Supreme Court Judgments

SUPREME COURT OF CANADA

Moldowan v. The Queen, [1978] 1 S.C.R. 480

Date: 1977-05-31

William Moldowan Appellant;

and

Her Majesty The Queen Respondent.

1976: December 8 and 9; 1977: May 31

Present: Martland, Judson, Spence, Pigeon and Dickson JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Taxation — Income tax — Deduction of farming losses — Farming, or combination of farming with some other source — Chief source of income - Income Tax Act, R.S.C. 1952, c. 148, as amended, ss. 13, 139(1) (ae).

Appellant was engaged in various business ventures from 1960. In 1968 he derived income of $l,750 from office or employment, $8,822.43 from investments and $12,500 from a real estate transaction. In 1969 he earned $17,833.40 from office or employment and $17,048.65 from investments. Appellant was also engaged in training, boarding and racing horses for himself and others. From these operations he sustained losses of $21,097 in 1968 and $20,810 in 1969, the entire amount of which he sought to deduct for tax purposes. The Tax Review Board disallowed the deduc­tion finding that the appellant's chief source of income was not farming nor a combination of farming and some other source of income within the meaning of section 13(l) of the Income Tax Act. The Trial Division of the Federal Court and, by a majority, the Federal Court of Appeal upheld the decision.

Held: The appeal should be dismissed.

In maintaining horses for racing, the appellant was within the definition of farming in s. 139(1)(p) of the Act. The sole issue is whether the farming business carried on by the appellant in 1968 and 1969 was his chief source of income or whether it, in combination with another source, was his chief source of income. If the answer is in the affirmative the appellant is permit­ted to deduct the full amount of the farming losses. If the answer is in the negative, he is entitled to a deduc­tion of $5,000 only in respect of farming losses for each taxation year.

In order to have a "source of income" the taxpayer must have a profit or a reasonable expectation of profit.

[Page 481]

Source of income is an equivalent term to business. Whether a source of income is a taxpayer's "chief source" of income is both a relative and objective test.

The Income Tax Act envisages three classes of farmers: (1) a taxpayer who looks to farming for his liveli­hood: such a taxpayer is free of the limitation of s. 13(l) in respect of farming losses; (2) a taxpayer who does not look to farming for his livelihood but carries on farming as a sideline business: such a taxpayer is entitled to the deductions spelling out in s. 13(1); (3) a taxpayer who carries on some farming activities as a hobby: the losses sustained by such a taxpayer are not deductible in any amount. In the instant case, it is common ground that the appellant was farming and that his farming con­stituted a source of income. However, according to the concurrent findings below, that farming was not his chief source of income and it cannot be said that he was a person whose chief source of income was a combina­tion of farming and some other source of income. There-fore the appellant should be considered as a farmer of class (2) and the deductibility in respect of any farming loss for a taxation year should be limited to $5,000.

Dorfman v. M.N.R., [1972] C.T.C. 151 affirmed: The Queen v. Matthews (1974), 74 D.T.C. 6193; Simpson v. Minister of National Revenue, [1961] C.T.C. 174; Bert James v. Minister of National Revenue, [1973] C.T.C. 457, referred to.

APPEAL from a judgment of the Federal Court of Appeal[1] dismissing an appeal from a judgment of the Trial Division confirming a decision of the Tax Review Board. Appeal dismissed.

C. Sturrock, for the appellant.

Neil Nichols, for the respondent.

The judgment of the Court was delivered by

DiCKsoN J.—At issue in this appeal is the right of the appellant to deduct for tax purposes the entire amount of farming losses suffered by him in the 1968 and 1969 taxation years. The several

[Page 482]

tribunals which have to date considered the matter have held adversely to the appellant.

Central to the appeal is the construction of s. 13(1) of the Income Tax Act R.S.C. 1952, c. 148, as amended, an awkwardly worded and intractable section and the source of much debate. It reads, in English:

13. (1) Where a taxpayer's chief source of income for a taxation year is neither farming nor a combination of farming and some other source of income, his income for the year shall be deemed to be not less than his income from all sources other than farming minus the lesser of:

(a) his farming loss for the year, or

(b) $2,500 plus the lesser of

(i) one-half of the amount by which his farming loss for the year exceeds $2,500, or

(ii) $2,500

(2) For the purpose of this section, the Minister may determine that a taxpayer's chief source of income for a taxation year is neither farming nor a combination of farming and some other source of income.

(3) For the purposes of this section, 'farming loss' means a loss from farming computed by applying the provisions of this Act respecting the computation of income from a business mutatis mutandis.

and in French [see opposite column]

The effect of section 13(1) is to limit to $5,000 the farming losses which a taxpayer may claim as a deduction in a taxation year. The appellant's farming losses exceeded this amount in the years 1968 and 1969. He contends that his chief source of income for those taxation years was either farming or a combination of farming and some other source of income, and therefore the con­straint of the section does not apply to him. In an alternative argument, he submits that s. 13(1) is meaningless and incomprehensible; therefore, it should not be applied to his detriment. In effect, he would have us write the section out of the Act. I do not think we can accede to that submission. We

[Page 483]

must endeavour to construe the language of Parlia­ment. It is not an impossible task.

The appellant is a Vancouver business man. During the years 1960 to 1967 he was a half-owner of, and employed by, Active Trading Ltd., a scrap company. His annual salary during those years ranged from $11,500 to $15,900. In 1967 he sold his interest in Active Trading Ltd., and in the same year started another company, Cascade News Ltd., for the distribution of racing forms, from which company he received dividends. The following year he organized Cascade Fasteners Ltd. as a manufacturer of screw products and from that company received a salary in 1969 amounting to $17,833.40.

Parallel to these activities the appellant was actively engaged from the early 1960's in training, boarding and racing horses for himself and others. He began with one or two horses but upon the disposal of his interest in Active Trading Ltd. he extended his horse-racing activities. He leased an acre of land adjoining Lansdowne Race Track in the Municipality of Richmond, a Vancouver suburb, upon which was located a small house, occupied by his trainer, three paddocks and some box stalls. During the years 1962 to 1969, he bought fifty-three horses at a total cost of $183,-463 and sold horses to the value of $121,091. He raced horses at tracks in British Columbia, Eastern Canada and in the United States, winning purses totalling $184,018.

From his "farming" operations, the appellant realized a small profit in 1963 ($1,593) and in 1964 ($1,368) but after 1964 he sustained a succession of losses, peaking in 1968 ($21,097) and 1969 ($20,810). Thereafter, he reduced his farming activities, discontinued the Lansdowne operation and disposed of almost all of his horses.

A summary of the appellant's income for the years 1960 to 1972 is set out below:

[Page 484]

Year	Office or Employement	Investment	Business Income	Farming Net Income or (Loss)	Rentals Net Income or (Loss)
1960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972	$11,500.00 $15,600.00 $15,600.00 $15,900.00 $16,200.00 $15,900.00 $15,900.00 $13,500.00 $1,750.00 $17,833.40 $17,309.39 $6,607.04 $22,306.00	— — $300.00 $38.66 $37.84 $1,364.08 $1,193.86 $1,625.43 $8,822.43 $17,048.65 $19,919.72 $7,656.55 $13,384.66	— — — — — — — — $12,500.00 — $(913.68) $17,415.65 —	$(1,213.55) $(2,235.28) $(1,718.48) $(1,593.44) $(1,368.64) $(1,684.19) $(885.05) $(8,504.75) $(21,097.46) $(20,810.72) $(7,535.76) $(7,538.42) $(4,038.94)	$2,700.00 $(872.00) $(750.00) (1,131.00) — — — — — — — — $(312.10)

 

In reporting his income for the 1968 and 1969 taxation years the appellant deducted the full amount of the farming losses suffered in those years, $21,097.46 and $20,810.72, respectively.

In the earlier proceedings argument was addressed to the question of whether a ministerial determination of chief source of income had been made pursuant to s. 13(2), but before this Court counsel for the Crown stated that he was abandon­ing any support which s. 13(2) might provide. Therefore, the sole issue in the appeal is whether the farming business carried on by the appellant in 1968 and 1969 was his chief source of income or whether it, in combination with another source, was his chief source of income. If the answer is in the affirmative the appellant is not precluded by s. 13(l) of the Income Tax Act from deducting the full amount of the farming losses; if the answer is in the negative he is subject to the limitation imposed by s. 13(l) and entitled to a deduction of $5,000 only in respect of farming losses for each of the 1968 and 1969 taxation years. In the absence of s. 13 a taxpayer carrying on a farming business would combine his entire profits and losses from inside and outside Canada and be liable to income tax on the net taxable income.

The first thing to note when one comes to examine s. 13 is the extended meaning which the Income Tax Act has given to the word "farming". Section 139(1) (p) of the Act provides:

[Page 485]

"Farming" includes tillage of the soil, livestock rais­ing or exhibiting, maintaining of horses for racing, raising of poultry, fur farming, dairy farming, fruit growing and the keeping of bees, but does not include an office or employment under a person engaged in the business of farming.

In maintaining horses for racing, the appellant was "farming" for the purposes of the Act.

The next thing to observe with respect to s. 13(1) is that it comes into play only when the taxpayer has had a farming loss for the year. That being so, it may seem strange that the section should speak of farming as the taxpayer's chief source of income for the taxation year; if in a taxation year the taxpayer suffers a loss on his farming operations it is manifest that farming would not make any contribution to the taxpayer's income in that year. On a literal reading of the section, no taxpayer could ever claim more than the maximum $5,000 deduction which the section contemplates; the only way in which the section can have meaning is to place emphasis on the words "source of income."

Although originally disputed, it is now accepted that in order to have a "source of income" the taxpayer must have a profit or a reasonable expec­tation of profit. Source of income, thus, is an equivalent term to business: Dorfman v. M.N.R.[2] See also s. 139(1)(ae) of the Income Tax Act which includes as "personal and living expenses" and therefore not deductible for tax purposes, the expenses of properties maintained by the taxpayer for his own use and benefit, and not maintained in connection with a business carried on for profit or with a reasonable expectation of profit. If the taxpayer in operating his farm is merely indulging in a hobby, with no reasonable expectation of profit, he is disentitled to claim any deduction at all in respect of expenses incurred.

There is a vast case literature on what reason-able expectation of profit means and it is by no means entirely consistent. In my view, whether a

[Page 486]

taxpayer has a reasonable expectation of profit is an objective determination to be made from all of the facts. The following criteria should be con­sidered: the profit and loss experience in past years, the taxpayer's training, the taxpayer's intended course of action, the capability of the venture as capitalized to show a profit after charg­ing capital cost allowance. The list is not intended to be exhaustive. The factors will differ with the nature and extent of the undertaking: The Queen v. Matthews[3]. One would not expect a farmer who purchased a productive going operation to suffer the same start-up losses as the man who begins a tree farm on raw land.

Whether a source of income is a taxpayer's "chief source" of income is both a relative and objective test. It is decidedly not a pure quantum measurement. A man who has farmed all of his life does not cease to have his chief source of income from farming because he unexpectedly wins a lottery. The distinguishing features of "chief source" are the taxpayer's reasonable expectation of income from his various revenue sources and his ordinary mode and habit of work. These may be tested by considering, inter alia in relation to a source of income, the time spent, the capital committed, the profitability both actual and potential. A change in the taxpayer's mode and habit of work or reasonable expectations may signify a change in the chief source, but that is a question of fact in the circumstances.

There has been difference of opinion on whether the word "combination" in s. 13(1) requires some "connection" by way of physical relationship or integration or inter-connection between farming and the subordinate activity which provides another source of income. Section 3(f) of the Income War Tax Act of 1917, as amended, made reference to "connection" in defining the permissi­ble deductions from income derived from the chief

[Page 487]

business, trade, profession or occupation of the taxpayer in determining his taxable income. Sec­tion 3(f) read:

(f) deficits or losses sustained in transactions entered into for profit but not connected with the chief business, trade, profession or occupation of the taxpayer shall not be deducted from income derived from the chief busi­ness, trade, profession or occupation of the taxpayer in determining his taxable income.

The word "connected" is not found in s. 13 of the present Act. As Thorson P. said, obiter, in Simp­son v. Minister of National Revenue[4] there is no reason why there must be such a limitation. I share this view. See also Dorfman v. Minister of National Revenue, supra, at p. 154 and Bert James v. Minister of National Revenue[5], at p. 464.

It is clear that "combination" in s. 13 cannot mean simple addition of two sources of income for any taxpayer. That would lead to the result that a taxpayer could combine his farming loss with his most important other source of income, thereby constituting his chief source. I do not think s. 13(l) can be properly so construed. Such a con­struction would mean that the limitation of the section would never apply and, in every case, the taxpayer could deduct the full amount of farming losses.

In my opinion, the Income Tax Act as a whole envisages three classes of farmers:

(1) a taxpayer, for whom farming may reasonably be expected to provide the bulk of income or the centre of work routine. Such a taxpayer, who looks to farming for his livelihood, is free of the limitation of s. 13(1) in those years in which he sustains a farming loss.

(2) the taxpayer who does not look to farming, or to farming and some subordinate source of income, for his livelihood but carries on farming as a sideline business.

[Page 488]

Such a taxpayer is entitled to the deductions spelled out in s. 13(l) in respect of farming losses.

(3) the taxpayer who does not look to farming, or to farming and some subordinate source of income, for his livelihood and who carries on some farming activities as a hobby. The losses sustained by such a taxpayer on his non-business farming are not deductible in any amount.

The reference in s. 13(1) to a taxpayer whose source of income is a combination of farming and some other source of income is a reference to class (1). It contemplates a man whose major preoccu­pation is farming. But it recognize [sic] that such a man may have other pecuniary interests as well, such as income from investments, or income from a side-line employment or business. The section provides that these subsidiary interests will not place the taxpayer in class (2) and thereby limit the deducti­bility of any loss which may be suffered to $5,000. While a quantum measurement of farming income is relevant, it is not alone decisive. The test is again both relative and objective, and one may employ the criteria indicative of "chief source" to distin­guish whether or not the interest is auxiliary. A man who has farmed all of his life does not become disentitled to class (1) classification simply because he comes into an inheritance. On the other hand, a man who changes occupational direction and commits his energies and capital to farming as a main expectation of income is not disentitled to deduct the full impact of start-up costs.

In the instant case, it is common ground that the appellant was farming and that his farming con­stituted a source of income. There are concurrent findings below that farming was not his chief source of income. I would not disturb those findings. Additionally, I do not think it can fairly be said that appellant was a person whose chief source of income was a combination of farming and some other source of income in the sense I have indicated. He devoted considerable effort towards launching new ventures. Horse-racing consumed only several hours of his day and that for part of the year only. His commitment of capital was cautious. The nature of the enterprise is risky. It is difficult reasonably to plan to devote

[Page 489]

energies to it principally in the expectation of a steady living. He suffered constant and increasing losses with the exception of two years in which minor profits were made. Although none of the above is alone determinative, together they suggest only one business venture of several, with nothing distinguishing in the way of "a chief source of income."

In my opinion this appeal fails. Counsel for the Crown told the Court that the Crown was pre-pared to forego costs in this Court in the event of success.

I would accordingly dismiss the appeal without costs.

Appeal dismissed without costs.

Solicitors for the appellant: Birnie & Sturrock, Vancouver.

Solicitor for the respondent: D. S. Thorson, Ottawa.