Citation: 2010 TCC 195
Date: 20100412
Docket: 2006-2103(IT)I
2006-2106(IT)I
BETWEEN:
JEAN-FRANÇOIS BLAIS,
CHRISTIANE AURAY-BLAIS,
appellants,
and
HER MAJESTY THE QUEEN,
respondent.
[OFFICIAL ENGLISH
TRANSLATION]
AMENDED REASONS FOR JUDGMENT
[These amended
Reasons for Judgment replace those dated April 9, 2010. They correct
errors stemming from an involuntary slip or omission in footnote 4 and
paragraphs 25 and 97. The earlier Reasons for Judgment remain unchanged in all
other respects.]
Jorré J.
INTRODUCTION
[1]
The appellants are
appealing their income tax assessments for the 2002 taxation year. They have
chosen the informal procedure.
BRIEF HISTORY
[2]
Initially, there was a
debate between the parties as to whether the appellants were truly engaged in
scientific research and experimental development (SR&ED). The Court ruled
on this subject with regard to earlier taxation years, and the respondent now
accepts that the appellants were engaged in SR&ED in 2002.
[3]
The debate regarding the
matters before this Court was not always easy to follow. Although I will not
provide a complete history, I should mention that the process was unusual. At one
point, the Minister of National Revenue (the Minister) wanted to do an
audit regarding the taxation year in issue.
But the appellants wanted the appeals regarding earlier years to be
decided first, and they refused to produce the documents that the Minister was
seeking. Following this refusal, the Minister assessed the appellants without
doing an audit. The appellants filed notices of objection, which were
placed on hold for a time, after which the assessments were confirmed. During
the objection stage, the appellants produced no documents and the Minister
conducted no audit.
[4]
It was only after the appellants
filed their Notices of Appeal in July 2006 that the appellants provided
the documents. They did so by letter dated April 1, 2007. The
Minister then carried out an audit.
THE APPELLANTS’ POSITION UPON FILING THEIR INCOME TAX
RETURNS
[5]
The appellants are
married, and were members of a partnership called Société Christiane Auray-Blais
et Jean‑François Blais (the Partnership). Each appellant had a 50% interest
in the Partnership. These appeals are about the Partnership’s activities.
[6]
The Partnership engaged
in SR&ED.
[7]
For the purposes of
their income tax returns, the appellants used the following profit and loss
statement:
|
[TRANSLATION]
PARTNERSHIP SUMMARY:
2002 TAXATION YEAR
|
|
|
|
|
|
…
|
|
|
|
|
|
Rental and other income
|
$12,425.68
|
|
Salary - research
|
($5,000.00)
|
|
Total research expenses for investment tax credit
(ITC)
|
($32,543.79)
|
|
|
|
|
Federal Research ITCs (2001)
|
$7,508.76
|
|
|
|
|
Capital assets
|
|
|
Capital cost allowance
|
($12,259.27)
|
|
Administration costs (interest paid) - R&D
|
($7,034.28)
|
|
|
|
|
Research expenditure account – year-end
|
($49,328.58)
|
|
|
|
|
PARTNERSHIP PROFIT OR LOSS
|
($36,902.90)
|
[8]
In his return, Mr. Blais
reported a loss of $13,451.45 from the Partnership. This amount is
half the Partnership’s loss, $18,451.45, minus the $5,000 salary from the
second line of the profit and loss statement quoted above. The result is the
same as it would have been if Mr. Blais had included the $5,000 salary and
deducted $18,451.45.
[9]
Ms. Auray-Blais claimed
a loss of $18,451.45,
half the amount of the Partnership’s $36,902.90 loss.
[10]
Mr. Blais also
claimed an investment tax credit (ITC) of $3,758.29, which is 20% of
half the current expenses of $33,450 and 20% of half the capital expenditures
of $4,094.
The amount of ITC claimed by Ms. Auray‑Blais is not part of the
evidence.
The August 2004 assessments
[11]
Following the refusal
to provide documents, the Canada Revenue Agency (CRA) issued assessments
against the appellants.
The CRA’s starting point was a revised profit and loss statement that the appellants
adopted and signed on December 21, 2003:
|
SUMMARY OF RESEARCH PARTNERSHIP FOR 2002
|
|
|
|
|
|
…
|
|
|
|
|
|
|
|
Revenues
|
|
$12,425.68
|
|
|
|
|
|
Current research expenses
|
$28,450.26
|
|
|
Capital expenditures
|
$4,093.53
|
|
|
Administrative costs (interest)
|
$7,034.28
|
|
|
Salary - research partner
|
$5,000.00
|
|
|
Capital assets [depreciation]
|
$12,259.27
|
|
|
|
|
|
|
Total research expenses
|
|
$56,837.34
|
|
|
|
|
|
Total profit or loss
|
|
($44,411.66)
|
[12]
In the August 2004
assessments, the amounts reported in the income tax returns were changed as
follows:
(a) The
CRA recomputed the Partnership’s loss, having
(i) disallowed
the $5,000 deduction for salary; and
(ii) disallowed
the $4,093.53 in capital expenditures; but
(iii) granted
a capital cost allowance in the amount of $18,234 instead of the $12,259.27
claimed; and
(iv) agreed
that the Partnership incurred all the other expenses that the CRA was
unable to audit.
This produced the following picture:
|
Revenues:
|
Rental and other
income
|
|
$12,425.68
|
|
|
ITC for SR&ED
from 2001
|
|
$0.00
|
|
|
|
|
|
|
Total revenues
|
|
|
$12,425.68
|
|
|
|
|
|
|
Expenses:
|
|
|
|
|
|
|
|
|
|
Operations :
|
Partner’s salary
|
$0.00
|
|
|
|
Materials
|
$28,450.26
|
|
|
|
Administration
costs: interest
|
$7,034.28
|
|
|
|
Capital cost
allowance: allotted
|
$18,234.00
|
|
|
|
Capital
expenditures
|
$0.00
|
|
|
|
|
|
|
|
Total expenses
|
|
|
$53,718.54
|
|
|
|
|
|
|
Subtotal
|
|
|
($41,292.86)
|
|
|
|
|
|
|
Less:
|
Partner’s
compensation
|
|
0.00
|
|
|
|
|
|
|
Net loss
|
|
|
($41,292.86)
|
The CRA split this loss
equally between the appellants.
(b) The effect was to
increase Mr. Blais’ loss by $13,451.45 to $20,646.43. However, it
reduced Ms. Auray-Blais’ loss from $18,451.45 to $9,073.22, because the
CRA applied section 31 of the Income Tax Act (ITA).
(c) In addition, the CRA
assumed that the appellants had not engaged in any SR&ED activity and disallowed
all investment tax credit claims.
[13]
It was only after the appellants
filed their Notices of Appeal in July 2006 that they provided documents, and
they did so by letter dated April 1, 2007. The Minister then did an
audit.
[14]
The Replies to the
Notices of Appeal were filed on April 27, 2007.
POSITION OF THE PARTIES AT THE HEARING
[15]
The Notices of Appeal
dated July 5, 2006, along with Appendix 1
dated July 7, 2006,
are very brief, and are limited to an assertion that the CRA was wrong not to
allow the SR&ED expenditures and the related investment tax credits. The notices
raise no other issues, such as the disallowance of Mr. Blais’ salary as a
partner, or the application of section 31 of the ITA to Ms. Auray-Blais.
They provide no expense amounts, but based on the evidence, it became
clear that the amounts set out in paragraph 11 of these reasons are the appellants’
starting point.
[16]
The respondent’s
Replies to the Notices of Appeal only take into account a part of the audit
that was done after the Notices of Appeal were filed, and they do not directly
include certain aspects of the respondent’s position. That position had to be
clarified at the hearing, and, in relation to the profit and loss statement
quoted at paragraph 11 of these reasons for the purpose of calculating the
business’s loss, that position is as follows:
(a) The respondent agrees
that the Partnership engages in SR&ED.
(b) The respondent agrees
that the Partnership’s income is not farming income and that section 31 of
the ITA does not apply.
(c) The Partnership’s revenue
of $12,425.68 (see above at paragraph 11) must be reduced by $2,425.68, which
consists of the GST and QST collected by the Partnership.
(d) Of the $28,450.26 that
the revised profit and loss statement of December 21, 2003,
attributes to current research expenses,
(i) $3,033.99 in
GST and QST paid by the business is not deductible as a business expense,
(ii) $10,525.09
consists of personal expenses that are not deductible as businesses expenses, and
(iii) $554.94
was spent to earn income but constitutes capital expenditures, not current
expenses.
Consequently, the current expenses must be
reduced from $28,450.26 to $14,336.24.
(e) The $5,000 salary is
not deductible.
(f) The capital cost
allowance of $12,259.27 must be increased to $15,506.
(g) The deductible
capital expenditures total $3,458.90, not $4,093.53.
[17]
Here is a summary of
the revenues and expenses according to the appellants and according to the
Minister:
|
|
Taxpayer
|
Minister
|
|
|
|
|
|
Revenues
|
$12,425.68
|
$10,000.00
|
|
|
|
|
|
Expenses
|
|
|
|
|
|
|
|
Current expenses
|
$28,450.26
|
$14,336.24
|
|
Capital expenditures
|
$4,093.53
|
$3,458.90
|
|
Interest
|
$7,034.28
|
$7,034.28
|
|
Mr. Blais’ salary
|
$5,000.00
|
—
|
|
Capital cost allowance
|
$12,259.27
|
$15,506.00
|
|
|
|
|
|
Total expenses
|
$56,837.34
|
$40,335.42
|
|
|
|
|
|
Net loss
|
$44,411.66
|
$30,335.42
|
I will discuss the dispute regarding the
ITC later.
THE BURDEN OF PROOF
[18]
The Minister’s Replies
to the Notices of Appeal do not clearly and fully explain the Minister’s
position; rather, they only partially explain it. Moreover, certain factual
allegations in paragraph 6 and in Appendices I and II of the Replies result
from the audit that was done after the Notices of Appeal were filed. Thus, two
questions arise.
[19]
First, to the extent
that the burden of proof is of practical importance, who has the
burden of proving the facts alleged in paragraph 6 and in the Appendices to the
Replies?
[20]
Second, what are the
repercussions of the fact that the Replies incompletely or imprecisely convey
the Minister’s position?
[21]
With regard to the
burden of proof, it clear that the appellant bears the onus of refuting the
Minister’s assumptions of fact. And it is settled that the Minister can make
factual assumptions up to the moment of the confirmation of an assessment where
the taxpayer has filed a notice of objection.
[22]
It is also settled that
the assumptions of fact must be communicated to the taxpayer in order for the
taxpayer to bear the onus upon the appeal.
[23]
Some of the
considerations behind these principles are practical. On the one hand, the
taxpayer is in a better position to know the circumstances and therefore prove
the facts; on the other hand, the appellant needs to know the subject of the
dispute in order to circumscribe the debate.
[24]
These principles and
considerations are reflected in the following remarks by the Federal Court of
Appeal in Hillsdale Shopping Centre v. Canada, [1981] F.C.J. No. 544 (QL),
1981 DTC 5261:
22 If a taxpayer, after considering a reassessment
made by the Minister, the Minister’s reply to the taxpayer's objections, and
the Minister’s pleadings in the appeal, has not been made aware of the basis
upon which he is sought to be taxed, the onus of proving the taxpayer’s
liability in a proceeding similar to this one would lie upon the Minister. This
defect may be due to a number of reasons such as a lack of clarity on the part
of the Minister in expounding the alleged basis of the taxability which could
include an attempt by the Minister to attach liability on one of two or more
alternative bases thus failing to make clear to the taxpayer the assumption
upon which he relies.
23 In all other cases the onus is on the taxpayer
to disprove the Minister’s allegation of liability on the assumptions
propounded. In the instant case, throughout the whole proceedings the appellant
was made well aware that the Minister assessed part of the proceeds of the
expropriation as profit from a business contrary to the allegation of the
taxpayer so that this ground of attack is without merit.
[25]
However, the situation
in the cases at bar is very unusual, and different from typical situations.
Here, the Minister was unable to do an audit before the assessment was
confirmed, because the appellants refused to produce their documents. I do not
believe that the cases along the lines of Canada v. Anchor Pointe Energy
Ltd., 2007 FCA 188, apply to cases such as the present ones.
[26]
Given the practical
considerations behind these principles and the decision in Hillsdale, supra,
the burden of proof in the circumstances now before the Court — circumstances in which, due to the appellants’
failure to cooperate, no audit could be done until the confirmation of the
assessment — the burden of proving the facts relied
upon at the time of the audit is on the appellants, even though the audit was
conducted after the Notices of Appeal were filed.
[27]
There is another reason
justifying this conclusion with regard to the question of the amount of the
SR&ED expenses here.
At the time that the assessments were made, the Minister did indeed assume that
there were no SR&ED expenses. If the appellants had the burden of
proof with respect to these factual assumptions made at the time of the
assessment, they would have to prove everything with respect to the SR&ED claimed.
[28]
The consequence of the
Minister’s position, as expressed in paragraph 6 and the appendices, is
that he is admitting to a certain number of things that the appellant would
otherwise have to prove. For example, the Minister admits that the Partnership
engaged in research, and specifies that an amount of $13,559.08 was disallowed
because it consists of GST or QST that was paid by the Partnership but
later refunded ($3,033.99), or expenses that are ineligible because they are
personal ($10,525.09). He also admits that there are current expenses in
the amount of $14,336.24 for SR&ED and capital expenditures in the amount
of $3,458.90 for SR&ED.
[29]
It would be illogical
if the effect of these assumptions of fact, which were made after the Notices
of Appeal were filed and which lessen the appellant’s burden, actually shifted
the burden of proving the SR&ED expense amount to the Minister. The
practical result, with regard to this question, is the same as it would have
been if the Minister had admitted factual assumptions made at the time of the
assessments, and of the confirmation of the assessments, with regard to the SR&ED
expenses.
[30]
However, as explained
in Hillsdale, the appellants only bear this burden to the extent that
the facts were disclosed to them.
[31]
Thus, with respect to
the allegations in paragraph 6, in the appendices, and in the factual
assumptions made in paragraph 5 of the Replies, the appellants bear the burden
of proof.
[32]
Hillsdale dictates that, to the extent that there
are other factual assumptions in the case at bar which are not contained in the
Replies but were disclosed to the appellants (e.g. in or with the assessments)
the burden is also on the appellants.
[33]
I would add that these
additional facts must not only be disclosed clearly, but must also be disclosed
early enough for the appellants to be reasonably able to prepare for trial.
This is not the case with the assumptions of fact made in the [Translation] “new proposed assessment
of 2002 dated 2008-11-26”,
except to the extent that they simply repeat (i) Appendices I and II of the
Replies
or (ii) information clearly disclosed earlier on, such as the disallowance
of Mr. Blais’ salary at the time of the assessments. As for the new
facts, the appellants received the “new proposed assessment” four days
before the trial, so it would be completely unreasonable for the burden of
proof to be on them.
THE REPLIES
[34]
The consequences of the
imprecision of the Replies with respect to certain points, or the failure of
the Replies to refer to those points, remain to be addressed. I will get
into the specifics as the issues arise, but the applicable principle is as
follows: if the position regarding a point was not clear and this was
prejudicial to the adversaries’ (the appellants’) ability to put forward their
case, I must resolve the issue in the appellants’ favour.
[35]
Costs are a separate
issue.
THE AMOUNT OF THE PARTNERSHIP’S LOSS: ANALYSIS
[36]
There are five differences
between the parties’ positions as to the calculation of the loss included in
income.
I. Reduction of income
[37]
The amount of GST and
QST in question, $2,425.68, represents the input tax credits reimbursed by the
tax authorities.
The respondent argues that this amount should be excluded from income. Although
businesses usually do not include GST and QST in computing revenue and
expenses, this approach is not mandatory. Paragraph 12(1)(x) of the
ITA requires the inclusion of GST refunds unless the taxpayer elects to reduce
its expenses by the amount of refundable GST and QST.
[38]
In the cases at bar, the appellants
did not make that election, and they wish, on the one hand, to include the
input tax credits, and on the other hand, to deduct the amount of GST and QST
paid, which is part of their deductible expenses. The amount of $2,425.68
must be included in the income.
II. Current expense amount
[39]
In terms of quantifying
the loss, the “current expenses” category is the one in which the difference
between the parties’ positions is the greatest. In Exhibit I-2, the respondent
analyzes the disallowed amounts, which are classified by expense category. I
shall examine the expenses one category at a time.
[40]
The following changes,
which the Minister says should be made, are clearly listed in paragraph 6 of
the Replies or in the Appendices, where the Minister contends that the expenses
were personal, or consisted in GST or QST paid. Consequently, these are the issues
for which the appellants bear the burden of proof.
(i) GST and QST
[41]
The fact that the
current expenses included $3,033.99 in GST and QST is not disputed. Since the appellants
did not elect to reduce their expenses in accordance with paragraph 12(1)(x)
and subsection 12(2.2) of the ITA, the amount of GST and QST paid on expenses
that are otherwise deductible can be deducted. First, the GST and QST of
$2,154.02 must be added to the $14,336.24 that the Minister acknowledged were
expenses.
Next, the amount of GST and QST paid for any other deductible expense must be
included.
(ii) Animal feed
[42]
The first category of
expenses is an amount of $227.73 to purchase mash that was used to feed a
German shepherd and a few cats.
[43]
Mr. Blais testified
that the cats in question did not live in the house and that they were used to
protect the plants from rodents. The dog was used as a guard, and scared away
deer, among other things.
[44]
I accept that these
animals were useful to the business, but since Mr. Blais testified that he
always wanted to have a German shepherd and that the dog also guarded the
house,
I find that they procured an element of personal benefit.
Consequently, the deductible portion of the mash will be $150.00, plus
$22.54 in GST and QST, for a total of $172.54.
(iii) Automobile
expenses: $457.07 in fuel, $2,258.23 in repairs and payments to Société de
l’assurance automobile du Québec
[45]
Mr. Blais
testified that he used two vehicles. Ms. Auray-Blais had a third vehicle,
which she used, but no expenses are claimed for it.
[46]
Fairly early in his
testimony, Mr. Blais said that the fuel expenses included part of the
amounts spent on diesel, which could only have been used for farming equipment,
and that the majority of the fuel amount was not for personal use.
[47]
Later on, he testified
that he used the vehicle mainly to get products and to travel to conferences or
consultations.
[48]
On cross-examination,
Mr. Blais appears to have said that he never, or almost never, uses the two
vehicles in question for personal purposes.
[49]
Mr. Blais worked
for a company called Innovations et intégrations brassicoles Inc. (IIB) during
the year in issue and the company was his main source of income. He also says
that he ran a management consulting business.
[50]
When asked on
cross-examination how he got to the conferences that he organized, he answered
that someone came to get him.
[51]
Mr. Blais never
kept a log book.
[52]
I do not accept that Mr. Blais
never used the vehicles in question for personal purposes. In fact, toward
the beginning of his testimony, he said that they were used primarily for
business purposes.
[53]
I accept that there was
some Partnership-related use of the vehicles, but it is difficult to see how the
percentage can be established.
[54]
The evidence has little
to say about the scope of the Partnership’s activities. We do not know how
many hours Mr. Blais devoted to the Partnership, to IIB or to his management
consulting business. All we know is that he received a $40,000 salary from IIB in 2002.
[55]
Ms. Auray-Blais only
worked for the Partnership on a part-time basis, because she had a full-time
job as director of a newborn screening program which genetically screened roughly
90% of Quebec newborns using urine samples.
[56]
We also know that the
laboratory equipment was available to the Partnership for 115 hours — a bit less than three 40-hour weeks — in 2002.
There is no indication of the number of hours of activities outside the lab.
[57]
In the absence of
tangible evidence regarding the percentage of use attributable to Partnership
business, but acknowledging that such use must have existed, I find that it
would be reasonable to allow $1,000 for this category of expenses, plus $116.16
for GST and QST,
for a total of $1,116.16.
(iv) Expenses
unrelated to a pool
[58]
Despite the fact that
the three items in question, totalling $56.64, were purchased from pool
equipment retailers, I accept Mr. Blais’ testimony that the algicide was
purchased and used to fight bacteria in lab experiments, and that the thermometer
was used to measure temperature during the Partnership’s experiments. These
were relatively inexpensive sources for those products. The amount of $56.64 is
deductible, along with $8.47 in GST and QST,
for a total of $65.11.
(v) Telephone
[59]
I accept Mr. Blais’
testimony that the amounts in question are related to a business telephone line
and do not include the charges for the appellant’s personal telephone line.
Consequently, the amount of $280.75, plus $42.18 in GST and QST, is deductible,
for a total of $322.93.
(vi) Saw supplies
[60]
There are four items. Apart
from the first item, which cost $1, the three others are parts for chainsaws,
which Mr. Blais claims were used to build the “hop lines.” I agree
that these expenses, which add up to $296.75, were for business use and are deductible.
$44.59 must be added on account of GST and QST, for a total of $341.34.
(vii) Heating element
[61]
I accept Mr. Blais’
testimony that this $40.45 expense was to replace a broken heating element inside
a Gibson stove that was used to dry certain lab equipment and induce certain
chemical reactions. Thus, the expense of $46.53, including GST and QST, is
deductible.
(viii) Supplies,
school and municipal taxes ($6,907.47)/”rent”
[62]
In 2002, Mr. Blais
rented out his lands and buildings to the Partnership for scientific
research and, in consideration for this rental, the Partnership had to pay
the municipal and school taxes and the insurance. In addition, it was the Partnership’s
responsibility to [Translation]
“see to the improvement and maintenance of the rooms needed for scientific
research . . . .”
[63]
The expenses other than
municipal taxes, school taxes, insurance, and notarial fees were to improve the
buildings used for research, to insulate the laboratory, and to build animal
quarters in the garage.
[64]
I accept that there was
a lease contract. The expenses under that heading, with the exception of the
notarial expenses,
are not personal. The amounts for insurance and school taxes are
constituents of rent. These amounts total $4,141.23 and are
deductible as rent by the Partnership.
[65]
The moneys spent on
improvements are capital in nature and can be depreciated in accordance with
the provisions regarding rental improvements. They add up to $2,066.24,
plus $310.45 in GST and QST, for a total of $2,376.69.
[66]
Mr. Blais should
have reported the amount of $4,141.23 as rental income and deducted the
relevant expenses. Since his house is on the land, a portion of
the municipal and school taxes paid is personal. However, none
of this was raised by the respondent in the Replies, and my judgment will not
take this into account, because Mr. Blais could have adduced evidence
regarding quantification if he had been notified that it would be raised as an
issue.
[67]
The last item in this
group of expenses is the notarial fees for the new hypothec on Mr. Blais’
property. According to Mr. Blais, the funds were used to finance research and
development. However, aside from this assertion, there was no clear explanation
of the use of the funds.
Mr. Blais said that the funds were used to consolidate existing debts. The
$145,000 loan obtained on August 29 was immediately used to repay a
$57,446 line of credit, an $8,100.70 loan and the preceding $70,000 hypothec,
which left a balance of roughly $9,400. There were no detailed explanations
about the use of the money.
[68]
No contract was filed
in evidence in connection with this loan and with the obligations between Mr. Blais
and the Partnership. It has not been shown that the funds in question were
used by the Partnership. Consequently, the notary’s fees are not
deductible.
Summary of current
expenses
[69]
The following amounts,
then, are to be added to the amounts accepted by the Minister:
|
(i) GST/QST on allowed expenses:
|
$2,154.02
|
|
(ii) Animal feed
|
$172.54
|
|
(iii) Automobile expenses
|
$1,116.16
|
|
(iv) Expenses not related to a pool
|
$65.11
|
|
(v) Telephone
|
$322.93
|
|
(vi) Saw supplies
|
$341.34
|
|
(vii) Heating element
|
$46.53
|
|
(viii) Suppliers, tax and “rent”
|
$4,141.23
|
|
|
|
|
TOTAL :
|
$8,359.86
|
[70]
There is also an amount
of $2,376.69, representing rental improvements, which can potentially be
depreciated.
III. Capital expenditures
[71]
Thirdly, the respondent
argues that the capital expenditures must be reduced by $634.63. In her
submission, there are three causes for this:
(a) the GST and QST in the
amount of $534.71, which should not be included in the cost;
(b) the three expenses
(the first three lines of Appendix I of the Replies, which total $654.86),
which she claims were not completely devoted to SR&ED and should therefore
not be considered capital expenditures made for the purpose of SR&ED; and
(c) the addition of $554.94
to the capital expenditures (the current expense claims which the Minister
alleges are capital in nature).
[72]
With respect to point
(a) above, for the same reasons that justify the inclusion of GST and QST in
the cost of the expenses, the GST and QST must be included in the capital
expenditures as well.
[73]
With respect to the
three expenses not completely devoted to research, I accept Mr. Blais’
testimony that the vacuum cleaner was used in the laboratory in order to
eliminate microparticles during experiments, and the set of letter-punches and
the mitre-box saw were used to prepare the labelling for the different types of
hops. I find that these items were used solely for research.
[74]
Consequently, $534.71
and $654.86
are to be added to the amount of $3,458.90, and there is also $72.12 in
GST
on the $554.94 that the Minister reclassified as capital expenditures. This
brings the total capital expenditures to $4,720.59.
IV. Mr. Blais’ salary
[75]
The Minister contends
that the Partnership cannot deduct Mr. Blais’ $5,000 salary, which it
claimed.
[76]
The fact that this
amount is claimed as salary is not disputed, and it is settled law that the salary
of a partner cannot be claimed by the partnership.
[77]
There are no references
to this issue in the Notices of Appeal or in the Replies. However, the issue
was raised at the hearing, and it is plain to see that, in the Minister’s
letter to the appellants, dated July 27, 2004, there is a summary of
the adjustments made to the assessments in issue. The summary
clearly states that the salary is reduced to $0.
[78]
I cannot see how there
can be any prejudice to the appellants, since (i) the Notices of Appeal never
raised the issue of the disallowed salary even though it is clearly contained
in the summary of adjustments issued by the CRA; (ii) there is no factual
debate; and (iii) the applicable law is well settled.
[79]
Consequently, the
Minister properly disallowed the salary.
V. Capital Cost Allowance
[80]
The respondent submits
that the capital cost allowance should be increased to $15,506. Given that the appellants
have not disputed this amount and that it increases the amount of the capital
cost allowance by more than $3,000 above the amount in their financial
statement, I find that the capital cost allowance for 2002 is $15,506.
Conclusion regarding the Partnership’s loss
[81]
For the purposes of
calculating the Partnership’s loss, the revenues and expenses are as follows:
|
Revenues
|
|
$12,425.68
|
|
|
|
|
|
Expenses
|
|
|
|
Current expenses
|
$22,696.10
|
|
|
Capital expenditures
|
$4,720.59
|
|
|
Interest
|
$7,034.28
|
|
|
Mr. Blais’s salary
|
$0.00
|
|
|
|
|
|
|
Capital cost allowance
|
$15,506.00
|
|
|
|
|
|
|
Total expenses
|
|
$49,956.97
|
|
|
|
|
|
Net loss
|
|
$37,531.29
|
[82]
In addition, the rental
improvements, in the amount of $2,376.69, can potentially be depreciated.
[83]
Each appellant is
entitled to half this loss.
INVESTMENT TAX CREDITS
[84]
The starting point for
this calculation is total of the current expenses of $22,691.10 and the capital
expenses of $4,720.59, that is to say, $27,416.69. Various adjustments
must be made to this amount based on the parties’ submissions.
Expenses for the use of buildings
[85]
Under subparagraph 37(8)(d)(ii)
of the ITA, expenses for the use of a building cannot be included in SR&ED expenses,
and consequently, such expenses cannot be “qualified expenditures” for the
purposes of investment tax credits.
I therefore agree that the current expenses on account of “rent” must be
reduced by $4,141.23.
GST/QST/input tax credits
[86]
Under subsections 127(18)
and 248(16) of the ITA, the credits are treated like government assistance, and
the expenditures for the purposes of computing the investment tax credits must
be reduced by the amount of the input tax credits to which the Partnership
is entitled. Consequently, the current expenses must be reduced by $2,394.04, which is the
amount of GST and QST included in the current expenses.
[87]
As for the capital
expenditures, they must, for the same reasons, be reduced by the amount of GST
and QST paid, that is to say, $534.71 on the amount of $4.093.53 claimed, and
$72.12 on the amount of $554.94 reclassified, for a total of $606.83.
Interest
[88]
There is no doubt that
the amount of $7,034.28 is interest paid, and that it does not entitle a
taxpayer to investment tax credits under clause 2902(a)(i)(C) of the Income
Tax Regulations (ITR). Factually, the appellants do not dispute that the
amount constitutes interest.
[89]
Is there any prejudice
due to the fact that the application of clause 2902(a)(i)(C) of the ITR
is not raised in the respondent’s Replies? For the following reasons, there is
no prejudice.
[90]
At one point in the
hearing, Mr. Blais appeared to have said that the appellants did not
claim investment tax credits on interest in their tax returns, and that they
are not challenging the Minister’s position. However, immediately afterwards,
Mr. Blais appeared to challenge the Minister’s position on that question.
[91]
Upon a careful
examination of the evidence, it becomes clear that the appellants never
claimed investment tax credits on the interest paid.
[92]
Here is how one can
tell this. In his income tax return, Mr. Blais claimed $3,758 in income
tax credits. Since he was entitled to half the credits, and the credits are 20%
of the qualified amount, he prepared his return on the basis that $37,580 in
expenses qualified for the credits, and that amount is just a few dollars
different from the aggregate of the current expenses, capital expenditures and
partner’s salary ($37,544) set out in the 2002 profit and loss statement
adopted on December 21, 2003. Mathematically, the amounts used in
arriving at $37,580 cannot have included depreciation and interest.
[93]
This is confirmed in
the summary of adjustments made by the CRA auditor and sent to the appellants,
in which he sets out the appellants’ calculation. It can be
seen that the appellants excluded an amount of $19,293 from the qualified SR&ED
expenditures,
and that amount is exactly the same as the amount of depreciation, including
interest, set out in the revised profit and loss statement adopted on
December 21, 2003.
[94]
Given these
circumstances, I do not see how there can be prejudice because the Replies did
not address the failure to take account of interest in computing the investment
tax credits that were not claimed in the income tax returns or in the Notices
of Appeal. Rather, it would have been up to the appellants to use their Notices
of Appeal to raise a claim that they did not make in their income tax returns.
Moreover, the facts are not contested and the ITR are very clear.
[95]
The interest amount is
not to be included in calculating the investment tax credits.
The $10,000 rent for the laboratory
[96]
The Partnership
paid $10,000 in rent, plus $1,502.50 in GST and QST, to IIB. The Minister
says that this was an expense paid to a person who was not at arm’s length from
the appellants, and that consequently, the deduction of that expense cannot
exceed the cost to the supplier (IIB) of providing the service.
[97]
This is not raised in
the Replies, and, in my opinion, merely saying that the said amount of $10,000
was [Translation] “reclassified” does not amount
to raising the question. The only time that [Translation]
“non-arm’s length persons – current expenses” appears is at line 522
of Appendix 32 of the “New Proposed Assessment” received by the appellants
a few days before the hearing.
[98]
The onus with respect
to this issue on the respondent. Moreover, the facts regarding the cost of the
lab equipment are important, and there is very little evidence on the subject.
Under the circumstances, there is prejudice, because the appellants could have
adduced other evidence. For this reason, the expense must be included in
computing the investment tax credits.
[99]
However, the respondent
contends that this question has already been decided, in the sense that it is res
judicata under article 2848 of the Civil Code of Québec (CCQ), because it
comes on the heels of the decision in Blais.
The taxation years in that preceding case between the parties were earlier
than those in issue here, and the equipment lease contracts were signed on
June 30, 1998, and on January 1, 2000, whereas here,
the contract for the year in issue was signed on January 1, 2002. There is no
evidence that the contracts’ terms are the same, that the equipment leased was
the same, or that the costs were the same. Consequently, one of the
essential conditions in order for article 2848 to apply, namely, the identity
of causes, has not been met, so the provision does not apply.
The cabinet
[100] The cabinet in question was purchased from Centre
hospitalier universitaire de Sherbrooke (CHUS) for $75. It was made of metal
and was used to store the chemicals.
[101] The respondent relies on subparagraph 2902(b)(iii)
ITR, which excludes from the definition of “qualified expenditure”
(iii) the acquisition of property that has been
used, or acquired for use . . . for any purpose whatever before it was acquired
by the taxpayer;
[102]
The Replies to the
Notices of Appeal do not directly raise this argument. There is only a
general reference to sections 2900 to 2903 of the Regulations at paragraph 8,
and, on the line dated “2005-05-17” at page 2 of Appendix II, it can be seen
that the supplier was the CHUS and that the Minister “reclassified” the $75.
There are no other references to the cabinet in the Replies.
[103]
The fact that the
cabinet was purchased from CHUS suggests that it was a used item. However,
since Mr. Blais testified that be purchased a cabinet that had not been
used and that this argument was not raised in the Replies, the onus is on the
Minister to show that the cabinet was purchased by CHUS to be used prior to the
purchase by the taxpayer.
[104]
Consequently, it has
not been shown that subparagraph 2902(b)(iii) applies to the cabinet.
Conclusion regarding the investment tax
credits
[105] In light of the foregoing, the following
amounts must be subtracted from the current and capital expenses:
|
Expenses
|
|
$27,416.69
|
|
|
|
|
|
Deductions
|
|
|
|
(a) “Rent”
|
($4,141.23)
|
|
|
(b) input tax credits on current expenses
|
($2,394.04)
|
|
|
(c) input tax credits on cap. expenditures
|
($606.83)
|
|
|
Total
|
|
($7,142.10)
|
|
|
|
|
|
Result
|
|
$20,274.59
|
[106]
Consequently, the
amount that qualifies for the investment tax credits is $20,274.59, and since
the applicable rate is 20%, the Partnership’s investment tax credits for 2002
amount to $4,054.92.
DISPOSITION
[107] The appeals are allowed, with costs of $400
to each appellant, and the matter is referred back to the Minister for
reconsideration and reassessment on the basis of these Reasons, having regard
to the following facts:
(a) the Partnership’s
loss is $37,531.29;
(b) in addition, the Partnership
made $2,376.69 in rental improvements that are potentially depreciable;
(c) each appellant is
entitled to claim one-half of the Partnership’s loss;
(d) the Partnership has
investment tax credits in the amount of $4,054.92; and
(e) each appellant is
entitled to claim one-half of the investment tax credit amount.
[108]
Apart from these
changes and the interest to be recalculated accordingly, the assessments remain
unchanged.
Signed at Ottawa, Canada, this 12th day of April 2010.
“Gaston Jorré”
Translation certified true
On this 12th day of July 2010
Monica
Chamberlain, Translator
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