The Queen v. Timagami Financial Services Ltd., 82 DTC 6268, [1982] CTC 314 (FCA)

Ryan, J:—This is an appeal from a judgment of the Trial Division dated February 24, 1981 allowing an appeal by the respondent, Timagami Financial Services Limited (“Timagami”) from income tax reassessments made by the Minister of National Revenue respecting Timagami’s 1975, 1976 and 1977 taxation years.

The appeal turns on the interpretation of the words .. an amount has become payable to a taxpayer in a taxation year..(“the disputed words”) appearing in subsection 14(1) of the Income Tax Act as that subsection was written in the relevant taxation years*. [1]

Subsection 14(1) reads:

14. (1) Where, as a result of a transaction occurring after 1971, an amount has become payable to a taxpayer in a taxation year in respect of a business carried on or formerly carried on by him and the consideration given by the taxpayer therefor was such that, if any payment had been made by the taxpayer after 1971 for that consideration, the payment would have been an eligible capital expenditure of the taxpayer in respect of the business, there shall be included in computing the taxpayer’s income for the year from the business the amount, if any, by which 1/2 of the amount so payable (which 1/2 is hereafter in this section referred to as an ‘‘eligible capital amount” in respect of the business) exceeds the taxpayer’s cumulative eligible capital in respect of the business immediately before the amount so payable became payable to the taxpayer.

By an agreement dated April 30, 1975, Timagami sold its business, or a goodly part of it, to Hurontario Management Services Limited (“Hurontario”) for $150,000. It is not disputed that $141,474 of this amount was on account of goodwill. Under the agreement Hurontario agred to pay Timagami $20,000 upon execution of the agreement. The balance of the purchase price was to be payable in instalments: $20,000 was to become due and payable on November 1, 1975, and $20,000 was to become due and payable on the first days of May and November in each of the years 1976 and 1977 and on the first day of May 1978; the balance of $10,000 was to become due and payable on November 1, 1978. Interest was payable on the instalments as they became due. Hurontario was given the privilege of making advance payments*. [2] It appears from the evidence that this privilege was exercised from time to time, and that the price was fully paid by the end of 1977.

The Minister, in reassessing, took the position that the total purchase price, $150,000 (this would, of course, include the $141,474 in respect of goodwill), had become payable to Timagami in 1975 and assessed under subsection 14(1) on that basis. It is not in dispute that, if the Minister were correct, the amount to be included in computing Timagami’s income for 1975 would be $38,905; this would be a consequence of applying section 21 of the Income Tax Application Rules, 1971.

Timagami appealed the reassessments on the ground that only that part of the purchase price which, under the terms of the agreement, fell due during 1975 had become payable in the taxation year 1975; the instalments which were to become payable in 1976 and 1977 were not, it was said, payable until they became due. The learned trial judge allowed the appeal on the ground that . . the word ‘payable’ in subsection 14(1) is synonymous with due, a present obligation to pay”. The trial judge referred the matter . back for reassessments for the taxation years 1975, 1976 and 1977 in a manner not inconsistent with the reasons of this Court’. (The trial judge noted that counsel for Timagami had agreed that, if the meaning of “payable” in subsection 14(1) was determined to be what he submitted it was, he had no objection to assessment for the years 1976 and 1977 on that basis.)

The appellant appealed this judgment.

The issue before us is the same as the issue before the trial judge. The basic submission of the appellant to us was that: .. the word ‘payable’ means an obligation which is not precarious or contingent and which the debtor must legally though not necessarily immediately, pay”. The full amount of the purchase price had thus become payable in 1975. The respondent submitted that the disputed words in subsection 14(1), when read gramatically and in their ordinary sense, mean that a sum of money does not become payable until it becomes due, that is until the debtor is under a legally enforceable duty to pay it. And there was no good reason, it was submitted, not to read the disputed words in their ordinary and grammatical sense.

It seems to me that a taxpayer, engaged in a business, who enteres into a contract to sell his goodwill would not regard an amount which the purchaser promised to pay in part consideration of the purchase a year after the making of the contract as an amount which had become payable to him in the year in which the contract was made; he would, I think, regard the amount as an amount to become payable the following year when the due date arrived. The ordinary taxpayer would, in my view, regard the two sums of $20,000 each which Hurontario promised to pay during 1975 as amounts which became payable during 1975, but would not regard the instalments which, by the express terms of the contract, were not “due and payable” until 1976 and 1977 as having become payable to him in 1975.

Counsel for the appellant submitted, however, that the meaning of the disputed words cannot be determined by reading them within the context of subsection 14(1) alone. That subsection is but part of a legislative scheme, introduced by the new Income Tax Act, under which deductions (not previously permitted) are allowed to a taxpayer, in computing his income from businss or property, based on costs incurred by him in acquiring goodwill and certain other “nothings”. (Only “goodwill” is pertinent in the present case.) For purposes of the present appeal the relevant statutory context includes at the very least paragraph 20(1 )(b) of the Income Tax Act and subsection 14(5), as well as subsection 14(1). I agree that these additional provisions are relevant statutory context*. [3]

Paragraph 20(1 )(b) permits a taxpayer to deduct up to ten per cent of his “cumulative eligible capital” at the end of the year in computing his income for the taxation year**. [4] “Cumulative eligible capital” is defined in paragraph 14(5)(a) of the Actt. [5] To understand this definition, it is necessary to read it along with the definition of “eligible capital expenditure” in paragraph 14(5)(b)*. [6]

As I understood counsel’s argument, his basic submission was that a consequence of reading subsection 14(1) and paragraphs 14(5)(a) and (b) together is that the disputed words . an amount has become payable to a taxpayer in a taxation year.. in subsection 14(1) must be read as meaning that the amount referred to is an amount to be determined on an accrual basis. It was then submitted that, on an accrual basis, the amount payable to Timagami in 1975 would include, not only the amounts expressly made payable in 1975, but also the amounts described by the agreement as not being due and payable until 1976 and 1977.

Paragraph 14(5)(b) defines “eligible capital expenditure” of a taxpayer as meaning, for relevant purposes, an expense made or incurred by the taxpayer to acquire goodwill. The effect is to include, it was argued, the portions of the purchase price of goodwill payable in the future, even in subsequent taxation years. A consequence, it was argued, is that the cumulative eligible capital of the taxpayer, as that term is defined in paragraph 14(5)(a), would include, not only immediately payable amounts, but also amounts payable in later taxation years. It was submitted that consistency requires that the disputed words in subsection 14(1) must be read in the same way, so that amounts payable in a taxation year would include amounts not due until later years.

As a further illustration of inconsistency that would arise if respondent’s submission on the meaning of the disputed words were accepted, counsel referred to what, he argued, would be its effect under clause 14(5)(a)(ii)(B). Paragraph 14(5)(a), as indicated above, sets out the definition of “cumulative eligible capital” of a taxpayer at any particular time. For relevant purposes, it means one half of the eligible capital expenditure made or incurred by a taxpayer before that time less the amounts which he had deducted under paragraph 20(1 )(b) in computing his income and less the eligible capital amount that became payable to the taxpayer before that time. It was argued that, if the respondent’s submission were accepted, the result would be that, in building up a cumulative eligible capital account of a taxpayer, one would use the accrual method where goodwill was acquired by a purchaser, but would not use this method in respect of the effect of the sale on the seller’s account. This, I take it, would be so (according to the submission) for this reason: the purchaser, in building up his cumulative eligible capital account, would at once add in the full price of the goodwill he had bought, including amounts not actually falling due until future years; the seller of the goodwill, on the other hand, would be required to reduce his account only by the amount actually payable in the taxation year. This, it was said, would be anomalous.

Assuming that the submission of counsel in respect of the effect of the words “expense made or incurred” is well founded, the consequence might well be as indicated by counsel.

The short answer may, however, simply be that suggested by the respondent in his memorandum of fact and law: in Canadian income tax law there are instances . where the Act is not symmetrical: that is to say, where deductions and additions to a taxpayer’s income are not treated in the same fashion.” It seems to me to be pertinent that the effect of subsection 14(1) is to add to a taxpayer’s income amounts that clearly would not be includable on ordinary principles. It may well be that there is a statutory intent, expressed in the disputed words, to spread the added tax burden over the period in which the deemed income actually becomes payable to the taxpayer*. [7]

I must say that, to me, the meaning of the disputed words in subsection 14(1) is reasonably clear whether those words are read within subsection 14(1) alone or within the wider context urged by the appellant. In either context I do not find it reasonably open to conclude that amounts which (as in this case), by the express terms of an agreement, are not to be paid to a taxpayer until 1976, 1977 and 1978 can be said to be payable to him in 1975. It would take more than the inconsistencies (if they be inconsistencies) indicated by counsel to persuade me that the disputed words in subsection 14(1) carry the rather strained meaning argued for.

Counsel for the appellant placed considerable reliance on the judgment of Mr Justice Kearney in MNR v John Col ford Contracting Company Limited, [1960] Ex. C.R. 433, [1960] CTC 178; 60 DTC 1131; affirmed without reasons [1962] SCR viii, [1962] CTC 546; 62 DTC 1338. I would not want to conclude without expaining why I do not find counsel’s submissions, based on this judgment, persuasive.

The Colford case had to do with the taxability, as receivables, of amounts withheld under construction contracts, amounts which were to be payable only after the issuance of an engineer’s or architect’s certificate. It was held that such amounts were not taxable as income prior to issue of the certificate. In relation to one of the contracts involved, however, the “Ontario contract”, it was found that a certificate had been issued in the relevant taxation year. It was accordingly held that the amount was a “receivable” in that year, though, under the contract, the amount was payable during a period after the issuance of the certificate which did not expire until the following year. In his reasons, Mr Justice Kearney said (at 441):

. . . In the absence of a statutory definition to the contrary, I think it is not enough that the so-called recipient have a precarious right to receive the amount in question, but he must have a clearly legal, though not necessarily immediate, right to receive it.

These words were relied on by appellant’s counsel. His submission was, as I understood it, that an amount which is receivable by a taxpayer at a particular time must be payable to him at that time. I doubt that, for purposes of the Income Tax Act, this would always follow. But, at any rate, the transactions in Colford, including the “Ontario contract”, were clearly transactions which fell within the provisions of the then paragraph 85B(1)(b)*. [8] The sums in question arose from the supply of goods or services in the regular course of the business of a construction firm. This was clearly recognized by Mr Justice Kearney. He said at 444 in relation to the “Ontario contract”:

. .. It will thus be seen that the condition precedent ceased to exist before the termination of the taxpayer’s fiscal year 1953 and the holdbacks payable under it acquired the quality of a receivable as of the date of the certificate. It is to be recalled that final payment was to fall due thirty days after the issuance of the certificate which would bring it into the taxpayer’s subsequent fiscal year, and it was in fact paid on April 11, 1953. I do not think that the latter can rely on the delay allowed for payment as justification for bringing the amount of the holdback into the fiscal year in which it fell due. In my opinion, a term or instalment account must be included in the taxation year in which it could be said that it had the quality of a receivable since s 85B(1)(b) provides that it shall be thus included “notwithstanding that the amount is not receivable until a subsequent year.”

It is, in my view, significant that Mr Justice Kearney referred expressly to these words in paragraph 85B(1)(b): .. since paragraph 85B(1)(b) pro- vides that it shall be thus included ‘notwithstanding that the amount is not receivable until a subsequent year’.”

I find it interesting that, in both the former paragraph 85B(1)(b) and the new paragraph 12(1 )(b), it was thought necessary, or at least desirable, to make it clear that the word “receivable” was to incude sums which would not, in ordinary language, be considered to be receivable within the particular taxation year. In subsection 14(1), the words “payable to” are used without any indication in the subsection that they are to be read in an extended way or in a technical sense: the subsection leaves the disputed words to be read in their ordinary, everyday way. I would add that, if in subsection 14(1) analogy to “receivable” (as that word is defined in paragraph 12(1 )(b)) were intended, it would have been very easy to use the words “receivable by the taxpayer” rather than “payable to the taxpayer”.

Actually, subsection 14(1) does not relate to the kind of transactions covered by the old paragraph 85B(1)(b) or the present paragraph 12(1)(b). Those paragraphs deal with what on general principles would be income receipts. Subsection 14(1) brings into income (for purposes of imposing tax) sums which, apart from the subsection, would clearly not be income receipts at all. Subsection 14(1) must be read with this in mind.

In the present case, there was a transaction in 1975, the agreement between Timagami and Hurontario. By virtue of this transaction, amounts* [9] became payable to Timagami in 1975, 1976, 1977, and also in 1978. (The 1978 taxation year is not involved in this case.) I agree with the trial judge that these amounts, subject to their being translated into “eligible capital amounts”, became income of Timagami in the taxtion years in which they became payable to it, or, I would add, in the years in which they were actually paid if paid in advance. In the light of this conclusion, it is not necessary to consider the submissions that were made in respect of the establishment of a reserve under paragraph 20(1 )(n).

I would dismiss the appeal with costs.