The Tax Treatment of Non-Renewable Resource Exploration Expenditures in Canada: A Historical Review and a Way Forward

Tedds, Lindsay M. (2017): The Tax Treatment of Non-Renewable Resource Exploration Expenditures in Canada: A Historical Review and a Way Forward. Published in: Income Tax at 100 Years: Essays and Reflections on the Income War Tax Ac (September 2018): 19:1-19:19.

Abstract

The Canadian Income Tax Act recognizes three main types of expenses incurred in Canada by firms principally engaged in mineral, metal, petroleum, and natural gas. These are Canadian Exploration Expenses (CEEs), Canadian Development Expenses (CDEs), and Canadian Oil and Gas Property Expenses (COPGE). The Income Tax Act permits these expenses to be deductible from income for tax purposes to varying degrees of generosity. CEEs are 100% deductible from income while CDEs and CPOGEs are generally deductible at a declining balance rate of 30% or 10% per year respectively.,

Canada’s new federal government has proposed to change the deductibility of CEEs, a change that potentially has wide-reaching implications for Canada’s energy and resources sector. In particular, the government has committed to phasing out subsidies for the fossil fuel industry, the first step of which is to only allow the use of the CEE deduction for unsuccessful exploration. The Liberal proposal raises important considerations about the tax treatment of exploration expenses. First, what is the background of and justification for the current tax treatment of these expenses? Second, in what way could the CEE expense be considered a subsidy? Third, what are some of the real implications of the proposal?

To analyze this issue, I first lay out the history regarding the tax deductibility of resource expenses in Canada, detailing how the existing tax treatment can be considered preferential. The preferential tax treatment for exploration and development expenses then laid the ground work for the flow-through share regime, which flows the deduction through to investor’s in exchange for equity investment. The second section details the history of the flow-through share regime, showing how the FTS regime is not only based on a tax preference but also is itself preferential tax treatment. The third section lays out the justifications for the tax preferences for both exploration and development expenses and the FTS regime. The paper then addresses the evidence for the justifications for the preferential tax treatments. Finally, the paper considers the outstanding questions from the Liberal proposal as well as the implications the proposal has. Poignantly, the proposal as it stands will lead to the demise of the FTS regime and the implications of this will need to be addressed by the government if it proceeds with its proposal. The paper ends with some concluding remarks.

• Item Type: MPRA Paper
• Language: English
• Keywords: Canadian Exploration Expenses, Canadian Development Expenses, Flow-through shares, tax deductibility, non-renewable resources expenses
• Subjects: H - Public Economics > H2 - Taxation, Subsidies, and Revenue > H23 - Externalities ; Redistributive Effects ; Environmental Taxes and Subsidies; H - Public Economics > H2 - Taxation, Subsidies, and Revenue > H24 - Personal Income and Other Nonbusiness Taxes and Subsidies; H - Public Economics > H2 - Taxation, Subsidies, and Revenue > H25 - Business Taxes and Subsidies; Q - Agricultural and Natural Resource Economics ; Environmental and Ecological Economics > Q3 - Nonrenewable Resources and Conservation > Q38 - Government Policy

References

IncomeTax Act, RSC 1985, c. 1 (5th Supp.), as amended .

Kenneth J. McKenzie and Jack M Mintz, "The Tricky Art of Measuring Fossil Fuel Subsidies: A Critique of Existing Studies" (2011) 4:14SPP Research Papers 1-26 (www.policyschool.ca/ wp-content/uploads/2016/03/mckenzie-mintz-fossiI-fuel.pdf).

Liberal Party of Canada, A New Plan for a Strong Middle Class (Ottawa: Liberal Party of Canad, a 2015), at 81 (www.liberal.ca/flies/2015/I0/New-plan-for-a-slrong-middle-class.pdf).

Edwin C. Harris, " Deduction of Business Expenses" (1995) 43:5 Canadian Tax Journal 1190-1215.

Income Tax War Act, SC 1917, c. 28, as amended through RSC 1927, c. 97.

Canada, Department of Finance, Flow-ThroughShares: An Evaluation Report (Ottawa: Department of Finance, October 1994), at 231-32 (http://publications.gc.ca/collections/collection_2016/ fin/F34-4-l 994-1-eng.pdf).

British Insulated and Helsby Cables, Limited v. Atherton , (1926] AC 205, at 213-14 (HL).

Siscoe Gold Mines Ltd. v. Minister of National Revenue (1945), 2 DTC 749 (Ex. Ct.).

Sunshine Exploration Ltd. et al. v. Dolly Varden Mines Ltd. (NPL), (1970] SCR 2.

NON-RENEWAB E RESOURCE EXPLORATION EXPENDITURES 19:17

Canada, House of Commons, Debates, March 2, 1943, at 840-65, 859, and 869. Canada, Department of Finance, "Archived- Backgrounder Canadian Exploration Expense Treatment of Environmental Studies and Community Consultations," March I, 2015 (www.fin.gc.ca/n I5/data/15-021_2-eng.asp).

KPMG, Guide to Oil and Gas Taxation in Canada (Toronto: KPMG, November 2016) (https:// assets.kpmg.corn/content/dam/kpmg/ca/pdf/2016/11/g uide-to-oil -gas-taxation-in-canadap.df).

Canada, Department of Finance, 1974 Budget, Budget Speech, November 18, 1974, at 15.

Prospectors & Developers Association of Canada, ''Flow-ThroughSharesand the Look-Back Rule," Communique, August 17, 2000 (www.nrcan.gc.ca/sites/www.nrcan.gc.cafi/les/mineralsmetals/ pdf/mms-smrn/busi-indu/met-qfi/hist-hist/pdf/flow-eng.pdf).

Canada, Department of Finance, 1996 Budget, Budget Plan, March 6, 1996 , at 167-68 .

Canada, House of Commons, Debates, March 2, 1943, at 859. Canada, House of Commons, Debates, June 26, 1944, at 4183.

Robin Boadway and Benjamin Dachis, Drilling Down on Royalties: How Canadian Provinces Can Improve Non-Renewable Resource Taxes, C.D. Howe Institute Commentary no. 435 (Toronto: C.D. Howe Institute, September 2015).

Canada, Report of the Technical Committee on Business Taxation (Ottawa: Department of Finance, April 1998), at 5.32.

Gordon J. Lenjoske, "A Canadian Tax Incentive for Equity Investments in Mining and Energy Companies" (I 998) 79 New Directions for Evaluation l 17-34, at 119.

KPMG, A Guide to Canadian Mining Taxation, 3d ed. (Toronto: KPMG, February 2016), at 3 (https://assets.kpmg.com/content/dam/kpmg/pdf/2016/04/KPMG-Mining-Taxation-Guide-2016 .pdf)

KPMG,A Guide to Oil and Gas Taxation in Canada (Toronto: KPMG, March 2015), at 6 (bttps://assets.kpmg.corn/content/dam/kpmg/pdf/2015/03A/ -Guide-to -Oil- and-Gas-Taxation-in-Canada-web.pdf).

Glenn P. Jenkins, Cost-Effectiveness of After-Tax Financing: Flow-Through Shares in Canada, Discussion Paper no. 327 (Ottawa: Economic Council of Canada, 1987) (http://www.queen sjdiexec.org/publications/qed_dp_70.pdf);

Glenn P. Jenkins, "Tax Shelter Finance: How Efficient Is It?" (1990) 38:2 Canadian Tax Journal 270-85;

Kenneth J. McKenzie, "Refundability and the Incentive Effects of Flow-through Shares" (1994) 42:4 Canadian Tax Journal 1100-14

Vijay M. Jog, Gordon J. Lenjosek, and Kenneth J. McKenzie, "Flow-through Shares: Premium­ Sharing and Cost-Effectiveness" (1996) 44:4 Canadian Tax Journal 1016-51.

Canada, Department of Finance, Tax Expenditures and Evaluations 2013 (Ottawa: Department of Finance, 20 I4), at 37.

Vijay Jog, "Rates of Return on Flow-through Shares: Investors and Governments Beware" (2016) 9:4 SPP Research Papers 1-27.

Office of the Prime Minister, "Minister of Finance Mandate Letter," 2015 (http://pm.gc.ca/eng/ minister-finance- mandate-letter).