Date: 19971017

Docket: 97-647-IT-I

BETWEEN:

GILLES BOYER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

(Delivered orally from the bench in Montréal, Quebec on September 22, 1997)

P.R. DUSSAULT, J.T.C.C.

Application of section 122.3 -

Deduction from tax payable where employment out of Canada

[1] Mr. Boyer, I must unfortunately dismiss your appeal essentially for the reasons argued by Mr. Ayadi.

[2] I took the time to examine more closely the two documents adduced as Exhibits I-1 and I-2, which I compared to the information you had given me on these projects. In my opinion, there is little doubt that your project was a project financed by CIDA which was under the general administration of the World Bank.

[3] On the one hand, we have the precise description of the projects, that is, the information you provided, and on the other hand, we have the evidence of the disbursements made by CIDA. Exhibit I-2 corresponds to the numbers found on Exhibit I-1 for 1990-1991, 1991-1992, 1992-1993 and 1993-1994 with respect to the various payments made.

[4] Therefore, given that this is an international development assistance program of the Government of Canada by extension, if I can use that expression, because it is a program covered by Regulation 3400, it is excluded for the purposes of the application of the credit.

[5] I also agree with Mr. Ayadi on the second point when he says that, in speaking of the employer, the specified employer (your employer) must be carrying on a business outside Canada with respect to the exploitation of petroleum, natural gas, minerals or other similar resources.

[6] I do not have sufficient evidence to be able to confirm that your employer, as a partner with REGIDESO or otherwise, exploited hydroelectric resources. When exploitation is done jointly, it means that income is earned from the exploitation itself. That does not seem to me to be what occurred. It seems to me that your employer was hired, not to do exploitation itself, but to put in place management programs and systems, essentially to revitalize the business and not to exploit natural resources as a stakeholder in the business.[1]

[7] Therefore, I do not believe that it qualifies on this point either. In any case, either of the two reasons would be sufficient, but I believe that there is no doubt as to the first, in my mind at least. Nor can there be as to the second, but the primary reason the program is not eligible is because it is a program financed by CIDA. It is regrettable, but that is the way it is.

[8] I agree with you that other funds were invested in the project, certainly, but that is not what is important. The question is whether the project was financed by the Canadian government, and it was.

Signed at Ottawa, Canada, this 17th day of October 1997.

P.R. Dussault

J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 6th day of November 1998.

Kathryn Barnard, Revisor