Post by Sapphire Capital on Oct 24, 2008 20:49:49 GMT 4
Taxing Charities/Imposer Les Organismes De
Bienfaisance: Harmonization and Dissonance in Canadian Charity Law
Kathryn Chan
Benefic Law Corporation
Canadian Tax Journal / Revue Fiscale Canadienne, Vol. 55, No. 3, 2007
Abstract:
For many years, the determination of which organizations should qualify for the significant tax benefits accorded to registered charities (organismes de bienfaisance enregistres) under the Canadian Income Tax Act (ITA) has been based, in all provinces, on the concept of charity developed by the English common law of charitable trusts. However, there are other sources of meaning for the concept of charity (bienfaisance) in Canada, including ancient civil-law sources that continue to form part of the basic law of Quebec. These diverse "charity-law" sources present a challenge for the registered charity scheme, and for the ongoing project of ensuring that federal laws are accessible to each of Canada's multiple legal and linguistic audiences.
This article challenges the prevailing view that there is only one source of meaning for the registered charity provisions. The author makes a number of assertions that contradict the longstanding unijural approach. First, the current interpretive approach to the registered charity provisions, and particularly the position that the ITA concept of charity is "uniform federal law," is at odds with statutory and constitutional principles, as well as Canada's policies on legislative bilingualism and bijuralism, and the explicit terms of sections 8.1 and 8.2 of the Interpretation Act. Second, there are at least four legal sources of meaning for the terms "charity" and "bienfaisance" in Canada: the common law of charitable trusts, the civil-law rules regarding legs pieux, the Roman laws on foundations and gifts, and the various provincial statutes governing the administration of charities. Third, although the ITA term "charitable" ("de bienfaisance") should likely continue to be given a common-law meaning in the common-law provinces, "de bienfaisance" is a problematic translation of the common-law term "charitable" because it is more consistent with another English term, "benevolent," which has consistently been held to fall outside the legal concept of charity. Fourth, where valid provincial legislation establishes a meaning for the term "charitable" or "de bienfaisance," that statutory meaning should generally be referred to in applying the ITA within that province.
Finally, the author asserts that in Quebec, there is no basis for interpreting the term "charitable" ("de bienfaisance") in accordance with the common law of charitable trusts, a body of private law (though admittedly one with public aspects) that has no application in that province. While Quebec's civil-law tradition has never developed a stringent or detailed conception of charity, the reception of the ancien droit from France did ensure that a wide variety of customary law sources on transfers for charitable purposes came to form part of Quebec law. Although these sources will require further study, they form part of the law of property and civil rights in Quebec, and therefore part of the default legislative dictionary applicable to federal legislation such as the ITA. The article concludes with some thoughts on various options for reform of the registered charity scheme.
papers.ssrn.com/sol3/papers.cfm?abstract_id=1273138
Bienfaisance: Harmonization and Dissonance in Canadian Charity Law
Kathryn Chan
Benefic Law Corporation
Canadian Tax Journal / Revue Fiscale Canadienne, Vol. 55, No. 3, 2007
Abstract:
For many years, the determination of which organizations should qualify for the significant tax benefits accorded to registered charities (organismes de bienfaisance enregistres) under the Canadian Income Tax Act (ITA) has been based, in all provinces, on the concept of charity developed by the English common law of charitable trusts. However, there are other sources of meaning for the concept of charity (bienfaisance) in Canada, including ancient civil-law sources that continue to form part of the basic law of Quebec. These diverse "charity-law" sources present a challenge for the registered charity scheme, and for the ongoing project of ensuring that federal laws are accessible to each of Canada's multiple legal and linguistic audiences.
This article challenges the prevailing view that there is only one source of meaning for the registered charity provisions. The author makes a number of assertions that contradict the longstanding unijural approach. First, the current interpretive approach to the registered charity provisions, and particularly the position that the ITA concept of charity is "uniform federal law," is at odds with statutory and constitutional principles, as well as Canada's policies on legislative bilingualism and bijuralism, and the explicit terms of sections 8.1 and 8.2 of the Interpretation Act. Second, there are at least four legal sources of meaning for the terms "charity" and "bienfaisance" in Canada: the common law of charitable trusts, the civil-law rules regarding legs pieux, the Roman laws on foundations and gifts, and the various provincial statutes governing the administration of charities. Third, although the ITA term "charitable" ("de bienfaisance") should likely continue to be given a common-law meaning in the common-law provinces, "de bienfaisance" is a problematic translation of the common-law term "charitable" because it is more consistent with another English term, "benevolent," which has consistently been held to fall outside the legal concept of charity. Fourth, where valid provincial legislation establishes a meaning for the term "charitable" or "de bienfaisance," that statutory meaning should generally be referred to in applying the ITA within that province.
Finally, the author asserts that in Quebec, there is no basis for interpreting the term "charitable" ("de bienfaisance") in accordance with the common law of charitable trusts, a body of private law (though admittedly one with public aspects) that has no application in that province. While Quebec's civil-law tradition has never developed a stringent or detailed conception of charity, the reception of the ancien droit from France did ensure that a wide variety of customary law sources on transfers for charitable purposes came to form part of Quebec law. Although these sources will require further study, they form part of the law of property and civil rights in Quebec, and therefore part of the default legislative dictionary applicable to federal legislation such as the ITA. The article concludes with some thoughts on various options for reform of the registered charity scheme.
papers.ssrn.com/sol3/papers.cfm?abstract_id=1273138