Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.
Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.
Principal Issues: 1:is province a person 2:is provincial crown corp a person
Position: 1: yes; 2:yes
Reasons: 1: previous position and references to Her Majesty as a person; 2: in definition
April 12, 1999
Pacific Regional Office Headquarters
Federal Provincial Relations D. Duff
& First Nations Regional Operations
Attention: Charmaine Martin
Regional Coordinator 990885Definition of Person regarding Provincial Ministries
This is in reply to your e-mail of March 30, 1999, requesting our opinion on whether a ministry of the province of British Columbia would be considered a person for purposes of the Income Tax Act (the "Act").
You indicated that you had made a request for information from the province of British Columbia pursuant to subsection 231.2(1) of the Act. The province's legal representative replied that they could only release information under 33(D) of the BC Freedom of Information Act if required to do so by other legislation, such as the Income Tax Act of Canada. They further argued that since subsection 231.2(1) of the Act applied to "persons", this did not apply to a ministry of the province. Therefore, they were prevented from releasing the information under 33(D) of the BC Freedom of Information Act. Also, you indicated that you were prevented from getting information from a BC crown corporation based on the same argument.
Subsection 231.2(1) of the Act provides that "Notwithstanding any other provision of this Act, the Minister may, ...for any purpose related to the administration or enforcement of this Act, ... require that any person provide... (a) any information or additional information, including a return of income or a supplementary return; or (b) any document". We would agree that an entity must be considered a person pursuant to the Act for the provision to apply.
Subsection 149(1.2) of the Act refers, in paragraph (b), to "... a person who is Her Majesty in right of Canada or a province..." and in paragraph (d) to "... the person is Her Majesty in right of a province or a corporation controlled by Her Majesty in right of a province...". Also, in subsection 149(1.1) and the history to paragraph 149(1)(d) of the Act there are three references to "... a person other than Her Majesty in right of Canada or a province...". Therefore under the scheme of the Act, a person includes Her Majesty in right of a province. In our view, a reference to Her Majesty in right of a province is a reference to the provincial government and, consequently, the government would be a person under the Act. Therefore, the government, and a ministry of the government, would be subject to the terms of the Act, in particular subsection 231.2(1).
In addition, this issue was addressed in the Exchequer Court of Canada case of The Minister of National Revenue v. Leonard A. Braithwaite (70 DTC 6001). The issue in that case was the amount of registered retirement savings plan contributions that were deductible to Mr. Braithwaite. Section 79B(5) of the Act, as it read then, permitted a maximum deduction of $2,500 but this was reduced to $1,500 where contributions to a registered pension plan in respect of the employee were deductible "...in computing the income of any other person for that taxation year (or would be so deductible if that other person were a person taxable...)". The taxpayer argued that, although his employer, the Government of Ontario, made contributions to a registered pension plan on his behalf it was not a person and, therefore, he was not limited to the lower amount. The court concluded that "The reference in section 79B(5)(a) to the "other person", giving that word its ordinary sense, is sufficiently broad to include a reference to Her Majesty in right of Ontario". The court also considered the argument based on the definition of employment in the Act. Employment is defined to mean "...the position of an individual in the service of some other person (including Her Majesty...)". The taxpayer argued that this specific reference to Her Majesty in this definition indicated that the definition of person in other references did not include Her Majesty. The court concluded that "The fact that, out of an abundance of caution. a reference to the Crown was inserted in section 139(1)(m) [now subsection 248(1)] does not justify, in my view, a conclusion that other references to persons in the statute do not include Her Majesty".
Person is defined in subsection 248(1) of the Act to include "... any corporation, and any entity exempt, because of subsection 149(1), from tax under Part I on all or part of the entity's taxable income and the heirs, executors, administrators or other legal representative of such a person, according to the law of that part of Canada to which the context extends...". Regarding the BC crown corporation, the aforementioned definition of person specifically includes "any corporation", so we cannot understand an argument that crown corporations are not considered persons under the Act.
Roberta Albert, CA
for Director
Business and Publications Division
Income Tax Rulings and
Interpretations Directorate
Policy and Legislation Branch
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© Her Majesty the Queen in Right of Canada, 1999
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© Sa Majesté la Reine du Chef du Canada, 1999
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