if it was made in zone III during the period contemplated in paragraph a.
"(2 b) A company may avail itself of the advantages provided for in subsection 2a provided that a certificate has been issued to it by the Minister of Industry and Commerce
that the investment with respect to which it claims such advantages is subject to the application of paragraph a of section 2 of the Québec Industrial Development Assistance Act; such certificate must mention whether the company is making the investments which entitle it to avail itself of the advantages provided in subsection 2a in zone I, zone II or in zone III."
(d) by inserting after the word "under" in the second line of subsection 6 the following: "the Regional Development Incentives Act (Statutes of Canada, 1968/69, chapter 56) or".
It is noted that in the amending Act, the designation proceeds from 1(b) to 1(d). There is no paragraph designated 1(c) which was appar ently omitted.
There is no dispute between the parties that in the plaintiff's 1968 to 1971 taxation years the plaintiff satisfied the conditions precedent to its eligibility as outlined in section 16a(1)(a), (b) and (c) in computing its net revenue for the purpose of the Provincial Act to deduct the amount expended for investments, as defined in section 16a(1)(c), for its 1968, 1969 and 1970 taxation years and for its 1971 taxation year as defined in section 16 a(1)(c) as amended by sec tion 1(a) of section 1, chapter 23, Statutes of Quebec, 1971.
In computing its net revenue for the purpose of taxation under the Provincial Act the plaintiff took advantage of section 16 a(2) with respect to its 1968, 1969 and 1970 taxation years, and with respect to its taxation year 1971, the year presently under review, the plaintiff took advan tage of section 16a(2a) to compute its net revenue.
By doing so the deductions resulted in a reduction of the plaintiff's net revenue for the purposes of the Quebec Corporation Tax Act as set forth in paragraph 4 of the agreed statement of facts.
This, in turn, resulted in a net tax reduction to the plaintiff under the Provincial Act in the amount of $91,166, the compilation of which is outlined in paragraph 5 of the agreed statement of facts.
There is no dispute between the parties as to the accuracy of this amount.
Under section 11(1)(a) of the Income Tax Act a taxpayer is entitled to deduct in computing its income for a taxation year such amount of the
capital cost to the taxpayer of property as is allowed by regulation.
By Regulation 1100(1)(a)(viii) a taxpayer in computing his income in each taxation year may deduct in respect of class 8 property 20% of the capital cost of that property.
In Schedule B class 8 property is defined as property that is a tangible capital asset that is not included in another class in the Schedule.
The plaintiff claimed the full allowance outlined in Regulation 1100(1)(a)(viii) and in Schedule B.
In assessing the plaintiff as he did the Minis ter of National Revenue did so on the assump tion that the deductions made by the plaintiff in computing its net revenue under the Quebec Corporation Tax Act, and the resultant tax saving thereunder by the plaintiff, which was in the amount of $91, 1 66, was in respect of or for the acquisition of property and therefore the capital cost of that property to the taxpayer is deemed to be the capital cost thereof minus the amount of the grant, subsidy or other assistance received by the plaintiff from the Quebec Gov ernment under the Quebec Corporation Tax Act, within the meaning of section 20(6)(h) of the Income Tax Act.
Accordingly the Minister computed the unde- preciated capital cost of the property at $18,233 less than the amount claimed and assessed the plaintiff accordingly. The amount of $18,233 by which the undepreciated capital cost was reduced was arrived at by the simple math ematical process of taking 20% of the Quebec corporation tax saving of $91,166.
Again there is no dispute between the parties as to the accuracy of that figure.
The dispute between the parties, and the cru cial issue in this appeal, is whether the reduction in tax as a consequence of the deduction in net revenue enjoyed by the plaintiff under section 16a of the Quebec Corporation Tax Act consti tutes a "grant, subsidy or other assistance" within the meaning of those words in section
20(6)(h) of the Income Tax Act. Section 20(6)(h) reads:
20. (6) For the purpose of this section and regulations made under paragraph (a) of subsection (1) of section 11, the following rules apply:
(h) where a taxpayer has received or is entitled to receive from a government, municipality or other public authority, in respect of or for the acquisition of prop erty, a grant, subsidy or other assistance other than an amount authorized to be paid under an Appropriation Act and on terms and conditions approved by the Treasury Board for the purpose of advancing or sus taining the technological capability of Canadian manu facturing or other industry, the capital cost of the property shall be deemed to be the capital cost thereof to the taxpayer minus the amount of the grant, subsidy or other assistance;
It is abundantly clear the object of the Legis lature of the Province of Quebec in enacting 16a of the Corporation Tax Act in 1967-68 and by the subsequent amendment of that section was to induce those engaged in the manufactur ing and processing businesses of newly con ceived products, products not yet manufactured in the Province, or if manufactured in the Prov ince not manufactured in sufficient quantity to supply domestic and international markets, to locate within the boundaries of Quebec. To induce such persons to do so concessions are held out. The flat rate of tax under the Corpora tion Tax Act is 12% on a company's annual net revenue. The inducement held out is that expen ditures laid out for the construction of factories or the acquisition of machinery and equipment may be deducted from net revenue. While the flat rate of tax of 12% is still applicable to net revenue it is applicable to a net revenue which has been reduced. The result is, in effect, the exaction of a lesser tax than would otherwise be applicable or in other words, a reduction in tax. This legislation may be termed incentive.
On the other hand section 20(6)(h) of the Income Tax Act may be termed countervailing legislation. The section recognizes that a tax payer may receive from a government, munici pality or other public authority a "grant, subsidy or other assistance" in respect of or for the acquisition of property; and, in that event, the capital cost of the property shall be deemed to be the capital cost thereof to the taxpayer minus
the amount of the "grant, subsidy, or other assistance". This results in a lesser capital cost allowance being deductible with an accordingly increased income tax being payable.
The determination of the present appeal falls upon the interpretation of section 20(6)(h) of the Income Tax Act and more particularly whether the tax concession which enured to the plaintiff under the Quebec Corporation Tax Act is "a grant, subsidy or other assistance" within the meaning of those words as used in section 20(6)(h).
A statute, or a section thereof, must be con strued by what appears to have been the inten tion of the legislature but that intention must be ascertained from the words of the statute and not from any general inferences to be drawn as to the object of the statute.
It is axiomatic that the words used in a statute are to be given their plain and ordinary meaning but that plain and ordinary meaning may have a peculiar meaning dictated by the context in which the words are used.
In the present appeal it is conceded by coun sel for the parties that the words "other assist ance" in section 20(6)(h) are general words and construed in their ordinary meaning are suf ficiently broad, standing alone, to include the tax concession under the Quebec Corporation Tax Act enjoyed by the plaintiff.
However the question is whether the general words "other assistance" are to be construed in a sense restricted to things ejusdem generis with those which have been mentioned before, that is "grant" and "subsidy".
If the particular words "grant" and "sub- sidy", presuming the word "grant" to be a par ticular word, exhaust the whole genus then the general words "other assistance" refer to some larger genus.
In my opinion those two words are not exhaustive and I form that opinion because a plethora of synonyms occur to me such as pecuniary aid, allowance, bonus, bounty, gift, financial support, amongst many others.
The etymological meaning of a word is not necessarily the meaning of the word which the context requires and dictionaries may be resort ed to for the purpose of ascertaining the use of a word in popular language.
For this purpose counsel have referred me to standard dictionaries, it being conceded that the words "grant" and "subsidy" are used in sec tion 20(6)(h) in their popular sense and not as terms of art.
In the Shorter Oxford English Dictionary (3rd ed.) "grant" is defined as "3. An authoritative bestowal or conferring of a right, etc.; c. a gift or assignment of money etc. out of a fund". In addition it also has the legal meaning of a con veyance by deed.
In Jowitt, The Dictionary of English Law, "grant" is defined as "the term commonly applied to rights created or transferred by the Crown, e.g., grants of pensions, patents, chart ers, franchises. It is also used in reference to public money devoted to special purposes".
In Funk and Wagnall's Dictionary "subsidy" is defined as "1. Pecuniary aid directly granted by government to an individual or private com mercial enterprise deemed beneficial to the public".
"Subsidy" is defined in the Shorter Oxford English Dictionary (3rd ed.) as: "3. A grant or contribution of money. c. Financial aid fur nished by a state or a public corporation in furtherance of an undertaking or the upkeep of a thing".
Counsel for Her Majesty the Queen submit ted that the word "grant" has in itself a very broad meaning and for that reason it is a general word. From that premise he then argued that, in the words "grant, subsidy or other assistance", there was but one specific word, that is "sub- sidy", and relied upon United Towns Electric Co. Ltd. v. Attorney-General for Newfoundland' where Lord Thankerton held that the principle of ejusdem generis did not apply in that "a single
[1939] 1 All E.R. 423.
species—for example, water rates—does not constitute a genus".
I do not accept the premise upon which coun sel for Her Majesty the Queen founds his argu ment. In my view the word "grant" as used in' section 20(6)(h) is not a general word but in view of its dictionary meaning it is a particular word.
Again referring to the dictionary meanings of the words "grant" and "subsidy" there is one common thread throughout, that is a gift or assignment of money by government or public authority out of public funds to a private or individual or commercial enterprise deemed to be beneficial to the public interest. Subject to minor refinements the words "grant" and "sub- sidy" appear from their dictionary meanings to be almost synonymous.
I am of the view that rules of interpretation or canons of construction which have been estab lished judicially must be applied where pertinent and in or saying I do so fully cognizant that such rules, particularly the principle of ejusdem generis, are a useful servant but a dangerous master.
The ejusdem generis doctrine is as old as Bacon's maxims. That rule, which I repeat, is that where general words follow an enumeration of particular things they do not introduce changes of a different character.
In my judgment the familiar rule that where there are general words following particular and specific words all of one genus, the general words are presumed to be restricted to the same genus as the particular words,—applies to the words "grant, subsidy or other assistance" as used in section 20(6)(h) of the Income Tax Act. In this section there are the specific words "grant" and "subsidy" followed by the general words "or other assistance".
The fact is that the general words "or other assistance" can hardly avoid being ancillary in nature to the words "grant" and "subsidy". It
seems to me that where there are ancillary words of this nature it is a sound rule not to give such a construction to the ancillary words as will wipe out the significance of the particular words which antecede them.
As I have said before the constant and domi nating feature in the words "grant" and "sub- sidy" is that each contemplates the gift of money from a fund by government to a person for the public weal. Something concrete and tangible is to be bestowed. For the reasons I have expressed the general words "or other assistance" must be .coloured by the meaning of those words.
In the present instance what happened was that the Government of Quebec, for reasons of public policy, deemed it fit to forbear from exacting from companies which met certain pre scribed conditions, as the plaintiff did, a greater tax under the Corporation Tax Act than might otherwise have been done. This forbearance to exact a maximum tax as an inducement to manufacturers is different from the act of making a grant or subsidy available to such persons to encourage them to locate in the Prov ince for which reason I conclude that the tax advantage made available by the Quebec Gov ernment to the plaintiff is not "other assistance" within the limited sense of those words as used in section 20(6)(h) of the Income Tax Act.
While it is not conclusive and was not the subject of comment by counsel there is a modi cum of confirmation, upon which I do not rely, in reaching the conclusion I have in that the words "a grant, subsidy, or other assistance" in section 20(6)(h) are immediately followed by an exception which governs those antecedent words expressed in the language "other than an amount authorized to be paid ...". Those words constitute an exception to a grant, sub sidy, or other assistance and since they contem plate the payment of a monetary amount they are susceptible of and give credence to the interpretation that "grant", "subsidy", and `oth- er assistance" also contemplate the active pay ment of a monetary amount rather than a pas sive forbearance from exacting a maximum tax which would otherwise be exigible.
If the intention of Parliament had been other wise it would have been a relatively simple matter to make that intention abundantly clear by the use of appropriate language and thereby remove any ambiguity.
For the reasons which I have expressed it follows that the appeal is allowed and the plain tiff is entitled to its taxable costs.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.