In Re Assessment Act v. In Re Northern Transportation Company, Limited., [1938-39] CTC 422

CARPENTER, Chairman:—This is an appeal to the Alberta Assessment Commission by Northern Transportation Company, Limited, against the assessment made by the Department of Municipal Affairs on behalf of local improvement district No. 843, of certain vessels of the appellant company operating on the Athabasca River, Lake Athabasca and on the Slave River, from Waterways to Fort Fitzgerald, these vessels taking freight and passengers between the points Fort Fitzgerald, Fort Chipewyan, Goldfields and Waterways. The assessment in question is for the year 1938, and the Department of Municipal Affairs has apparently assumed that the situs of the vessels in question was for that year at Waterways or elsewhere in local improvement district No. 843. The assessment amounts to $83,200.

At the hearing of the appeal, it was indicated by Mr. Mathieson that it was not the intention of the Department of Municipal Affairs to levy any taxes against the property involved in this appeal for the year 1938. However, both parties involved re- quested the Commission to make a finding on the points of law involved, apparently as a guidance for future assessments. Somewhat unwillingly the Board agreed to the request although it must be understood that any decision it may have arrived at in this matter can only be taken as an expression of its views in regard to the question arising in this appeal.

The first objection raised by appellant’s counsel was that the vessels assessed were not personal property within the district for assessment purposes. In support of this contention the following cases were cited by appellant’s counsel: In re E.D. & B.C. Ry. and McLellan S.D. [1928] 2 W.W.R. 684; In re Shier Lbr. Co. (1907) 14 O.L.R. 210; Kenny v. Halifax (1879) 3 S.C.R. 497, and In re « Effie Sweet’’ (1882) 15 N.S.R. 380.

The first-mentioned case dealt with the assessment of certain railway equipment which at the time was located within the limits of the taxing authority where the assessment was made. It appeared, however, that the real situs of the property was in Edmonton where the head office of the company was located and that the equipment in question was only temporarily located in the school district that sought to make the assessment. Such a question can hardly arise here where it is clear that these vessels are definitely and it may be said permanently located in these northern waters, and indeed, unless transported for some distance over land, cannot leave these waters. It certainly cannot be suggested that the situs of these vessels is in Edmonton. In re Shier Lbr. Co., supra, deals with the assessment of timber licences and the lumber camps, slides, dams, etc., of the company, the head office and mills of the company being located in the area of another taxing authority. This case does not provide any assistance to the Commission in this matter now under consideration.

The remaining two cases deal with the assessment of ships. In Kenny v. Halifax that city sought to assess a vessel that was owned by a resident of the city but which had never been in Halifax and whose port of registry was in England. The Court held that the assessment in Halifax could not be sustained. In the case of In re ‘‘ Effie Sweet,’’ a municipality sought to assess a vessel whose owners resided within, but whose port of registry was without the municipality, and the vessel at the time of the assessment not being in the municipality. In that case it was held that the vessel was not assessable at the place where the owners resided. It appears, however, quite possible that if the vessel had been in the district at the time of the making of the assessment the Court might have upheld the assessment.

In the case under consideration the port of registry of the vessels assessed is the city of Vancouver. It would, however, involve a considerable stretch of the imagination for the Commission to come to the conclusion that the actual situs of these vessels for assessment purposes should be that city where the vessels have never at any time been. In Cooley on Taxation, 3rd ed., p. 652, it is said that :

"‘Vessels are commonly taxable only at the port of registry, although the place of enrolment or registration does not necessarily fix the situs for taxation, which may be at the owner’s domicile or in a state where the owner does not reside if the vessel’s business is wholly in such state for an indefinite period. ’ ’

It is quite evident that these vessels are wholly within these northern waters for an indefinite period and that should dispose of any suggestion that the place of taxation should be in Vancouver.

A further objection was that as a business tax had been levied under the provisions of sec. 19 of The Assessment Act, 1938, ch. 81, the Department of Municipal Affairs or the Supervisor of Improvement Districts was precluded from levying any . personal property tax whatever in the district. There was no

evidence before the Commission to show that the appellant company was assessed for a business tax in 1938 in connection with any business carried on in improvement district No. 843, and the Commission therefore assumes that the appellant’s contention is that if a business tax is brought into effect in the improvement district, any assessment of personal property in the district is invalid.

Having in mind the particularly comprehensive nature of the Minister’s order providing for the levying of the business tax in this and other improvement districts for the year 1938, the Commission was inclined to give same weight to this objection. However, it must be noted that The Assessment Act contains provision both for the assessment of personal property, sec. 8(1), and for imposition of a business tax, sec. 18. It is quite apparent that under these provisions, the same property might be liable for both taxes, were it not for the provision in sec. 19(1), which provides that:

‘“In the case of a municipality where a by-law has been passed, or in the case of an improvement district where the Minister has issued an order authorizing the levy of a busi- ness tax, no tax shall be levied in respect of the stock in trade of such business [that has been subjected to a business tax] or any other personal property used in connection therewith. ‘ ‘

Apart from this restriction the Commission has not found any provision in The Assessment Act which exempts personal property from being taxed even though there is also imposed in the district a business tax. In view of what has been said the Commission is not prepared to say that the business tax ordered for the year 1988 was so sweeping in scope as to preclude a personal property tax, provided that such personal property tax did not conflict with the exemption contained in see. 19(1).

However, the Commission is of the opinion that the evidence available to it in regard to the situs of these vessels would have been insufficient for it to establish the place of assessment of these vessels at Waterways or elsewhere in improvement district No. 843, for the year 1938. The appeal should therefore be allowed, but as no levy is to be made there must be no order made in the matter. The determination of the situs of these vessels for assessment purposes in the future must of course depend upon the evidence available at the proper time.

No costs.