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T-3111-75
Richard Robert Easton (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Collier J.—Ottawa, March 22 and April 1, 1976.
Income tax—Income calculation—Plaintiff having accounts receivable at end of 1971 which, under cash method, had not been brought into calculation—Claiming s. 23(3)(a) of Income Tax Application Rules not in force in 1971, not deducting any amount thereunder—Interpretation of ITAR section 23— Income Tax Act, R.S.C. 1952, c. 148, s. 85F; S.C. 1970-71-72, c. 63, s. 34(1)(b)—Income Tax Application Rules 1971, ss. 9, 23(1)-(4).
Plaintiff, a lawyer, had accounts receivable at the end of 1971, which, under his cash method of calculation, had not been brought into income for 1971 and previous years. He did not deduct any amount under Income Tax Application Rules, section 23(3)(a)(i), claiming that paragraph (a) was not in force in 1971. Under his interpretation of section 23(3)(a)(i), the amount to deduct in respect of 1971 must be "nil", whether the taxpayer had been on the cash or accrual system; the "lesser" referred to in section 23(3)(a) must always be "nil". He argued further that for 1972, the amount deductible under paragraph (a) is, by paragraph (b), deemed to be the 1971 receivables. And, he argued, that as (a) was not in force, no amount had been deducted, so nothing is to be added into income under paragraph (c). Defendant submitted that on the plain meaning of the words, the deemed amount in section 23(3)(b) refers to the amount in section 23(3)(a)(i).
Held, the action is dismissed. While it might be wished that paragraph (3)(b) had specifically referred to subparagraph (a)(i), rather than to the whole of paragraph (a), it makes no difference to the plain meaning of paragraphs (a) and (b) when read together. The amount referred to in subparagraph (a)(i) is, for 1972, deemed to be the 1971 receivables, and the amount in subparagraph (a)(ii) is investment interest at the end of 1972. Here, the lesser amount is plaintiff's investment interest; this is the amount deductible under paragraph (a). Paragraph (c), when section 23 is read as a whole, can again only refer to the amount in subparagraph (a)(i). Here, it is deemed to be the 1971 receivables.
INCOME tax appeal. COUNSEL:
R. R. Easton, Q.C., for himself.
N. A. Chalmers, Q.C., for defendant.
SOLICITORS:
R. R. Easton, Q.C., Windsor, for himself. Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
COLLIER J.: The plaintiff is a barrister and solicitor. In 1972 and prior years he practised his calling in Windsor, Ontario. His business was and is "a profession"'. In the taxation years previous to January 1, 1972, he had elected to compute his income on the cash method, as he was entitled to do under the old Acte. Under that method he did not bring into income for a particular year any professional fees billed but unpaid (accounts receivable) as of the end of his taxation year. Under an accrual system of computing income, one would normally bring accounts receivable into the calculation.
By paragraph 34(1)(b) of the new Act accounts receivable are now to be included'. That provision is applicable for the 1972 and subsequent taxation years 4 . It is not retrospective.
The dispute between the plaintiff and the Minis ter of National Revenue is as to how the plaintiff must compute his income for the taxation year 1972. It arises out of the fact the plaintiff had accounts receivable, as of the end of 1971, which under his cash method of computation had not been brought into the calculation for 1971 and previous years. The issue is to be resolved by the proper interpretation to be given to ITAR section 23. I set out that section, except subsection (5):
23. (1) There may be deducted in computing a taxpayer's income for the 1972 taxation year from a business that is a profession the aggregate of amounts payable by him in respect
See subsection 34(1) of the Income Tax Act, R.S.C. 1952, c. 148 as amended by S.C. 1970-71-72, c. 63, s. 1. I shall use in these reasons the expressions "old Act" or "former Act" and "new Act" or "amended Act".
2 See section 85F of the old Act.
3 Paragraph 34(1)(d) seems to imply that a "professional" must also include, for the purposes of computing his income, an amount in respect of work in progress, unless he elects not to do so.
4 Income Tax Application Rules 1971, section 9 (Part III of the amending Act). I shall refer to those provisions as ITAR.
of the business at the end of the 1971 fiscal period of the business, to the extent that they were not deductible in comput ing his income from the business for that year but would have been so deductible if he had paid them in that year.
(2) Where a taxpayer has not elected under paragraph 34(1)(d) of the amended Act in respect of his income from a business that is a profession for his 1972 taxation year, work in progress in respect of the business at the commencement of the 1972 fiscal period of the business shall be valued at the same amount at which it was valued at the end of the 1971 fiscal period of the business for the purpose of computing his income from that business for the 1971 taxation year.
(3) For the purposes of computing the income of a taxpayer for a taxation year ending after 1971 from a business that is a profession, the following rules apply:
(a) there may be deducted such amount as he may claim, not exceeding the lesser of
(i) the amount deducted under this paragraph in comput ing the taxpayer's income from the business for the immediately preceding taxation year, and
(ii) the taxpayer's investment interest in the business at the end of the year;
(b) where the taxation year is the taxpayer's 1972 taxation year, the amount deducted under paragraph (a) in comput ing the taxpayer's income for the immediately preceding taxation year from the business shall be deemed to be an amount equal to the taxpayer's 1971 receivables in respect of the business;
(c) there shall be included the amount deducted under para graph (a) in computing the taxpayer's income for the immediately preceding taxation year from the business; and
(d) there shall be included amounts received by the taxpayer in the year on account of debts in respect of the business that were established by him to have become bad debts before the end of the 1971 fiscal period of the business.
(4) Paragraph (3)(a) does not apply to allow a deduction in computing the income of a taxpayer from a business that is a profession
(a) for the taxation year in which the taxpayer died, or
(b) for any taxation year, if
(i) in the case of a taxpayer who at no time in that year was resident in Canada, the taxpayer ceased to carry on the business, or
(ii) in the case of any other taxpayer, the taxpayer ceased to be resident in Canada
at any time in that year or the immediately following year.
The disagreement between the parties is best recounted by first setting out the methods of calcu lation asserted by the taxpayer on the one hand, and the Minister on the other. The actual figures
used in each computation, to arrive at a final result, are agreed.
The Plaintiff's Computation
I. Net income from professional business for
1972 as per section 34 etc. $17,164.46
2. Paragraph (a) of ITAR section 23(3) Deduct the lesser of:
(i) Amount deducted under this paragraph (a) in computing income for the 1971 taxa tion year—as this paragraph (a) was not in force for the 1971 taxation year (see ITAR
section 9) this amount is— Nil
(ii) 1972 investment interest as defined in
ITAR section 23(5)(a)(î)— $ 9,765.18
The lesser of (i) and (ii) is Nil
3. Paragraph (b) of ITAR section 23(3) Deduct:
An amount equal to the plaintiffs 1971 receivables (as defined in ITAR section 23(5)(c)(i)—this paragraph deems, for the 1972 taxation year only, that the Nil amount, deducted under paragraph (a) in 2.
above, to instead be 14,702.01
$ 2,462.45
4. Paragraph (c) of ITAR section 23(3)
Add the amount deducted—as in 2. above— under paragraph (a) of ITAR 23(3) in com puting income for the 1971 taxation year— once again as paragraph (a) was not in force for the 1971 taxation year the amount to be
added is— Nil
1972 SOLE PROPRIETORSHIP NET INCOME FOR
TAX PURPOSES $ 2,462.45
The Minister's Computation
Net Income from Professional Business $17,164.46
Deduct:
Pursuant to ITAR 23(3)(a) the lesser of:
(i) "1971 receivables" $14,702.01
(ii) "investment interest" at end of 1972
taxation yr. 9,765.18 9,765.18
Add:
Pursuant to ITAR 23(3)(c) "1971
receivables" $14,702.01 14,702.01
1972 Sole Proprietorship Net Income from
Professional Business for tax purposes $22,101.29
In support of his calculation, the plaintiff ana lyzes, or interprets, subsection 23(3) as follows: the deduction under paragraph (a) is the lesser of subparagraph (i) or subparagraph (ii); the plaintiff did not deduct, in computing his 1971 income, any amount under subparagraph (a)(i). The simple reason, agreed here by counsel, is that paragraph
(a) was not in force in 1971 5 . The arithmetical answer to subparagraph (a)(i) according to the plaintiff is, therefore, "nil".
Under the plaintiff's interpretation of subpara- graph (a)(i) the amount, in respect of the 1972 year only, must always be "nil" whether the tax payer in question had been on the cash or accrual system; for all professionals computing income for 1972, the "lesser" referred to in the opening lines of paragraph (a) must inexorably be "nil".
The plaintiff then goes to paragraph (b). He argues that it was obviously recognized that the amount which, in 1972, might be claimed as a deduction under paragraph (a) would, as demon strated above, in every case be "nil". The plaintiff then says that, for 1972 only, the amount to be deducted under paragraph (a) (not subparagraph (a)(i)) is deemed to be the 1971 receivables; that, it is said, is what paragraph (b) means. Put another way, the plaintiff contends that for the 1972 taxation year one is not concerned with whether something is less than something else; the amount which may be deducted pursuant to para graph (a) is, according to the plain meaning of paragraph (b), the 1971 receivables.
The plaintiff then turns to paragraph (c). He argues: paragraph (a) was not in force for the 1971 taxation year; no amount had been deducted, pursuant to the rules set out in that paragraph, by any professional in computing his 1971 income; the arithmetical result is, again, "nil". The amount therefore to be added into income is "nil", not the amount earlier deducted pursuant to paragraph (a) by reason of the deeming provision of para graph (b).
The defendant does not, as can be seen from the computation earlier set out, agree with that anal ysis or interpretation of section 23. Counsel for the Minister contends that on the plain, ordinary and
5 Section 23 as a whole seems to me to cover all professionals regardless of which system they had used prior to 1972, i.e., cash or accrual. Some particular portions of section 23 may apply only to one particular method or taxpayer.
grammatical sense and meanings of the words and phrases used, the deemed amount in paragraph (b) obviously refers to the amount described in sub- paragraph (a)(i). I agree with that submission.
One could perhaps wish that paragraph (b) had made specific reference to subparagraph (a)(i) rather than to the whole of paragraph (a). I do not think that makes any difference to the plain, grammatical meaning of paragraphs (a) and (b), when read together. In my view the Minister's interpretation and computation is correct. The amount referred to in subparagraph (a) (i) is, for the year 1972, deemed to be the 1971 receivables. The amount referred to in subparagraph (a)(ii) is the investment interest at the end of 1972. On the facts of this appeal, the lesser amount is the tax payer's investment interest and that is the amount he may deduct under paragraph (a).
The plaintiff's interpretation of paragraph (c) is, to my mind, not quite logical. He contends, on his analysis, that he is entitled to deduct, for 1972, under paragraph (a) the amount of the 1971 receivables but, when he comes to paragraph (c), he does not include "the amount deducted under paragraph (a)" but some other amount which he says must always, for 1972, be "nil".
Counsel for the defendant submits, and I agree, that paragraph (c) (when one reads section 23 as a whole) can again only refer to the amount described in subparagraph (a)(i); in this particular case, and for the year 1972 only, that amount is deemed to be the 1971 receivables.
In summary, I agree with the analysis and inter pretation of section 23 as a whole put forward by the defendant. In my opinion there is no ambigui ty, or gaps, in section 23 as it relates to the facts of this case. The ordinary grammatical sense to be given to the words, phrases, paragraphs and sub- paragraphs, as I see it, supports the interpretation advanced by the defendant.
The action is dismissed. The assessment by the Minister is confirmed.
Counsel for the defendant indicated, at the close of argument, that if the defendant were successful, she would not ask for costs. Accordingly, there will be no order as to costs.
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