Macalpine v. The Queen, docket 2001-687(IT)I (Informal Procedure)

Date: 20021217

Docket: 2001-687-IT-I

BETWEEN:

DONALD MacALPINE,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

For the Appellant: The Appellant himself

Counsel for the Respondent: Tracey Harwood-Jones

___________________________________________________________________

Reasons for Judgment

(Delivered orally from the Bench

at Thunder Bay, Ontario, on June 11, 2002)

Bowie J.T.C.C.

[1]            The issue in these informal procedure appeals under the Income Tax Act (the Act) is whether the Appellant is entitled to claim capital cost allowance in respect of a certain parcel of real property on the basis that it is a timber resource property. The amounts claimed are $2,621 for the 1997 taxation year and $6,211 for the 1998 taxation year. If the property were found to be a timber resource property, that would also carry certain benefits for the Appellant in respect of a later year in which the property was sold at a gain, but that is not a matter that is directly before me in these appeals.

[2]            The Appellant and his wife purchased a parcel of vacant land in the District of Thunder Bay, Province of Ontario, in March 1993. They acquired the land in fee simple, and it is registered in their names jointly. The Appellant is a forest management consultant, and his long-range plan was to develop what he called a "demonstration forest", and to operate that in conjunction with a bed and breakfast and his consulting business. Some time after the purchase of the property, he entered into an agreement with the Government of the Province of Ontario under its Managed Forest Tax Rebate program, the effect of which was to limit, by agreement, his right to cut timber on the land, in return for which the Province provided him with a rebate of certain provincial or municipal taxes.

[3]            In his argument the Appellant compared his operation to that of the large timber producers, arguing that because he was not given the benefits that attach to a timber resource property, as they may be, he was being treated unfairly.

[4]            The expression, "timber resource property", is one that has been defined in subsection 13(21) of the Act. The opening words of that definition are:

A right or licence to cut or remove timber from a limit or area in Canada. ...

There then follow a number of conditions with which we need not be concerned for purposes of the present case. Unless the property in question falls within those opening words that I have quoted, then it cannot qualify as a timber resource property. Clearly, ownership of land in fee simple is not a right or licence to cut or remove timber.

[5]            The Supreme Court of Canada has said many times that courts must apply the words of statutes, including the Act, as they are written by Parliament. It is not for me to judge whether the Appellant is treated fairly in comparison to other taxpayers situated in totally different circumstances by the respective provisions of the Act which apply to them. Nor could I do so on the evidence before me.

[6]            The Appellant, I think, recognizes that his property does not meet the definition found in the Act. His complaint is not, as I understood him, that his property meets that definition but, rather, that it is unfair that his property does not receive the favourable treatment afforded to those timber resource properties owned by large lumber companies. In other words, he challenges the policy behind the relevant provisions of the Act rather than their interpretation. Tax policy is a matter for Parliament, not for the courts. The Supreme Court of Canada has made that abundantly clear many times in recent years.

[7]            I have no alternative but to dismiss these appeals.

Signed at Ottawa, Canada, this 17th day of December, 2002.

"E.A. Bowie"

J.T.C.C.

COURT FILE NO.:                                                 2001-687(IT)I

STYLE OF CAUSE:                                               Donald MacAlpine

PLACE OF HEARING:                                         Thunder Bay, Ontario

DATE OF HEARING:                                           June 11, 2002

REASONS FOR JUDGMENT BY:      The Honourable Judge E.A. Bowie

DATE OF JUDGMENT:                       June 17, 2002

APPEARANCES:

For the Appellant:                                                 The Appellant himself

Counsel for the Respondent:              Tracey Harwood-Jones

COUNSEL OF RECORD:

For the Appellant:                

Name:                                --

Firm:                 

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada