Linden, J.A.:—The issue on this appeal is whether Bastion Management Limited (’’Bastion") is entitled to claim $196,000, as an inventory allowance deduction for the 1979 tax year under paragraph 20(1 )(gg) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act"), as it stood at that time.
Facts
Bastion is a commodities trader, dealing almost exclusively in futures contracts. A futures contract is a promise to deliver or receive a certain commodity at a certain price on a certain date in the future. Such a contract is fulfilled by delivering the specified commodity, accepting the specified commodity, or by liquidating the contract. A contract is liquidated by purchasing an offsetting contract. In other words, a contract to deliver a commodity is "cancelled" by a contract to receive that commodity on the same day at the same price and vice versa.
Futures traders make their money by anticipating the price trends of the commodities concerned and buying and selling contracts accordingly. Profit is made on the difference between the prices at which the commodity is bought and sold. If prices are expected to rise, a trader will contract to buy, at a price lower than he expects the commodity will reach, more of the commodity in the future than he has agreed to sell. A trader who expects prices to fall will contract to sell more than he has agreed to buy, expecting that he will be able to meet his contracts to sell by buying later at a lower price.
As part of its business, Bastion traded in gold and silver futures. In 1978, in order to take advantage of a new Income Tax Act provision which created an "inventory allowance" deduction, the company accountant recommended to Bastion that gold and silver be bought in the form of bullion, rather than mere futures contracts. The new provision permitted a particular percentage of the purchase price of inventory on hand at the beginning of the taxpayer’s fiscal year as a deduction from gross business income.
Bastion’s fiscal year began August 1. Acting on its accountant’s advice, it purchased large quantities of gold and silver bullion on July 26, 1978. On the same day, Bastion issued offsetting futures contracts for the sale of the bullion in August at the same price, so that there was no risk of loss nor any chance of profit. By August 3, 1978, all the bullion had been sold and the futures contracts had been liquidated. This was the only transaction that took place that year in the form of gold and silver bullion rather than futures.
On its tax return for 1979, Bastion claimed the inventory allowance deduction described in paragraph 20(1 )(gg) on the cost of the bullion. Bastion acknowledged that the sole purpose of purchasing the bullion was to take advantage of the new inventory allowance deduction in the Income Tax Act. The Minister of National Revenue disallowed the deduction. On appeal, the Tax Court of Canada, decided that it should be allowed. The Trial Division of this Court reversed the Tax Court, a decision which these reasons affirm, holding that the deduction cannot be permitted on the facts of this case.
Issues on appeal
In my view, two main issues are raised by the taxpayer which we must address. The first is whether the Trial Judge erred in deciding that the inventory, in respect of which the deduction is claimed, must be held in the ordinary course of the taxpayer’s business. The second issue is whether the trial judge was correct in finding that bullion was not purchased in the ordinary course of the appellant’s business.
Paragraph 20(1 )(gg), the provision that is applicable here, reads as follows:
20(1) Notwithstanding paragraphs 18(l)(a), (b) and (h), in computing a taxpayer’s income for a taxation year from a business or property, there may be deducted such of the following amounts as are wholly applicable to that source of such part of the following amounts as may reasonably be regarded as applicable thereto: ...
(gg) an amount in respect of any business carried on by the taxpayer in the year, equal to that portion of three per cent of the cost amount to the taxpayer, at the commencement of the year, of the tangible property (other than real property or an interest therein) that was
(i) described in the taxpayer’s inventory in respect of the business, and
(ii) held by him for sale or for the purposes of being processed, fabricated, manufactured, incorporated into, attached to, or otherwise converted into or used in the packaging of, property for sale in the ordinary course of the business
that the number of days in the year is of 365; [Emphasis added. ]
In Stubart Investments Ltd. v. The Queen, [1984] S.C.R. 536, [1984] C.T.C. 294, 84 D.T.C. 6305, at page 578 (C.T.C. 316, D.T.C. 6323), Estey J. explained the proper approach to statutory interpretation in tax cases, in the same way as in other cases, by adopting a passage from Professor Driedger’s Construction of Statutes, (2nd ed. 1983) at page 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
This purposive approach has been followed consistently by this Court. (See Lor-Wes Contracting Ltd. v. The Queen, [1985] 2 C.T.C. 79, 85 D.T.C. 5310 (F.C.A.), at pages 83-84 (D.T.C. 5313) per MacGuigan J.A.; The Queen v. Swantje, [1994] 2 C.T.C. 382, 94 D.T.C. 6633 (F.C.A.), at page 385 (D.T.C. 6635) per Marceau J.A.). This method of statutory interpretation has also been extended to the interpretation of a single provision. (See ECG Canada Inc. v. The Queen, [1987] 1 C.T.C. 205, 87 D.T.C. 5133 (F.C.T.D.) per Rouleau J.) The recent tax decisions of the Supreme Court of Canada are remaining true to Stubart, supra. In Québec (Communité urbaine) v. Corp. Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3, [1995] 1 C.T.C. 241, 95 D.T.C. 5017 (see also Buanderie Centrale de Montréal Inc. v. Montrai (City), [1994] 35 S.C.R. 29, 95 63 Q.A.C. 191), for example, Mr. Justice Gonthier, in summarizing the principles to be applied in interpreting tax legislation, reaffirmed:
A legislative provision should be given a strict or liberal interpretation depending on the purpose underlying it, and that purpose must be identified in light of the context of the statute, its objective and the legislative intent.
Let us, therefore, examine the purpose and the context of the provisions we are construing. In the late 1970s, taxpayers with inventories were suffering from the effects of inflation, which artificially increased the apparent profit on which they had to pay tax. According to the then-Finance Minister, the purpose of this provision was to partially offset the effects of inflation by allowing the taxpayer to deduct three per cent of the opening value of qualifying inventories (see Budget Document, the Honourable Donald S. Macdonald, Minister of Finance, March 31, 1977, at page 37). The Trial Division of this Court as well as this Court have adopted this view of the legislative aim on a number of occasions. (See Saskatchewan Wheat Pool v. The Queen, [1985] 1 C.T.C. 31, 85 D.T.C. 5034 (F.C.A.), at pages 33-34 (D.T.C. 5036); The Queen v. Boehringer Ingelheim (Canada) Ltd., [1985] 2 C.T.C. 211, 85 D.T.C. 5443 (F.C.T.D.), at page 214 (D.T.C. 5446), aff’d. [1987] 2 C.T.C. 245, 87 D.T.C. 5442 (F.C.A.); The Queen v. Mattabi Mines Ltd., [1989] 2 C.T.C. 94, 89 D.T.C. 5357 (F.C.T.D.), at 106-08 (D.T.C. 5367), aff’d. [1992] 2 C.T.C. 8, 92 D.T.C. 6252 (F.C.A.); Plaza Pontiac Buick Ltd. v. The Queen, [1991] 2 C.T.C. 259, 91 D.T.C. 5547 (F.C.T.D.), at 259-61 (D.T.C. 5547-48), aff’d. [1994] 1 C.T.C. 27, 94 D.T.C. 6058 (F.C.A.); Gay-Lea Foods Co-operative Ltd. v. Canada, [1994] 2 C.T.C. 245, 94 D.T.C. 6285(F.C.T.D.), at pages 246-48 (D.T.C. 6286).
Mr. Justice Teitelbaum, for example, succinctly and accurately summarized the situation in Mattabi Mines, supra, at C.T.C. 107, D.T.C. 5367:
As indicated by both counsel, the deduction was announced in the March 31, 1977 budget as a measure to provide some relief from the effects of inflation for taxpayers whose business required them to invest in and carry an inventory of tangible goods other than real property.
Similarly, Mr. Justice Hugessen stated in Saskatchewan Wheat Pool, supra, at page 33 (D.T.C. 5036):
The inventory allowance permitted by paragraph 20(1 )(gg) was introduced into the Income Tax Act in 1977. Its obvious purpose was to allow some relief to businesses from the increased tax liability due to "false" profits created by the effect of high inflation on year-end inventories....
It is clear then, that, properly construed, the paragraph 20(1 )(gg) deduction was meant to give some tax relief from the effects of inflation to those taxpayers whose business involved carrying inventory. The trial judge rightly quoted and relied on these authorities in arriving at the decision.
The next matter to consider is whether the taxpayer’s inventory must be held for sale "in the ordinary course of the business", as contended by the Crown, or whether it is sufficient to be simply held for sale by the taxpayer, as argued by Bastion.
Mr. A.M. Gans and Mr. R. Yasny, counsel for Bastion, argued that, in order to qualify for the deduction, there must have been (1) tangible property held at the start of the 1979 taxation year, (2) this had to be described in the inventory of the business; and (3) the tangible property must have been held (a) for sale, or (b) for the purpose of being processed into...fabricated into...manufactured into...incorporated into...etc., property for sale in the ordinary course of business. On this reading of the clause, Bastion would meet the requirements of the paragraph, in that it owned tangible property at the start of the fiscal year, the property was listed in its inventory, and it was held by it for sale. There was no need to demonstrate that it was held for sale in the ordinary course of the business, they contended, since that phrase did not modify the first few words in the provision, but only the later ones. They relied on two Interpretation Bulletins of the Department of National Revenue (IT-346R and IT-346) and a dictum in GSW Appliances Ltd. v. The Queen, [1993] 2 C.T.C. 325, 93 D.T.C. 5502 (F.C.T.D.), at page 330 (D.T.C. 5505).
Mr. David E. Spiro, for the Crown argued that the phrase "the ordinary course of the business" at the end of the clause modifies the whole of the clause and not just the portion of it that follows the words "held for sale." On this view, the relevant portion of the provision should be read as follows:
the tangible property... th at was
—held by him for sale in the ordinary course of the business,
—or held by him for the purpose of being processed into property for sale in the
ordinary course of the business,
-or held by him for the purpose of being fabricated into property for sale in the
ordinary course of the business,
—or held by him for the purpose of being manufactured into property for sale in
the ordinary course of the business,
—or held by him for the purpose of being incorporated into property for sale in
the ordinary course of the business,
-or held by him for the purpose of being attached to property for sale in the
ordinary course of the business,
—or held by him for the purpose of being otherwise converted into or used in
the packaging of property for sale in the ordinary course of the business....
The trial judge (rather charitably I think) described this provision as being "not very grammatically framed”. Despite the awkwardness and complexity, however, in my view, Mr. Spiro’s interpretation is the one that is most in accord with the purpose of the provision, its context, its language and common sense. Its aim was to provide relief against the effects of inflation to those taxpayers "whose business required them to invest in and carry an inventory of tangible goods” (see Mattabi Mines, supra). The provision was not enacted as an incentive for taxpayers to arrange their affairs so as to gain a tax benefit, but to aid those whose affairs had already been arranged in a particular way that led to an unfair tax disadvantage. Specifically, this provision was not drafted to enable businesses to purchase large quantities of goods at year end in order to obtain this tax advantage, and then to sell the goods immediately thereafter.
If the provision is parsed carefully, despite its infelicitous design, one can see that the words, "in the ordinary course of the business", are meant to modify all the various verbs listed in the clause, not just the latter ones. There is no reason to distinguish between the first phrase, held by him for sale, and the other phrases, granting tax relief to some and not others. As was remarked by the trial judge:
Why should tangible property held for manufacturing into a product for sale be included only if the manufactured product will be held for sale in the ordinary course of business, while tangible property, which has already been manufactured into an article for sale, need not be held for sale in the ordinary course of business to qualify for the deduction.
Why indeed?
In my view, the meaning that best reflects the aim of the legislation, its context, and its wording is that the phrase "in the ordinary course of the business" modifies the words "held by him for sale" in the same way as it applies to the other phrases in the provision. This interpretation is in harmony with decisions in this Court and other courts. (B.C. Telephone Co. v. M.N.R. (T.C.C.), [1986] 1 C.T.C. 2410, 86 D.T.C. 1286, at pages 2415-16 (D.T.C. 1290), per Rip J.; Sass Manufacturing Ltd. v. M.N.R., [1988] 1 C.T.C. 2524, 88 D.T.C. 1363 (T.C.C.), at pages 2529-30 (D.T.C. 1367), per Sarchuk J.; see also Mara Properties Ltd. v. Canada, [1995] 2 C.T.C. 86, 95 D.T.C. 5168 (F.C.A.).) It is inconsistent with the obiter dictum in GSW Appliances, supra, which dealt with a different issue, whether the inventory was "held for sale", one which did not involve the particular question at issue on this appeal. This meaning is also inconsistent with certain Interpretation Bulletins, supra, but this is not an impediment to this Court. As Madame Justice Desjardins explained in Harvey C. Smith Drugs Ltd. v. The Queen, [1995] 1 C.T.C. 143, 95 D.T.C. 5026 (F.C.A.), at page 148 (D.T.C. 5029):
...it is now well settled that interpretation bulletins only represent the opinions of the Department. They do not bind either the Minister, the taxpayer or the courts and are only an important factor in interpreting the Act in the event of doubt as to the meaning of the legislation.
If the appellant’s interpretation were correct, anyone with business income of any kind would be able to purchase any kind of tangible property at the end of the year, list it in inventory, sell it immediately and then claim an inventory allowance deduction. This would make a mockery of the provision. It would be absurd.
Having decided that inventory must be held for sale in the ordinary course of the business, the trial judge went on to consider what the ordinary course of the taxpayer’s business was. In so doing, the history of Bastion’s business was examined, rather than the business of commodities traders generally. According to the trial judge, Bastion engaged in the business of a commodities futures trader. In interpreting the phrase "in the ordinary course of the business," The trial judge relied on the words of Street J., in Re Bradford Roofing Industries Pty. Ltd. (1966), 84 W.N. (Pt. 1), [1966] 1 N.S.W.R. 674 (N.S.W.) 276 at N.S.W.R. page 285, which was cited by Rip J . in B.C. Telephone Co., supra, at pages 2415-16 (D.T.C. 1290):
the requirement is that the transaction must fall into place as part of the undistinguished common flow of the company’s business, that it should form part of the ordinary course of the company’s business as carried on, calling for no remark and arising out of no special or particular situation.
Counsel for Bastion argues that this is the wrong test, that the question should be, not what the particular commodities trader might have done in the course of its business, but what might be considered to be in the ordinary course of business in the commodities trade generally.
In my view, the trial judge’s approach was the correct one. The phrase used is "in the ordinary course of the business", not "in the ordinary course of business". This means that the relevant business is that of the taxpayer, not of some abstract business organization. The words "the business", as used in paragraph 20(1 )(gg), can logically refer only to the business of the taxpayer for which the clause is being used to calculate the income. Furthermore, the conclusion that the business of the appellant was that of a commodities futures trader is a finding of fact, which can only be set aside by this Court if a palpable and overriding error was made. (See Stein v. "Kathy K." (The), [1976] 2 S.C.R. 802, [1976] C.T.C. 661, 62 D.L.R. (3d) 1; Century Insurance Co. of Canada v. N.V. Bocimar S.A., [1987] 1 S.C.R. 1247, 39 D.L.R. (4th) 465. There was no such error.
This bullion transaction was correctly found not to be in the ordinary course of the taxpayer’s business. It was something extraordinary, not something commonly or normally done by the taxpayer. On this one occasion only, it purchased the bullion six days before the year end and sold it three days after the year end. There being no risk of loss, in the words of its president, the deal was "a perfect hedge" (see Appeal Book at page 258). It was not part of the "common flow of the company’s business"; in these circumstances, it did call for some remark because it arose out of a "special or particular situation". Although there was one other unexplained transaction involving a commodity, some Lampong black pepper, the taxpayer dealt almost exclusively in futures. Even in the business generally some 90 per cent of trading was in futures, the actual physical commodities involving only 10 per cent of the business. The transaction, therefore, was rightly found not to be in the ordinary course of Bastion’s business. Accordingly, the trial judge made no error and her finding that the appellant was a commodities futures trader, whose business did not ordinarily include the buying and selling of commodities in their physical form, is unimpeachable.
In the light of this conclusion, there is no need for this Court to consider the other issues raised by the parties concerning whether this transaction dealt with "inventory", whether a "business" was involved, or whether subsection 245(1) of the Income Tax Act should be invoked.
Conclusion
The appellant attempted to arrange its affairs in order to minimize the amount of income tax it would be required to pay. This a taxpayer 1s entitled to do if what it does is not a sham, which implies some fraudulent activity, and if it can bring itself within the clear words of the section (see Antosko v. The Queen, [1994] 2 C.T.C. 25, 94 D.T.C. 6314 (S.C.C.). This may be so, even if the taxpayer has no bona fide business purpose in doing so (see Stubart Investments, supra, at page 579 (C.T.C. 316, D.T.C. 6322), subject to subsection 245(1), of course. The "clear words" of the provision granting the tax relief, however, must be interpreted in their total context, including the purpose of the legislation. The wording of this legislation expressly required that the goods be held for sale in the ordinary course of the business. The appellant hoped that, by buying tangible property which had a relationship to its business, it would be able to satisfy the provisions of the requirement. It was a clever attempt to arrange its affairs so as to comply with a possible meaning of the words in paragraph 20(1 )(gg). It took a chance, a calculated risk, that it would be able to claim the inventory allowance deduction. Unfortunately, the possible meaning contended for by
the taxpayer did not prevail. The attempt has failed.
The appeal will be dismissed with costs.
Appeal dismissed.
Email this Content