Docket: A-129-13
Citation: 2014 FCA 104
CORAM: GAUTHIER J.A.
STRATAS J.A.
WEBB J.A.
|
|
|
BETWEEN:
|
|
BAKORP MANAGEMENT LTD.
|
|
Appellant
|
|
and
|
|
HER MAJESTY THE QUEEN
|
|
Respondent
|
REASONS
FOR JUDGMENT
WEBB J.A.
[1]
This is an appeal from an Order of Justice Campbell Miller of the Tax
Court of Canada (2013 TCC 94) dismissing the appeal of Bakorp Management
Limited (Bakorp). Justice Campbell Miller dismissed Bakorp’s appeal on the
basis that the appeal did not comply with the requirements of subsection
169(2.1) of the Income Tax Act,
R.S.C. 1985, c. 1 (5th Supp.) (the Act). For the reasons that follow I would
dismiss the appeal of Bakorp from this decision of Justice Campbell Miller.
Background
[2]
Bakorp is a large corporation within the meaning assigned by subsection
225.1(8) of the Act (a large corporation). On March 10, 1992 Bakorp acquired 5
Class A Common shares of 968649 Ontario Limited and on the following day these
shares were redeemed. Based on the statements made by Bakorp in its notice of
objection and without taking into account whether the provisions of subsection
84(3) of the Act would change the timing of when amounts were paid for the
purposes of the Act, it would appear that:
(a)
the total amount to be paid for these shares was subject to certain
adjustments;
(b)
when all of the adjustments were finally determined, the total amount
that was paid for these shares was $338,213,849;
(c)
the largest portion of this amount was paid to Bakorp during Bakorp’s
1993 taxation year;
(d)
in Bakorp’s 1994 taxation year another payment was made; and
(e)
the final payment was made in Bakorp’s 1995 taxation year.
[3]
As a result of the provisions of subsection 84(3) of the Act (subject to
the provisions of subsection 55(2) of the Act), the amount paid on the
redemption of the shares minus the paid-up capital of those shares was deemed
to be a dividend. Subsection 55(2) of the Act was applicable and a portion of what
would otherwise have been a deemed dividend was converted into proceeds of
disposition of the shares. This appeal is only related to the deemed dividend
portion (the Deemed Dividend).
[4]
Bakorp initially took the position that a portion of the Deemed Dividend
was not payable until 1995. As a result, in reporting its liability under Part
IV of the Act, Bakorp reported $52,912,264 as a dividend that was subject to
Part IV tax in 1995 and reported a Part IV tax liability of $13,333,059.
[5]
By notice of reassessment dated January 31, 2000, the Minister of
National Revenue (Minister) reduced the amount of the dividend subject to Part
IV tax in 1995 by $25,332,237 (which would have reduced the amount to $27,580,027).
This resulted in a reduction of the Part IV tax liability of Bakorp for 1995 in
the amount of $6,333,059.
[6]
By notice of objection dated May 29, 2000 Bakorp objected to this
reassessment of its Part IV tax liability for 1995. Although the Notice of Objection
was served more than 90 days after the date of the notice of reassessment,
since no issue was raised with respect to whether this notice was served within
the time limits as provided in the Act, presumably an extension of time to
serve this notice of objection was granted under section 166.1 of the Act. As
discussed below, Bakorp took the unusual position that it should have paid more
Part IV tax for 1995 than was reassessed by the Minister.
[7]
The first paragraph of the notice of objection is as follows:
ISSUE:
1. Share redemption proceeds added to income as a deemed
dividend.
|
Taxation Year
|
Adjustments to
Deemed
Dividend
|
|
March 10, 1995
|
$ (25,332,237)
|
|
March 10, 1994
|
(8,154,757)
|
|
March 10, 1993
|
154,224,784
|
|
|
$ 120,737,790
|
[8]
For two of the three years listed in this notice of objection, the
amount of the dividend was decreased and for the other year (1993) the amount
of the dividend was increased (by substantially more than the amount of the
reductions for 1994 and 1995). The only year in dispute in this matter is 1995.
[9]
By notice of confirmation dated March 26, 2012, the Minister confirmed
that “$28,000,000 of this deemed dividend should be included in your income in
the 1995 year”. It would appear that the Minister increased the amount of the
dividend that would be subject to Part IV tax in 1995 from the amount on which
Part IV tax had been based in the notice of reassessment dated January 31,
2000. There is no indication of why the Minister found that Part IV tax for
1995 should have been imposed on a dividend of $28,000,000 and not on a
dividend of $52,912,264 as proposed by Bakorp.
[10]
Bakorp then filed a notice of appeal to the Tax Court of Canada
asserting in paragraph 16 thereof that “[t]here is no basis under the [Act]
upon which the [$28,000,000 that had been included in Bakorp’s income for 1995]
can be included in the Appellant’s taxable income for the 1995 taxation year”.
The Crown brought a motion for an Order dismissing this appeal on the basis
that it did not comply with the requirements of subsection 169(2.1) of the Act.
As noted above, the Tax Court Judge agreed and the appeal was dismissed.
Issue in this Appeal and
Standard of Review
[11]
The issue in this appeal is whether Bakorp has complied with the
provisions of subsection 169(2.1) of the Act in relation to its appeal to the
Tax Court of Canada and in particular:
(a)
whether Bakorp had appealed to the Tax Court of Canada with respect to
an issue in respect of which it had complied with subsection 165(1.11) of the
Act in its notice of objection; and
(b)
whether Bakorp had appealed with respect to the relief sought in respect
of the issue as specified by Bakorp in its notice of objection.
[12]
In Housen v. Nikolaisen, [2002] 2 S.C.R. 235,
2002 SCC 33, the Supreme Court of Canada confirmed that the standard of review
for questions of law is correctness. Findings of fact (including inferences of
fact) will stand unless it is established that the Judge made a palpable and
overriding error. For questions of mixed fact and law, the standard of
correctness will apply to any extricable question of law and otherwise the
standard of palpable and overriding error will apply. An error is palpable if
it is readily apparent and it is overriding if it changes the result.
[13]
The parties do not agree on the applicable standard of review. Bakorp
submits that the Tax Court judge erred in his interpretation of the meaning of
“issue” for the purposes of the provisions of subsections 165(1.11) and
169(2.1) of the Act. This being an issue of statutory interpretation, Bakorp
submits that the standard of review is correctness. The second issue raised by
Bakorp is that the Tax Court judge erred in his interpretation of the
requirements of subsection 169(2.1) of the Act in relation to the relief
sought. Bakorp submits that this is also a question of statutory interpretation
reviewable on the standard of correctness.
[14]
The Crown submits that the issue is whether the Tax Court judge erred in
finding that the issue as stated in the notice of objection is not the same
issue as described in the notice of appeal and that this was a finding of fact
that can only be overturned on appeal if the judge made a palpable and
overriding error. The Crown also submits the same argument in relation to the
finding that the relief sought in the notice of appeal is different from the
relief sought in the notice of objection.
[15]
In order to consider this matter, the first question that must be
addressed is how the words “issue” and “relief sought” should be interpreted
for the purposes of subsections 165(1.11) and 169(2.1) of the Act. Without
knowing how these terms should be interpreted, how could it be determined
whether the issue was the same or different or whether the relief sought was
the same or different? The interpretation of these terms as used in subsections
165(1.11) and 169(2.1) of the Act is an extricable question of law reviewable
on a standard of correctness.
Procedural
Requirements of the Act for Objections and Appeals
[16]
Since Bakorp is a large corporation there are restrictions imposed on
its right to appeal matters to the Tax Court of Canada. Subsection 169(2.1) of
the Act provides as follows:
|
(2.1) Notwithstanding
subsections (1) and (2), where a corporation that was a large corporation in
a taxation year (within the meaning assigned by subsection 225.1(8)) served a
notice of objection to an assessment under this Part for the year, the
corporation may appeal to the Tax Court of Canada to have the assessment
vacated or varied only with respect to
(a) an issue in respect of
which the corporation has complied with subsection 165(1.11) in the notice,
or
(b) an issue described in
subsection 165(1.14) where the corporation did not, because of subsection
165(7), serve a notice of objection to the assessment that gave rise to the
issue and, in the case of an issue described in paragraph (a), the
corporation may so appeal only with respect to the relief sought in respect
of the issue as specified by the corporation in the notice.
|
(2.1)
Malgré les paragraphes (1) et (2), la société qui était une grande société au
cours d’une année d’imposition, au sens du paragraphe 225.1(8) et qui
signifie un avis d’opposition à une cotisation établie en vertu de la
présente partie pour l’année ne peut interjeter appel devant la Cour
canadienne de l’impôt pour faire annuler ou modifier la cotisation qu’à
l’égard des questions suivantes :
a) une
question relativement à laquelle elle s’est conformée au paragraphe 165(1.11)
dans l’avis, mais seulement à l’égard du redressement, tel qu’il est exposé
dans l’avis, qu’elle demande relativement à cette question;
b) une
question visée au paragraphe 165(1.14), dans le cas où elle n’a pas, à cause
du paragraphe 165(7), signifier d’avis d’opposition à la cotisation qui a
donné lieu à la question.
|
[17]
A large corporation can only appeal to the Tax Court of Canada with
respect to an issue in respect of which it has complied with subsection
165(1.11) of the Act in its notice of objection. This subsection provides as
follows:
|
165 (1.11) Where a
corporation that was a large corporation in a taxation year (within the
meaning assigned by subsection 225.1(8)) objects to an assessment under this
Part for the year, the notice of objection shall
(a) reasonably describe each
issue to be decided;
(b) specify in respect of
each issue, the relief sought, expressed as the amount of a change in a
balance (within the meaning assigned by subsection 152(4.4)) or a balance of
undeducted outlays, expenses or other amounts of the corporation; and
(c) provide facts and
reasons relied on by the corporation in respect of each issue.
|
(1.11) Dans
le cas où une société qui était une grande société au cours d’une année
d’imposition, au sens du paragraphe 225.1(8), s’oppose à une cotisation
établie en vertu de la présente partie pour l’année, l’avis d’opposition
doit, à la fois :
a) donner
une description suffisante de chaque question à trancher;
b)
préciser, pour chaque question, le redressement demandé, sous la forme du
montant qui représente la modification d’un solde, au sens du paragraphe
152(4.4), ou d’un solde de dépenses ou autres montants non déduits applicable
à la société;
c) fournir,
pour chaque question, les motifs et les faits sur lesquels se fonde la
société.
|
Positions of the Parties
[18]
Bakorp submits in paragraph 39 of its memorandum of fact and law that:
[s]ubsection
165(1.11) does not require that the issue be conflated with the reasons and the
relief sought. To the contrary, these elements of the objection are dealt with
separate and apart from one another in paragraphs (a), (b), and (c) respectively.
The description of the “issue” is to remain solely that: a description of the
“point in question”.
[19]
Bakorp submits in paragraph 45 of its memorandum of fact and law that:
As this Court
explained in Potash, a large corporation must describe the issue so that
the Minister knows what issue is to be decided. Here, as made clear in the
notice of confirmation, the Minister knew that the debate is about the “share
redemption proceeds added to income as a deemed dividend". That is the
point in question.
[20]
Subsection 169 (2.1) of the Act provides that the appeal must be “with
respect to the relief sought in respect of the issue as specified by the
corporation” in its notice of objection. Bakorp's position in relation to this
requirement is that subsection 169 (2.1) of the Act does not require the same
level of specificity in relation to the “relief sought” as subsection 165
(1.11) of the Act. It is Bakorp's position that the relief sought in the notice
of objection was an adjustment to the Part IV tax liability of Bakorp, and that
Bakorp in its notice of appeal was seeking the same relief albeit in a significantly
different amount and as refund rather than as an additional payment. In the
notice of objection Bakorp was seeking to increase its Part IV tax liability,
while in the notice of appeal Bakorp was seeking to eliminate its Part IV tax
liability for 1995.
[21]
As noted above, it is the position of the Crown that it is a question of
fact whether the issue was the same in the notice of objection and the notice
of appeal and whether the relief sought in the notice of appeal is the same as the
relief sought in the notice of objection. The Crown submits that the Tax Court Judge
did not make a palpable and overriding error on these factual issues.
Analysis
[22]
Appeals to the Tax Court of Canada are appeals in relation to a
particular assessment or reassessment. In this particular case, the notice of
reassessment is related to the liability of Bakorp for tax under Part IV of the
Act, not Part I of the Act. While tax under Part I of the Act is based on a
person’s taxable income, tax under Part IV is not based on taxable income but
rather is imposed on certain corporations that have received dividends.
Subsection 186(1) of the Act in 1993, 1994 and for taxation years ending before
July 1995 provided as follows:
|
186 (1) Every corporation
(in this section referred to as the “particular corporation”) that was, at
any time in a taxation year, a corporation (other than a private corporation)
resident in Canada and controlled, whether by reason of a beneficial interest
in one or more trusts or otherwise, by or for the benefit of an individual
(other than a trust) or a related group of individuals (other than trusts)
(in this Part referred to as a “subject corporation”) or a private
corporation shall, on or before the last day of the third month after the end
of the year, pay a tax under this Part for the year equal to ¼ of the amount,
if any, by which the total of
(a) all amounts received by
the particular corporation in the year and at a time when it was a subject
corporation or a private corporation as, on account of, in lieu of payment of
or in satisfaction of, taxable dividends from corporations (other than payer
corporations connected with it),
(i) that are deductible under
subsection 112(1) from its income for the year, or
|
186 (1)
Toute société (appelée «société donnée» au présent article) qui, à un moment
donné d’une année d’imposition, était soit une société privée, soit une
société (autre qu’une société privée) dite «assujettie» à la présent partie,
résidant au Canada et contrôlée au moyen d’un droit de bénéficiaire sur une
ou plusieurs fiducies ou autrement par un particulier (autre qu’une fiducie)
ou par un groupe lié de particuliers (autres que des fiducies) ou à leur
profit, est redevable, au plus tard le dernier jour du troisième mois suivant
la fin de l’année, d’un impôt pour l’année en vertu de la présente partie
égal au quart de l’excédent éventuel du total des montants suivants :
a) les
sommes que la société donnée a reçues au cours de l’année et à un moment où
elle était une société assujettie ou une société privée, au titre ou en
paiement intégral ou partiel de dividendes imposables de sociétés, sauf des
sociétés payantes auxquelles elle est rattachée :
(i) soit
qui sont déductibles, en vertu du paragraphe 112(1), de son revenu pour
l’année.
|
[23]
Subsection 186(1) of the Act was amended by S.C. 1996, c. 21, subsec.
48(1), applicable to taxation years ending after June 1995. The 1995 taxation
year of Bakorp ended on March 10, 1995 and therefore any dividends received by
it during that taxation year would be subject to the provisions as stated
above.
[24]
Subsection 187(1) of the Act provides that every corporation that is
liable to pay Part IV tax shall file a return under Part IV, and subsection
187(3) of the Act incorporates by reference several provisions contained in
Part I of the Act, including the assessment provisions in section 152, the
notice of objection provisions in section 165, and Part J related to appeals to
the Tax Court of Canada. Therefore, the restrictions imposed on large
corporations in relation to their notices of objection and appeals to the Tax
Court of Canada under Part I of the Act apply to notices of objection and
appeals to the Tax Court of Canada in relation to assessments or reassessments of
Part IV tax.
[25]
The first question that must be addressed is what is meant by “issue” in
subsection 165(1.11) of the Act as it applies for the purposes of Part IV of
the Act. On the issue of statutory interpretation, the Supreme
Court of Canada in The Queen v. Canada Trustco Mortgage Company, 2005
SCC 54, has given us this guidance:
10 It has been long established as a
matter of statutory interpretation that “the words of an Act are to be read in their
entire context and in their grammatical and ordinary sense harmoniously with
the scheme of the Act, the object of the Act, and the intention of Parliament”:
see 65302 British Columbia Ltd. v. R., [1999] 3 S.C.R. 804 (S.C.C.), at
para. 50. The interpretation of a statutory provision must be made according to
a textual, contextual and purposive analysis to find a meaning that is
harmonious with the Act as a whole. When the words of a provision are precise
and unequivocal, the ordinary meaning of the words play a dominant role in the
interpretive process. On the other hand, where the words can support more than
one reasonable meaning, the ordinary meaning of the words plays a lesser role.
The relative effects of ordinary meaning, context and purpose on the
interpretive process may vary, but in all cases the court must seek to read the
provisions of an Act as a harmonious whole.
[26]
In The Queen v. Potash Corporation of Saskatchewan Inc., 2003 FCA
471, the general purpose of subsections 165(1.11) and 169(2.1) of the Act
(which were defined as the Large Corporation Rules) was described as follows:
4 The Large Corporation Rules were enacted in 1995 to discourage
large corporations from engaging in a full reconstruction of their income tax
returns for a particular year, after the objection or appeal process had
started, based on developing interpretations and the outcome of court decisions
in litigation involving other taxpayers…
Simply
put, Parliament wants the Minister of National Revenue (the Minister) to be
able to assess at the earliest possible date both the nature and quantum of
pending tax litigation and its potential fiscal impact.
[27]
In relation to the requirement to describe the issue to which the
corporation is objecting, this Court in Potash stated that:
21 The Large Corporation Rules place further requirements on large
corporations that object to an assessment by the Minister. The main issue in
this case is the meaning to be given to the words "each issue" in the
phrase "reasonably describe each issue to be decided" in paragraph
165 (1.11)(a). In interpreting those words, the Judge wrote:
The issue is the legal matter which the taxpayer
contests with the CCRA. It is not required to be described exactly, but if it
was, it could be expressed in section numbers of the Income Tax Act, or in
words taken from or paraphrased from those sections.
22 I do not agree with this statement. While a large corporation is
not required to describe the issue "exactly", as the Judge states, it
is required to describe the issue "reasonably". What is reasonable
will differ in each case and will depend on what degree of specificity is
required to allow the Minster to know each issue to be decided.
23 In reassessing PCS, the Minister set out the precise items of
income which were being disallowed as part of resource profits (see paragraph
8). In filing its notice of objection, PCS objected to the disallowance of
these same items of income, describing them in the same fashion as the Minister.
That complied with paragraph 165(1.11)(a) because it gave sufficient certainty
as to what issues were then under objection.
24 Contrary to the Judge's suggestion, it would not have been
reasonable to simply say that the computation of "Resource Allowance"
or "resource profits" was in issue, without specifying the particular
elements of that computation that required a determination by the Minister or
the Tax Court, as the case may be. That level of generality would render the
Large Corporation Rules meaningless, defeating the purpose of their enactment.
Neither party submitted
that any of the findings of law in Potash were wrong.
[28]
A general statement or question related to an amount that is to be
determined for the purposes of the Act that would not allow the Minister to determine
what is actually in dispute will not be a sufficient description of the issue.
The examples cited as inadequate descriptions of an issue are a description of
the issue as the computation of resource allowance or resource profits. In a
similar vein, Justice Jorré of the Tax Court of Canada in Canadian Imperial
Bank of Commerce v. The Queen, 2013 TCC 170 in dealing with the
corresponding provisions in the Excise Tax Act, R.S.C. 1985, c. E-15, stated that a general description of
the issue as the correct amount of tax owing would not be sufficient.
[29]
Paragraph 165(1.11)(b) of the Act provides that, in relation to each
issue, the relief sought must be specified as a change in the balance of the
items listed. This means that the issue must be reasonably described in a
manner that would result in such quantification as a specified amount. For
example, describing an issue as the computation of resource profits would not
be sufficient as it would not be possible to ascertain from this description
the specific change in any balance that is being requested. If however, the
particular element of the computation that is in dispute is reasonably described,
then the effect that the resolution of the dispute would have on the income of
the corporation is capable of being quantified.
What is the issue that Bakorp
raised in its notice of objection?
[30]
In this case, Bakorp states that the issue is adequately described in
the first paragraph of the notice of objection. This paragraph provides as
follows:
ISSUE:
1. Share
redemption proceeds added to income as a deemed dividend.
|
Taxation Year
|
Adjustments to
Deemed
Dividend
|
|
March 10, 1995
|
$ (25,332,237)
|
|
March 10, 1994
|
(8,154,757)
|
|
March 10, 1993
|
154,224,784
|
|
|
$ 120,737,790
|
[31]
Bakorp argued that since a notice of objection was served in relation to
the reassessment of Part IV tax, Bakorp obviously did not agree with the
adjustment made by the Minister. Bakorp argues that this part of the notice of
objection should be interpreted as a submission by Bakorp that the issue to be
decided was the correct amount of dividends that Bakorp had received in its
1995 taxation year. I do not agree that even if this paragraph could be so
interpreted, that this would be an adequate description of the issue for the
purposes of subsection 165(1.11) of the Act as it applies for the purposes of
Part IV.
[32]
In this notice of objection, the issue is stated to be “share redemption
proceeds added to income as a deemed dividend”. This does not identify any
question to be adjudicated but is a cursory statement of what has transpired. The
table included in the first paragraph of the notice of objection simply lists
the actual adjustments that were made to the deemed dividends that were
considered to have been received for the purposes of Part IV in the various
years listed. There is nothing in this paragraph to provide any hint of the
element or elements of the computation of the amount of dividends received by
Bakorp in 1995 for the purposes of Part IV of the Act that would require a
determination by the Minister or the Tax Court of Canada nor is there anything
in this paragraph to indicate whether Bakorp is disputing the adjustment to the
Deemed Dividend for 1995 on the basis that the adjustment should have been
greater or smaller.
[33]
A description of the issue as “the correct amount of dividends that
Bakorp received in 1995” does not lead to any quantification of the change in
any balance other than as a range from nil to $52,912,264 as the amount of the
dividend that Bakorp received in its 1995 taxation year. This description of
the issue does not indicate anything about the question that must be answered
to resolve this dispute.
[34]
The purpose of subsection 165(1.11) of the Act would be frustrated if
this satisfied the requirement of a reasonable description of the issue. In
this case, the reassessment is under Part IV of the Act. Part IV only imposes a
tax on certain corporations that have received dividends. In this case there is
no dispute that Bakorp was a private corporation and that it was not connected with
968649 Ontario Limited at any time during Bakorp’s 1995 taxation year.
Therefore, the only matter that could arise in relation to Part IV tax for 1995
would be the amount of the dividends that Bakorp had received in its 1995
taxation year. If the issue is simply the correct amount of dividends that
Bakorp had received in 1995, this would mean that subsection 165(1.11) of the
Act (as it applies for the purposes of Part IV) does not impose any requirement
on a large corporation other than the requirement to object. This would also
not satisfy the purpose of allowing the Minister to know the nature and quantum
of tax litigation at the earliest possible date.
[35]
When the notice of objection is read as a whole, it is clear that Bakorp
was taking the position that it had filed its Part IV return correctly and
hence Bakorp was submitting that it should be paying more Part IV tax than was
reassessed by the Minister. In paragraph 13 of the notice of objection, Bakorp
provided a reconciliation of how Bakorp had accounted for the redemption
proceeds in filing its returns under the Act. In particular for its 1995 taxation
year Bakorp stated that it had reported $52,912,264 as a deemed dividend on its
T2S(3). It also seems clear that Bakorp was taking the position that amounts
were to be reported as any questions or disputes related to the adjustments to
the amount to be paid on the redemption of the shares were resolved. Therefore,
the issue in respect of which Bakorp complied with the provisions of subsection
165(1.11) of the Act, was the issue of whether Bakorp was correct in concluding
that it had received $52,912,264 in dividends in 1995 for the purposes of Part
IV on the basis that any question or dispute in relation to such amount had
then been resolved. In this case the quantification of the amount is part of
the description of the issue.
[36]
Therefore, Bakorp was restricted to being able to only appeal in respect
of this issue. However, this is not the issue that is raised in the notice of
appeal. Paragraphs 13 to 16 of the notice of appeal are as follows:
Part III -
Issues
13. The
issue with respect to the Assessment is whether the 1995 Receipt is properly
taxable in the Appellant's 1995 Year.
Part IV –
Statutory Provisions
14. The
appellant relies on, inter alia, section 3, subsections 84 (3) and 84
(7) of the ITA.
Part V –
Reasons Which the Appellant Intends to Submit
15.
The Deemed Dividend, including the 1995 Receipt, was payable to the
Appellant in the 1993 Year and, therefore, should be included in the Appellant's
taxable income for the 1993 Year.
16.
There is no basis under the ITA upon which the 1995 Receipt can be
included in the Appellant's taxable income for the 1995 Year.
[37]
Since the reassessment that is the subject of Bakorp’s attempted appeal
to the Tax Court of Canada was a reassessment of Part IV tax (which is based on
dividends received), and not a reassessment of Part I tax (which is
based on taxable income), it is not at all clear why Bakorp referred to the
dividend being payable in 1993 and why Bakorp referred to whether the
amount for the dividend could be included in Bakorp’s taxable income for the
1995 Year.
[38]
During oral argument counsel for Bakorp stated that the position that
Bakorp wanted to take on appeal to the Tax Court of Canada was that as a result
of the deeming provision in paragraph 84(3)(b) of the Act, Bakorp was deemed to
have received the $52,912,849 dividend (which Bakorp had reported in its return
for 1995) when the shares were redeemed in 1993 (and hence the Part IV tax
liability would have arisen in 1993 and not 1995). This is a question of law
related to the interpretation of that paragraph and this position was not
clearly stated in Bakorp’s notice of appeal.
[39]
Simply listing subsection 84(3) of the Act as a relevant provision in
the notice of appeal and stating that the $28,000,000 (which is the amount that
the Minister had determined was subject to Part IV tax in 1995) was payable in
1993 and therefore should have been included in Bakorp’s taxable income in 1993,
does not identify the legal argument based on the provisions of subsection
84(3) of the Act related to when the Deemed Dividend is received for the
purposes of the Act.
[40]
The extraction from the notice of appeal of the legal argument that
Bakorp is attempting to make is further hampered by the references to the
dividends being included in taxable income. Under the Act, dividends received
by a corporation resident in Canada from another taxable Canadian corporation
are included in the recipient’s income under subsection 82(1) and paragraph
12(1)(i) of the Act but are deducted from the income of the
receiving corporation for the purposes of computing its taxable income
under subsection 112(1) of the Act. If the dividends were not deductible under
this subsection, then the dividends would not have been subject to Part IV tax
(subparagraph 186(1)(a)(i), as it was written prior to amendments made
in 1996 and now part of the definition of assessable dividends in subsection
186(3) of the Act). These references to the dividends being included in taxable
income detract from the argument that Bakorp was attempting to make.
[41]
It should also be noted that shifting the Part IV tax liability to
another year would also raise the question of whether that year could be
reassessed under subsection 152(4) of the Act (which is applicable to Part IV
as a result of the provisions of subsection 187(3) of the Act).
[42]
In my view, a reasonable description of the issue of the effect of
subsection 84(3) of the Act on when dividends would be deemed to be received on
a redemption of shares would have been a description that would have alerted
the Minister to this legal argument related to the interpretation of subsection
84(3) of the Act. This would mean something more than simply listing subsection
84(3) as one of the three provisions that would be relied upon. It is, however,
clear that this issue arising as a result of this legal argument was not raised
in the notice of objection that had been filed by Bakorp and that Bakorp was
not relying on this issue in its notice of objection. If Bakorp’s
interpretation of the legal argument is correct and the full amount of the
deemed dividend that was eventually paid was received by Bakorp in 1993 when
the shares were redeemed (and I do not express any opinion on whether this
argument is correct), the result would have been irreconcilable with the
position that was taken by Bakorp in its notice of objection.
[43]
I agree with the Tax Court judge that the issue that Bakorp is
attempting to raise in its notice of appeal is not an issue in respect of which
Bakorp has complied with the provisions of subsection 165(1.11) of the Act.
Relief Sought
[44]
Although it is not necessary to dispose of the appeal to comment on the
question of whether the relief sought in the notice of appeal is the same as
the relief sought in the notice of objection, I would also agree with the Tax
Court Judge that Bakorp is not seeking the same relief.
[45]
The relief that may be granted by a judge of the Tax Court on an appeal
under the Act is limited. Under subsection 171(1) of the Act, if an appeal is
allowed (which would be what Bakorp would be requesting), the Tax Court judge
can only vacate the assessment, vary the assessment or refer the assessment
back to the Minister for reconsideration and reassessment. The relief sought as
referred to in subsection 169(2.1) of the Act cannot simply be a request in the
notice of objection to refer the matter back to the Minister for
reconsideration and reassessment. To hold that the restriction imposed by
subsection 169(2.1) of the Act in relation to the relief sought would be
satisfied as long as the taxpayer was still only asking to have the matter
referred back to the Minister for reconsideration and reassessment would be
meaningless in light of the limited options available to the Tax Court on an
appeal. In the context of both subsections 169(2.1) and 165(1.11) of the Act,
the reference to the relief sought in subsection 165(2.1) of the Act must be a
reference to the specific relief sought as described for the purposes of
subsection 165(1.11) of the Act. This would be consistent with the purpose of these
provisions which was to allow “the Minister of National
Revenue (the Minister) to be able to assess at the earliest possible date both
the nature and quantum of pending tax litigation and its potential fiscal
impact”. Such purpose would be frustrated if the relief sought as described in
subsection 169(2.1) of the Act was not the relief sought as described in
subsection 165(1.11) of the Act.
[46]
In this case in the notice of objection Bakorp asked the Minister to
“reverse its adjustment of taxes and related interest for its March 10, 1995
taxation year”. This relief would have resulted in an increased liability of
Bakorp for Part IV tax from what had been reassessed.
[47]
The relief requested in the notice of appeal was simply to allow the
appeal. Since the appeal was based on the argument that the Part IV tax
liability was reassessed in the wrong year, Bakorp was really asking the Court
to either vary the reassessment or refer the matter back to the minister for
reconsideration and reassessment to eliminate any Part IV tax liability for
1995. Since the purpose of subsections 165(1.11) and 169(2.1) of the Act is to
allow the Minister to assess the potential fiscal impact of tax disputes, the
relief sought in both the notice of objection and the notice of appeal must be
similar with respect to the impact of such relief on the government. Asking for
a full refund of all Part IV tax paid in relation to 1995, cannot be said to be
the relief identified in the notice of objection, in which Bakorp was not
asking for a full refund of all Part IV tax paid in 1995 but rather was asking
to pay more Part IV tax that had been reassessed. The appeal in this case is
not in respect of the relief that was sought in the notice of objection.
[48]
It should be noted that in this case Bakorp attempted to change the
issue under appeal and the remedy sought. It remains an open question, as noted
in paragraph 27 of Potash Corporation of Saskatchewan, whether a large
corporation would be allowed to change the amount specified as the remedy
sought to an amount more favourable to such corporation if the issue remains
unchanged. It would seem that a large corporation should be allowed, if the
issue is not changed, to change the amount specified as the remedy sought to an
amount that is less favourable to such corporation as this change would still
be consistent with the purpose of the provisions.
[49]
As a result I would dismiss this appeal, with costs.
“Wyman
W. Webb”
“I agree
Johanne Gauthier J.A.”
“I agree
David Stratas J.A.”
Email this Content