October 07, 2011

Canman Industries Limited (Appellant) v. Minister of National Revenue (Respondent)

70 DTC 1069
Tax Appeal Board
November 28, 1969

Capital cost allowance — Amount claimed already allowed in earlier year — Onus of proof — Income Tax Act, R.S.C. 1952, s. 11(1)(a) — Income Tax Regulations, s. 1100(2).

In 1953 the appellant filed a tax return which included a statement of capital cost allowance and remaining undepreciated capital cost. From 1954 to 1963 the appellant, through the use of losses carried forward and backward, paid no taxes. For its 1964 and 1965 taxation years the appellant filed returns claiming terminal losses on the basis that its undepreciated capital cost in 1953 was larger than shown in the 1953 return. Apparently, the appellant company submitted that, having been assessed nil taxable income since 1953, it had never been “allowed” the capital cost allowance claimed in 1953; that it had not been necessary in 1953 (and until 1964) for the company to take a definite position in respect of capital cost allowance. In his assessments for 1964 and 1965, the Minister reduced the claims for terminal losses.

Held: The appeal was dismissed. The appellant failed to meet the burden of proving the Minister’s assessments to have been incorrect. A taxpayer cannot, after eleven years, ask the Minister to accept a change of the figures he originally gave the Minister. Nor can he deduct the same amount twice. In the present case, the appellant had already enjoyed a reduced payment of tax, and could not be given a tax advantage already claimed in an earlier year.