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Citation: 2006TCC612
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Date: 20061109
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Docket: 2005-4206(IT)I
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BETWEEN:
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FREDERICK SIMON HAWA,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
Respondent.
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REASONS FOR JUDGMENT
Bowman, C.J.
[1] This appeal is from an assessment of income tax for the appellant's 2003 taxation year. The appeal was instituted under the informal procedure but it is by no means clear precisely what amount is in issue.
[2] The appellant asserts that he sustained non-capital losses of $19,799 and $117,461 in 2000 and 2001 respectively. In fact when he filed his returns (late) for 2000 and 2001, he reversed these figures and declared capital losses of $117,461 and $19,799 for 2000 and 2001 respectively. It was not until the opening of trial that this mix-up came to light. The Minister of National Revenue seems to have accepted this reversal.
[3] Two or three central facts may be taken as admitted:
(a) The appellant in 2000 and 2001 bought and sold shares;
(b) He sustained losses of $19,799 and $117,461 in 2000 and 2001 respectively.
(c) He claimed a loss carry forward from those years in the amount of $31,751. I have no way of determining where this figure comes from. Non-capital losses in one year can be carried forward and back to other years in a sequence provided by the Income Tax Act. Generally, they must be used up in earlier years before being applied to later years.
[4] The reply to the notice of appeal sheds no light on this question. In the result it is difficult to know what is the "aggregate of all amounts" in issue (as defined in section 2.1 of the Tax Court of Canada Act) for the purpose of determining whether the case falls within the informal procedure limits in subsection 18(1) of the Tax Court of Canada Act. The tax in 2003 resulting from the non-capital loss that the appellant seeks to carry forward to 2003 may be more than $12,000 or less. I am unable to make that determination. In any event, counsel for the respondent stated that he had raised this problem with the appellant and the appellant elected to limit the appeal to $12,000 as provided in section 18.12 of the Tax Court of Canada Act.
[5] I turn now to the respondent's reply. Paragraph 9 reads as follows:
9. In assessing tax and in confirming the assessment for the 2003 taxation year, the Minister assumed the same facts, as follows:
(a) in the 2000 taxation year, the Appellant incurred non-capital losses of $22,196;
(b) non-capital losses of other years were deducted from the Appellant's reported income for the 2001 and 2002 taxation years in the amounts of $10,000 and $12,196 respectively;
(c) the Appellant's taxable income for the 2002 taxation year, after the deduction of non-capital losses of other years, amounted to $47,136;
(d) the Appellant does not have available non-capital losses of other years to deduct from his income for the 2003 taxation year.
[6] This is a totally inadequate pleading. The function of pleading assumptions in a reply is to set out in detail the factual basis upon which the assessment was made. The Minister had ample notice of the appellant's position from his returns and from his notice of objection. The appellant's basic position was that he was engaged in trading in shares and sustained trading losses. This is essentially a factual question. The reply is uninformative and dismissive. It does not deal with the central issue of the appellant's trading activities. It states a conclusion of law but no facts supporting that conclusion.
[7] The reply casts no onus on the appellant because it gives no particulars of the factual basis of the assessment. In short, the appellant has no factual assumptions to "demolish" to use the words of Mr. Justice Rand in Johnston v. M.N.R., [1948] S.C.R. 486. In such circumstances I might have been prepared to entertain a motion to allow the appeal because the reply casts no onus on the appellant to rebut any assumptions and it asserts no new facts that would support the assessment. No such motion was brought. Mr. Grant, counsel for the respondent, agreed with my view that the reply was wholly defective and offered to assume the onus of proving the Crown's case. He called Mr. Hawa and cross-examined him.
[8] In the final analysis it really does not matter who had the onus of proof. The evidence is overwhelming that Mr. Hawa was trading in shares. In 2001 he had 151 purchases of stock through two brokers, principally TD Waterhouse, in 16 companies. The stock was generally held for short periods of time.
[9] If anyone engaged in as many transactions in land as Mr. Hawa did in shares, that person would unquestionably be treated as a trader in land. To what this administrative difference in treatment between land and shares is attributable is not entirely clear. While I cannot take judicial knowledge of the fact it would not surprise me to learn that most people buy shares with the intention and expectation of disposing of them at a profit in either the short term or the long term, with the prospect of receiving dividends a remote and incidental motive. Yet the concept of secondary intention as it is applied to the purchases and sale of land and expressed in Racine, Demers and Nolin v. M.N.R., 65 DTC 5098, seems to have been applied, if at all, in a most lackadasical way to shares.
[10] It may well be that the decision of the Supreme Court of Canada in Irrigation Industries Ltd. v. M.N.R., [1962] DTC 1131, is seen as justifying a different treatment of shares in the context of the concept of "adventure in the nature of trade" (the meaning of which was authoritatively determined by Thorson P. in M.N.R. v. James. A. Taylor, [1956] C.T.C. 189 as approved by the Supreme Court of Canada in Irrigation Industries Ltd.). I think there is a more mundane reason and it is two-fold:
(a) The Minister has pragmatically recognized that if he started aggressively taxing share transactions he would be forced to recognize losses on the same basis;
(b) a vigorous campaign to tax share trading profits with its concomitant recognition of losses would certainly be administratively burdensome and costly without any certainty of any net advantage to the fisc.
[11] This appears to me to be a clear case of a business in the sense of an activity carried on with a view to profit over a period of years. It is not, in my view, however, an adventure in the nature of trade as argued by Mr. Hawa. He referred to the decision of Dubé J. in Tamas v. The Queen, 81 DTC 5150, where a taxpayer's trading in securities and commodities was held to be an adventure in the nature of trade. I do not disagree with the result in that case but I think that a concerted commercial activity of buying and selling shares over an extended period of time can more appropriately be described as the carrying on of a business in the ordinary sense of that word without resort to the concept of "adventure in the nature of trade".
[12] Counsel for the respondent argued that the most cogent piece of evidence of the appellant's intent to hold the shares as a long-term capital investment lay in describing his losses in his returns for 2000 and 2001 as capital losses. I do not think anything turns on this. It is the true nature of his activity, not how he described it after the event, that is important.
[13] Counsel referred to a number of cases including Rajchgot et al. v. The Queen, 2004 DTC 3090 (TCC) aff'd, 2005 DTC 5607 (FCA); McGroarty v. The Queen, 94 DTC 6276 and Sandnes v. The Queen, 2004 DTC 2466. All of these cases turn on their own facts and illustrate the importance of the factual underpinning that supports a finding that a person has crossed the line from investing to trading. Here the volume of trades, the rapidity of turnover and the appellant's own testimony that he was buying and selling shares to realize a profit indicate that the concerted activity of the appellant was clearly the carrying on of a business. It is worthwhile repeating what Lord Justice Clerk said in the Court of Exchequer (Scotland) in Californian Copper Syndicate (Limited and Reduced) v. Harris, (1904) 5 T.C. 159 at 165:
It is quite a well settled principle in dealing with questions of assessment of Income Tax, that where the owner of an ordinary investment chooses to realise it, and obtains a greater price for it than he originally acquired it at, the enhanced price is not profit in the sense of Schedule D of the Income Tax Act of 1842 assessable to Income Tax. But, it is equally well established that enhanced values obtained from realisation or conversion of securities may be so assessable, where what is done is not merely a realisation or change of investment, but an act done in what is truly the carrying on, or carrying out, of a business. The simplest case is that of a person or association of persons buying and selling lands or securities speculatively, in order to make gain, dealing in such investments as a business, and thereby seeking to make profits. There are many companies which in their very inception are formed for such a purpose, and in these cases it is not doubtful that, where they make a gain by a realisation, the gain they make is liable to be assessed for Income Tax.
What is the line which separates the two classes of cases may be difficult to define, and each case must be considered according to its facts; the question to be determined being-Is the sum of gain that has been made a mere enhancement of value by realising a security, or is it a gain made in an operation of business in carrying out a scheme for profit-making?
[14] The appeal is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the losses that the appellant sustained in trading in securities in 2000 and 2001 were non-capital losses and should be recognized to the extent they are available in computing his taxable income for 2003 and taking into account the effect, if any, of the appellant's agreement under section 18.12 of the Tax Court of Canada Act.
[15] The appellant is entitled to his costs, if any.
Signed at Ottawa, Canada this 9th day of November 2006.
Bowman, C.J.
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