The Queen v. Golden et al.

Estey J.‑‑I have had the benefit of reading the judgment of my colleague Wilson J. and, while I respectfully reach the same outcome as does she, I follow quite a different route to that result. I find s. 68 to be applicable; however, I would confirm that the allocation of the proceeds of sale as between land and buildings was reasonable, as determined below for the reasons advanced by both Thurlow C.J. and Heald J. in the Court of Appeal.

Section 68 was introduced with the new Income Tax Act of 1972 (1970‑71‑72 (Can.), c. 63) and, while it appears in the reasons of Wilson J., I set it out here for convenience:

68. Where an amount can reasonably be regarded as being in part the consideration for the disposition of any property of a taxpayer and as being in part the consideration for something else, the part of the amount that can reasonably be regarded as being the consideration for such disposition shall be deemed to be proceeds of disposition of that property irrespective of the form or legal effect of the contract or agreement; and the person to whom the property was disposed of shall be deemed to have acquired the property at the same part of that amount.

In the pre‑1972 Income Tax Act ("the old Act"), R.S.C. 1952, c. 148 as amended, a somewhat comparable provision was found in s. 20(6)(g) which I repeat here for convenience:

(g) where an amount can reasonably be regarded as being in part the consideration for disposition of depreciable property of a taxpayer of a prescribed class and as being in part consideration for something else, the part of the amount that can reasonably be regarded as being the consideration for such disposition shall be deemed to be the proceeds of disposition of depreciable property of that class irrespective of the form or legal effect of the contract or agreement; and the person to whom the depreciable property was disposed of shall be deemed to have acquired the property at a capital cost to him equal to the same part of that amount.

This section came before the Court in R. v. Malloney’s Studio Ltd., [1979] 2 S.C.R. 326, where the Court determined that the section applied to a disposition of depreciable property together with "something else". In the context of that proceeding, this meant that the Minister of National Revenue was not empowered by the section to reallocate a consideration received by the vendor from a purchaser on a sale of land "clear of all buildings".

Section 68 makes reference to a disposition of "any property", which of course would include depreciable and non‑depreciable property, real property and personal property, and indeed incorporeal property rights and presumably anything which, under s. 248 of the Act, may properly be classified as "property". In contrast, the old Act provision referred to the "disposition of depreciable property". In s. 68 the draftsman went on to refer to the property under disposition as "that property". With reference to the purchaser, the provision describes the property disposed of as "the property". While "any property" can reasonably be understood as particular (any piece of property as opposed to any other piece of property) or general (any property as opposed to any thing which is not property), this potential ambiguity is resolved with reference to the other words of the section, which must all be given meaning (see Maxwell on the Interpretation of Statutes (12th ed. 1969), pp. 36‑39). With due respect to those who may reach a conclusion to the contrary, the use in the section of the expressions "that property" and "the property", in association with the opening reference to "any property", leads me to the conclusion that "the disposition of any property" means the sale of a particular item or items of property.

I find support for this construction of s. 68 in the French language text where the phrase "de tout bien" is employed in place of "any property" in the English version. Again, in the French version, "that property" and "the property" appear as "ce bien" and "le bien", and not in the plural form. The singular form is chosen because it is not «biens», or property in general, that is contrasted with "something else", but rather particular property.

The quantity or element in contrast to "any property", construed as above discussed, is the consideration paid for "something else". In this appeal, the issue, simply stated, narrows down to a determination as to whether "something else" includes other property or refers only to something other than property.

Even a cursory examination of the result of the adoption of the latter alternative, namely that the "something else" must be something which is not in law "property", reveals that the section would be substantially gutted of all meaning. Section 248(1) of the Income Tax Act defines property as follows:

"property" means property of any kind whatever whether real or personal or corporeal or incorporeal and, without restricting the generality of the foregoing, includes

(a) a right of any kind whatever, a share or a chose in action,

...

This extremely broad definition of property leaves very little in the "non‑property" classification. It would appear to include a contract right and might in some circumstances include a right to assert a covenant by a vendor to deliver "know‑how". It may be thought that "services" would be "something else". Consideration paid for "services" will in most, if not all, cases fall within the basic income tax provisions in Division B, including s. 12. Thus, if "something else" is interpreted to refer only to non‑property items, the result would be the confinement of s. 68 to at most a minuscule part of commercial transactions. Indeed, it would be somewhat unusual to find in the part of the Act entitled "Rules Relating to Computation of Income" such a narrowly tuned taxing provision. This is particularly evident when one considers the multitudinous transactions to which the above‑quoted provision in the old Act was applicable. It would seem unlikely that Parliament, in the 1972 amendment, intended to abandon the aims achieved by s. 20(6)(g) and enact a new section having very similar wording but no similar application.

In Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, at pp. 573‑79, the Court recognized that in the construction of taxation statutes the law is not confined to a literal and virtually meaningless interpretation of the Act where the words will support on a broader construction a conclusion which is workable and in harmony with the evident purposes of the Act in question. Strict construction in the historic sense no longer finds a place in the canons of interpretation applicable to taxation statutes in an era such as the present, where taxation serves many purposes in addition to the old and traditional object of raising the cost of government from a somewhat unenthusiastic public.

It would therefore seem to me that the expression "something else" must be given the widest meaning reasonably assignable, which would include different items and classes of property as well as the rarer class of non‑property. This interpretation would justify the inclusion of s. 68 in the "Rules Relating to Computation of Income", as the section would have a wide and useful application in the determination of taxability across the commercial spectrum.

It has been said that this result has been achieved (subsequent to the assessment here in issue) by an amendment to s. 13. The amendment, effected by 1980‑81‑82‑83 (Can.), c. 140, s. 6(2), is found in s. 13(21.1). This is a long and quite complex provision which applies only to the combined sale of buildings and subjacent or contiguous land. It would have no application, therefore, to a single contract under which disposition is made of different classes of personal property attracting different rates of capital cost allowance or different taxation treatment under the Act. Furthermore, the section would not appear to relate (but the Court is not here called upon to so determine) to those situations where the taxpayer has disposed of buildings described in subs. (21.1) for more than their undepreciated capital cost, but in the view of the taxing authority for less (under the contract allocation of price) than the reasonable value of the depreciable property in question. That is to say, the section would not appear to be available to the tax authority where the taxpayer has ordered his affairs so as to admit some liability for recaptured depreciation, but less than the tax collector considers to be a "reasonable" amount. Therefore, I find the introduction of this amendment into the statute after the event to be of little or no assistance in determining the proper reach of s. 68.

I conclude that s. 68 is applicable to the transaction here before the Court. It is therefore necessary to determine the second issue, namely whether the Court of Appeal was correct in its conclusion that the allocation of purchase price made by the parties is "reasonable" within the meaning of the section. For the reasons given by the learned Chief Justice and Heald J. in the Court of Appeal, in the circumstances of this proceeding, the allocation established by the contract between the parties is reasonable.

I therefore would dismiss the appeal in the manner proposed by Wilson J.

The reasons of Chouinard, Lamer and Wilson JJ. were delivered by

Wilson J.‑‑This case involves the interpretation of s. 68 of the Income Tax Act, 1970‑71‑72 (Can.), c. 63 as amended, and entails a consideration of the Minister of National Revenue's power to deem an allocation of the proceeds of sale between depreciable and non‑depreciable property when both are sold together as a package. The section reads:

68. Where an amount can reasonably be regarded as being in part the consideration for the disposition of any property of a taxpayer and as being in part consideration for something else, the part of the amount that can reasonably be regarded as being the consideration for such disposition shall be deemed to be proceeds of disposition of that property irrespective of the form or legal effect of the contract or agreement; and the person to whom the property was disposed of shall be deemed to have acquired the property at the same part of that amount.

1. The Facts

The respondents were the sole partners in an investment group known as the Bel Air Syndicate and jointly owned a 27.32 acre plot of land on the outskirts of Edmonton. On this land they built the Bel Air Apartments consisting of twenty‑five three story walk‑up apartment buildings and developed the land for residential use by installing services, roads, sidewalks, etc.

On March 7, 1973 a syndicate consisting of N. M. Skalbania Ltd. and others ("Skalbania") made an unsolicited offer to purchase the Bel Air property for the sum of $5,600,000 in accordance with a valuation breakdown of $2,600,000 for the land, $2,400,000 for the buildings and $600,000 for "trucks, equipment, roads, etc." The respondents rejected this offer but pursued further negotiations with Skalbania. These negotiations were successful and on March 14, 1973 the parties entered into an Agreement of Purchase and Sale stipulating a total sale price of $5,850,000. The Agreement expressly provided that of this total price $5,100,000 was allocated to land and $750,000 was allocated to "equipment, buildings, roads, sidewalks, etc." Based on this allocation the respondents reported a small taxable capital gain resulting from the sale but did not include any recapture of capital cost allowances in computing their 1973 incomes. The Minister reassessed the respondents pursuant to s. 68 of the Income Tax Act with the result that substantial amounts of recaptured capital cost allowances were added to their incomes. The respondents appealed the Minister's reassessment to the Federal Court.

2. The Courts Below

In the Federal Court Trial Division, [1980] CTC 488, 80 DTC 6378, Mahoney J. found that, in assessing the apportionment of the purchase price between land and depreciated equipment and buildings, the Minister can under s. 68 deem a reasonable apportionment without regard to the figures stipulated in the Agreement of Purchase and Sale. Indeed, the entire trial proceeded on the assumption that s. 68 was applicable to this transaction and that the only dispute was with respect to the proper approach to the computation of the Minister's deemed allocation. The Crown's expert land appraiser testified that the value of the land alone at the time of the sale was $2,320,000 rather than $5,100,000 as stipulated in the Agreement. This figure was accepted by the learned trial judge as being objectively correct. He then went on to consider whether s. 68 called for such an objective valuation or whether it was more appropriate to consider the values in question from the point of view of one or the other of the parties to the transaction.

Mahoney J. accepted that the value of the Bel Air land to Skalbania in March 1973 was $5,100,000 as indicated in the Agreement and that this was in fact what Skalbania had agreed to pay for it. Emphasis was placed on the fact that Skalbania was a knowledgeable real estate operator dealing at arm's length with the respondent vendors and that from Skalbania's point of view this was not an unreasonable purchase price for the land in question. Mahoney J. did not, however, consider this finding to be determinative of the valuation issue since what was sold was not the land alone but other things along with it. He proceeded to reason that what must be determined under s. 68 is not the value of the land to the purchaser but:

...‘the amount that can reasonably be regarded as being the consideration for ... disposition’ of the land in the circumstance [in which] that land and other things were sold.

This was perceived as a determination to be approached from the point of view of the vendor rather than the purchaser as it is consideration for disposition, not consideration for acquisition, that the section specifies.

Having held that the determination is to be made from the vendors' rather than the purchaser's point of view, Mahoney J. then found that the respondents had led no evidence whatsoever upon which he could make such a determination. Rather than deem an allocation between the value of the land and the value of the depreciable property based on the testimony of the Crown's expert witness alone, he referred the matter back to the Minister for reassessment in accordance with the principle he had set out. Ultimately, these reassessments resulted in a substantial recapture of depreciation brought into the respondents' 1973 income.

The respondents appealed to the Federal Court of Appeal, [1983] 2 F.C. 599, [1983] CTC 112, 83 DTC 5138, 47 N.R. 117. When the appeal came on for hearing, the Court of its own motion raised a question as to the applicability of s. 68 of the Income Tax Act to the transaction in issue. As noted above, it was evident that the action in the Trial Division had proceeded on the basis that s. 68 did apply. Its applicability or otherwise was not argued. Nor was the matter advanced as a ground of appeal before the Federal Court of Appeal. Accordingly, the Court heard the entire case as prepared by both parties and then adjourned for several days to enable both counsel to prepare argument on whether or not the section applied.

Heald J. (with whom Verchere D.J. concurred) held that Mahoney J. had erred in applying the deemed apportionment in s. 68 to the transaction in issue. He commenced his analysis with an examination of the legislative history of the section, indicating that the enactment of s. 68 as part of the 1972 Income Tax Act was accompanied by the repeal of the somewhat similarly worded s. 20(6)(g) of the pre‑1972 Act. He noted that s. 20(6)(g) was part of a series of provisions dealing with the recapture and inclusion in income of excess capital cost allowance on the disposition of an asset in respect of which capital cost allowances had been claimed. The section dealt with nothing other than the disposition of depreciable property.

By contrast, Heald J. reasoned, s. 68 applies to the disposition of any property. Whereas s. 20(6)(g) applied in circumstances where an amount received by a taxpayer could reasonably be regarded as being in part consideration for the disposition of depreciable property and in part consideration for the disposition of something other than depreciable property, s. 68 applied only "in circumstances where an amount received by a taxpayer can reasonably be regarded as being in part the consideration for the disposition of any property and as being in part consideration for something else other than any property" (emphasis in the original). Having regard to the extremely broad definition of "property" found in s. 248(1) of the Act, Heald J. concluded that the transaction in question disposed of property alone and included nothing that could be characterized as something "other than any property". Accordingly, he held that s. 68 had no application to this transaction and that the allocation set out by the parties to the Agreement of Purchase and Sale must form the basis of the Minister's assessment.

Thurlow C.J. concurred in this result. In separate reasons he expressed the view that, if s. 68 were applicable, the trial judge erred in approaching a determination under the section from the point of view of the vendor alone. He held that it was therefore open to the Court of Appeal to reach its own determination of the amount that can reasonably be regarded as the proceeds of disposition of the depreciable property included in the sale. He went on to hold that, where an allocation is made by the parties, the inquiry under s. 68 is not as to reasonable value but as to proceeds of disposition. It was open to the taxpayer to dispose of his property as he saw fit and to realize the greatest advantage in the disposition. Thurlow C.J. also stressed the fact that the trial judge had specifically found that $5,100,000 was not an unreasonable price for the respondents, for their own reasons, to insist on receiving for the land and for Skalbania to agree to pay. The contractual valuation of $750,000 for the depreciable property sold was therefore the appropriate basis on which the tax assessment should proceed.

Although he based his decision on the above ground, Thurlow C.J. also commented on a case advanced by the Crown in support of its argument that s. 68 applied to this transaction. The Chief Justice noted that in Attorney General of Canada v. Matador Inc., [1980] 2 F.C. 703 (C.A.), the applicability of s. 68 of the Act did not appear to have been seriously argued. In the view of Thurlow C.J. the case was concerned with s. 13 of the Act and the comments made on s. 68 by Pratte J. in a footnote to the judgment were not necessary to the decision. Pratte J. had expressed the view that where land and buildings are disposed of s. 68 applies to authorize an apportionment of the consideration between the land and the buildings. Thurlow C.J. disagreed that s. 68 applied in that case or in this one either, but preferred to deal with this case as if the section applied because it had been argued on that assumption.

3. The Applicability of s. 68

Although the Crown's case is premised on the forceful assertion that the decision of the majority in the Federal Court of Appeal is contrary to "consistent judicial decisions in the past", the question of the applicability of s. 68 to circumstances of this type does not appear to have given rise to any extensive body of case law. Indeed, the sole authority to which counsel for the Crown referred on this point is Pratte J.'s footnote in Matador, supra, where he said at p. 709:

Counsel for the respondent suggested that section 68 was not applicable to this case. I do not agree. In my view, that section is applicable when `an amount can reasonably be regarded as being in part the consideration for the disposition of any property of a taxpayer and as being in part consideration' either for the disposition of property of another type or for something other than the disposition of property.

(Emphasis added.)

Clearly Pratte J.'s interpretation involves the insertion of words into s. 68 which are not there. As Heald J. pointed out in the present case, the express wording of the section refers only to transactions involving the sale of property together with something other than property. An example might be the sale of some technological equipment together with the know‑how that must necessarily accompany the equipment since industrial know‑how is outside the scope of the broad definition of "property" found in s. 248(1) of the Income Tax Act: see Rapistan Canada Ltd. v. Minister of National Revenue, [1974] 1 F.C. 739 (C.A.), aff'd [1976] 1 S.C.R. vi. Or it might be a sale of property combined with services of any kind. Pratte J., on the other hand, went one step further in Matador, supra, by adding the words "either ... property of another type" to the otherwise straightforward language of s. 68. Thus, as the Crown would have it, this section applies not only to transactions involving the disposition of both property and non‑property but is also applicable to transactions where only property is sold so long as the subject‑matter of the sale encompasses property of more than one type.

The Crown supports this interpretation by pointing to the policy underlying the now repealed s. 20(6)(g) of the Act which is described as the predecessor of the present s. 68. That subsection was found in the part of the Act dealing with depreciable property and capital cost allowances and applied specifically to transactions in which a sum was received by the taxpayer "in part the consideration for disposition of depreciable property ... and ... in part consideration for something else". The cases cited by the Crown in support of the interpretation of s. 68 adopted by Pratte J. in Matador, supra, all deal with s. 20(6)(g) and not with s. 68 and are being invoked in an attempt to equate the "something else" other than depreciable property in the former section with the "something else" other than "any property" in the latter section: see Canadian Propane Gas & Oil Ltd. v. Minister of National Revenue, 73 DTC 5019 (F.C.T.D.) As is explained by Estey J. in R. v. Malloney's Studio Ltd., [1979] 2 S.C.R. 326, s. 20(6)(g) allowed for precisely the type of allocation for which the Crown is arguing in the present case. Estey J. said at p. 332:

In the opening portions of rule (g), provision is made for the allocation of so much of the consideration as can reasonably be regarded as being in part the consideration for the disposition of depreciable property and for the allocation otherwise of that part of the consideration which can be reasonably regarded as having been paid for "something else". The rule therefore applies to the situation where the taxpayer has disposed of two types of property, first depreciable property and secondly, something else.

It seems to me fairly clear, however, that when the legislature contrasts "something else" with "depreciable property" the "something else" will include non‑depreciable property as well as things which are not property at all. But, by the same token, when the legislature contrasts "something else" with "any property" then the "something else" must be something other than property.

As noted by Heald J. in the Court of Appeal, s. 68 came into existence in 1972 at which time s. 20(6)(g) was repealed. However, the differences in the wording of the two sections and their different locations within the Act serve to indicate that the provisions embody two distinct policy objectives. Whereas s. 20(6)(g) was one of the series of provisions dealing with the recapture of capital cost allowances upon the disposition of depreciable property, the parallels and successors to which are now found in s. 13 of the Act, s. 68 is found in that portion of the Act dealing with the computation of income generally. Its purpose is to allow the Minister to deem an allocation between the proceeds of disposition of property and sums received by the taxpayer in return for something other than property. Section 68, being a general rule relating to the computation of income, would not appear to be the successor of s. 20(6)(g) in the sense of embodying the same policy objective. The function of s. 68 is to allow income receipts to be allocated to various sources (i.e. property or non‑property) rather than to allow for, or have anything to do with, the recapture of capital cost allowances upon the disposition of depreciable property. The fact that s. 68 was enacted as part of a general reform package in the same year as s. 20(6)(g) was repealed would therefore appear to be irrelevant to the question of the section's applicability to the type of transaction before us.

Given the clear language of s. 68 and the way in which the distinct policy objectives of the two sections have been reflected in their different locations in the overall structure of the Act, the Crown's attempt to portray s. 68 as an ambiguously worded successor to the clearly worded s. 20(6)(g) would seem to lack merit. Neither provision was or is ambiguous in its application and each has its own distinct sphere of operation. As stated by Heald J. in the court below, s. 68 "can be expected to apply according to its terms and without straining the meaning of any of them". Accordingly, it is operative only where the taxpayer has engaged in a transaction in which proceeds have been received "in part the consideration for the disposition of any property and ... in part consideration for something else other than any property" (Heald J., p. 606 F.C.) As the subject matter of the transaction before us encompassed land, buildings, equipment, roads, sidewalks and other property, there was nothing sold that could be characterized as non‑property so as to trigger the application of s. 68.

4. Recapture of Capital Cost Allowances

It was strongly argued by the Crown that if the interpretation of s. 68 articulated by Heald J. in the court below is affirmed in this Court and the section found to be inapplicable to this transaction, then the legislative policy of including "recaptured" capital cost allowances in the taxpayer's income will be completely defeated. The Crown submits that the position adopted by Pratte J. in Matador, supra, reflects a longstanding approach to transactions such as the one in issue here and that Parliament has relied on this approach being maintained since no legislation has been introduced to achieve the effect of the former s. 20(6)(g). Accordingly, if s. 68 is construed as not applying to transactions like the present one then, it is submitted, there will be a void in the otherwise complete legislative scheme dealing with the depreciation of capital property and recapture of capital cost allowances.

The provisions of the Income Tax Act dealing with depreciation and recapture are found primarily in ss. 20 and 13. Property that is specified in the Income Tax Regulations as belonging to a class of depreciable property is made subject under s. 20(1)(a) to a capital cost allowance with the rate of annual depreciation varying for each class of property as specified in the Regulations. The underlying rationale for capital cost allowance is to allow major expenditures on long‑term capital assets to be written off of the taxpayer's income over the duration of the period in which the asset is to be used rather than in one large sum in the year of purchase. The disposition of such depreciated capital property can give rise to a taxable capital gain where, as with any other capital property, the proceeds of disposition exceed the adjusted cost base of the property. Section 54(a) stipulates that for depreciable property the initial capital cost of the property to the taxpayer remains fixed as the adjusted cost base of the property.

Upon receiving proceeds of disposition of depreciated property the taxpayer must "recapture" any amount written off of the property as capital cost allowance over the years before calculating any capital gain on the property. Section 13(1) of the Act requires that any recaptured amount be included in the computation of the taxpayer's ordinary income since it was deducted from income in the first place under s. 20(1)(a). So long as the proceeds of disposition are greater than the undepreciated capital cost of the property (i.e. the point to which the property has been depreciated through the deduction of annual capital cost allowance) there will be some recaptured capital cost to be included in the taxpayer's income in the year of disposition. If the proceeds of disposition are greater than the adjusted cost base (i.e. the initial capital cost) of the property then, of course, the recaptured amount brought into ordinary income will be the total of all capital cost allowances deducted over the years and the amount by which the proceeds exceed the adjusted cost base will be characterized under s. 38(a) as a taxable capital gain.

With this scheme in mind some mechanism was clearly required in order to differentiate between the proceeds of sale of property in respect of which capital cost allowance had been deducted and the proceeds of sale of non‑depreciable property when the two were sold together as a package. That mechanism prior to 1972 was the "deeming" power conferred on the Minister in s. 20(6)(g). In the omnibus reform in 1972 the legislature replaced the Minister's discretionary "deeming" power with the specific and very detailed formulae set out in s. 13. It apparently recognized, however, in the early eighties that no formula had been provided for allocating proceeds of disposition in the type of transaction before the Court on this appeal. Section 13 was accordingly amended by the addition after subs. (21) of subs. (21.1) which specifically deals with the allocation of proceeds of disposition between a building and its subjacent or immediately contiguous land. The sale of the Bel Air property, however, preceded the amendment and is therefore not caught by it. I do not believe, however, that that provides a rationale for this Court to construe s. 68 so as to fill the gap existing prior to the amendment. It seems to me that if the statute has failed to provide a means whereby a figure can be allocated to the depreciable property in a transaction such as the one before us, then the figure agreed upon by the parties in an arm's length transaction, given, of course, that it is not a sham or subterfuge (see Minister of National Revenue v. Leon, [1977] 1 F.C. 249 at p. 258), must govern.

5. Conclusions

1. Section 68 of the Income Tax Act on its plain meaning applies only to transactions in which there has been a disposition of property and something else other than property. That is not the case here.

2. The legislative history of s. 68 and its place within the scheme of the Act reinforce this plain meaning. Despite some similarity in language between the former s. 20(6)(g) and s. 68, the latter is not the successor of the former.

3. The statutory provisions governing recapture of capital cost allowance clearly require an allocation of proceeds as between depreciable and non‑ depreciable property. Prior to 1972 this was achieved through the mechanism of the Minister's discretionary power in s. 20(6)(g). It is now achieved through the specific provisions of s. 13. Section 13(21.1) would have caught the sale of the Bel Air property had it taken place after the enactment of that provision.

4. The majority of the Federal Court of Appeal was correct in holding that s. 68 of the Income Tax Act is not policywise the successor to the repealed s. 20(6)(g) and that s. 68 does not empower the Minister to reassess the contractual allocation of the proceeds of disposition of the Bel Air property between the depreciable and non‑depreciable property included in the sale. The allocation agreed upon by the parties must therefore stand.

I would dismiss the appeal and award the respondents their costs on a solicitor‑client basis as ordered by this Court on June 6, 1983.