REASONS
FOR JUDGMENT
V.A. Miller J.
[1]
The issue in this appeal is whether, during the annual
reporting periods January 1, 2006 to December 31, 2010 (the “period”), the
Appellant provided a “freight transportation service”
within the meaning of subsection 1(1) of Part VII of Schedule VI of the Excise
Tax Act (the “Act”).
Preliminary Matter
[2]
In his Notice of Appeal, the Appellant wrote
that the periods at issue were January 1, 2007 to December 31, 2010. At the
hearing, he asked that his Notice of Appeal be amended so that it also included
the period January 1, 2006 to December 31, 2006. His request was granted.
[3]
The net tax in issue is as follows:
|
Periods:
January 1 to
December 31
|
Sales
|
GST/HST Collectible
|
Input Tax Credits
|
Net Tax
|
|
2006
|
$47,548
|
$3,091
|
$339
|
$2,752
|
|
2007
|
$52,244
|
$3,983
|
$1,965
|
$2,018
|
|
2008
|
$69,510
|
$3,862
|
$1,535
|
$2,327
|
|
2009
|
$65,275
|
$3,476
|
$1,478
|
$1,998
|
|
2010
|
$68,845
|
$3,736
|
$1,302
|
$2,434
|
|
|
|
|
|
|
Facts
[4]
During the period, the Appellant operated
Canadian Auto Transport (“Canadian Auto”) as a sole proprietorship. The
business of Canadian Auto involved arranging for the delivery of vehicles from
the United States to Canada. It operated on a seasonal basis between November
and April.
[5]
The Appellant described Canadian Auto’s
business. He stated that very often medical and travel insurance policies cover
the cost of returning a vehicle to Canada when there was a medical emergency
which prevented the owner of the vehicle from operating it. Canadian Auto
received requests from two insurance companies for the return of vehicles. The
requests were received by email or by telephone. The vehicles were Canadian
owned and registered. Once Canadian Auto received the request from the
insurance company, all subsequent communications with respect to the return of
the vehicle were between Canadian Auto and the owner of the vehicle.
[6]
Canadian Auto then arranged for the vehicle to
be brought back to Canada. Most often, it sub-contracted with an individual
(the “driver”) to drive the vehicle from the pick-up point in the United States
to its destination in Canada. Canadian Auto reimbursed the driver for all
expenses associated with driving the vehicle to Canada. These expenses included
the driver’s costs to travel to the United States to pick-up the vehicle (such
as the flight from Canada to the United States) as well as any expenses
incurred to drive the vehicle to its final destination in Canada. On rare
occasions, the Appellant drove the vehicle himself.
[7]
Alternatively, on occasion, Canadian Auto
sub-contracted the pick-up and delivery of the vehicle with a third-party trucking
company. The trucking company did not charge GST/HST to Canadian Auto.
[8]
Based on the agreement between Canadian Auto and
the vehicle owner, it appeared that the vehicle owner was not aware which of
the above methods would be used to deliver the vehicle. The agreement read: “I/We [name] hereby authorize Canadian Auto Transport Inc. or
its contracted representative to arrange delivery of my/our vehicle described
below”.
[9]
The Appellant stated that Canadian Auto assumed
full responsibility for the safe delivery of the vehicle only. It was not
responsible for the contents of the vehicle and there were no passengers allowed
in the vehicle.
[10]
The Appellant stated that Canadian Auto is “self-insured”. It does not have an insurance policy
to cover any damage which might be sustained by the vehicle when it is in
transit because he “was unable to find someone to
underwrite it”. Instead, if there was damage to a vehicle during the
trip to Canada, the Appellant personally paid for the repairs. To support his
evidence, the Appellant provided communications between Canadian Auto and
certain vehicle owners where the Appellant paid the vehicle owner an amount to
cover the cost of repairs when damage was sustained while delivering the
vehicle.
[11]
The Appellant stated that he was prepared to
cover damage to the vehicles up to the amount of $250,000. However, if there
had been a loss of life or a catastrophic accident, he would have relied on the
vehicle owner’s insurance policy because most policies have third party
insurance.
[12]
I note that no vehicle owner’s insurance policy
was submitted in evidence.
[13]
The delivery of the vehicle was considered
complete when the vehicle was brought to the designated recipient or his or her
representative, who signed the Vehicle Delivery Record. In signing the Vehicle
Delivery Record, the recipient acknowledged the successful delivery of the
vehicle in the same condition as documented at the time of pick-up and with an
equivalent or greater fuel content. At this point, Canadian Auto was relieved of
any further responsibility.
[14]
The insurance company was billed after the
vehicle was delivered to its destination in Canada.
Position of the Parties
[15]
It was the Appellant’s position that the
services provided by Canadian Auto were zero-rated. He stated that Canadian
Auto provided a “freight transportation service”
because he assumed full liability for the delivery of the services.
[16]
The Appellant stated that at least two employees
of the Canada Revenue Agency concluded that the services provided by Canadian
Auto were zero-rated. He operated on this basis and did not collect GST/HST.
[17]
It was also the Appellant’s position that it is “unfair and inequitable” to zero-rate the services of
one segment of providers and not another based on the mode of movement.
[18]
It was the Respondent’s position that the
Appellant provided a driving service.
[19]
The term “driving
services” is not defined in the Act. It is an expression used in
Guide RC4080 - GST/HST Information for Freight Carriers. The reference to “driving services” is with respect to “freight transportation services” and it reads:
Freight
transportation services
Freight
transportation service means the service of transporting goods. In certain
circumstances, other services may also be considered freight transportation
services. Before determining whether a freight transportation service is
taxable at 0%, 5%, 12%, 13%, 14%, or 15%, you have to determine if the service
you provide is a freight transportation service. You also have to determine if
the property and services you provide are incidental to, or part of, a freight
transportation service.
Driving
services
The service of a
driver is usually not a freight transportation service. This is the case when,
for example, a self-employed driver does not use his or her own truck and does
not assume responsibility for the supply of the freight transportation service.
The driver is then supplying a driving service.
Law
[20]
Zero-rated supplies with respect to
transportation services are provided in Part VII of Schedule VI of the Act.
Section 8 of Part VII provides that “inbound freight”
is zero-rated as follows:
SCHEDULE VI
Zero-Rated Supplies
PART VII
Transportation
Services
8 A supply of a
freight transportation service in respect of the transportation of tangible
personal property from a place outside Canada to a place in Canada.
[21]
There are four conditions that must be met for
the supply to be zero-rated under section 8:
a)
The supply was a “service”
as defined in subsection 123(1). This condition was met.
b) The service must be a supply of a “freight
transportation service”. This was the issue before the Court.
c)
The supply consisted of the “transportation” of tangible “personal
property”. The term “transportation” is
not defined in the Act but the term “personal
property” is defined in subsection 123(1).
d) The supply in respect of the transportation of goods must be “from a place outside Canada to a place in Canada”.
This condition was met in this case.
[22]
The definition of “freight
transportation service” is also contained in Part VII of Schedule VI of
the Act at subsection 1(1). It reads:
freight
transportation service means a particular service
of transporting tangible personal property and, for greater certainty, includes
(a) a service of
delivering mail, and
(b) any other
property or service supplied to the recipient of the particular service by the
person who supplies the particular service, where the other property or service
is part of or incidental to the particular service, whether there is a separate
charge for the other property or service,
but does not
include a service provided by the supplier of a passenger transportation
service of transporting an individual’s baggage in connection with the
passenger transportation service;
[23]
The phrase “freight
transportation service” is referenced in the definition of “carrier” in subsection 123(1) of the Act which
reads:
“carrier”
means a person who supplies a freight transportation service within the meaning
assigned by subsection 1(1) of Part VII of Schedule VI.
Analysis
[24]
The Appellant stated that the services offered
by Canadian Auto were not “driving services” as
that phrase is defined by the Minister in Guide RC4080. It was his view that
his services could be distinguished from “driving
services” because he assumed liability for the vehicles.
[25]
I disagree with the Appellant. The evidence
before me showed that the Appellant assumed liability for small dents or
scrapes to the vehicles he was delivering. His testimony disclosed that the
Appellant did not and would not assume complete responsibility for the vehicles.
The services offered by Canadian Auto are indistinguishable from “driving
services” in this regard.
[26]
In Vuruna v R, 2010 TCC 365, Bedard J.,
as he then was, found that a truck driver who did not use his own truck and who
did not assume liability for the supply of the freight transportation service
was providing a driving service.
[27]
Whether the service provided by Canadian Auto
was a “freight transportation service” depends
on whether it was a “particular service of transporting”
tangible personal property.
[28]
When interpreting tax statutes, the Supreme
Court of Canada, in Canada Trustco Mortgage Co v The Queen, 2005
SCC 54 stated at paragraph 10:
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.
[29]
In order to ascertain the ordinary sense of the
word “transporting”, I have consulted two
dictionaries. The online Oxford dictionary defines the verb “transport” as “take or carry
(people or goods) from one place to another by means of a vehicle, aircraft, or
ship”. The Black’s Law Dictionary (10th Edition) defines “transport” as “to carry or
convey (a thing) from one place to another”. As a result of these definitions,
I have concluded that a “freight transportation service”
means a particular service of carrying personal property from one place to
another. The personal property can be carried by means of a vehicle, aircraft rail
or ship. However, there must be mode of carrying the personal property.
Contrary to the Appellant’s arguments, the vehicle cannot be both the personal
property and the means of carrying it at the same time.
[30]
It is my view that the service provided by Canadian
Auto was not a “particular service of transporting”
and therefore, it was not a “freight transportation
service”. Its services were not zero rated. Canadian Auto provided a
driving service to the insurance companies and the owners of the vehicles.
[31]
The appeal is dismissed.
Signed at Ottawa, Canada, this 13th
day of February 2017.
“V.A. Miller”
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