Nova Scotia (Minister of Finance) v. McCurdy, (2001) 192 N.S.R.(2d) 225 (CA)

• Judge: Glube, C.J.N.S., Freeman and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 27, 2000
• Jurisdiction: Nova Scotia
• Citations: (2001), 192 N.S.R.(2d) 225 (CA);2001 NSCA 46

N.S. v. McCurdy (2001), 192 N.S.R.(2d) 225 (CA);

 599 A.P.R. 225

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. MR.017

The Minister of Finance (appellant) v. Christopher D. McCurdy (respondent)

(CA 163866; 2001 NSCA 46)

Indexed As: Nova Scotia (Minister of Finance) v. McCurdy

Nova Scotia Court of Appeal

Glube, C.J.N.S., Freeman and Oland, JJ.A.

March 2, 2001.

Summary:

McCurdy decided to sell his sailboat and buy a smaller one. He hired a yacht broker which located a suitable replacement for him and arranged the necessary transactions. Throughout the process, McCurdy intended to take advantage of the trade-in provisions of the Revenue Act, which would eliminate the tax payable on his purchase of the smaller boat. After the purchase, McCurdy was assessed as owing $12,000 in taxes. He filed a notice of objection. The Provincial Tax Commissioner upheld the assessment. McCurdy further appealed to the Nova Scotia Utility and Review Board.

The Board allowed the appeal, finding that no tax was payable on the purchase. The Minister of Finance appealed.

The Nova Scotia Court of Appeal dis­missed the appeal.

Sales and Service Taxes - Topic 986

Sales tax - Credits - Trade-in on account of purchase price - McCurdy decided to sell his sailboat and buy a smaller one - He hired a yacht broker which arranged the necessary transactions - Throughout the process, McCurdy intended to take advan­tage of the trade-in provisions of the Reve­nue Act, which would eliminate the tax payable on his purchase of the smaller boat - After the purchase, McCurdy was assessed as owing $12,000 in taxes - He filed a notice of objection - The Nova Scotia Utility and Review Board found that no tax was payable on the purchase - The Minister of Finance appealed, arguing that the Board erred in law in its interpretation of s. 21 of the Act and in considering the past practice of its auditors as binding - The Nova Scotia Court of Appeal dis­missed the appeal - Section 21 was capable of the broad interpretation given to it by the Board, and the auditors' past practices were not a deciding factor in the Board's decision.

Cases Noticed:

Sutherland v. Director of Victims' Services Ltd. (N.S.) (1998), 170 N.S.R.(2d) 73; 515 A.P.R. 73 (C.A.), refd to. [para. 11].

Halifax Employees Association v. Nova Scotia (Workers' Compensation Appeals Tribunal) et al., 2000 NSCA 86, refd to. [para. 11].

Robinson Plymouth Chrysler Ltd. v. Nova Scotia (Minister of Finance) (1998), 173 N.S.R.(2d) 261; 527 A.P.R. 261 (C.A.), refd to. [para. 20].

Nova Scotia (Attorney General) v. Oxner (1993), 121 N.S.R.(2d) 237; 335 A.P.R. 237 (C.A.), refd to. [para. 21].

Friedberg v. Minister of National Revenue (1992), 135 N.R. 61; 92 D.T.C. 6031 (F.C.A.), refd to. [para. 30].

Friedberg v. Minister of National Revenue (1993), 160 N.R. 312 (S.C.C.), refd to. [para. 32].

Molinaro v. Minister of National Revenue (2000), 252 N.R. 178 (F.C.A.), refd to. [para. 32].

Davis (E.M.) v. Canada, [1995] 1 C.T.C. 2256 (Tax C.C.), refd to. [para. 32].

Quebec (Communauté urbaine) v. Cor­poration Notre-Dame de Bon Secours, [1994] 3 S.C.R. 3; 171 N.R. 161; 63 Q.A.C. 161, refd to. [para. 34].

Stecko v. Minister of National Revenue (1995), 92 F.T.R. 1; 95 D.T.C. 5215 (T.D.), refd to. [para. 36].

Statutes Noticed:

Revenue Act, S.N.S. 1995-96, c. 17, sect. 13(n), sect. 13(q), sect. 13(aa) [para. 14]; sect. 21 [para. 13].

Counsel:

Alexander Ikejiani, for the appellant;

Maurice P. Chiasson, for the respondent.

This appeal was heard on November 27, 2000, by Glube, C.J.N.S., Freeman and Oland, JJ.A., of the Nova Scotia Court of Appeal. Oland, J.A., delivered the following decision for the court on March 2, 2001.