David G. Duff

Benefit Taxes and User Fees in Theory and Practice

As alternatives to more general taxes based on broad measures of each taxpayers economic capacity, benefit taxes and user fees are praised by some for promoting economic efficiency, government accountability and tax fairness, and condemned by others as reactionary, regressive, and distributively unjust. This paper adopts a more even-handed approach to benefit taxes and user fees, regarding these sources of revenue as preferable to general taxation for specific purposes but inferior to general taxes for other purposes. Part II provides a theoretical framework for analyzing benefit taxes and user fees, defining these levies in contrast to general taxes, examining theoretical arguments for and against government reliance on benefit taxes and user fees, considering the appropriate role of benefit taxes and user fees as methods of government finance, and reviewing the manner in which these levies should be designed in order to achieve the purposes for which they are best suited. Part III considers benefit taxes and user fees in practice, surveying the extent to which governments rely on these levies in Ontario and other jurisdictions, and examining the current and potential application of benefit taxes and user fees to finance various categories of government expenditures. Part IV summarizes the argument of the paper and offers general conclusions.

A globally integrated climate policy for Canada

A Globally Integrated Climate Policy for Canada builds on the premise that Canada is in need of an approach that effectively integrates domestic priorities and global policy imperatives. Leading Canadian and international experts explore policy ideas and options from a range of disciplinary perspectives, including science, law, political science, economics, and sociology. Chapters explore the costs, opportunities, or imperatives to participate in international diplomatic initiatives and regimes, the opportunities and impacts of regional or global carbon markets, the proper mix of domestic policy tools, the parameters of Canadian energy policy, and the dynamics that propel or hinder the Canadian policy process.

Private Property and Tax Policy in a Libertarian World: A Critical Review

The idea that taxes involve the confiscation of private property is widely held in popular thinking and scholarly writing. This article challenges the libertarian foundations of this assumption by critically examining libertarian theories of private property and their implications for tax policy. Part II summarizes the leading libertarian theories of private property, reviewing John Lockes argument in the Second Treatise of Government and Robert Nozicks account in Anarchy, State, and Utopia. Part III examines the implications of these libertarian theories for tax policy, considering libertarian prescriptions for substantive tax measures as well as institutional arrangements that affect tax policy outcomes. Part IV criticizes libertarian theories of private property, casting doubt on tax thinking that relies on these libertarian foundations. Part V considers the implications of this critique for tax policy and tax scholarship.

Disability and the Income Tax

The federal Income Tax Act contains an extensive number of provisions addressing the taxation of families with disabled persons. These provisions, however, have been the subject of a series of ongoing incremental adjustments, and do not reflect a comprehensive and coherent approach to the taxation of these individuals in light of their unique financial circumstances. This article considers the existing income tax provisions regarding families with disabled persons, analyzing the relationship between disabilities and appropriate tax liabilities, and providing suggestions for reform of the current tax structure. Focussing on the goals of tax policy narrowly defined as compared to the broader social policy goals that may be pursued through the tax system, the article evaluates in turn (i) existing provisions aimed at recognizing the costs of disability for disabled individuals and their families; (ii) tax measures designed to facilitate participation by disabled persons in the paid labour force; and (iii) current tax rules on income support for disabled persons who have difficulty supporting themselves. In each of these areas, the article undertakes critical analysis of the present tax provisions and makes proposals for their improvement or replacement, bearing in mind the overriding rationale of promoting horizontal equity between individuals with and without disabilities and between persons who support disabled individuals and persons without such support obligations.

Tax Expenditures to Limit the Growth of Carbon Emissions in Canada: Identification and Evaluation

Unlike the U.S., which relies heavily on tax expenditures as instruments of energy and climate change policy, Canada has introduced very few such tax expenditures, relying instead on voluntary initiatives, direct subsidies, and limited regulatory measures to limit carbon emissions. This paper identifies and evaluates the most prominent tax expenditures in Canada to limit the growth of carbon emissions. As background to this inquiry, Part II reviews Canadian experience with carbon emissions over the last two decades and the limited government response to this growing problem. Part III identifies the most prominent tax expenditures that Canadian governments have introduced in order limit the growth of carbon emissions. Part IV evaluates these tax expenditures as spending programs and tax measures, concluding that they are vulnerable to many of the traditional criticisms levied against tax expenditures. As a result, the paper concludes, if Canadian governments are to continue to utilize tax expenditures to help fight climate change, they should pay closer attention to the insights of tax expenditure analysis and design these policy instruments accordingly.

Legislated Interpretation and Tax Avoidance in Canadian Income Tax Law

Predictable statutory interpretation helps ensure the reliable operation of contemporary systems of taxation. Tax liabilities that are not clearly expressed and articulated by legislatures lead to over-reliance on litigation as a means to enforce and clarify legislative intent. For this reason, modern legislatures continually amend and draft new tax provisions, reformulating existing rules and introducing new ones to address ever-changing social and economic environments. Moreover, legislatures also respond with amendments directed at judicial decisions with which they disagree, as well as the transactions and arrangements at issue in these cases. As these amended and new rules are then subject to application and interpretation by revenue departments, taxpayers, tax advisors, and the courts, all of which legislatures may respond to through further subsequent amendments, tax legislation at any given time can be regarded as the recursive product of an ongoing dialogue. At the same time, the proliferation of ever-more detailed provisions in tax legislation greatly increases the complexity of these statutes. The consequent tendency toward textual interpretation of tax legislation can facilitate tax avoidance that undermines the capacity of a tax system to raise revenue in a manner that is fair or equitable. For this reason, tax statutes like the Canadian Income Tax Act (ITA) typically combine detailed statutory provisions with more broadly-worded anti-avoidance rules that deny unintended tax advantages that might otherwise result from other statutory provisions. At the apex of these anti-avoidance rules stand general anti-avoidance rules (GAARs) like section 245 of the ITA. Section 245 denies tax benefits resulting from tax-motivated transactions that result in a misuse of other provisions of the ITA or other relevant enactments, or an abuse having regard to these provisions read as a whole. In order to “legislate” statutory interpretation, therefore, legislatures generally employ two different approaches: enacting detailed rules in response to changing circumstances and judicial decisions, while simultaneously directing courts to prevent abusive tax avoidance by applying more generalized standards that require them to go beyond or behind the text of the tax legislation in order to deny tax benefits claimed by taxpayers that conflict with the object, spirit or purpose of these provisions. As this paper explains, judicial experience in Canada demonstrates a tension between these two approaches, since the existence of detailed statutory rules can make courts reluctant to apply a general anti-avoidance rule that requires them to depart from the statutory text. This paper considers the GAAR in section 245 of the ITA as an example of legislated statutory interpretation, explaining the origins and structure of this provision and the extent to which it has shaped the interpretation of Canadian income tax law. Part II provides a background to the GAAR, contrasting the textual and formalist approach to tax statutes that was traditionally adopted by English and Canadian courts with the more purposive and substantive approach adopted by U.S. courts as well as English and Canadian courts in the 1980s and early 1990s. Part III explains the basic structure of the GAAR and the way in which Canadian courts have interpreted key elements of this provision. Part IV reviews key tax avoidance cases after the GAAR was introduced, illustrating a lingering affect of pre-GAAR interpretive approaches in the post-GAAR world, from which the courts have only begun to depart. Part V concludes.

Market Based Instruments

This detailed book explores how market based environmental strategies are used in various countries around the world. It investigates how successful sustainability strategies used by one country can be transferred and used successfully in other countries, with a minimum of new research and experimentation. Leading environmental taxation scholars discuss this question and analyse a set of key case studies.

Tax Treatment of Charitable Contributions in a Personal Income Tax: Lessons from Theory and Canadian Experience

A hundred years after tax concessions for charitable contributions were introduced as part of the personal income taxes that many countries enacted during the First World War, these countries continue to debate the appropriate level and structure of tax concessions for charitable gifts. This chapter considers the tax treatment of charitable contributions in a personal income tax, reviewing and evaluating alternative rationales for tax recognition of charitable gifts as well as the implications of these rationales for the form that tax recognition should take, and examining recent Canadian experience in light of these rationales.

Justice Iacobucci and the 'Golden and Straight Metwand' of Canadian Tax Law

The article examines the contributions of Supreme Court Justice Frank Iacobucci in the Canadian tax jurisprudence. The traditional Anglo-Canadian and American judicial approaches to tax statutes was taken into account. Key information about significant tax decisions made by Iacobucci is presented. On the other hand, his judicial restraint and legislative supremacy was also evaluated.