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T-1706-79
General Bearing Service Ltd. (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Cattanach J.—Ottawa, September 17 and 21, 1979.
Prerogative writs — Declaration — Sales or consumption tax exacted pursuant to Excise Tax Act — Plaintiff imported goods for resale — Refund of tax claimed but refused — Whether or not sales tax payable and more particularly, whether or not goods were taken out of bond 'for consump tion" as that phrase is used in context of s. 27(1)(b) of Excise Tax Act — Excise Tax Act, R.S.C. 1970, c. E-13, ss. 27(1)(b), 58 — Customs Act, R.S.C. 1970, c. C-40, s. 80(1).
Plaintiff seeks a declaration that a consumption tax exacted pursuant to section 27(1)(b) of the Excise Tax Act by the Department of National Revenue was improperly exacted and should be refunded. Plaintiff imported iron couplings from the United States, took the goods out of the customs warehouse for resale and paid the sales or consumption tax. Plaintiff later claimed a refund which was refused by defendant on the ground that plaintiff was not a licensed wholesaler. The issue is whether or not the sales tax is payable when plaintiff took the goods out of bond from the warehouse, and more particularly, whether or not the plaintiff, in taking the goods out of bond for resale, took the goods out of bond "for consumption", as that phrase is used in the context of section 27(1)(b) of the Excise Tax Act.
Held, the application is denied. All statutes are to be con strued so as to give effect to the intention of the statute. When the main object of a statute is clear it is a very serious matter to reduce it to a nullity as a result of an ill expression and of course the intention of a statute is to be gleaned from reading it as a whole. Neither section 27(1)(b) of the Excise Tax Act nor the Excise Tax Act is to be read in isolation. The Excise Tax Act and the Customs Act must be taken and construed together as one system and explanatory of each other. Pursuant to section 80(1) of the Customs Act, all warehoused goods are imported either for exportation or home consumption. These two purposes are exhaustive. Plaintiff did not import the goods for exportation. It therefore imported them for home consump tion and it is in that sense that the phrase "for consumption" must be read in section 27(1)(b) of the Excise Tax Act. "Home consumption" means that the goods are taken out to be used for the purpose for which the importer imported the goods into Canada.
APPLICATION. COUNSEL:
P. Dioguardi for plaintiff. D. Sgayias for defendant.
SOLICITORS:
Quain, Dioguardi, Kennedy, Watt, Barnes & Sammon, Ottawa, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
CATTANACH J.: The plaintiff by its action herein seeks a declaration that a consumption tax exacted by the Department of National Revenue (presided over by the Minister of National Reve nue and his lawful deputy, the Deputy Minister of National Revenue for Customs and Excise, who, as his title indicates, is charged with the control, regulation, management and supervision of taxes imposed by the Excise Tax Act, R.S.C. 1970, c. E-13) from the plaintiff by virtue of section 27(1)(b) of that Act was improperly exacted and should be refunded.
Section 27(1)(b) reads:
27. (1) There shall be imposed, levied and collected a con sumption or sales tax of twelve per cent on the sale price of all goods
(b) imported into Canada, payable by the importer or trans- feree who takes the goods out of bond for consumption at the time when the goods are imported or taken out of warehouse for consumption;
Prior to trial the parties agreed upon a state ment of facts which reads:
1. The Plaintiff is a body corporate and politic duly incorpo rated under the laws of the Dominion of Canada.
2. On or about December 8, 1978, the Plaintiff imported into Canada from the United States of America certain couplings of iron or steel (hereinafter referred to as "the goods in question").
3. The goods in question entered Canada in bond and were placed in a customs warehouse at Ottawa.
4. The goods in question were entered at the Port of Ottawa under entry number 017040. A copy of the entry form is Schedule 1 hereto and copies of the related invoices are Schedule 2 hereto.
5. On or about December 18, 1978, the Plaintiff took the goods in question out of the customs warehouse.
6. On or about December 19, 1979*, the Department of Na tional Revenue claimed and the Plaintiff paid consumption or
* This is an error in the agreed statement of facts and should be 1978.
sales tax in the amount of $63.77 as shown on Schedule 1 hereto.
7. The goods in question were imported and were taken out of the customs warehouse for the purpose of resale within Canada at a later date.
8. On or about February 28, 1979, the Plaintiff claimed from the Department of National Revenue a refund of the sum of $63.77 paid as consumption or sales tax in respect of the goods in question. A copy of the Plaintiff's claim for refund dated February 28, 1979, is Schedule 3 hereto.
9. On or about March 15, 1979, the said claim for refund was refused. A copy of the letter from the Refund Officer of the Department of National Revenue to the Plaintiff is Schedule 4 hereto.
I have not considered it necessary to reproduce the schedules annexed to the statement of agreed facts because they are merely documents suppor tive of the agreed facts with the exception of schedule 4. However it is abundantly clear from paragraph 2 of the statement of claim that application for a refund of the tax exacted was made by the plaintiff and that the application was refused by the Department of National Revenue on the ground that the plaintiff was not a licensed wholesaler which allegations are admitted in para graph 2 of the statement of defence even though no letter from an officer of the Department of National Revenue was written and sent to the plaintiff.
In fact I would proffer the gratuitous suggestion that the relevant facts were settled by the plead- ings as was the issue arising from those facts so that the statement of agreed facts was superfluous other than to set forth the facts alleged and admit ted in the pleadings in a summary and convenient form.
Neither do I think that oral testimony was required but I permitted it to be given because in the joint application for trial it was agreed be tween the solicitors for the parties that there would be one witness for the plaintiff.
That witness, the president of the corporate plaintiff, merely testified that the couplings imported by it were not put to the use by the plaintiff for the purposes for which the couplings were designed. That was the limitation placed upon the evidence permitted to be given in light of
the admissions made in the pleadings. As alleged in the pleadings the goods in question were placed in the plaintiffs premises against the eventuality of a prospective purchaser buying a coupling for a use to which the purchaser had for that device.
The issue between the parties is whether the consumption or sales tax imposed by the section on the sale price of the goods imported into Canada by the plaintiff is payable by the plaintiff when the plaintiff took the goods out of bond from the warehouse in which they had been placed.
This in turn, narrows the issue still further. It is simply whether the plaintiff took the goods out of bond "for consumption".
The matter falls for determination on the mean ing to be ascribed to the simple phrase "for con sumption" in the context it is used in the section.
Counsel for the plaintiff contends that the goods when removed by the plaintiff were not removed for consumption but for resale.
On the other hand counsel for the defendant contends that despite the fact that the plaintiff removed the goods for resale they were neverthe less removed "for consumption" within the mean ing that must be given to that phrase in the context it is used in the section.
Statutes must be interpreted according to well recognized rules of interpretation but the great difficulty in all cases is applying rules of interpre tation to the particular case.
The task of construction is not an easy one and that task is not made less difficult when the will of the legislature is ill-expressed. However a court must, in each case, apply the admitted rules of interpretation to the case in hand, not deviating from the literal sense of the words used without sufficient reason, or more than is justified, yet not adhering slavishly to them where to do so would obviously defeat the intention which may be col lected from the whole statute.
Section 27(1)(b) clearly provides that a con sumption or sales tax shall be imposed and collect ed on the sale price of goods imported into Canada. That tax shall be paid by the importer
(excepting in the case of a transferee which is not applicable on the facts in this action).
The next question is when that tax shall be payable by the importer.
I would expect that if the goods were not placed in bond or warehouse then the tax would be pay able at the time of importation by the importer. That was not the case in this instance.
The plaintiff imported the goods into Canada on December 8, 1978 but did not take actual posses sion of them on that date.
Paragraph 3 of the statement of agreed facts recites that the goods in question entered Canada in bond and were placed in a customs warehouse in Ottawa, Ontario, no doubt the port of entry.
I am not certain from these admitted facts that the goods were imported into Canada for ware house but I expect a combination to be the case. The goods were imported in bond for warehouse. Certainly they were not imported for exportation.
The agreed statement of facts, in paragraph 5, states that the plaintiff took the goods "out of the customs warehouse" on December 18, 1978, that is ten days after entry. The plaintiff paid the tax demanded by the Department of National Reve nue on December 19, 1978 (see paragraph 6 of the agreed facts).
Therefore the plaintiff took the goods "out of bond" or "out of warehouse" on December 18, 1978. I do not think it material which was the case or if the cases were coincidental.
What is material is that the tax is payable by the importer by virtue of section 27(1)(b) at the time that the importer "takes the goods out of bond for consumption at the time when the goods are imported" or "taken out of warehouse for consumption".
In either instance the goods to attract excise tax must be taken out of bond or warehouse by the importer "for consumption". That is the time the tax is payable by the importer.
Thus the meaning of the phrase "for consump tion" as used in the context of section 27(1)(b) is critical to the determination of this matter.
Basically the contention of counsel for the plain tiff is the very simple and straightforward one that the word "consumption" is not a technical word or a word relating to an art or science and therefore must be given its popular meaning.
The etymological meaning of a word is not necessarily the meaning which the context requires and dictionaries are only to be resorted to for the purpose of ascertaining the uses of a word in popular language.
Subject to that admonition counsel for the plain tiff sought instruction in those books and he par ticularly referred me to the definition of the word "consumption" in Webster's New World Diction ary reading: "Econ. the using up of goods or services, either by consumers or in the production of other goods". Paramount in that dictionary meaning is the concept that the goods must be "used up" or "consumed" in the sense that they are used in the use for which the goods were intended. Thus rat poison would be used up when devoured by a rat. "Used up" would be the ulti mate use of the goods.
As counsel for the plaintiff has put it, the word ing of section 27(1)(b) "is very clear in calling for a consumption of the goods before tax is payable". In the example I gave I do not think that conten tion would mean when a rat ate the poison but rather when the person wishing an end to the rat laid out the poison.
That counsel contends is the plain meaning.
Assuming that to be so the consumer would be the person who purchased a coupling from the plaintiff (it being admitted and agreed that the plaintiff imported the goods for resale) and until that happened there would be no consumption.
Because the section prescribes that the time the tax is payable is when the goods are taken out for consumption that time arises only when the goods are so used.
Assuming this to be so it would be a practical impossibility for the Department to collect the tax at the time it is so contended that the tax is payable.
Regardless of this result counsel for the plaintiff reiterated for me a cardinal rule of legal interpre tation that where the language of a statute is clear and explicit that language must be given effect to whatever may be the consequences for in that case the words of the statute speak the intention of the legislature.
But there is also the rule applicable to statutes that the plainest words may be controlled by a reference to the context, but then, as has been often said, you must have a context even more plain, or at least as plain (it comes to the same thing) as the word to be controlled.
All statutes are to be construed so as to give effect to the intention of the statute. When the main object of a statute is clear it is a very serious matter to reduce it to a nullity as a result of an ill expression and of course the intention of a statute is to be gleaned from reading it as a whole.
In this instance neither section 27(1)(b) of the Excise Tax Act nor the Excise Tax Act is to be read in isolation.
Section 58 of the Excise Tax Act provides that where an excise tax is payable upon the importa tion of any article into Canada the Customs Act, R.S.C. 1970, c. C-40, is applicable in the same way and to the same extent as if the excise tax were a customs tax.
Thus the Excise Tax Act and the Customs Act must be taken and construed together as one system and as explanatory of each other.
Bearing that in mind section 80(1) of the Cus toms Act provides:
80. (1) All warehoused goods shall be finally cleared, either for exportation or home consumption, within two years from the date of the first entry and warehousing thereof.
All warehoused goods are imported either for exportation or home consumption. These two pur poses, exportation or home consumption, are exhaustive.
The plaintiff did not import the goods for expor tation. Therefore it imported them for home con sumption and it is in that sense that the phrase "for consumption" must be read in section 27(1)(b) of the Excise Tax Act.
When the plaintiff took the goods out of the customs warehouse on December 18, 1978 it took them out for "home consumption".
What then does "home consumption" mean?
In my view these words mean that the goods are taken out to be used for the purpose for which the importer imported the goods into Canada.
If I recall a contention by counsel for the defendant correctly it was that the goods were "taken out for consumption" when introduced into the channels of trade. That would be so in the case of the plaintiff but not necessarily in the case of all importers. By way of example a person might import a quantity of novelty wares for distribution as Christmas gifts. This would not be introduction into the channels of trade and it is for that reason that the use must be for the purpose for which the importer imported the goods. That to me is a significant qualification which must be present.
In this instance it is admitted that the goods were imported for resale and they were taken out for resale.
That being so when the plaintiff took the goods in bond out of the customs warehouse it took them out "for consumption" within the meaning of that phrase within the context in which it is used.
For the foregoing reasons the plaintiff's action is dismissed but in the circumstances peculiar to this action without costs to the defendant.
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