Minister of National Revenue v. Gustavson Drilling (1964) LTD, [1972] CTC 83, 72 DTC 6068

Cattanach, J:—This is an appeal by the Minister from a decision of the Tax Appeal Board rendered on October 29, 1970 (reported [1970] Tax ABC 1137) whereby an appeal against reassessments for tax, interest and penalties for the respondent’s 1965, 1966, 1967 and 1968 taxation years was allowed.

The parties concurred in the appeal being by way of a special case stated for the opinion of the Court pursuant to Rule 475.

The special case so agreed upon and set down for trial by order of the Associate Chief Justice reads as follows:

1. At all material times the Respondent was a corporation

(i) which was incorporated pursuant to the laws of Canada on May 26, 1949,

(ii) whose name was “Sharpies Oil (Canada) Ltd.” until October 6, 1964,

and

(iii) which carried on in Canada as its principal business the production, refining or marketing of petroleum, petroleum products or natural gas, or exploring or drilling for petroleum or natural gas, within the meaning of section 83A of the Income Tax Act.

2. Prior to the 1964 taxation year the Respondent was a wholly owned subsidiary of The Sharpies Oil Corporation, a corporation incorporated pursuant to the laws of the United States of America or one of the states thereof.

3. At all material times The Sharpies Oil Corporation carried on as its principal business the production, refining or marketing of petroleum, petroleum products or natural gas, or exploring or drilling for petroleum or natural gas, within the meaning of section 83A of the Income Tax Act.

4. The Respondent had from May 26, 1949 and up to November 30, 1960, incurred drilling and exploration expenses, within the meaning of section 83A of the Income Tax Act, in the amount of $2,042,407.68 in excess of its income from the production of petroleum and natural gas during the said period, but the amount was adjusted by agreement between the Appellant and Respondent to the amount of $1,987,547.19, as set out in a letter dated October 28, 1965, from the Calgary District Office of the Department of National Revenue, Taxation, addressed to the Respondent in the following terms:

“DEPARTMENT OF NATIONAL REVENUE Taxation Division October 28, 1965.

Calgary Public Building 205-8th Avenue SE

CALGARY, Alberta Gustavson Drilling (1964) Ltd

1660 Elveden House

Calgary, Alberta

J A Berthelsen

Attention: R L Timmins

Dear Sirs:

As discussed in our telephone conversation on October 26, 1965, the following represents the adjustments to the exploration and development expenditures that may be carried forward by Gustavson Drilling (1964) Ltd as at December 31, 1964:

Changes to increase the 1964 income:

Drill Collars not used by the year end	7,590.00
Rig repair costs that should be charged to
Gustavson Drilling (1962) Ltd	3,422.88
	11,012.88

The above changes were agreed to by the Company in a letter to this office dated July 23, 1965.

Changes to reduce the balance of exploration and development costs carried forward at December 31, 1964:

Carry forward errors in 1958 and 1960	32,180.32
Capital cost allowance claimed in excess of
income for 1949 to 1954	14,528.03
Legal fees disallowed	3,287.32
Lease and royalty acquisition cost disallowed	1,823.92
	51,819.59

The above adjustments have reduced the balance of exploration and development expenses that may be carried forward under section 83A at December 31, 1964 to $1,987,547.19.

Yours truly,

E Sharp

for Director — Taxation

JAB/ep”

The difference between the $2,042,407.68 and $1,987,547.19 represents the amount of drilling and exploration expenses originally allocated to the 1964 taxation year and subsequently disallowed by the Appellant. The respondent accepted and now accepts the amount of $1,987,547.19 as the correct amount, and if the Respondent is not precluded from making deductions on account thereof in computing its income for the 1965, 1966, 1967, 1968 and subsequent taxation years, the aggregate of such deductions in all of such years would be $1,987,547.19.

5. On or about November 30, 1960 The Sharpies Oil Corporation acquired from the Respondent, in consideration for the cancellation of a debt, substantially all of the property used by the Respondent in carrying on its business in Canada, as described in paragraph 1 (iii) hereof.

6. Subsequent to the said transfer of property the Respondent discontinued its business and did not carry on any business until after June 18, 1964.

/. By agreement dated June 18, 1964 Mikas Oil Co Ltd purchased all of the issued and outstanding shares of the capital stock of the Respondent from the shareholders of The Sharpies Oil Corporation and their respective heirs, executors, administrators, successors and assigns, who had acquired such shares of the Respondent on or about March 2, 1964 in the course of liquidation proceedings of The Sharpies Oil Corporation which had commenced on March 25, 1963 and which had ended on March 25, 1964. An executed copy of the above-mentioned agreement made as of June 18, 1964 is annexed hereto as Exhibit “1”.

8. On or about October 6, 1964 the Respondent’s name was changed to Gustavson Drilling (1964) Ltd and thereafter the Respondent recommenced carrying on such business, as described in paragraph 1 (iii) hereof, with newly acquired assets none of which had been owned or used by the Respondent prior to June 18, 1964.

9. On March 25, 1969, the Appellant reassessed the Respondent with respect to the 1965, 1966, 1967 and 1968 taxation years, disallowing as deductions, in computing the Respondent’s income for those years, any amounts of the aforesaid sum of $1,987,547.19 on account of drilling and exploration expenses. In particular, the Appellant disallowed as deductions in computing the Respondent’s income for the 1965, 1966, 1967 and 1968 taxation years the amounts of $119,290.49, $447,369.99, $888,084.10 and $31,179.00, respectively, which amounts were claimed by the Respondent as part of the said amount of $1,987,547.19, but allowed as deductions the amounts of $41,770.21, $1,778.00, $2,581.46 and $49,127.00, respectively, on account of drilling and exploration expenses incurred by the Respondent in the 1965, 1966, 1967 and 1968 taxation years, respectively, and not forming part of the said amount of $1,987,547.19.

10. In so reassessing the Respondent with respect to the 1965, 1966, 1967 and 1968 taxation years the Appellant allowed, pursuant to the Respondent’s request, as deductions in computing the Respondent’s income for those years, the amounts of $21,884.56, $105,372.86, $192,828.72 and $215,919.17, respectively, on account of capital cost allowances.

11. The facts above stated are agreed by the Appellant and by the Respondent.

12. The question for the opinion of the Court is whether subsection (8a) of section 83A of the Income Tax Act as amended by the repeal of paragraphs

(c) and (d) thereof by Statutes of Canada, 1962-63, c 8, section 19, subsections (11) and (15), precludes the Respondent from deducting in the computation of its income for the 1965, 1966, 1967 and 1968 taxation years amounts on account of the drilling and exploration expenses mentioned in paragraph 4 hereof, which but for the repeal would have been deductible by the Respondent under subsections (1) and (3) of section 83A of the Act.

13. The Appellant and Respondent agree:

(1) that if the Court shall be of opinion in the positive, then

(i) the appeal shall be allowed with costs payable to the Appellant and the assessments of March 25, 1969 with respect to the 1965, 1966, 1967 and 1968 taxation years restored, and

(ii) the Respondent’s cross-appeal, as raised by paragraph 9 of the Respondent’s Reply to the Appellant’s Notice of Appeal, shall be dismissed without costs payable to either party,

and

(2) that if the Court shall be of opinion in the negative, then

(i) the appeal shall be dismissed with costs payable to the Respondent,

and

(a) the Appellant shall allow as deductions in computing the Respondent’s income for the 1965, 1966 and 1967 taxation years the amounts of $119,290.49, $447,369.99 and $888,084.10, respectively, on account of drilling and exploration expenses incurred by the Respondent prior to November 30, 1960,

(b) the Appellant shall, in computing the Respondent’s income for the 1968 taxation year, reduce the amount of the deduction on account of drilling and exploration expenses from $49,127.00 to $31,179.00,

and

(ii) the Respondent’s cross-appeal, as raised by paragraph 9 of the Respondent’s Reply to the Appellant’s Notice of Appeal shall be allowed without costs payable to either party and the said assessments with respect to the 1965, 1966, 1967 and 1968 taxation years shall be referred back to the Appellant for reconsideration and reassessment on the basis that

(a) in computing the Respondent’s income for the 1965, 1966 and 1967 taxation years the deductions on account of capital cost allowances, as described in the Capital Cost Allowance Schedule, annexed hereto as Exhibit “2”, shall be reduced by $21,884.56, $105,372.86 and $192,828.72, respectively, and

(b) in computing the Respondent’s income for the 1968 taxation year the deduction on account of capital cost allowances, as described in the Capital Cost Allowances Schedule, annexed hereto as Exhibit “2”, shall be increased from $215,919.17 to $325,883.00.

The question for determination is as outlined in paragraph 12. Broadly stated the issue is the question of what effect does the repeal of paragraphs (c) and (d) of subsection (8a) of section 83A of the Income Tax Act applicable to the 1962 and subsequent taxation years have on the applicability of subsection (8a) to the deductibility of drilling and exploration expenses incurred prior to the 1962 taxation year, which the respondent seeks to deduct in computing its income for its 1965, 1966, 1967 and 1968 taxation years.

Section 83A is obviously incentive legislation designed to encourage the search for oil and gas in Canada by allowing expenditures incurred in drilling and exploring for oil and gas to be deducted in computing income in prescribed circumstances and within defined limits which would ordinarily not be deductible as capital expenditures within paragraph 12(1) (b) of the Income Tax Act.

Subsections 83(A)(1) and (3) read as follows:

83A. (1) A corporation whose principal business is production, refining or marketing of petroleum, petroleum products or natural gas or exploring or drilling for petroleum or natural gas may deduct, in computing its income under this Part for a taxation year, the lesser of

(a) the aggregate of such of the drilling and exploration expenses, including all general geological and geophysical expenses, incurred by it on or in respect of exploring or drilling for petroleum or natural gas in Canada as were incurred during the calendar years 1949 to 1952, to the extent that they were not deductible in computing income for a previous taxation year, or

(b) of that aggregate, an amount equal to its income for the taxation year

(i) if no deduction were allowed under paragraph (b) of subsection (1) of section 11, and

(ii) if no deduction were allowed under this section,

minus the deductions allowed for the year by subsections (8a) and (8d) of this section and by section 28.

(3) A corporation whose principal business is

(a) production, refining or marketing of petroleum, petroleum products or natural gas, or exploring or drilling for petroleum or natural gas, or

(b) mining or exploring for minerals,

may deduct, in computing its income under this Part for a taxation year, the lesser of

(c) the aggregate of such of

(i) the drilling and exploration expenses, including all genera! geological and geophysical expenses, incurred by it on or in respect of exploring or drilling for petroleum or natural gas in Canada, and

(ii) the prospecting, exploration and development expenses incurred by it in searching for minerals in Canada,

as were incurred after the calendar year 1952 and before April 11, 1962, to the extent that they were not deductible in computing income for a previous taxation year, or

(d) of that aggregate, an amount equal to its income for the taxation year

(i) if no deduction were allowed under paragraph (b) of subsection (1) of section 11, and

(ii) if no deduction were allowed under this section,

minus the deductions allowed for the year by subsections (1), (2), (8a) and

(8d) of this section and by section 28.

The respondent was incorporated in 1949 under the name of Sharpies Oil (Canada) Ltd and was a wholly owned subsidiary of Sharpies Oil Corporation incorporated pursuant to the laws of one of the states of the United States of America. With moneys advanced by its parent the respondent incurred drilling and exploration expenses within the meaning of section 83A.

The effect of subsections 83A(1) and (3) is that drilling and exploration expenses may be deducted in subsequent taxation years to the extent of income earned in each subsequent taxation year subject to the limitations indicated. The undeducted expenses, colloquially speaking, remain on the shelf for use in subsequent years.

It is agreed between the parties that between 1949 and November 30, 1960 the respondent had incurred undeducted drilling and exploration expenses in the amount of $1,987,547.19.

In 1960 the respondent was heavily indebted to its parent company, which was also engaged in the principal business of the production, refining and marketing of natural gas. The respondent ceased its Operations and disposed of substantially all of its assets by way of sale to its parent company in consideration of the cancellation of its indebtedness to its parent company on November 30, 1960. Thereafter the respondent remained inactive and dormant for a period.

When the assets of the respondent were transferred to its parent in 1960 subsection 83A(8a) read as follows:

83A. (8a) Notwithstanding subsection (8), where a corporation (hereinafter in this subsection referred to as the “successor corporation”) whose principal business is

(a) production, refining or marketing of petroleum, petroleum products or natural gas, or exploring or drilling for petroleum or natural gas, or

(b) mining or exploring for minerals,

has, at any time after 1954, acquired from a corporation (hereinafter in this subsection referred to as the “predecessor corporation”) whose principal business was production, refining or marketing of petroleum, petroleum products or natural gas, exploring or drilling for petroleum or natural gas or mining or exploring for minerals, all or substantially all of the property of the predecessor corporation used by it in carrying on that business in Canada,

(c) pursuant to the purchase of such property by the successor corporation in consideration of shares of the capital stock of the successor corporation, or

(d) as a result of the distribution of such property to the successor corporation upon the winding-up of the predecessor corporation subsequently to the purchase of all or substantially all of the shares of the capital stock of the predecessor corporation by the successor corporation in consideration of shares of the capital stock of the successor corporation,

there may be deducted by the successor corporation, in computing its income under this Part for a taxation year, the lesser of

(e) the aggregate of

(i) the drilling and exploration expenses, including all general geological and geophysical expenses, incurred by the predecessor corporation on or in respect of exploring or drilling for petroleum or natural gas in Canada, and

(ii) the prospecting, exploration and development expenses incurred by

the predecessor corporation in searching for minerals in Canada,

to the extent that such expenses

(iii) were not deductible by the successor corporation in computing its income for a previous taxation year, and were not deductible by the predecessor corporation in computing its income for the taxation year

in which the property so acquired was acquired by the successor corporation or its income for a previous taxation year, and

(iv) would, but for the provisions of paragraph (b) of subsection (1), paragraph (b) of subsection (2), paragraph (d) of subsection (3) and paragraph (d) of subsection (8) or of any of those paragraphs or this subsection, have been deductible by the predecessor corporation in

computing its income for the taxation year in which the property so acquired was acquired by the successor corporation, or

(f) of that aggregate, an amount equal to such part of its income for the year

(i) if no deduction were allowed under paragraph (b) of subsection (1) of section 11, and

(ii) if no deduction were allowed under this section,

(minus any deduction allowed for the year by section 28), as may reasonably be regarded as attributable to the production of petroleum or natural gas from wells, or the production of minerals from mines, situated on property from which the predecessor corporation had, immediately before the acquisition by the successor corporation of the property so acquired, a right to take or remove petroleum or natural gas or a right to take or remove minerals;

and, in respect of any such expenses included in the aggregate determined under paragraph (e), no deduction may be made under this section by the predecessor corporation in computing its income for the taxation year in which the property so acquired was acquired by the successor corporation or its income for any subsequent taxation year.

Subsection (8a) was enacted in 1956 applicable to transactions as described therein that took place after 1954.

The transfer of its assets by the respondent to its parent was not in consideration for shares in the capital stock of the parent in accordance with paragraph 83A(8a)(c) above, nor did the transfer result from the winding-up of the respondent in accordance with paragraph 83A (8a)(d) above.

It is clear that the parent company did not acquire the right at that time to deduct the drilling and exploration expenses incurred by the respondent, because the assets were not acquired in the manner pre- scribed by paragraphs 83A(8a)(c) and (d). It is equally clear that under the legislation as it read at that time, that right remained in the respondent.

On June 18, 1964 Mikas Oil Co Ltd purchased all of the issued and outstanding shares of the respondent from the company’s shareholders.

With moneys provided by Mikas Oil Co Ltd the respondent resumed drilling and exploration activities.

On October 6, 1965 the corporate name of the respondent was changed from that of Sharpies Oil (Canada) Ltd to that of Gustavson Drilling (1964) Ltd the name which appears in the style of cause herein.

The respondent incurred further drilling and exploration expenses subsequent to June 18, 1964 which it claimed as deductions in its subsequent taxation years under subsections 83A(1) and (3) and these deductions were allowed by the Minister. However the respondent also sought to carry forward and deduct the amounts of $119,290.49, $447,369.99, $888,084.10 and $109,963.83, as part of the $1,987,547.19 deferred development expenses incurred prior to 1960 in its 1965, 1966, 1967 and 1968 taxation years respectively. The Minister disallowed the deduction of the foregoing amounts in the foregoing taxation years and reassessed the respondent accordingly. Therefore, the issue is the deductibility of those amounts in those years. This issue is unaffected by the change in ownership of the respondent’s shares.

By chapter 8, Statutes of Canada 1962-63, subsection 19(11) paragraphs (c) and (d) of subsection 83A(8a) of the Income Tax Act were repealed and by subsection (15) thereof that repeal was made applicable to the 1962 and subsequent taxation years.

The rival contentions of the parties, as I understood them, are summarized as follows:

(1) On behalf of the respondent it was contended that when the respondent disposed of its assets in 1960 to its parent company by sale in consideration of the discharge of its indebtedness, it did not fall within paragraphs 83A(8a)(c) and (d) and accordingly the parent company was not a “successor corporation” within the meaning of subsection (8a) and for that reason did not acquire the right to deduct deferred drilling and exploration expenses and that the respondent as vendor was not a “predecessor corporation” within the meaning of subsection (8a). Therefore it is the contention of the respondent that it retained a “vested” right to deduct the deferred development and exploration expenses to the total extent of $1,987,547.19 in its 1965, 1966, 1967 and 1968 and subsequent taxation years if other conditions prescribed by the Income Tax Act.

(2) On behalf of the Minister it was contended that in the 1965, 1966, 1967 and 1968 taxation years the respondent and its parent company were respectively “predecessor” and “successor” corporations within the meaning of subsection 83A(8a) by reason of the repeal of paragraphs (c) and (d) in 1962 applicable to the 1962 and subsequent taxation years and therefore the respondent, as a “predecessor corporation”, was precluded by subsection (8a), as amended, from deducting any amount of drilling and exploration expenses incurred by it prior to November 30, 1960 in its 1962 and subsequent taxation years, but rather that that right enures to the parent corporation as a “successor” in accordance with subsection (8a) as so amended.

lt is common ground that if paragraphs (c) and (d) of subsection (8a) had not been repealed, then the respondent would be entitled to continue the deduction of its accumulated drilling and exploration expenses and that its parent company, after the purchase of the respondent’s assets in 1960, would not be entitled to deduct those expenses because it was not a successor corporation, the transaction not being within the limitations of paragraphs (c) and (d).

Similarly, I think it is clear that if paragraphs (c) and (d) had never been enacted then in the circumstances of the present transaction, the parent company would be entitled to deduct the accrued drilling and exploration expenses as a successor corporation and the respondent as a predecessor corporation would be precluded from deducting those expenses by the concluding provisions of subsection (8a).

Therefore the issue between the parties resolves itself into the question of what effect does the repeal of paragraphs (c) and (d) of subsection (8a) applicable to the 1962 and subsequent taxation years have on the deductibility of the drilling expenses accrued up to 1960 by the respondent in its subsequent 1965, 1966, 1967 and 1968 taxation years bearing in mind the sale of its assets to its parent company on November 30, 1960. Put another way the question is whether subsection (8a) of section 83A precludes the respondent from taking the deductions claimed in 1965 and for three subsequent years notwithstanding subsections (1) and (3).

The position of the respondent is that under the legislation as it existed prior to 1962 it had acquired the vested right to deduct accumulated drilling and exploration expenses in future years. Counsel for the respondent contends that the repeal of paragraphs (c) and (d) does not deprive the respondent of that right because if subsection

(8a) were to be interpreted as depriving the respondent of that right that would give to subsection (8a) a retrospective operation and that Parliament expressed no clear intention of doing so. The transaction took place in 1960. At that time in order for the successor corporation to inherit the drilling and exploration expenses of the predecessor the acquisition of the assets had to be in accordance with paragraphs (c) and (d). By the repeal of paragraphs (c) and (d) in 1962 Parliament is saying that it is not now necessary to acquire assets of a predecessor in the manner prescribed by paragraphs (c) and (d) in order for the successor corporation to inherit deferred drilling and exploration expenses and preclude their deductibility by the predecessor. However, if Parliament is now legislating that, although the successor did not acquire assets in conformity with paragraphs (c) and (d), it was not necessary to do so in order that the successor may deduct deferred drilling and exploration expenses and the predecessor corporation may not, then this is legislation with retroactive effect. Counsel contends that the character of the transaction and the tax conse- quences which flow therefrom must be governed by the law in force when the transaction took place. To say later that the tax consequences of the transaction are different is retroactive legislation.

On the other hand the position of the Minister, as I understood it, might be simply put as that the repeal of paragraphs (c) and (d) of subsection 83A(8a) of the Income Tax Act makes subsection (8a) applicable in the computation of the respondent’s income for its 1965, 1966, 1967 and 1968 taxation years and thus precludes the respondent from deducting the deferred drilling and exploration expenses incurred by the respondent prior to 1962 in those taxation years.

The determination of the conflicting positions taken by the parties is, in my view, dependent on the resolution of two questions,

(1) is the operation of subsection 83A(8a) as amended in 1962 by the repeal of paragraphs (c) and (d) retrospective in its effect, and if not

(2) what right or privilege did the respondent acquire or what right accrued to the respondent under the legislation as it read prior to its amendment by the repeal of paragraphs (c) and (d) in 1962:

(a) was it an accrued right which is not affected by repeal of the enactment in part, or

(b) was that right not an accrued right, but merely a hope or expectation that the legislation would not be amended so as to deprive the respondent of its tax advantage in future taxation years which is tantamount to saying that the respondent had no “right” at all?

The obvious intention of Parliament in repealing paragraphs (c) and (d) of subsection 83A(8a) of the Income Tax Act was to ensure that a successor corporation need not acquire the assets of a predecessor corporation in the restricted manner prescribed by those paragraphs to enable the successor to deduct the drilling and exploration expenses incurred by the predecessor in computing the successor’s income. As a corollary of the foregoing it seems to me to be equally obvious that the intention of Parliament is to preclude a predecessor corporation from deducting drilling and exploration expenses incurred by it, in computing its income, when the predecessor has disposed of its assets or substantially all of its assets to a successor corporation in a much less restricted manner than was the case when paragraphs (c) and (d) were in effect and applicable.

The problem which follows from the foregoing is whether Parliament intended that different tax consequences would flow from a transaction which occurred in 1960 when paragraphs (c) and (d) were present in the legislation than in 1962 and subsequent taxation years when paragraphs (c) and (d) had been repealed.

In my opinion the amendment of subsection 83A(8a) by the repeal of paragraphs (c) and (d) is not retrospective legislation. The repeal was specifically made applicable to the 1962 and subsequent taxation years. It does not purport to change the tax which would have been payable by the respondent in its taxation years prior to 1962. That would be the respondent’s vested right. The repeal does not purport to provide that as at those past dates the law shall be taken to have been what it was not then. If such were so the legislation would be retrospective. Retrospective operation is one matter. Interference with existing rights is another. There is a presumption that legislation speaks only as to the future, but there is no corresponding presumption that legislation is not intended to affect existing rights. Most acts of Parliament do just that.

The cardinal rule of the interpretation of a statute so as to avoid giving it a retrospective operation and the established corollaries to such rule are succinctly stated by Wright, J in In re Athlumney, ex parte Wilson, [1898] 2 QB 547, to which both counsel referred me, where he said at pages 551, 552:

Perhaps no rule of construction is more firmly established than this — that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.

The legislative scheme of Part I of the Income Tax Act is that taxes thereunder are imposed on a yearly basis. Under Division A thereof an income tax is imposed on the taxable income for each taxation year of each person resident in Canada. Division B lays down certain rules to be applied in determining the income of a taxpayer for a taxation year. These rules are supplemented by additional rules to be found in Division H which deals with “Exceptional Cases and Special Rules”. Subsection 83A(8a) falls within Division H. Division C lays down the rules as to what deductions may be made from income to ascertain taxable income. By Division H a taxpayer is obliged to file a “return of income for each taxation year”.

Therefore the computation of income must be done in each taxation year and to ascertain taxable income the deduction of expenses must also be done in each taxation year.

It is the applicable legislation in each taxation year which governs what tax consequences flow from a certain transaction and not the transaction. Parliament may well enact legislation which will provide that in one taxation year certain tax consequences will flow from a certain transaction and may subsequently enact legislation which will provide that in later taxation years different taxation consequences will flow from that transaction. A taxpayer is not entitled to have the tax consequences of a transaction preserved inviolate for the future when a subsequent and different law will be applicable to it.

For the foregoing reasons I have concluded that the repeal of paragraphs (c) and (d) of subsection 83A(8a) is not retrospective but prospective.

It is conceded by both parties that, but for the repeal of paragraphs (c) and (d) of subsection (8a) the respondent would have been entitled to continue the deduction of the deferred drilling and exploration expenses in its 1965, 1966, 1967 and 1968 taxation years.

The question therefore arises whether the respondent had conferred upon it by the legislation as it existed prior to 1962, that is when para- graphs (c) and (d) of subsection (8a) had not been repealed, any acquired or accrued right or privilege that was not affected by the repeal of paragraphs (c) and (d).

Whether the respondent has an accrued right which survives the repeal of paragraphs (c) and (d) is predicated upon paragraphs 35(b) and (c) of the Interpretation Act, RSC 1970, c I-23, which provides as follows:

35. Where an enactment is repealed in whole or in part, the repeal does not

(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder;

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed;

By subsection 2(1) “enactment” means an Act of the Parliament of Canada or regulation or any portion of an Act or regulation.

The provisions of the Interpretation Act by virtue of subsection 3(1) thereof extend and apply, unless a contrary intention appears, to every enactment whether enacted before or after the commencement of the Interpretation Act and accordingly it is applicable to the Income Tax Act.

In my opinion the respondent does not have a right or privilege “acquired, accrued, accruing or incurred” within the meaning of those words in paragraph 35(b) of the Interpretation Act.

There is support for this opinion in the decision of the Judicial Committee of the Privy Council in Abbott v Minister of Lands, [1895] AC 425, an appeal from an order of the Supreme Court of New South Wales. The appellant in that case had purchased 40 acres of Crown land under section 25 of the Crown Lands Alienation Act, 1861, and had subsequently become the conditional purchaser of an additional 200 acres. Section 22 of the Act provided that the holders in fee simple of lands granted by the Crown in areas not exceeding 280 acres might make conditional purchases of adjoining lands which would not be subject to the condition of residence applicable to conditional purchases in other cases. In 1884 the Crown Lands Alienation Act, 1861, was repealed. In the repealing act there was no counterpart to section 22 of the repealed Act but there was a proviso in section 2 as follows:

2. Provided that notwithstanding such repeal

(b) all rights accrued and all obligations incurred or imposed under or by virtue of any of the said repealed enactments shall, subject to any express provisions of this Act in relation thereto, remain unaffected by such repeal.

The effect of the above proviso is indentical to that of paragraph 35(b) of the Interpretation Act above quoted.

In 1892 the appellant applied for an additional conditional purchase of 150 acres adjoining his holdings and for a conditional lease of 440 acres in virtue of his additional conditional purchase. The local land board disallowed his application and their decision was affirmed by the courts of New South Wales.

Before the Judicial Committee it was contended on the appellant’s behalf that, although section 22 of the 1861 Act was repealed and there was no corresponding provision in the 1884 Act, the saving proviso in section 2 of the 1884 Act enabled him to make additional conditional purchases as if section 22 of the 1861 Act were still in force. He argued that under the repealed Act he had a right to make the additional conditional purchase and that this right was a “right accrued” at the time the 1884 Act was passed and notwithstanding the repeal it remained unaffected by such repeal.

What the appellant wanted was an additional conditional purchase free from the condition of residence as if section 22 of the 1861 Act was still in force, although under the 1884 Act this freedom from residence was no longer in effect as it had been.

This contention was rejected.

The Lord Chancellor said at pages 430 and 431 :

The substantial effect of section 22, therefore, was, that whilst it limited the fee-simple holder of lands to conditional purchases which with the lands so held in fee simple should not exceed 320 acres, it dispensed with the condition of residence on the lands conditionally purchased.

Their Lordships think it fallacious to say that the section in question conferred on the fee-simple holder of land the “right” to make conditional purchases. The only right which, as it appears to them, can be said to have been conferred was that he should be absolved from the condition of residence in the case of lands which he had conditionally purchased. The distinction is important, for it shews how broad the contention of the appellant is. It must, their Lordships think, necessarily go to this extent, that all the enactments of the Act of 1861 of which any one could before their repeal have taken advantage continue for an indefinite time in force and may notwithstanding the repeal still be taken advantage of. It is difficult to see how the contention for example could stop short of this: that any person entitled to make a conditional purchase under and on the terms of section 13 has an accrued right which is reserved to him by the saving proviso. For there is no difference between his position and that of the holder in fee simple, except that the latter may conditionally purchase without the obligation of residence, and perhaps with the right to a preference in case of simultaneous applications for the same land.

It has been very common in the case of repealing statutes to save all rights accrued. If it were held that the effect of this was to leave it open to any one who could have taken advantage of them, the result would be very far-reaching.

It may be, as Windeyer, J observes, that the power to take advantage of an enactment may without impropriety be termed a “right”. But the question is whether it is a “right accrued” within the meaning of the enactment which has to be construed.

Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words “obligations incurred or imposed.” They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a “right accrued” within the meaning of the enactment.

The reasoning in Abbott v Minister of Lands (Supra) was applied by Thorson, P in Western Leaseholds Ltd v MNR, [1961] CTC 490.

There were three issues before the President but I shall refer only to one. Subsection 50(1) of the Income Tax Act as it then read provided that when an amount was paid by a taxpayer on account of tax payable for a taxation year before the time for filing a return had expired was less than the tax payable, then the taxpayer was liable to pay interest on the difference between those two amounts from the expiration of the time for filing the tax return to the day of payment at 6% per annum. But subsection (6) provided a measure of relief from this obligation to pay interest to the effect that no interest would be payable for a specified period. Under the statute as it existed the taxpayer was not liable for interest for a period from July 1, 1953 to January 10, 1957.

Subsection (6) was repealed effective from July 28, 1955. It was contended on behalf of the appellant that it had the right to this freedom from interest for the period specified by subsection (6) and that its repeal could not take away this right from it. This contention was based on paragraph 19(1)(c) of the Interpretation Act, which provided as follows:

19. (1) Where any Act or enactment is repealed, or where any regulation is revoked, then, unless the contrary intention appears, such repeal or revocation does not, save as in this section otherwise provided,

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the Act, enactment or regulation so repealed or revoked,

It was submitted that subsection (6) conferred a right or privilege upon the appellant and that, in the absence of express terms, the repeal of the subsection did not deprive the appellant of that right or privilege.

Thorson, P rejected that contention on the ground that the appellant did not have a right or privilege “acquired, accrued, accruing or incurred under the Act repealed” within the meaning of paragraph 19(1)(c) of the Interpretation Act of such a nature as to give it the benefit of continual freedom from interest for a period subsequent to the date of the repeal of the relief giving subsection.

In support of this conclusion Thorson, P relied upon Abbott v Minister of Lands (supra) in which the Judicial Committee held that the appellant did not have a right accrued for the reasons I have quoted above.

At page 502 Thorson, P said:

Similarly, in my opinion, it ought to be held in the present case that the freedom from interest granted by subsection (6) of section 50 was not a right or privilege “acquired, accrued, accruing or incurred’’ under the subsection in the sense that it continued to exist after the subsection was repealed and freedom from interest was no longer permissible. While the appellant was not required to pay interest for the interest-free period as long as subsection (6) was in effect, this privilege, if it may be so called, disappeared when freedom from the payment of interest came to an end when the subsection was repealed on July 28, 1955.

The right that the respondent herein enjoyed was the right to take advantage of the provisions of the Income Tax Act as they read in each taxation year. In its taxation years subsequent to the sale of its assets in 1960 the respondent had the right to deduct deferred drilling and exploration expenses, if the other prescribed conditions existed, by virtue of the existence of paragraphs (c) and (d) of subsection (8a) because that right did not pass to the purchaser. That right continued until the repeal of paragraphs (c) and (d) applicable to the 1962 taxation year. There was no act that the respondent could have done which would convert its right to take advantage of the provisions of the Income Tax Act in any prior taxation year into an “accrued right” within the meaning of the Interpretation Act which would survive the repeal of paragraphs (c) and (d) of subsection 83A(8a) of the Income Tax Act.

At the most what the respondent had was a hope or expectation that it might be able to deduct accumulated drilling and exploration expenses in future years which hope or expectation is predicated upon the legislation conferring that right of deduction remaining unchanged. The respondent is not entitled to have its status or character as a “non-predecessor corporation” under the law as it read prior to the repeal of paragraphs (c) and (d) of subsection (8a) preserved inviolate for future taxation years when a different law prevails. Such a hope or expectation falls far short of anything that answers to the description of the words “right” or “privilege” in paragraph 35(c) of the Interpretation Act.

In recapitulation, the crux of the matter is, in my view, that under the legislative scheme of the Income Tax Act, a taxpayer is obliged to file a return of income for each taxation year. The deductibility of any amount to determine taxable income in each taxation year is dependent upon the law as It exists in that taxation year. Applying this premise to the circumstances in the present appeal, it is clear that under the law as it existed in the respondent’s taxation years between the sale of the respondent’s assets in 1960 and the repeal of paragraphs (c) and (d) of subsection 83A(8a) in 1962 the respondent was entitled to deduct drilling and exploration expenses over a period of years until those expenses were exhausted, but by the repeal of the above paragraphs in 1962 that law was changed so that drilling and exploration expenses would no longer be deductible in the hands of respondent but in the hands of its successor corporation.

The contention is made that by the repeal of paragraphs (c) and (d) in 1962 it was the intention of Parliament that the amended law would be applicable to transactions which took place subsequent to 1962. In my opinion that contention is untenable because the tax consequences which flow from a transaction are governed by the law as applicable in the taxation year in which the return of income is filed, rather than the law as applicable in the year the transaction occurred. At that prior time the respondent had a “character” or “status” as a “non-predecessor corporation” and as such was entitled to take advantage of the legislation which permitted the deduction of drilling and exploration expenses in its taxation year when it had off-setting income. But Parliament can change that “character” or “status” of the respondent from that of a “non-predecessor corporation” to that of a “predecessor corporation” which it did by the repeal of paragraphs

(c) and (d) in 1962.

Accordingly the taxable income of the respondent in its 1965, 1966, 1967 and 1968 taxation years is governed by the legislation in effect in those taxation years. By that legislation the respondent was a “predecessor corporation” precluded from deducting drilling and exploration expenses. The tax results which followed from the transaction in 1960 are different in the 1965, 1966, 1967 and 1968 years by virtue of the change in legislation in 1962.

It therefore became necessary to consider whether the respondent had an “acquired” or “accrued” right prior to 1962 which would survive the repeal of paragraphs (c) and (d) in 1962. For the reasons I have expressed I have concluded that the respondent had no such “acquired or accrued right” within the meaning of those words in paragraph 35(c) of the Interpretation Act.

What the respondent had was the right to take advantage of the legislation as it existed and the hope that that legislation would remain unchanged so that it might continue to take advantage of that legislation. As I have previously concluded that is not a “right” or “privilege” that answers to the description of those words in the Interpretation Act let alone an “accrued right”. I am unable to conceive of what act the respondent could have done to convert its very abstract right to take advantage of the tax legislation conferring the benefit of a deduction upon it which would convert such an abstract right into a concrete right which would survive the repeal of that legislation.

I therefore answer the question posed in paragraph 12 of the special case in the affirmative.

Having done so it follows that, in accordance with paragraph 13 of the special case, the appeal is allowed with costs payable to the Minister and the assessments with respect to the respondent’s 1965, 1966, 1967 and 1968 taxation years are restored and the respondent’s cross-appeal, as raised by paragraph 9 of the respondent’s Reply to the Notice of Appeal, is dismissed without costs to either party.