A-596-93
CORAM: STONE J.A.
ROBERTSON J.A.
GRAY D.J.
IN RE The Income Tax Act
BETWEEN:
ALLCOLOUR PAINT LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
A-597-93
AND BETWEEN:
ALLCOLOUR CHEMICALS LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, Wednesday, April 16, 1997.
Judgment delivered from the Bench at Toronto, Ontario, Wednesday, April 16, 1997.
REASONS FOR JUDGMENT OF THE COURT
DELIVERED BY: ROBERTSON J.A.
A-596-93
CORAM: STONE J.A.
ROBERTSON J.A.
GRAY D.J.
IN RE The Income Tax Act
BETWEEN:
ALLCOLOUR PAINT LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
A-597-93
AND BETWEEN:
ALLCOLOUR CHEMICALS LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario,
Wednesday, April 16, 1997)
ROBERTSON J.A.
These are appeals from a decision of Judge Bonner of the Tax Court who held, pursuant to subsection 127(8) of the Income Tax Act that the taxpayers who carry on business in partnership, may not claim the investment tax credit ("ITC") at the enhanced rate of 35% by virtue of subsection 127(10.1). In our respectful view, Judge Bonner did not err in reaching that conclusion, which is consistent with the maxim, expressio unius est exclusio alterius: to express one thing is to exclude another. As noted by the Minister in his written submission, subsection 127(8) lists the paragraphs within the general definition of ITC in subsection 127(9) which are available to partnerships namely: (a), (b) and (e.1). Subsection 129(8) made no reference to paragraph (e) of subsection 127(9) which establishes the right to claim the enhanced ITC under subsection 127(10.1). The implied exclusion argument suggests that if the Parliament had meant to permit taxpayers who carry on business in partnership to benefit from the enhanced ITC rate, then Parliament would have, in subsection 127(8), also referred to paragraph (e). In our view, this specific provision makes it clear that section 96 is not determinative of the issue at hand and thus is so despite the able argument of Mr. Malach.
For these reasons and those of Judge Bonner both appeals will be dismissed with one set of costs, including disbursements in both appeals.
"J.T. Robertson" J.A.
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ALLCOLOUR CHEMICALS LIMITED |
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REASONS FOR JUDGMENT OF THE COURT |
v. Her Majesty the Queen
(Stone & Robertson JJ.A. & Gray
Robertson J.A.
Mr. David Malach
Ms. Jamie Mason
Ms. Alexandra Brown
Mr. George Thomson
v. Her Majesty the Queen
(Stone & Robertson JJ.A. & Gray
Robertson J. A.
Mr. David Malach
Ms. Jamie Mason
Ms. Alexandra Brown
Mr. George Thomson
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