Words and Phrases - "included"
Burton v Commissioner of Taxation,  FCA 1857, aff'd  FCAFC 141
The taxpayer was an Australian resident who was taxed at the 15% long-term U.S. capital gains rate on his gains on disposal of U.S. oil and gas drilling rights. For Australian purposes a 50% discount was applied to the capital gain before imposing tax at a rate of around 45% on it.
The Australian foreign tax credit (FITO) provision (s. 770-10) provided:
An amount of foreign income tax counts towards the tax offset for the year if you paid it in respect of an amount that is all or part of an amount included in your assessable income for the year.
In confirming the Commissioner’s denial of a FITO for (leaving aside the effect of complicating adjustments) half of the U.S. tax, McKerracher J stated (at para. 109) his agreement with the Commissioner’s position (summarized at para. 4) that “double taxation occurs where a person pays both foreign tax and Australian tax on the same amount” and “an amount not included in assessable income (namely, 50% of the capital gain) cannot, by definition, be doubly taxed,” and added (at para. 114) that “the words ‘in respect of an amount’ mean an amount which is itself assessable.”
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|Tax Topics - Treaties - Income Tax Conventions - Article 24||foreign tax credit was not required to be accorded to all the US tax on the gain||345|
David Nathanson, "Included Versus Reported", Canadian Tax Highlights, Vol. 24, No. 9, September 2016, p. 5
Quigley treats “included” as “reported” or “assessed” (p. 5)
[T]he [Quigley] decision assumes that "included" means "reported" or "assessed as income," but paragraph 20(l)(j) allows a deduction for "such part of any loan . . . [that was] repaid by the taxpayer in the year as was by virtue of subsection 15(2) included in computing the taxpayer's income for a preceding taxation year." The wording seems to indicate that the operative event is the inclusion in income by a provision of the statute and not the inclusion in income by the minister's; assessment or by the taxpayer's reporting.
CRA position that SDA benefit can be included in 1st non-statute-barred year (p. 5)
[A] contribution to an RCA is not included in the individual taxpayer's income; a contribution to an SDA is income from employment in the year of receipt, not a subsequent year. But the CRA takes the position that because the contribution was not reported by the individual in the year of receipt, 'it was not "included" in the computation of the individual's income for that year "to that extent" As a consequence, the CRA says that the amount can be included in income by reassessment of the individual's first year that is not statute-barred. This conclusion is not true if an amount is included in income only because it is required by the Act and not because the taxpayer reported it as income.
…The Act provides no such statutory election to the minister.
Parliament did not make year of inclusion contingent (p. 5)
The orthodox view is that the word "included" means reported or assessed. However, in many if not all circumstances, the word specifically means amounts that are included by the statue and not by any act of the taxpayer or of the minister. If Parliament intended to make a tax result depend on the action of the taxpayer or the minister, the statute should expressly provide for that contingency.
Quigley v. The Queen, 96 DTC 1057 (TCC)
The taxpayer argued that no imputed interest was required to be included in his income under s. 80.4(2) respecting shareholder advances because, under s. 80.4(3)(b), the amount of those advances had previously been required to be included in his income for a statute-barred year (although no such inclusion had been reported by him or assessed by the Minister). In rejecting this submission, Bowman TCJ stated (at pp. 1060-1061):
Just because subsection 15(2) provides that an amount "shall be included" in computing income, it does not follow that is "was included". Whether something was or was not included is purely a question of fact. Whether an amount is "required to be included" – words used, for example in subsection 104(12), or subsection 144(7) – is a question of law. The distinction between the two phrases is recognized throughout the Act. A good example of this is found in paragraph 20(1)(j), which permits a deduction when a shareholder's loan that was previously included in income under subsection 15(2) is repaid. Since 1983 the paragraph has read in part, as follows:
Such part of a loan or indebtedness repaid by the taxpayer in the year as was by virtue of subsection 15(2) included in computing his income for a preceding taxation year.
Prior to 1983 the relevant portion of the phrase read "such part of any loan repaid by the tax payer as was by subsection 15(2) required to be included…".
Where a corporation with an October 31 year end receives income distributions from an income trust in February and March 2007 and sells its units in April 2007, the distributions so received by it will reduce the adjusted cost base of its units because the corresponding income allocated to it by the income fund will not be included in its income until its October 31, 2008 taxation year, i.e., at the time of the disposition of the units it was not the case that the amount of the distributions "was included in the taxpayer's income" (s. 53(2)(h.1)(A)). In this regard, CRA stated:
Assuming that the amounts payable are ultimately determined to be part of the trust's income for its taxation year, the amounts will, under paragraph 104(13)(a) of the Act, be income amounts of the beneficiary. However, paragraph 104(13)(a) of the Act requires the beneficiary to include those income amounts payable only for the beneficiary's taxation year in which the trust's taxation year ends. ...
[T]he amounts paid in February and March 2007...will not be included in income until October 2008 and therefore, because of the use, in clause 53(2)(h)(i.1)(A), of the past tense in the expression "was included in the taxpayer's income", these amounts are not described in clause (A).
In light of the provision in s. 39(1) that a capital gain will not include an amount otherwise included in income, the corporation at the time of filing its 2008 return (in which it included the distributions in income under s. 104(13)) would be able to refile ints 2007 return to reduce the capital gain reported in that return.
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|Tax Topics - Income Tax Act - Section 39 - Subsection 39(1) - Paragraph 39(1)(a)||150|
Langdon v. Canada, 2000 DTC 6203 (FCA)
The taxpayer was not entitled to claim a deduction under s. 20(1)(l) because the sale giving rise to the receivable had not been reported in his return for the year of disposition. The Court rejected a submission that the requirement in ss.12(1)(b) and 20(1)(l) that the amount receivable have been "included in computing" income required only that the taxpayer have taken that amount into account in computing his net income and did not establish a requirement that the amounts be reported on a tax return. Strayer JA stated (at para. 9):
Such a condition would be almost meaningless if the words "included in computing" did not require the reporting of such income in a current or previous return. That is, the Minister must be able to track back to a particular source of income if a deduction for doubtful debts is to be accepted in respect of that source.
The taxpayer made a loan, bearing interest at 25%, to a corporation ("SA") owned by his brother-in-law, which in turn lent the funds, at the same rate of interest, to an arm's length Canadian-resident corporation ("EMB"), which received those funds as part of a Ponzi scheme. The principal of EMB committed suicide on 17 March 2010, media accounts suggested a Ponzi scheme, and on 6 April 2010, SA filed notice of intention to make a proposal under the Bankruptcy and Insolvency Act.
The T5 for 2009 issued to the taxpayer by SA showed all the interest for 2009. He did not include it in his return (apparently filed in April 2010), and attached an explanatory letter stating that the interest was "never earned, payable nor collectible" and the 25 March 2010 report of the EMB receiver.
The Minister assessed inter alia on the basis that, as the 2009 interest had not been included in the taxpayer's return, no deduction could be claimed under s. 20(1)(l) or (p) and that, in any event, the debt for the interest was not doubtful as of 31 December 2009.
Owen J found that the taxpayer was entitled to rely on either para. (l) or (p) to deduct the entire amount. Contrary to the Minister's focus on available information as of 31 December 2009, "instead, the taxpayer may rely on information that comes into existence after the end of the year, but before the filing-due date, to fulfill his…obligation to report…" (para. 69), so that "the taxpayer must determine whether or not the debt was doubtful at the end of the taxation year, taking into account all information available up to the filing-due date for that year" (para. 70).
Respecting the Minister's submission (at para. 59) "that, because no written demand to pay the Interest was made by the Appellant, there can be no doubtful or bad debt," Owen J noted that this failure merely meant that the interest was added to the principal amount instead, which is to say that it was still owed to the taxpayer, and stated (at para. 60):
Although the precise meaning of the word "debt" may be the subject of some debate, it certainly encompasses a contractual obligation to pay an ascertainable sum such as the Interest, regardless of whether or not a demand for payment had been made by the Appellant.
Finally, there is no requirement that the taxpayer specifically report an amount from a doubtful or an uncertain debt as income in his return in order for it to be "included in computing the taxpayer's income." Owen J stated (at para. 64):
The fact that the Appellant reported the Interest in a manner that did not record it as income on a line of his 2009 T1 income tax return does not alter the fact that the interest was included in his income for 2009 by virtue of the application of the provisions of the ITA to the facts.
See summary under s. 20(1)(p)(i).
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|Tax Topics - Income Tax Act - Section 12 - Subsection 12(11) - Investment Contract||"debt" exists irrespective of demand||87|
|Tax Topics - Income Tax Act - Section 171 - Subsection 171(1)||reserve could be claimed on appeal||82|
|Tax Topics - Income Tax Act - Section 20 - Subsection 20(1) - Paragraph 20(1)(p) - Subparagraph 20(1)(p)(i)||bad debt deduction taken as at Dec. 31 in light of information available at April 30, and could be claimed implicitly or on appeal||452|