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A-689-83
The Queen (Appellant)
v.
Geoffrey Stirling (Respondent)
Court of Appeal, Pratte, Hugessen and Mac- Guigan JJ.—Montreal, March 19, 1985.
Income tax — Income calculation — Deductions — Trial Judge erred in allowing deduction for interest on unpaid portion of price of bullion and safe-keeping charges in com puting capital gain — Ss. 40(1 ) (c)(i) and 54 governing compu tation — Interest and safe-keeping charges deductible only if part of cost of bullion — "Cost" meaning price taxpayer paying for asset, but not including expense incurred to enable him to pay price or keep property afterwards — Appeal allowed — Income Tax Act, S.C. 1970-71-72, c. 63, ss. 40(1)(c)(i), 54.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
R. v. Canadian Pacific Ltd., [1978] 2 F.C. 439; 77 DTC 5383 (C.A.); Birmingham Corporation v. Barnes, [1935] A.C. 292 (H.L.); R. v. Consumers' Gas Company Ltd., [ 1984] I F.C. 779; 84 DTC 6058 (C.A.).
COUNSEL:
J. Côté and E. Atkinson for appellant.
Bruce Verchère and G. Du Pont for
respondent.
SOLICITORS:
Deputy Attorney General of Canada for appellant.
Verchère, Noël & Eddy, Montreal, for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
PRATTE J.: The only issue on this appeal is whether the Trial Division [[1984] 2 F.C. 3011* was right in holding that, in computing his capital gain from the disposition of gold bullion, the respondent could deduct, as part of his cost, inter est on the unpaid portion of the price of the bullion
* Editor's Note: The style of cause was amended by order dated April 29, 1983. The spelling of the respondent's surname was changed from Sterling to Stirling.
and safe-keeping charges that he had incurred in respect of the period during which he had held the bullion.
In deciding that those interest and charges could be deducted, the learned Trial Judge did not rely on any provision of the Income Tax Act (S.C. 1970-71-72, c. 63] but, rather, on what, in his view, would have been the intention of Parliament had it given consideration to that question. We cannot agree with that approach.
In trying to support that judgment, counsel for the respondent argued in substance that capital gain should be computed according to the same rules as income from a business or property. That argument, while attractive, does not find any sup port in the Income Tax Act which provides special rules for the computation of capital gain. Under those rules, as they are found in subparagraph 40(1)(c)(i) and section 54, the interest and safe keeping charges here in question could be deduct ible only if they were part of the cost of the bullion. In our opinion, they were not. As we understand it, the word "cost" in those sections means the price that the taxpayer gave up in order to get the asset; it does not include any expense that he may have incurred in order to put himself in a position to pay that price or to keep the property afterwards.'
The appeal will therefore be allowed with costs, the judgment of the Trial Division will be set aside, the respondent's action will be dismissed with costs.
1 See: R. v. Canadian Pacific Ltd., [1978] 2 F.C. 439; 77 DTC 5383 (C.A.); Birmingham Corporation v. Barnes, [1935] A.C. 292 (H.L.); R. v. Consumers' Gas Company Ltd., [ 1984] 1 F.C. 779; 84 DTC 6058 (C.A.).
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