Supreme Court of Canada
Farmers Mutual Petroleums Limited v. Minister of
National Revenue, [1968] S.C.R. 59
Date: 1967-10-03
Farmers Mutual
Petroleums Limited Appellant;
and
The Minister of
National Revenue Respondent.
1967: May 19, 23; October 3.
Present: Cartwright, Martland, Ritchie, Hall
and Spence JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Taxation—Income tax—Deductions—Legal
expenses incurred in defending title to mineral rights—Drilling and exploration
expenses paid under agreement—Whether deductible—Income Tax Act, R.S.C. 1952,
c. 148, ss. 12(1)(a), (b), 83A(3).
Following its incorporation in 1949, the
appellant company acquired mineral rights from land owners who had previously
granted leases of their petroleum and natural gas rights to oil companies. The
land owner transferred to the appellant his interest in the mineral rights,
including the benefits from his lease, in return for one share of the
appellant’s capital stock for each acre transferred and also a trust
certificate as evidence that the appellant thereafter held in trust for the
land owner one fifth of the mines and minerals and the benefits therefrom. When
oil was discovered in 1955, many of the land owners instituted actions in the
Courts for declarations that the agreements had been induced by fraudulent
misrepresentations and were therefore void. About 250 such actions were begun.
The appellant successfully defended these actions. A royal commission
recommended that a Board be constituted for the purpose of achieving the
renegotiation of the contracts, if possible. The appellant sought to deduct
from its income for the years 1959 and 1960 the legal expenses it incurred in
defence of its title to the minerals, as well as those involved in opposing
legislation proposed by the royal commission and in making representations to
the Board. The appellant argued that these legal expenses were deductible as
having been incurred to protect a right to income. The trial judge confirmed
the Minister’s position that they were not deductible and held that they were a
payment on account of capital.
A second issue in this appeal involved an
arrangement between the appellant and Scurry-Rainbow Oil Ltd., a major
shareholder in the appellant company, which had acquired a beneficial interest
in certain Crown petroleum and natural gas permits held jointly by other
companies. The owners of these permits had covenanted that all drilling and
exploration costs would be shared by them in proportion to their respective
interests. By its agreement with Scurry-Rainbow Oil Co., the appellant agreed
to pay all such costs incurred by the former company in return for a percentage
of the joint permits. The question in issue was as to whether the moneys so
paid by the appellant were deductible as being “drilling and exploration
expenses” incurred within the meaning of s. 83A(3) of the Act. The trial
judge held that they were not deductible. The company appealed to this Court.
[Page 60]
Held: The
appeal should be dismissed.
As to the Legal Expenses.
The object and purpose of the lawsuits was to
compel the restoration to the land owners of the mineral rights purchased by
the appellant. Those rights were items of fixed capital and were so regarded by
the appellant. The legal costs of the litigation were incurred to preserve capital
assets and therefore s. 12(1) (b) of the Act prevented their
deduction. This case could not be distinguished from the case of M.N.R. v.
Dominion Natural Gas Co. Ltd., [1941] S.C.R. 19. The same consideration
applied in respect to the legal expenses involved in opposing the proposed
legislation and in appearing before the Board.
As to the Exploration Costs.
The payments made by the appellant were not
in respect of expenses which it had incurred in respect of exploration or
drilling. They were payments of expenses which had been incurred by another and
were made, not to meet a liability of the appellant for the cost of exploration
or drilling, but made for the acquisition of an interest in the lands. In these
circumstances, the payments could not be deducted under s. 83A(3) of the
Act.
Revenu—Impôt sur le
revenu—Déductions—Dépenses légales encourues pour défendre titre à des droits
minéraux—Paiements en vertu d’un contrat de dépenses de forage et
d’exploration—Sont-ils déductibles-Loi de l’impôt sur le revenu, S.R.C. 1952,
c. 148, arts. 12(1)(a), (b), 83A(3).
A la suite de son incorporation en 1949, la
compagnie appelante a acquis des droits miniers des propriétaires de terrains
qui avaient antérieurement loué à des compagnies d’huile les droits au pétrole
et au gaz naturel s’y trouvant. Ces propriétaires ont transféré à l’appelante
leurs intérêts dans les droits miniers, ainsi que les bénéfices relevant de
leurs baux, moyennant une action du capital de l’appelante pour chaque acre
cédé et aussi un certificat de fiducie comme preuve que l’appelante détenait
dorénavant en fiducie pour le propriétaire du terrain un cinquième des mines et
des minéraux ainsi que les bénéfices en découlant. Lorsque l’on fit la
découverte d’huile en 1955, plusieurs des propriétaires des terrains ont
institué des actions devant les Cours pour faire déclarer que les contrats
passés avec l’appelante avaient été obtenus par des représentations
frauduleuses et étaient en conséquence nuls. 250 de ces actions furent
instituées, et la compagnie appelante s’est défendue avec succès. Une
Commission royale a recommandé la constitution d’une Régie dans le but de
renégocier les contrats, si possible. La compagnie appelante a tenté de déduire
de son revenu pour les années 1959 et 1960 les dépenses légales encourues pour
défendre son titre aux minéraux ainsi que celles encourues pour combattre la
législation proposée par la commission royale et pour faire des représentations
devant la Régie. L’appelante a soutenu que ces dépenses légales étaient déductibles
comme ayant été encourues pour protéger un droit à un revenu. Le juge au procès
a confirmé la position prise par le Ministre à l’effet qu’elles n’étaient pas
déductibles et a jugé qu’elles étaient un paiement à compte de capital.
Une deuxième question dans cet appel se
rapportait à une entente entre l’appelante et Scurry-Rainbow Oil Ltd., un
actionnaire principal de la
[page 61]
compagnie appelante, qui avait acquis un
intérêt dans certaines licences de pétrole et de gaz naturel détenues en commun
par d’autres compagnies. Les propriétaires, de ces licences avaient convenu que
tous les frais de forage et d’exploration seraient partagés par eux en
proportion de leurs intérêts respectifs. En vertu de son entente avec
Scurry-Rainbow Oil Co., la compagnie appelante a. convenu de payer tous les
frais encourus par la première compagnie moyennant un pourcentage dans les
licences communes. La question à débattre était de savoir si les sommes payées
par l’appelante étaient déductibles comme étant des «dépenses de forage et
d’exploration» déboursées dans le sens de l’art. 83A(3) de la Loi. Le juge au
procès a jugé qu’elles n’étaient pas déductibles. La compagnie en appela devant
cette Cour.
Arrêt: L’appel
doit être rejeté. Quant aux dépenses légales.
L’objet et le but des poursuites judiciaires
étaient de forcer la restitution, en faveur des propriétaires des terrains, des
droits minéraux que l’appelante avait obtenus. Ces droits étaient un item de
capital fixe et étaient considérés ainsi par l’appelante. Les frais légaux des
procès ont été encourus pour protéger des biens en capital et, en conséquence,
l’art. 12(1) (b) de la Loi en empêchait la déduction. On ne peut
pas distinguer cette cause de celle de M.N.R. v. Dominion Natural Gas
Co. Ltd., [1941] R.C.S. 19. La même règle devait s’appliquer aux dépenses
légales encourues pour combattre la législation proposée et pour comparaître
devant la Régie.
Quant aux frais d’exploration.
Les paiements faits par l’appelante n’étaient
pas des dépenses qu’elle avait encourues relativement à l’exploration ou le
forage. Il s’agissait de paiements de dépenses qui avaient été encourues par
une autre compagnie et qui avaient été faits, non pas pour rencontrer une
obligation de l’appelante de payer les frais de l’exploration ou du forage,
mais plutôt pour acquérir un intérêt dans un terrain. Dans ces circonstances,
les paiements ne pouvaient pas être déduits sous l’art. 83A(3) de la Loi.
APPELS de deux jugements du Juge Cattanach de
la Cour de l’Échiquier du Canada, en matière d’impôt sur le revenu. Appels
rejetés.
APPEALS from two judgments of Cattanach J. of
the Exchequer Court of Canada1, in an income tax matter. Appeals
dismissed.
J.H. Laycraft, Q.C., and Sheldon Chumir,
for the appellant,
D.G.H. Bowman and J. London, for the respondent.
[Page 62]
The judgment of the Court was delivered by
MARTLAND J.:—These are appeals from judgments of
the Exchequer Court which
refused to permit the appellant, in computing its income, in the years 1959 and
1960, to deduct, in respect of legal expenses, the respective amounts of $80.10
and $10,623.43, and in respect of expenses claimed by the appellant as
exploration and drilling expenses, the respective amounts of $53,273.38 and
$143,-581.10.
The facts involved in respect of these two
matters are distinct from each other, so I will deal with each of the items
separately.
Legal Expenses:‘
The appellant was incorporated under the laws of
the Province of Saskatchewan on
December 1, 1949, for the
object, inter alia, of acquiring mineral rights and exploring for petroleum and
natural gas.
Following its incorporation the appellant began
a vigorous and successful campaign to acquire mineral rights from land owners.
The system followed by the appellant was to acquire the fee simple title to
minerals from land owners who had previously granted leases of their petroleum
and natural gas rights to major oil producing companies. Those leases were
uniform and standard. They were for a period of ten years providing to the land
owner an annual rent of ten cents per acre and reserving a royalty of 12½
percent to the land owner in the event of a producing well or wells being
brought into existence.
The land owner transferred to the appellant his
entire estate and interest in the mineral rights, including all benefits from
the existing lease. In return, he received one share of the capital stock of
the appellant for each acre transferred and a trust certificate as evidence
that the appellant thereafter held in trust for him one-fifth of the mines and
minerals and the benefits therefrom.
In this manner the appellant acquired the
mineral rights in approximately 750,000 acres in Saskatchewan and issued
[Page 63]
approximately 2,500 trust certificates. The
appellant received as income four-fifths of the rentals payable thereon and
four-fifths of any royalties from producing lands.
In 1955 when oil was discovered in south eastern
Saskatchewan many of the land owners instituted actions in the Court of Queen’s
Bench of Saskatchewan for declarations that the agreements between them and the
appellant were induced by fraudulent misrepresentation and were accordingly
void, and for orders revesting in the land owners the mineral rights and the
interest in the leases which had been transferred and assigned to the
appellant. In all about 250 such actions were begun, the pleadings being
virtually identical in all cases.
The appellant successfully defended such of
those actions as came to trial so that it remained possessed of the mineral
rights and benefits under the contracts above described. None of the lands
involved nor any of the actions commenced were lost by the appellant nor did
the appellant lose any of the income which it was receiving from the lands. The
legal expenses so incurred by the appellant constitute part of the amounts that
were claimed by it as a deduction from income and that were disallowed by the
Minister.
After the appellant had succeeded in some cases
in the courts, many of the land owners formed a mineral owners’ protective
association to advocate and obtain legislative relief. A “Royal Commission on
Certain Mineral Transactions” was appointed by the Saskatchewan Government to
inquire into allegations that many owners of freehold mineral rights in Saskatchewan had been deprived of such
rights by means of fraud or misrepresentation. This Commission recommended that
a Board be constituted for the purpose of achieving, if possible, the voluntary
re-negotiation of contracts whereby the owners were deprived of their freehold
mineral rights through misrepresentation, whether innocent or fraudulent.
The Mineral Contracts Re-negotiation Act,
1959, was enacted to implement the recommendations
of the Commission. Further legislation of a similar tenor was proposed in 1960.
The appellant employed counsel to make
representations on its behalf opposing the proposed legislation, suggesting
[Page 64]
variations in the terms thereof and making
representations to the Board later established pursuant to legislation enacted
with respect to contracts entered into by it which were sought to be
re-negotiated.
The learned trial judge confirmed the Minister’s
position and held that the legal expenses incurred were a “payment on account
of capital” made “with a view of preserving an asset or advantage for the
enduring benefit of a trade”.
The decision of the learned trial judge was
based upon the judgment of this Court in Minister of National Revevenue v.
Dominion Natural Gas Company Limited.
Counsel for the appellant sought to distinguish the Dominion case and also
contended, in the alternative, that that case would have been decided
differently today on the same facts in view of changes which have since
occurred in the relevant provisions of the Income Tax Act.
The relevant provisions of the Income Tax
Act, R.S.C. 1952, c. 148, are as follows:
12. (1) In computing income, no deduction
shall be made in respect of
(a) an outlay or expense except to
the extent that it was made or incurred by the taxpayer for the purpose of
gaming or producing income from property or a business of the taxpayer,
(b) an outlay, loss or replacement
of capital, a payment on account of capital or an allowance in respect of
depreciation, obsolescence or depletion except as expressly permitted by this
Part,
…
Section 12(1) (a) and (b) were
derived from s. 6(1) (a) and (b) of the Income War Tax
Act, R.S.C. 1927, c. 97, which provided as follows:
6. (1) In computing the amount of the
profits or gains to be assessed, a deduction shall not be allowed in respect of
(a) disbursements or expenses
not wholly, exclusively and necessarily laid out or expended for the purpose of
earning the income;
(b) any outlay, loss or replacement
of capital or any payment on account of capital or any depreciation, depletion
or obsolescence, except as otherwise provided in this Act.
Counsel for the appellant advanced the
proposition that legal expenses incurred to protect a right to income are
deductible regardless of whether the protection of that right also involves
preserving a capital asset. The appellant, he said, immediately upon its acquisition
of title to the
[Page 65]
mineral rights from a land owner had the right
to receive and retain as its income four-fifths of the acreage rental payable
by the lessee of the mineral rights. The legal expenses incurred were to
protect that income. In the Dominion case, that which was protected was
a franchise which, in itself, did not produce income.
In my opinion, this proposition is not valid,
because it is directly contrary to the intent of paras. (a) and (b)
of s. 12 when read together. To be deductible for tax purposes an
outlay must satisfy at least two basic tests:
(1) It must be made for the purpose of gaining
or producing income (s. 12(1)(a)).
(2) It must not be a payment on account of
capital (S.12(1)(b)).
Both of these tests must be satisfied concurrently
to justify deductibility. In British Columbia Electric Railway Company v.
Minister of National Revenue, Abbott
J. said at p. 137:
Since the main purpose of every business
undertaking is presumably to make a profit, any expenditure made “for the
purpose of gaining or producing income” comes within the terms of s. 12(1)
(a) whether it be classified as an income expense or a capital outlay.
Once it is determined that a particular
expenditure is one made for the purpose of gaining or producing income, in
order to compute income tax liability it must next be determined whether such
disbursement is an income expense or a capital outlay.
It can certainly be said that the appellant, in
resisting the lawsuits launched against it, was seeking to protect its income,
because it was seeking to protect the assets from which its income was derived.
It can, therefore, be argued that the expenses were properly deductible under
s. 12(1)(a). This is not contested by the respondent. The object
and purpose of the lawsuits, however, was to compel the restoration to the land
owners of the mineral rights which the appellant had purchased. The learned
trial judge has found, and the evidence establishes, that those rights were
items of fixed capital, and were so regarded by the appellant. At the time the
litigation occurred, the sum total of the mineral rights acquired by the
appellant, all of which were of the kind involved in the litigation,
[Page 66]
represented all of the appellant’s capital
assets. The appellant did not trade in them, but intended to retain them
perpetually.
It was to protect those capital assets from
attack that the legal costs of the litigation were incurred, and, to quote the
words of Dixon J. (later Chief Justice) in Hallstroms Pty. Ltd. v. Federal Commissioner
of Taxation, referring
to the costs of defending title to land:
Next to the outlay of purchase money and
conveyancing expense in acquiring the title to land, it would be hard to find a
form of expenditure in relation to property more characteristically of a
capital nature.
The fact that the leases acquired by the
appellant, along with the mineral rights, were more immediately connected with
the production of income than was the franchise involved in the Dominion case
does not affect the matter in principle. It is relevant in relation to the
application of s. 12(1) (a), but in relation to s. 12(1) (b)
we must ask the question, was this outlay for the purpose of preserving a
capital asset? In my opinion it clearly was and, if that is so, s. 12(1) (b)
prevents its deduction.
With respect to the second submission respecting
the Dominion case, while s. 12(1) (a) of the present Act is
less restrictive than was s. 6(1) (a) of the Income War Tax Act,
s. 12(1) (b) of the Income Tax Act is essentially the same as
was s. 6(1) (b) of the Income War Tax Act. In my opinion,
for the reasons which I gave in the recent case of British Columbia Power
Corporation Limited v. Minister of National Revenue, the Dominion case has
established the proposition that legal expense incurred with a view of
preserving an asset of advantage for the enduring benefit of the trade is a
capital expenditure and is not deductible.
I agree with the learned trial judge that the
legal expenses involved in opposing the proposed legislation and in appearing
before the Board created by such legislation are subject to the same
considerations. They are not different in kind from the costs of the litigation
in the courts.
[Page 67]
Exploration and Drilling Expense
Scurry-Rainbow Oil Limited, hereinafter referred
to as “Scurry”, became a major shareholder in the appellant. Scurry was the
successor in title to Canadian Pipe Line Producers Ltd. in respect of an
agreement, dated May 19, 1954, to which the latter company was a party along
with Canada Southern Petroleum Ltd., West Canadian Petroleum Ltd., Trans Empire
Oils Ltd. and British Empire Oil Co. Ltd. Under the terms of that agreement the
entire legal and beneficial interest in certain Crown petroleum and natural gas
permits covering approximately 1,500,000 acres in British
Columbia would be held jointly by the parties. The
beneficial interest acquired by Scurry was 22 percent of the reservations
covered by the agreement.
Canada Southern Petroleum Ltd. had been named as
manager-operator under the terms of the agreement, but it was succeeded by
Phillips Petroleum Corporation, hereinafter referred to as “Phillips”. Under
the agreement the parties agreed to conduct a seismic program, and, contingent
upon its results, to drill a well for the joint account and at the joint
expense of the parties in proportion to their interests. The manager-operator
was given sole and exclusive management and control of the exploration,
drilling and production operations on the land.
The parties had the right to receive progress
information and to inspect and examine the books and records of the
manager-operator. There was also provision for meetings and consultation and
for surrender, sale or assignment of all or part of a party’s interest in the
lands.
Paragraph 11 of the agreement governed the
matter of costs and expenses:
11. COSTS AND EXPENSES
The parties hereto mutually covenant and
agree with one another that all exploration costs, drilling costs, completion
costs, abandonment costs, production costs, and all other costs and expenses of
every nature and kind chargeable to the joint account hereunder incurred in
respect to any and all operations carried on hereunder in respect to any of the
lands described in the Permits set out in Schedule “A” shall be borne and paid
by the parties hereto in proportion to their respective interest in the lands
and Permits upon which such exploration, drilling or producing operations are
carried on, as such interests appear in Schedule “B” hereof. Subject to the
further provisions of this Agreement, Manager-Operator shall initially advance
and pay all costs and expenses incurred in connection with the said lands and
shall charge the Joint-Operators with their proportionate share thereof upon
the cost and expense basis provided for in
[Page 68]
the attached Accounting Procedure.
Joint-Operators agree that they will promptly reimburse the Manager-Operator
for Joint-Operators’ proportionate share of all such costs and expenses within
the time limited by the said Accounting Procedure.
On January 2, 1959, Scurry and the appellant entered into an agreement, which, after
certain preliminary recitals referring to the agreement of May 19, 1954, read
as follows:
AND WHEREAS the parties hereto desire to
enter into this Agreement whereby Farmers Mutual shall have the right to
acquire certain interests in the said lands subject to the terms and conditions
as hereinafter provided.
NOW THEREFORE THIS AGREEMENT WITNESSETH
that Farmers Mutual hereby agreed to pay all costs which may be incurred by
Scurry-Rainbow in the performance of its obligations with respect to the
seismic program referred to herein. Scurry-Rainbow agrees that upon the
completion of the said seismic program on the said lands and the payment by
Farmers Mutual of all costs which would have been incurred by Scurry‑Rainbow
on this seismic program, Farmers Mutual shall have earned an undivided Three
(3%) Percent interest in the said lands and the interests owned by
Scurry-Rainbow and Farmers Mutual shall thereafter be:
|
SCURRY-RAINBOW
OIL LIMITED
|
9% interest
|
|
FARMERS MUTUAL
PETROLEUMS LTD
|
3% interest
|
Scurry-Rainbow agrees to execute any and
all further documents required in order to vest the interest aforesaid in
Farmers Mutual in the event that the seismic program herein is completed. After
Farmers Mutual shall have earned the Three (3%) Percent interest referred to
herein, Scurry-Rainbow agrees to grant and hereby grants to Farmers Mutual the
option to earn an additional Eight (8%) Percent interest in the said lands on
the condition that Farmers Mutual agrees to pay and pays Scurry-Rainbow’s
entire cost of drilling the well referred to herein. After the said well shall
have been drilled and Scurry-Rainbow’s share of the costs paid by Farmers
Mutual, Scurry-Rainbow agrees to execute any and all further documents required
in order to vest the Eight (8%) Percent interest in Farmers Mutual.
Under the terms of the 1954 agreement, Phillips,
as manager-operator, conducted a seismic program and carried on a drilling
program. Phillips invoiced Scurry for its proportionate share of these
expenses. On receipt of an invoice, Scurry would usually send an invoice to the
appellant for the amount Scurry was required to pay to Phillips, and Scurry
would pay Phillips. On two occasions Scurry sent the Phillips’ invoice to the
appellant, which paid Phillips directly.
On October 5, 1959, the appellant elected to
exercise its option, under its agreement with Scurry, to earn the additional 8
per cent interest in the lands by paying Scurry’s entire cost of drilling the
Well.
[Page 69]
Section 83A(3) of the Income Tax Act, at
the relevant times, provided as follows:
83A. (3) A corporation whose principal
business is
(a) production, refining or
marketing of petroleum, petroleum products or natural gas, or exploring or drilling
for petroleum or natural gas, or
(b) mining or exploring for
minerals, may deduct, in computing its income under this Part for a taxation
year, the lesser of
(c) the aggregate of such of
(i) the drilling and exploration expenses,
including all general geological and geophysical expenses, incurred by it on or
in respect of exploring or drilling for petroleum or natural gas in Canada, and
(ii) the prospecting, exploration and
development expenses incurred by it in searching for minerals in Canada, as were
incurred after the calendar year 1952 and before the end of the taxation year,
to the extent that they were not deductible in computing income for a previous
taxation year, or
(d) of that aggregate, an
amount equal to its income for the taxation year
(i) if no deduction were allowed under
paragraph (b) of subsection (1) of section 11, and
(ii) if no deduction were allowed under
this section, minus the deductions allowed for the year by
subsections (1), (2) and (8a) of this section and by section 28.
The question in issue is as to whether the
moneys paid by the appellant pursuant to its agreement with Scurry were
deductible in computing the appellant’s income tax, as being “drilling and
exploration expenses… incurred by-it on or in respect of exploring or drilling
for petroleum or natural gas in Canada”. The learned trial judge held that they
were not deductible by the appellant. His reasons for so holding are summarized
in his judgment as follows:
The submission on behalf of the appellant,
as I understand it, is that by the agreement between Scurry and the appellant
dated January 2, 1959 the appellant reimbursed Scurry for its outlay for
exploration and drilling expenses. Since an expense cannot be incurred by a
party who is truly reimbursed, therefore it cannot be said that the expenses
were incurred by Scurry but rather they must have been incurred by the
appellant which was out of pocket in the precise amount of the expenses and
that Scurry was merely the conduit between the appellant and the manager-operator.
In my opinion the agreement between Scurry
and the appellant is not susceptible of such interpretation. The substance of
that transaction, as I see it, was that the appellant purchased an interest in
lands from Scurry and that the price to be paid therefor was determined and
measured by the cost of the exploration and drilling expenses incurred by
Scurry. It was a condition precedent to any payment to Scurry by the appellant
that Scurry should have incurred exploration and drilling expenses and I can
[Page 70]
entertain no doubt that the money paid by
the appellant to Scurry was in consideration for a transfer of an interest in
land from Scurry to the appellant although that consideration was measured by
the yardstick of the costs incurred by Scurry. What Scurry received was
payment for an asset sold by it to the appellant and accordingly Scurry was not
reimbursed for the exploration expenses incurred by it. Conversely what the
appellant paid for and received was the transfer of an interest in lands and
therefore did not pay for exploration and drilling expenses.
I am in agreement with these conclusions.
Exploration and drilling expenses were incurred in respect of the work carried
on by Phillips as manager-operator under the 1954 agreement. This work was done
by Phillips on behalf of all the parties to that agreement as well as on behalf
of itself, and a portion of the expense was incurred by Phillips, as agent for
Scurry.
The 1954 agreement contained provision for an
assignment of interest by the parties to it, but there was no assignment of
interest effected by Scurry in favour of the appellant. The appellant did not
acquire any contractual rights under that agreement, and Phillips had no right
to require the appellant to assume any obligation to pay any part of the
exploration and drilling expenses which, as manager-operator, Phillips had
incurred.
The 1959 agreement between Scurry and the
appellant, after referring to the 1954 agreement, recites that the parties
“desire to enter this agreement whereby Farmers Mutual shall have the right to
acquire certain interests in the said lands”. The obligation of the appellant
was to pay “all costs which may be incurred by Scurry in the performance of its
obligations with respect to the seismic program referred to herein”. The
appellant was thereby to acquire a 3 percent interest in the lands. It also
obtained an option to earn an additional 8 percent interest by paying Scurry’s
entire cost of drilling the well.
The position is, therefore, that the appellant
did not itself incur exploration or drilling costs in respect of land in which
it had an interest. What it did do was to pay for a contractual right to
acquire an interest in lands on which exploration and drilling had taken place
by paying expenses already incurred by Scurry in connection therewith. The
payments made by the appellant were not in respect of expenses which it had
incurred in respect of exploration or drilling. They were payments of expenses
which had been
[Page 71]
incurred by another and were made, not to meet a
liability of the appellant for the cost of exploration or drilling, but made
for the acquisition of an interest in the lands.
In these circumstances, in my opinion, the
payments made by the appellant cannot be deducted, under s. 83A(3), in
computing its income for tax purposes.
In my opinion, both appeals should be dismissed
with costs.
Appeals dismissed with costs.
Solicitors for the appellant: Chambers,
Saucier, Jones, Peacock, Black, Gain & Stratton, Calgary.
Solicitor for the respondent: D.S.
Maxwell, Ottawa.
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