branch bank should be considered as a liability of that THE KiN branch of the bank. Whether the amount deposited should Ex parte be also considered as an asset would depend upon the circumstances.
But inasmuch as no justification is given for the assess- TANs ment, at $65,600, of the appellant's personal property, I am forced to the conclusion that this assessment was arbit- N.B.
..
rarily made, without any consideration of the real value of Mignault J the personal property of the branch office. This being so it obviously cannot stand.
I would therefore allow the appeal with costs throughout and set aside the assessment of the appellant in respect of its personal property.
MALOUIN J.-I would dismiss this appeal with costs. I agree with Mr. Justice Anglin.
Solicitor for the appellant: A. B. Connell.
Solicitor for the respondent: J. C. Hartley.
VERSAILLES - SWEETS,
LIMITED
*June6.
(DEFENDANTS)
.....................
APPELLANT; *June
AND
THE ATTORNEY
GENERAL
OF
CANADA (PLAINTIFF)
...............
RESPONDENT. ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO
Assessment and taxes-Excise tax-Dominion Sales Act., 5 Geo. V. c. 8, s. 19 amended by 11-18 Geo. V, c. 5, s. 19BBB and 18-13 Geo. V, c. 47 s. 18-Tax on manufacturers-Sale direct to consumers.
By the Special War Revenue Act of 1915 as amended in 1921 and 1922. a tax is imposed on sales by manufacturers to consumers, the purchaser in each case to be given an invoice.
Fleld, that notwithstanding the difficulty of furnishing invoices of sales for very small amounts, and that in such cases the exact amount of the tax cannot be collected from the purchaser, the manufacturer of candy for sale over the counter at 30 cents and 40 cents per pound is liable for the amount of the prescribed tax on each such sale. *PRESENT:-Idington, Duff, Anglin, Mignault and Malouin JJ. the Supreme Court of Ontario affirming the judgment at the trial in favour of the respondent.
The question for decision on this appeal is stated in the above head-note and the material statutory provisions are cited in the judges' opinions published herewith.
Beament K.C. for the appellant.
Charles W. Kerr for the respondent.
J.-I can find no good reason for interfering with the judgment appealed from herein and am therefore of the opinion that this appeal should be dismissed with costs.
J.-The appellant company carries on a business in Toronto, which includes a restaurant and what is called " an ice cream parlour and candy shop "; and in its shop are sold, at retail only, sweets purchased in the ordinary course of business from manufacturers, and others made in the appellant company's own kitchen, which is the restaurant kitchen, the annual returns from the sale of sweets so made being above five per cent of the total receipts of the business. The question is whether the appellant company is subject to taxation by way of sales tax under section of the Special War Revenue Act of 1915.
In so far as relevant, the section is as follows:- It is argued that " manufacturers " in this context does not include manufacturers who sell exclusively to consumers, within which description the appellant company admittedly would be included. It is pointed out that retailers-persons who sell by retail to consumers, who are neither wholesalers (that is to say, who do not sell to retailers) nor manufacturers-do not fall within the incidence of the section. Sales by them are not within the scheme of taxation established. It is argued that such a scheme naturally excludes all sales by persons, whether manufacturers or not, who sell exclusively to consumers; and in support of the contention that the scheme of the Act excludes them, the S.C.R.
appellant calls attention to the circumstance that, in case of sales coming within the ambit of the section, the seller is obliged to furnish the purchaser with what is called an ccinvoice "; and moreover, that, having regard to the scale of the tax, it would be impossible, in the case of sales of GNRL sweets in small quantities to consumers, to collect the exact f amount payable; and consequently that, in order to carry ..
out the provisions of the Act, the seller in each case, if the Act applied to such sales, would be obliged to collect a sum greater than the tax.
Without denying the force of much of this argument, it does not, in my judgment, carry one to the point at which one is entitled to ascribe to the word " manufacturer " a less limited meaning than that which it naturally and ordinarily bears. The rule for the construction of a taxing statute is most satisfactorily stated, I think, by Lord Cairns in Partington v. Attorney General (1):
Lord Cairns, of course, does not mean to say that in ascertaining " the letter of the law," you can ignore the context in which the words to be construed stand. What is meant is, that you are to give effect to the meaning of the language; you are not to assume:
as Lord Halsbury said in Tennant v. Smith (2).
Construed according to this rule the statute, I think, does not admit of the construction proposed by the appellant. In this view it is unnecessary to congtrue the provisions of the statute of 1922.
The appeal should be dismissed with costs.
J.-The appellant seeks to be declared not liable for sales tax under the Special War Revenue Act, 1915, for the years 1921 and 1922 and to be relieved of penalties imposed upon it for non-compliance with that statute during those two years-as to the earlier year on the ground that' it was not a " manufacturer or producer " within the meaning of section (1) of the Special War Revenue Act,
1919, as re-enacted by section 1 of chapter 50 of The
' Dominion Statutes, 1921, and as to the later year on the ground that no tax is specified in section (1) as again re-enacted in 1922 by section 13 of chapter 47 of the statute of that year, as payable on the classification within which it claims to fall.
Prima facie the appellant is " a Canadian manufacturer or producer " of candies who sells them directly to consumers and is therefore liable under section (1), as re-enacted in 1921, for an excise tax at the rate of three per cent on such sales. I cannot accede to Mr. Beament's ingenious argument that the natural meaning of the terms
"manufacturers and producers " is by the context restricted to persons who manufacture or produce for sale to persons who ordinarily purchase for re-sale, such as wholesalers, jobbers or retailers. The Act explicitly covers the case of the manufacturer or producer whose business in whole or in part is to sell directly to consumers, and I find nothing to justify excluding from its application a case so specifically dealt with.
The fact that the concluding clause of the proviso to the section, as re-enacted in 1922, appears to have been designed to fit precisely such a case as that of the appellant does not warrant taking out of the operation of section
(1), as re-enacted in 1921, a case which it appears plainly to include.
I am also unable to assent to the contention that no tax is specified in section (1), as re-enacted in 1922, as applicable to the merchant who sells exclusively to consumers but manufactures goods for stock which he thus disposes of. His sales are in the language of that section sales by a manufacturer or producer to consumers " and
Statutes and regulations cited
-
Unresolved citations
- s. 19
- s. 18
- section (1) of the Special War Revenue Act (1)
- section 1
- section (1)
- section 13