Maple Leaf Mills Limited v. Minister of National Revenue, [1973] CTC 333

Thurlow, J:—This appeal arises from an assessment of tax for the 1966 taxation year of the appellant in respect of an amount of $1,- 201,079 referred to in the notice of reassessment as “deficient net revenue of vessel FEDERAL MONARCH recovered from Bessbulk Limited”.

The facts and transactions which gave rise to this amount are complicated and I propose to state only so much of them as appears to me to be necessary to point up and determine the issues raised. The appellant, which had for many years been engaged in the milling and kindred businesses, on or about July 31, 1961 bought a large oil tanker which was then under a long term charter to Imperial Oil Limited. From that time onward the appellant, in addition to its other activities, operated the vessel for iis own account, as had been contemplated by the arrangements with the vendors. On November 19, 1965 the vessel was sold and the operation of it by the appellant came to an end.

As part of the arrangements for the purchase of the vessel the appellant entered into a contract with Bessbulk Limited, which had been incorporated by the vendors in pursuance of the arrangements, whereby Bessbulk underwrote the amount by which the actual net revenues from the operation of the vessel during the charter period or until the vessel might be sold, might fail to meet certain agreed projected levels. The vendors had transferred to Bessbulk a sum of some $1,900,000 for investment and the agreement provided that in each year, to the extent of the net revenues of Bessbulk from such investments, any deficiency in the net revenue from the operation of the vessel should be paid to the appellant by Bessbulk and the remainder of such deficiency should be a debt due and owing to the appellant by Bessbulk to be discharged by setting off revenues of later years in excess of the agreed levels or failing that by payment at the conclusion of the charter or on the sale of the vessel. The agreement also contained provisions for return to Bessbulk of amounts it had paid under the agreement in the event of the revenues of the vessel operation exceeding the projected levels and ultimately from the proceeds of sale of the vessel if such proceeds exceeded her cost to the appellant and any unpaid deficiencies of net revenue. Bessbulk was also entitled to 35% of any profits of the operation over the projected levels.

In the appellant’s 1962 taxation year, which ended in July 31, 1962, the net revenues of the vessel operation fell below the agreed level by $206,932 of which the appellant received $36,058 from Bessbulk and the balance became owing by Bessbulk under the agreed terms. In each subsequent year of the vessel operation, as well, the net revenues therefrom fell well below the agreed levels until by the time the vessel was sold in 1965 the total of such deficiencies amounted to $1,201,079, that is to say, an amount equal to that referred to in the assessment under appeal.

I pause to observe at this point that had the arrangements referred to continued throughout the period in question I should have had no difficulty in concluding on the facts that this amount arose from the operation of the vessel and whenever realized would have been income of the appellant’s business.

The arrangements, however, did not continue. By further agreements dated June 20, 1963, but made effective from August 1, 1962, the arrangements were, to use the expression of the appellant’s memorandum, “restructured”. In this transaction the appellant purchased from the vendors all the shares of Bessbulk and the underwriting by Bessbulk of the net revenue deficiencies of the vessel operation was CTC Maple Leaf Mills Ltd v MNR (FCA) 335

cancelled and terminated but without affecting rights or liabilities accrued thereunder. While the shares of Bessbulk were transferred to the appellant immediately under these arrangements the price therefor was not to be payable until the termination of the charter or until the vessel was sold, whichever might occur first, and what was then to be paid was the amount by which the fair market value of the investments of Bessbulk at that time exceeded the net revenue deficiencies of the operation of the vessel less any amounts already paid by Bessbulk to the appellant in respect of such deficiencies and any income distributed by Bessbulk to the appellant.

In its 1963, 1964 and 1965 taxation years the appellant received from Bessbulk dividend distributions of $55,826, $60,834 and $63,717, respectively, which together with the $36,058 received in 1962 totalled $216,435. In consequence, when the ship had been sold and the calculations had been made, the appellant was able to discharge its obligation to pay for the shares of Bessbulk by paying an amount representing the fair market value of that company’s investments less $984,644 (that is to say the $1,201,079 total net operational deficiency mentioned earlier less the $216,435 which the appellant had received from Bessbulk).

In assessing the appellant for the taxation year 1966 the Minister added the $1,201,079 to the appellant’s income and the assessment so made was confirmed by the judgment of the trial division. On the appeal to this Court, however, the Minister, in his memorandum of argument, acknowledged ‘‘that on a proper interpretation of the contract of purchase, the amount of the benefit enjoyed by the appellant during its 1966 taxation year is not the sum of $1,201,079, as assessed, but rather the sum of $984,644” and took the position that the appeal should be allowed and the judgment appealed from varied so as to refer the assessment back to him for reassessment so as to include in the appellant’s income the sum of $984,644 instead of the sum of $1,201,079 but that in other respects the appeal should be dismissed.

The appellant raised two principal points in objection to the assessment of the $984,644 amount, first, that the amount was not income but a capital accretion, and second, that even if the amount was income it was not assessable in the 1966 taxation year.

On the first point the appellant’s submission, as I have understood it, was that on the face of it the 1963 agreement was one for the purchase by the appellant of shares and that even though its provisions were intended to replace the 1961 income indemnity agreement its substance was to provide a formula for the determination of the purchase price of the shares; that while the 1961 agreement contemplated a supplement of the earnings of a vessel being paid the 1963 agreement made no such provision but provided merely for a reduction of the purchase price of the shares by reference to the results of the operation of the vessel.

It appears to me that whether that submission accurately characterizes the 1963 agreement or not — and I am not inclined to regard it as an inaccurate characterization — what must be determined is not so much the substance or character of the agreement itself, but the nature of what has accrued to the appellant under it.

The agreement was said to be a restructuring of the 1961 arrangements and that it was intended to produce in another way the same economic results. It may therefore be taken that its provisions were in substitution for the earlier 1961 provisions, and constituted a method of filling the hole in revenues, or of supplementing revenues, which was different from that provided by the 1961 arrangement but which served the same purpose, viz to satisfy the appellant’s initial stipulation for assurance that the revenues from the operation of the vessel would not be less than projected. That suggests in my opinion that what accrued to the appellant under this agreement was also of a revenue nature.

In addition to this the facts appear to me to show that it was by reason of the subsequent operation of the vessel that the appellant earned the right to have the amount in question taken into account in calculating the price it was to pay for the shares. This right thus accrued from the operation of the vessel and forms part of what the appellant gained by the operation.

I am accordingly of the opinion that the right of the appellant to have the $984,644 in question taken into account was of an income nature and was assessable as income.

On the other point the submission was that in any event the amount was not properly included in the appellant’s 1966 income since it accrued year by year and the appellant’s entitlement with respect to the net revenue deficiency of each year should have been assessed in the year in which such deficiency arose. With respect to the taxation years 1963, 1964 and 1965, to which the 1963 agreement applied, I am at a loss to understand what could have been regarded at the end of any year as having accrued to the appellant as a right since the charter still had many years to run during which the deficiency might be obliterated and since the ship had not yet been sold. For this reason, I think the appellant’s submission is even weaker with respect to these years than it is with respect to the 1962 taxation year, to which the 1961 agreement applied. In that case as well, however, though the amount of the deficiency for the year was capable of ascertainment at the end of the year and constituted a debt due and owing within the meaning of the agreement, it too remained subject, until the end of the charier period or until the vessel should be sold, to revision or obliteration as a result of the operation of the vessel in subsequent years, or as a result of the vessel being sold for enough to bring into play the provisions of the agreement for reimbursement of Bessbulk. As I see it, the earliest time when any of these amounts had the character and qualities of a receivable was when the ship had been sold and their net amount, which because there were no annual revenue increases was also their gross amount, had been determined in accordance with the provisions of the arrangements. I do not think, therefore, that there was anything to be taken into account as income by the appellant in respect of such amounts in any taxation year earlier than 1966.

The foregoing conclusions are sufficient to dispose of the appeal on the points raised in the appellant’s notice of appeal to the Trial Division and in the memorandum of argument and the argument presented by counsel for the appellant on the hearing of the appeal. In the course of his reply, however, counsel sought to raise a further point which had first appeared during the presentation of argument by counsel for the Minister. The point was that if the amount in question was assessable as income and was not assessable in the years earlier than 1966 it was nevertheless not assessable in the appellant’s 1966 taxation year since the certificate of the auditors certifying pursuant to the agreement the amount of the net revenue deficiencies and the price to be paid for the shares (which appears at page 379 of the appeal case) purports to be dated December 1, 1966, which fell in the appellant’s 1967 taxation year, and that accordingly the amount in question in the appeal was not determined in the appellant’s 1966 taxation year and was not income of that year.

This was a new issue not raised at any stage in the trial division nor up to that time on the appeal and to my mind it amounted to putting forward an entirely new alternative case which had not been pleaded and the possible existence of which had not theretofore been apparent to counsel on either side.

Paragraphs 8 and 16 of the appellant’s notice of appeal to the trial division filed on October 6, 1969, include the following assertions:

8. On November 19, 1965 the vessel was sold by Maple Leaf to Oswego Unity Corporation (“Oswego”). The purchase price payable under the purchase agreement for the shares and other securities of Bessbulk was paid by Maple Leaf in its 1966 fiscal year.

16. The transaction constituted by the purchase agreement involved the sale by Federal Bulk and Bessemer and purchase by Maple Leaf of the outstanding shares and other securities of Bessbulk for a purchase price to be determined at a later date in light of the circumstances referred to in the purchase agreement and there was to be only one payment between them payable when the purchase price was so determined. The purchase price having been determined in Maple Leaf’s 1966 fiscal year, it was paid in that year.

By an amendment filed on September 28, 1970 the following paragraph 17A was added:

17A. In the alternative if the Minister was entitled to assess as taxable income any amount in respect of the operation of the vessel, the only taxable income assessable is the amount earned in the fiscal year 1966. The Minister has included in his re-assessment amounts which on his theory would have to have been earned in earlier years.

In the Minister’s reply paragraph 8 was admitted and no reference was made to paragraphs 16 or 17A both of which had appeared in part B of the notice of appeal entitled “Statutory Provisions Upon Which The Appellant Relies And Reasons Which It Intends To Submit”.

The matter is complicated further to some extent by the fact that the certificate referred to was put in evidence by counsel for the Minister. Even after that had been done, however, the trial proceeded to its conclusion and the appeal was presented without the point having been raised. In these circumstances I do not think it is open to the appellant as of right or that the appellant should be permitted at this stage to put forward what amounts to a new case based on the document without an appropriate amendment to his pleadings and an opportunity to the respondent to answer such amendment.* [1]

At the conclusion of the hearing the Court reserved judgment and indicated to counsel that judgment would not be pronounced until the appellant had had an opportunity to consider whether to apply for leave to make such an amendment and counsel has since indicated by a letter to the Registry that the appellant does not propose to ask leave to amend.

In my view therefore the matter must be treated as not before the Court and not open to the appellant.

I would allow the appeal and refer the assessment back to the Minister for reassessment on the basis that the sum of $984,644 should be included in the appellant’s income for the year 1966 instead of the sum of $1,201,079 referred to in the assessment under appeal. In other respects I would dismiss the appeal.

As the appellant has had a substantial success I am of the opinion that it is entitled to its costs in the trial division and its costs of this appeal up to the time of the delivery of the respondent’s memorandum of argument, together with costs incidental to the entry of judgment herein. The respondent is entitled to his costs on the hearing of the appeal

MacKay, DJ:—I concur in the reasons for judgment of my brother Thurlow.

Sweet, DJ:—In his reasons Mr Justice Thurlow has set out all the relevant facts necessary for the understanding of and disposition of the matters at issue. Included in those reasons is a reference to a contract made “as of the 31st day of July, 1961” between Bessbulk Limited and the appellant. By it Bessbulk Limited underwrote an amount by which the appellant’s actual net revenues from the operation of a vessel purchased by the appellant in 1961 might fail to meet certain agreed projected levels during the time mentioned therein. Reference was also made in the reasons of Thurlow, J to another agreement dated “as of the 20th day of June, 1963” providing for the appellant purchasing all the outstanding shares and income debentures of Bessbulk Limited. As a part of the 1963 transaction the 1961 indemnity agreement was “cancelled and terminated, without affecting any rights or liabilities” theretofore accrued thereunder. The terms of the agreements, which have significance in connection with the issues in this case, are mentioned in those reasons and need no repetition here. As it turned out the appellant was able to discharge its obligations to pay for those shares and debentures of Bessbulk Limited by paying an amount representing the fair market value of that company’s investments less $984,644. As a result the appellant was able to purchase the Bessbulk shares and debentures at $984,644 less than their fair market value.

It is that amount, $984,644, which the respondent submits is now assessable on the ground that it was a benefit realized in the course of the carrying on or carrying out of the appellant’s business.

The appellant in its memorandum of fact and law submits inter alia:

The learned trial Judge erred in failing to hold that on its face the 1963 Purchase Agreement provided a formula for the purchase of shares . . .

and

As the appellant was not in the business of dealing in securities, the purchase of the securities was a capital transaction . . .

In that memorandum, referring to the 1963 purchase agreement, it was also stated:

Undoubtedly the parties intended that that document should serve the same purpose as was served by the 1961 Indemnity Agreement.

Mr J.L Lewtas, a director of the appellant and a member of the law firm who were general solicitors of the appellant, giving evidence and answering a question relative to the agreement of June 20, 1963 and the earlier agreement said:

I think you will find that it is not word for word but just so that I may answer that with all candor, my instructions were to achieve the identical economic result while at the same time solving this U.S. tax problem.

The 1963 purchase agreement does deal with the purchase of capital assets, namely securities of Bessbulk Limited. It does set out a formula or method for determining the ostensible price of those securities.

However the amount by which the appellant might purchase those securities at less than their fair market value and the right of the appellant to do so, as it did, was related to and arose out of the carrying on of a business in which the appellant was engaged—the operation of the ship.

The intention motivating and the purpose of both the indemnity agreement of 1961 and the purchase agreement of 1963 was to assure the appellant of a projected level of actual net revenue from the operation of the vessel. Pursuant to the 1961 agreement if that level was not reached the deficiency was to be made up by payment by Bessbulk Limited. Pursuant to the 1963 purchase agreement the deficiency was to be made up by the adjustment downward of the purchase price so that the appellant would purchase the Bessbulk Limited securities at an amount less than their fair market value. The amount less than the fair market value would equal that deficiency.

Whether the assured projected net revenues came from the use by others of the vessel, or from the underwriting by Bessbulk Limited under the indemnity agreement of 1961 or from the right to purchase the Bessbulk Limited securities under the purchase agreement of 1963 or partly from one or partly from the others, made no essential difference. In all cases the revenues would flow from the carrying on of and would be income from that portion of the appellant’s business which involved the operation of the vessel. The characteristics would be the same in each case. Only the sources would be different. Regardless of those sources all would actually be revenue in nature. All would be profit from the business. In my opinion, all being income would be assessable as income.

An alternative position taken by the appellant was that in any event as stated in the memorandum:

The learned trial judge erred in concluding that any receipt or benefit obtained by the taxpayer from the 1961 Indemnity Agreement or 1963 Purchase Agreement was determined, payable and taxable in the 1956 taxation year.

In connection with that alternative position I concur in the view of Thurlow, J to the effect that there was nothing to be taken into account as income by the appellant in respect of such amounts in any taxation year earlier than 1966 and I concur in his reasons for that conclusion.

I also concur in his views regarding the further point counsel sought to raise, namely that if the amount in question was assessable as income and was not assessable in the years earlier than 1966 it was nevertheless not assessable in the appellant’s 1966 taxation year since the certificate of the auditors as to the amount of the net revenue deficiencies and the price to be paid for the shares purports to be dated December 1, 1966 which fell in the appellant’s 1967 taxation year. In his view, for the reasons stated by him, that matter must be treated as not before the Court and not open to the appellant. I agree.

I also would allow the appeal and refer the assessment back to the Minister for reassessment on the basis that $984,644 should be included in the appellant’s income for the year 1966 instead of the sum of $1,201,079 referred to in the assessment under appeal. In other respects I would also dismiss the appeal.

I would dispose of the matter of costs in the same manner as does Thurlow, J.