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T-1119-76
The Queen (Plaintiff)
v.
Cecil M. Langille (Defendant)
Trial Division, Grant D.J.—Toronto, February 8 and 22, 1977.
Income tax — Calculation of income — Defendant not deducting premiums paid for registered retirement savings plan from taxable income — Whether tax payable on whole annuity — Income Tax Act, R.S.C. 1952, c. 148, s. 79B(2) as amended by S.C. 1970-71-72, c. 63, ss. 4(4), 56(1)(h), 146(1),(5) and (8).
Defendant purchased a Canadian Government annuity which was registered as a retirement savings plan under the Income Tax Act. He was told by the Crown employee who sold it to him that he could either deduct the premiums in computing his annual income or pay tax only on the interest element of the amounts received under the annuity and he chose the latter method. The plaintiff claims that the total amount received by the defendant as an annuity is taxable.
Held, the appeal is dismissed. The premiums were paid for in taxed dollars and to tax more than the interest earned would amount to double taxation contrary to the provisions of section 4(4) of the Act and to the principles established in common law. The Crown is in any event estopped from denying the statement of facts made by its servant to the defendant at the time of selling the annuity.
Inland Revenue Commissioners v. F. S. Securities Ltd. [1964] 1 W.L.R. 742; Hatch v. M.N.R. [1938] Ex.C.R. 208; Oriental Bank Corporation v. Wright (1880) 5 A.C. 842; Stickel v. M.N.R. [1972] F.C. 672 and Robertson v. Minister of Pensions [1949] 1 K.B. 227, applied. Speer- stra v. M.N.R. [1973] F.C. 231, distinguished.
APPEAL from Tax Review Board.
COUNSEL:
J. S. Gill and I. MacGregor for plaintiff.
W. J. Bies for defendant.
SOLICITORS:
Deputy Attorney General of Canada for plaintiff.
W. J. Bies, Toronto, for defendant.
The following are the reasons for judgment rendered in English by
GRANT D.J.: This is an appeal from a decision of the Tax Review Board dated October 16, 1975, whereby it allowed the appeal of the defendant Langille from an assessment which had been made pursuant to the provisions of the Income Tax Act, R.S.C. 1952, chapter 148 as amended by Statutes of Canada, 1970-71-72, chapter 63. The decision is reported in 75 DTC 280.
The parties by agreement filed a statement of admitted facts and documents which with the admissions contained in the pleadings, formed the evidence herein. Those facts were as follows:
1. The Defendant purchased a Canadian Government Annuity #216,864 in March 1961, a copy of which is annexed as Schedule A hereto. A copy of the Defendant's application for the purchase of a deferred annuity is annexed as Schedule B hereto.
2. At all material times the Canadian Government Annuity #216,864 was registered as a retirement savings plan under the Income Tax Act. An Annuity of $1,200.00 was to be payable in instalments of $100.00 per month commencing March 1, 1971, for 15 years or the lifetime of the annuitant, whichever was longer. A premium of $1,279.10 was to be paid yearly by the Defendant from March 1, 1961 to March 1, 1970.
3. The Defendant purchased Canadian Government Annuity #216,864 from a Mrs. McLaren of the Federal Department of Labour. Mrs. McLaren represented to the Defendant that if he did not deduct the premium paid into the annuity from his taxable income he would not have to pay tax on the refund of the capital so invested, but would only have to pay tax on the interest element of each year's annuity. The Defendant was entitled to deduct the premiums paid in computing his taxable income. However, the Defendant believed that he had a choice either a) to deduct premiums in computing his taxable income in the years the premiums were paid and then pay tax on the annual amount out of or under the Canadian Government Annuity #216,864 when received or b) not to deduct premiums in computing his taxable income in the years the premiums were paid and then pay tax only on the interest element of the annual amount received out of or under the Canadian Govern ment Annuity #216,864. Acting on this belief he made the latter choice and did not deduct premiums in computing his taxable income in the years the premiums were paid.
4. On November 30, 1965, the Defendant, on the advice of Mrs. McLaren decided to discontinue his premiums to Canadi- an Government Annuity #216,864 and purchased a straight Canadian Government Annuity #236,110, a copy of which is annexed as schedule C hereto because it offered higher interest rates. In the transaction, the Defendant agreed to be paid an annuity of $522.24 instead of $1,200. on annuity #216,864 and the premium in respect thereof was agreed to have been fully paid by the Defendant. Under Annuity #236,110 an annuity in the amount of $677.76 was payable for a period of 15 years
payable in instalments of $56.48 on the first day of each month commencing on November 1, 1970. The annual premium of $1,477.29 was payable from November 1, 1965 to November 1, 1969.
5. The Defendant received during the 1972 taxation year the sum of $677.76 out of or under Annuity #236,110.
6. The Defendant received during the 1972 taxation year the sum of $522.24 out of or under the Canadian Government Annuity #216,864. (See Statement of Pension, Retirement, Annuity & Other Income, T4A-1972, attached as Schedule D hereto).
7. In the income tax return filed for the 1972 taxation year the Defendant computed his income by including only $69.00 as income from annuities. (See Statement of Pension, Retire ment, Annuity & Other Income, T4A-1972 attached as Schedule E hereto).
The most relevant sections of the Act are:
56. (1) Without restricting the generality of section 3, there shall be included in computing the income of a taxpayer for a taxation year,
(h) amounts in respect of a registered retirement savings plan required by section 146 to be included in computing the taxpayer's income for the year;
Section 146 deals with registered retirement savings plans and retirement savings plans:
146. (1) In this section,
(b) "benefit" includes any amount received out of or under a retirement savings plan otherwise than as a premium and without restricting the generality of the foregoing includes any amount paid to an annuitant under the plan
(i) in accordance with the terms of the plan,
(ii) resulting from an amendment to or modification of the plan, or
(iii) resulting from the termination of the plan;
(d) "maturity" means the date fixed under a retirement savings plan for the commencement of any annuity the pay1ent of which is provided for by the plan;
(/) "premium" means any periodic or other amount paid or payable under a retirement savings plan,
(i) as consideration for any agreement referred to in sub- paragraph (j)(i) to pay an annuity, or
(ii) as a contribution referred to in subparagraph (j)(ii) for the purpose stated in that subparagraph;
(5) There may be deducted in computing the income for a taxation year of a taxpayer who is an annuitant under a registered retirement savings plan or becomes, within 60 days after the end of the taxation year, an annuitant thereunder, the amount of any premium paid by the taxpayer under the plan during the taxation year or within 60 days after the end of the taxation year (to the extent that it was not deductible in computing his income for a previous taxation year).....
(The balance of this subsection deals only with the amount which the taxpayer may deduct from his taxable income.)
(8) There shall be included in computing the income of a taxpayer for a taxation year all amounts received by him in the year as a benefit out of or under a registered retirement savings plan.
I agree with the reasons given by The Honour able Lucien Cardin, Q.C., (now Chairman of the Tax Review Board) herein, but wish to add some further comments in support thereof.
The purpose of establishing such a registered retirement savings plan by the Government was to encourage taxpayers, while they were in receipt of a regular income, to set aside a portion thereof in each year to provide a fixed income by way of an annuity for themselves on their retirement or when they reached the age of seventy-one.
The main incentive to purchase such a Canadian Government annuity contract was the privilege of deducting the premium paid therefor from the taxpayer's taxable income in the year of payment thereby postponing the payment of income tax thereon until such time as he should receive annui ty payments thereunder. Relying upon the state ments made by Mrs. McLaren, none of the premi ums paid by the taxpayer in any of the years for annuity #216,864 were deducted from the taxable income in any of the years in which such payments were made. He did not avail himself of the privi lege of so reducing the amount of his taxable income under the provisions of section 146(5) of the Income Tax Act. He therefore purchased such annuity with what may be described as tax paid dollars for each of such years. The annuity received by him in 1972 under the contract in question, as well as in any other year, therefore represented a return to him of his purchase price therefor together with some earned interest. To include that portion thereof that did not represent interest in calculating his taxable income for that
year would amount to double taxation thereof. There is a presumption against double taxation.
Maxwell, On The Interpretation of Statutes, 10th ed., page 288, where it is stated:
A construction, for example, which would have the effect of making a person liable to pay the same tax twice in respect of the same subject-matter would not be adopted unless the words were very clear and precise to that effect. In a case of reason able doubt the construction most beneficial to the subject is to be adopted.
Inland Revenue Commissioners v. F. S. Securi ties Ltd. [ 1964] 1 W.L.R. 742, where Viscount Radcliffe stated at page 756:
But double taxation in itself is not something which it is beyond the power of the legislature to provide for when constructing its tax scheme. It is rather that, given that a situation really involve double taxation (See Canadian Eagle Oil Co. Ltd. v. The King [1946] A.C. 119) it is so unlikely that there would have been an intention to penalise particular forms of income in this way that the law approaches the interpretation of the complicated structure of the code with a strong bias against achieving such a result.
This same principle is set out in section 4(4) of the Act which reads as follows:
4. (4) Unless a contrary intention is evident, no provision of this Part shall be read or construed to require the inclusion or to permit the deduction, in computing the income of a taxpayer for a taxation year or his income or loss for a taxation year from a particular source or from sources in a particular place, of any amount to the extent that that amount has been included or deducted, as the case may be, in computing such income or loss under, in accordance with or by virtue of any other provision of this Part.
The direction contained in section 146(8) (supra) to the effect that "all amounts received by him in the year as a benefit out of or under a registered retirement savings plan" shall be includ ed in computing his income for that year is ambig uous. Why is the amount to be treated as income confined to that portion "received by him ... as a benefit"? If the wording were that the whole of the annuity fee in any year must be treated as income, words to that effect would be clear and leave no doubt.
The word "premium" is defined by section 146(1)(f) as follows:
146. (1) ...
(/) "premium" means any periodic or other amount paid or payable under a retirement savings plan,
(i) as consideration for any agreement referred to in sub- paragraph (j)(i) to pay an annuity, or
(ii) as a contribution referred to in subparagraph (j)(ii) for the purpose stated in that subparagraph;
Such definition would indicate that in arriving at the portion to be treated as income in the case of a retirement savings plan, the premium paid by the taxpayer is to be deducted from the full amount of the annuity paid to him in that year. Such definition does not mention a registered retirement savings plan but section 56(1)(h) does. The most logical reason for such language is the fact that the taxpayer has the privilege of either deducting the premium or not doing so and to cover both cases the statute directs that it is the amount by which the taxpayer benefits which must be included as income.
There can be no benefit to him if he does not so reduce his taxable income if he is obliged to pay tax on the full amount of the annuity received back after maturity. The word "benefit" is defined in The Shorter Oxford English Dictionary in the following terms:
2. A kind deed; a favour, gift. 3. Advantage, profit... pecuniary profit ... the pecuniary assistance etc., to which an insured person is entitled.
The word connotes something in addition to what a recipient already has. The return of that portion of the annuity in any year which is equal to premium paid is not an advantage to the annuitant for he will be no better off than he was before he paid the premium. Consequently, the return of the premium is not a benefit.
Counsel for the plaintiff relies upon the case of Speerstra v. M.N.R. [1973] F.C. 231. In that case the annuity was not one issued by the Government. It contained an installment refund guarantee clause whereby, in the event of the death of the annuitant before the annuity payments to her equalled the purchase price of the contract, the payments were to be made to her son, the appel lant, until the total payments received equalled the purchase price. The Minister had assessed the appellant's income by deducting as capital a por tion of the payments expected during the lifetime of the mother in accordance with the regulation passed under the authority of the Act. The appel-
lant sought a deduction of the entire amount of the annuity payments he received. The case stands for the principle that the installment refund clause of the annuity did not make the annuity payments after the mother's death capital and does not affect the problem to be decided herein. The plain tiff relies upon the cases which hold that when an ordinary annuity is purchased the monies paid therefor cease to be capital and the annuity pay ments received thereunder are of a distinct and separate nature. This approach does not, however, take into consideration the sections of the Income Tax Act above referred to. Section 60(a) of the Act provides for deduction of the capital element of an annuity, other than one under the registered retirement savings plan and other forms of annuity herein mentioned, from a taxpayer's taxable income. The most probable reason that payments to purchase a registered retirement savings plan are exempted from this section is that it is taken for granted that in all such forms of annuity the annual premium would have already been deduct ed in the year of purchase.
If there is any ambiguity in the meaning of the word "benefit" as used in the above-quoted subsec tion, its construction should be resolved in the favour of the taxpayer. Authorities for this are Hatch v. M.N.R. [1938] Ex.C.R. 208 at page 217 and Oriental Bank Corporation v. Wright (1880) 5 A.C. 842.
Mrs. McLaren, who sold the annuity contract to Langille, was an employee in the Federal Depart ment of Labour. She was acting within the scope of her employment. In describing the terms of the contract to such a purchaser, she described it as one in which if he did not deduct the premium paid from his taxable income he would not have to pay tax on the refund of capital but would only have to pay tax on the interest element of each year's annuity. Such statement was not an opinion of law but a statement of fact descriptive of the type of contract being offered to him. If the state ment had been an opinion or interpretation of section 146 of the Act, estoppel would not lie against the Minister. (See Stickel v. M.N.R. [1972] F.C. 672 at page 681.)
The purchaser relied upon and acted upon such statements throughout. There is no suggestion that such saleslady did not herself believe such descrip-
tion to be true. If I am right in my interpretation of the contract it was true. The principle of estop- pel is binding on the Crown. The fact that the Crown's servant who sold the contract worked in a different department of the Government does not affect this responsibility. (See Robertson v. Minis ter of Pensions [1949] 1 K.B. 227, [1948] 2 All E.R. 767.)
Counsel for Langille submits that the annuity in question, although registered, was never actually a registered retirement savings plan within the meaning of the Income Tax Act as it did not comply with the conditions set out in section 79B(2) of the Act as it then was. (Now section 146(2).)
It reads as follows:
146. (2) The Minister shall not accept for registration for the purposes of this Act any retirement savings plan unless, in his opinion, it complies with the following conditions:
(a) the plan does not
(i) provide for the payment of any benefit before maturi ty, except by way of a refund of premiums.....
Terms and conditions contained in such a con tract are as follows:
7. (1) At any time before the due day of the first instalment of annuity, if the current premium for a corresponding annuity is the same or less than the premium payable under this contract at the time it was entered into, the Purchaser may
(d) by notice in writing require the Minister of Labour to pay the first instalment of annuity on a future day one or more full years before the due day when the first instalment of annuity is then payable under this contract, and the annuity shall thereupon be recalculated to take into account the alteration of the due day of the first instalment of annuity;
8. (1) At any time before the due day of the first instalment of annuity, if the current premium for a corresponding annuity is greater than the premium payable under this contract at the time it was entered into, the Purchaser may
(d) by notice in writing require the Minister of Labour to pay the first instalment of annuity on a future day one or more full years before the due day when the first instalment of annuity is then payable under the contract, and the annuity or the premium shall be recalculated as provided in subclause two;
Counsel for the defendant contends that because of the last two paragraphs quoted, 7(1)(d) and
8(1)(d) that the annuity contract thereby provides for payment of the benefit before maturity. This precept offends section 79B(2) in that the Minister has no authority for accepting the annuity contract for registration as a retirement savings plan. It is contended that the result of this is that the con tract amounts only to a registered savings plan in which the taxpayer was not entitled to deduct the premium paid therefor from his taxable income in the year in which he paid it. He cites the case of M.N.R. v. Inland Industries Limited [1974] S.C.R. 514 to support this submission.
Counsel for the Deputy Attorney General of Canada submits that such sections are merely provisions for advancing the date of maturity and do not provide for payment of any benefit before maturity and are not therefore within the scope or provision of section 146(2) of the Act.
A decision on this point would affect the status of many of the annuity contracts issued by the Government and in view of the fact that the other reasons given by me justify a dismissal of this appeal, I refrain from expressing an opinion thereon.
As a result, the appeal will be dismissed, with costs.
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