Date: 20020131
Docket: 1999-1113-IT-G
BETWEEN:
THOMAS F. CHEEK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Mogan J.
[1] The Appellant has appealed from income tax assessments for the years 1993, 1994, 1995 and 1996. In each of those years, the Appellant was resident in the United States of America and was not resident in Canada. In those years, the Appellant came to Canada frequently to provide on radio a play-by-play description of all home games played by the Toronto Blue Jays, a professional baseball team playing in the American League. In the Toronto sports community, the Appellant is often identified as "the voice of the Blue Jays" but he does not think of himself that way.
[2] The Appellant filed income tax returns in Canada for each of the years under appeal. In those returns, the Appellant reported the amounts of income earned in Canada from his radio broadcasts of Blue Jays home games, but he then deducted those same amounts under subparagraph 110(1)(f)(i) of the Income Tax Act on the assumption that such amounts were exempt from tax in Canada because of a provision contained in the Canada-U.S. Income Tax Convention (1980). By notices of assessment, the Minister of National Revenue disallowed the deduction of the amounts claimed under paragraph 110(1)(f) in each of the years 1993, 1994, 1995 and 1996. The Appellant has appealed from those assessments claiming that his income earned in Canada from broadcasting Blue Jays home games is exempt from tax in Canada because of Articles XIV and XVI of the Canada-U.S. Income Tax Convention (1980) which I shall hereafter refer to as "the Convention". The principal issue in this case is the interpretation of Article XVI of the Convention.
[3] A person who is not resident in Canada may be taxable on income earned in Canada if that person is employed or carries on business in Canada. Subsection 2(3) of the Income Tax Act states:
2(3) Where a person who is not taxable under subsection (1) for a taxation year
(a) was employed in Canada,
(b) carried on a business in Canada, or
(c) disposed of a taxable Canadian property,
at any time in the year or a previous year, an income tax shall be paid, as required by this Act, on the person's taxable income earned in Canada for the year determined in accordance with Division D.
Under the above provision, the Appellant reported as income those amounts which he regarded as earned in Canada through his sale of reporting and promotional services with respect to the Toronto Blue Jays. He then deducted those same amounts under subparagraph 110(1)(f)(i) which states:
110(1) For the purpose of computing the taxable income of a taxpayer for a taxation year, there may be deducted such of the following amounts as are applicable:
(a) ...
(f) any social assistance payment ... or any amount that is
(i) an amount exempt from income tax in Canada because of a provision contained in a tax convention or agreement with another country that has the force of law in Canada,
[4] In the pleadings, the Respondent has admitted that the Appellant was not resident in Canada at any material time and that he was resident in the U.S.A. at all material times. Therefore, the Appellant's liability for income tax in Canada is determined by the Convention because, when there is any inconsistency between the provisions of the Convention and the provisions of the Income Tax Act, the provisions of the Convention prevail to the extent of the inconsistency. See Statutes of Canada 1984, Volume 1, chapter 20, subsection 3(2). The relevant Articles of the Convention are XIV and XVI as follows:
Article XIV — Independent Personal Services
Income derived by an individual who is a resident of a Contracting State in respect of independent personal services may be taxed in that State. Such income may also be taxed in the other Contracting State if the individual has or had a fixed base regularly available to him in that other State but only to the extent that the income is attributable to the fixed base.
Article XVI — Artistes and Athletes
Notwithstanding the provisions of Articles XIV (Independent Personal Services) and XV (Dependent Personal Services), income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as an athlete, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State, except where the amount of the gross receipts derived by such entertainer or athlete, including expenses reimbursed to him or borne on his behalf, from such activities do not exceed fifteen thousand dollars ($15,000) in the currency of that other State for the calendar year concerned.
[5] The Appellant claims that he is taxable only in the U.S.A. under Article XIV with respect to his baseball broadcasting income because he did not have at any material time "a fixed base regularly available to him" in Canada. When the assessments under appeal were first issued, the Minister of National Revenue relied on two basic propositions. First, the Appellant was taxable in Canada under Article XIV because his income earned in Canada was attributable to a fixed base in Canada (i.e. the SkyDome in Toronto) which was regularly available to him. And second, the Appellant was taxable in Canada under Article XVI because his income earned in Canada was derived "as an entertainer, such as a theatre, motion picture, radio or television artiste".
[6] Six weeks before the commencement of trial, counsel for the Respondent informed the Court and opposing counsel that the Respondent would not rely on Article XIV of the Convention. Accordingly, the parties at trial argued only the application of Article XVI of the Convention. If the Respondent is successful under Article XVI, there is a subsidiary question concerning the amount of income which the Appellant derives from his services in Canada. To summarize, the principal question is whether the Appellant is "an entertainer, such as a theatre, motion picture, radio or television artiste" within the meaning of Article XVI of the Convention.
Evidence
[7] At trial, the Appellant testified describing his long experience as a radio broadcaster and the services he performs in connection with the broadcast of Blue Jays games. The Appellant was born in Pensacola, Florida in 1939. He joined the U.S. Air Force in 1956 at the age of 17. He stayed in the U.S.A.F. for three years specializing in communications - assigned to the Strategic Air Command - using a teletype to send and receive messages. Upon his discharge from the U.S.A.F., he worked for an engineering firm in 1959-60 in upstate New York. In 1961-62, he attended the Cambridge School of Broadcasting in Boston. Upon completing his courses, he applied for jobs at small radio stations.
[8] In 1962, the Appellant was hired for the summer as the "swing" announcer at radio station WEAV in Plattsburg, N.Y. He broadcast news, sports and music from 9:00 a.m. until noon and from 3:00 to 6:00 p.m. At the end of his summer job, he was hired by radio station WJOY at Burlington, Vermont in the fall of 1962 to broadcast news and sports and to sell radio advertising. He described this job as more selling than broadcasting. It was in this job, however, that the Appellant started to spend his evenings following basketball and hockey games at gymnasiums and rinks around Burlington.
[9] In 1964, he moved to a radio station at Rutland, Vermont where he was on his own (unsupervised) from 6:00 to 9:00 a.m. broadcasting news, sports, weather, music, time checks and personal comments. The teletype machine was hooked up to United Press International ("UPI") as a news service and the Appellant described part of his job as "rip and read". He would rip the incoming material from UPI off the machine and read it directly to the radio audience without any prior opportunity to scan the written word. At Rutland, he started to cover local high school and college sports by going to the site; plugging in; and then broadcasting.
[10] In 1965, the Appellant was back at WJOY in Burlington holding different jobs as sports director and broadcaster, program director, staff announcer and selling advertising. At various times, he also did the morning show and driving home show. In 1968, he joined the television group that is now Channel 22 in Burlington but the job lasted only eight months. In 1969, he went to radio station WCAX in Burlington which later became WBVT. He stayed there until 1976 as sales manager and later sports director. When his selling day ended, he went to his preferred avocation of broadcasting local sports events. In Rutland, he had done radio broadcasts of some Boston Red Sox home games and later (around 1973), while still at WBVT, he started doing radio broadcasts of some Montreal Expos home games.
[11] The Appellant's big break came (while still at WBVT) when he was asked to do the radio side of those Montreal Expos games which were televised. He was the standby broadcaster for about 20 to 40 games in Montreal per season. He practised broadcasting into a tape which he would then play back and critique in his car while driving home to Burlington from Montreal. It was around 1976 when the Appellant heard that major league baseball was coming to Toronto. At the end of the 1976 baseball season, he was interviewed to discuss the possibility of his broadcasting on radio the Blue Jays games. He was given the job.
[12] At that time, the Appellant and his wife and their children (son 10, daughter 7 and son 5) were living in Burlington, Vermont. When he accepted the opportunity to broadcast the Blue Jays games in the winter 1976-77, he and his wife sold their home in Burlington, Vermont; they purchased a home in Burlington, Ontario; and they moved to Canada. He recalls arriving in Canada in February 1977 just in time to unpack and then head south to Florida for spring training. The Appellant and his wife lived in Ontario as landed immigrants from 1977 until 1992 while their three children were growing up attending Ontario schools. By 1992, the three children were 25, 22 and 20 years of age and were leaving home (or had left) for post-high school education and employment in the U.S.A. The Appellant and his wife concluded that it was no longer necessary to maintain a home year round in Canada.
[13] The Appellant was born in Florida and, in 1992, his mother was a senior citizen living there. It was fairly easy for the Appellant and his wife to decide in 1992 that they would sell their home in Ontario; and purchase a home in Florida near Dunedin where the Blue Jays did their spring training. They moved their domestic dwelling from Ontario to Florida in 1992 and, at that time, the Appellant ceased being resident in Canada. The first year under appeal is 1993 and that is the first year since the Appellant started broadcasting Blue Jays games when he was not at any time resident in Canada.
[14] The Appellant's job is to broadcast on radio every game which the Blue Jays play: at home or away in the regular season, any and all post-season games in the playoffs, and all pre-season games during spring training. As I recall the Appellant's evidence, he has participated in the radio broadcast of every game which the Blue Jays have played since they entered the American League in 1977. He is a man of endurance. The Appellant described a typical workday if the Blue Jays were playing an evening game staring at 7:00 p.m. He would get up early and go on his computer to the web sights of the Blue Jays and the team they were playing that day to pick up any recent information concerning changes in the player roster, whether a regular player was sidelined with an injury, whether a new player was brought up from a farm team, etc. He might print any information which he regarded as particularly relevant. He would use the internet to scan the sports pages of daily newspapers for any significant event in games played the previous day.
[15] He arrives at the ballpark about 4:00 p.m. and meets with the engineer to select radio clips from prior games which might be significant on that particular day. The manager of the Blue Jays usually has a scrum with the media on game day at 4:30 p.m. and the Appellant would always attend that scrum. He would visit the clubhouse of each team, the dugouts, the batting cages and speak with various players. He would eat a very light supper and be in the broadcast booth at 6:30 p.m. for the pre-game show. The Appellant works with Jerry Howarth. They take turns doing the play-by-play and colour commentary and have been working together for about 20 years. It was suggested to the Appellant in cross-examination that he was known as "the voice of the Blue Jays" but he said that he has never ever identified himself or regarded himself as the voice of the team. It is a fact, however, that the Appellant has been involved in the broadcast of every game which the Blue Jays have played since they entered the American League in 1977.
[16] A typical baseball game consumes about three hours. Therefore, if an evening game started at 7:00 p.m., the Appellant would come off the air about 10:00 p.m. or shortly after, having been in the broadcast booth since 6:30 p.m. According to the Appellant, in the course of an average three-hour baseball game, there are only 16 to 18 minutes when there is actual "motion" on the field such as (i) a pitcher delivering a pitch from the mound; (ii) a base runner attempting to steal a base; or (iii) a batter hitting a particular pitch thereby causing the ball, the batter, any base runner and all fielders to be in motion. Because of the limited time when there is motion on the field, there is a substantial amount of "down time" in every baseball broadcast.
[17] The challenge facing the professional broadcaster of baseball games is to hold the attention and interest of the radio audience during the down time when there is no motion on the field. The Appellant and his partner attempt to meet this challenge with their knowledge of the game and its rules, their experience, their knowledge of current and historical statistics, biographical information on players, team managers, coaches, and other prominent persons connected with the game, and historical information on each team. The Appellant stated that, during the regular season, he spends about five or six non-broadcasting hours each day doing research and accumulating current and historical information on the game and its people so that he will have interesting material at his finger tips for the down time in each game broadcast.
[18] A significant amount of the Appellant's research each day is facilitated by the volume of material published by major league baseball. Exhibit A-1 is eight pages of "Media Information" published by the Blue Jays every game day. Every other team publishes the same kind of information on their game days. For a particular game, the Appellant will review Exhibit A-1 and the corresponding document from the Blue Jays' opponent in that game. Similarly, each team publishes an "Official Guide" for the season (like Exhibits A-3 and A-4) containing a substantial volume of team information. And finally, major league baseball publishes every day during the regular season up-to-date statistics on all teams and players. Some of that information is in Exhibit A-5. The Appellant himself keeps a box score of each game so that he will know what has happened inning-by-inning. Exhibit A-8 is his box score of a game between the Blue Jays and the Cleveland Indians.
[19] Each party called an expert witness to support its respective position. I find that the evidence of the expert witnesses is not very helpful but will comment later in these reasons on the evidence of the Respondent's expert.
Analysis
[20] The principal issue requires me to interpret Article XVI of the Convention and apply it to the facts. I will repeat from Article XVI only those words which are most relevant for the purpose of this appeal:
... income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as an athlete, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State, ...
The Appellant as resident in the U.S.A. is "a resident of a Contracting State". Also, the Appellant's broadcasts in Toronto of all home games of the Blue Jays are "personal activities ... exercised in the other Contracting State". The basic question is whether the Appellant's income earned in Canada is derived "as an entertainer, such as a theatre, motion picture, radio or television artiste".
[21] There is no doubt that professional sports in itself is entertainment. A particular league (baseball, hockey or football) will organize a schedule requiring all teams in the league to play an equal number of games. People will purchase tickets for the right to attend and watch and be entertained by the playing of the games. For those people who are not able to attend a game, a sponsor (frequently a corporation producing a consumer product like beer or gasoline) will pay for the right to describe on radio or to show on television the playing of the game. Is the presentation of the game in a stadium or arena or on radio or on television so inherently entertaining that all persons connected with the presentation of the game are "entertainers"?
[22] A baseball fan who turns on the radio to listen to a Blue Jays game is entertained but who is the entertainer? Is it the players on the field? Is it the broadcaster like the Appellant who describes the play and whose objective is to hold the attention of the radio audience? Or is it both? If the Appellant is entertaining because of his knowledge and the skills he uses to hold the attention of the radio audience, is he in the words of Article XVI "an entertainer, such as a theatre, motion picture, radio or television artiste"? Can the Appellant be entertaining on the radio without being a "radio artiste" within the meaning of Article XVI?
[23] Having regard to the pleadings, the Appellant claims that he is a sports broadcast journalist. The Respondent claims that the Appellant earned income in Canada as an entertainer and, in particular, as a radio artiste.
[24] It seems to me that there are four basic ways in which a true baseball fan (probably a male!) may follow his favourite team. First, he may attend and watch a particular game. Second, if he cannot attend, he may watch the game on television so that he will see what the camera shows. Third, if he cannot watch on television, he may listen to the game on radio so that he will hear what the broadcaster describes. And fourth, if he cannot listen on radio, he will soon after the game learn whether his favourite team won or lost by reading the sports pages of a daily newspaper or by listening to a sports broadcaster on radio or television or by going on the internet.
[25] There is a significant difference between the first three ways of following a favourite team (attending a game, watching on television or listening on radio) and the fourth way of learning the result after the event. There is a real quality of entertainment in the first three ways because the true baseball fan follows the game as it is played; he participates in the anticipation and tension of each pitch and in the thrill of any resulting action like a base hit, a homerun, a strike out or a double play. That quality of entertainment is not present when the fan learns the result after the game is completed because he is then like any other person reading the paper or listening to the news in order to know about an event which has already happened.
[26] It is, therefore, somewhat misleading for the Appellant to describe himself as a sports broadcast journalist because the "broadcast" element of his particular work (a play-by-play description of a game as it is played) brings him within the entertainment area of professional baseball whereas some other sports broadcast journalist may appear on a radio or television morning show to report and comment on games played the previous day. Although the Appellant's broadcast activities bring him within the entertainment area of professional baseball, I am not persuaded that the Appellant is "an entertainer, such as a --- radio --- artiste" within the meaning of Article XVI of the Convention. For the reasons which follow, I will allow the appeals.
[27] Upon examining the structure of Article XVI, I conclude that "artiste" is a noun and that adjoining words like "theatre, radio, television and motion picture" are adjectives. Accordingly, the Appellant can be brought within Article XVI only if he is a "radio artiste" because the other adjectives do not apply to him. For me, it is significant that the persons who drafted the Convention used the word "artiste" when they might have used some other word. Counsel for both parties provided definitions of "artiste" from prominent dictionaries as follows:
(a) an artist, esp. an actor, singer, dancer, or other public performer.
Random House Webster's Unabridged Dictionary (Second edition, Random House, New York, 1999);
(b) a professional performer, esp. a singer or dancer.
Concise Oxford Dictionary (Ninth Edition, Clarendon Press, Oxford, 1995)
(c) a professional person in any of the performing arts; a person very skilled in his work; often humorous or facetious;
Webster's New World Dictionary (Second College Edition, Simon and Schuster, New York, 1980)
(d) a public performer who appeals to the aesthetic faculties, as a professional singer, dancer, etc.; also one who makes a 'fine art' of his employment, as an artistic cook, hairdresser, etc.
Oxford English Dictionary (2nd ed. 1989)
[28] All dictionaries referred to above define "artiste" in relation to the performing arts, like a singer or dancer. The performing arts would also include dramatic acting whether on a live stage (theatre) or in the movies (motion picture). There is no evidence that the Appellant is a singer or dancer or actor. Indeed, I would conclude from his evidence and his biography that he does not perform in any of those areas. He is by training, experience and reputation a radio broadcaster. When the Appellant was examined in chief, he stated that what happens on the field dictates what he has to say on radio. Under cross-examination, he stated that he regards himself as a reporter and, until something happens on the field, he has nothing to report.
[29] I think of the Appellant as primarily a reporter. He is reporting live on radio what is happening in a baseball game. He cannot himself change or cause anyone else to change what happens on the field. Only the players can determine what happens on the field. The Appellant primarily is reporting what the players are doing as they do it. In terms of entertainment, it is the players who are the entertainers. Fans purchase tickets and attend games to see baseball played by highly skilled players. Other fans watch televised games for the same reason. Other fans listen to games on radio in order to know how the performance of those same highly skilled players affects a game play-by-play. It is the players who are "performing" as professional athletes.
[30] Having regard to the dictionary definitions of "artiste", a radio artiste is a person who by some skillful and creative performance (for example, singing or acting or interviewing third parties) can attract an audience to hear that person herself or himself. In the golden age of radio (i.e. before television), Jack Benny, Fred Allen, Bing Crosby and Ma Perkins were radio artistes. In recent times, Peter Gzowski was a radio artiste because he used extraordinary interview skills to draw out individuals (public persons and very private persons) in a way which made their individual endeavours interesting to people all across Canada. Radio audiences listened to people like Jack Benny, Bing Crosby and Peter Gzowski just to hear them perform; not to hear them describe how someone else was performing. The persons drafting the Convention had some purpose in using the word "artiste" by preference over any other word, and in connection with words like "theatre", "motion picture", "radio" and "television", each of which can be a medium for the performing arts.
[31] In The Queen v. Crown Forest Industries Ltd., 95 DTC 5389, the Supreme Court of Canada was required to interpret Article IV of the Convention. The facts in Crown Forest are not relevant but the Supreme Court made some useful observations on the interpretation of international tax treaties. Iacobucci J. delivering the judgment of the Court stated at page 5393:
In interpreting a treaty, the paramount goal is to find the meaning of the words in question. This process involves looking to the language used and the intentions of the parties. ...
and further at page 5396:
Reviewing the intentions of the drafters of a taxation convention is a very important element in delineating the scope of the application of that treaty. As noted by Addy, J. in J.N. Gladden Estate v. The Queen, [1985] 1 C.T.C. 163 (F.C.T.D.), at pp. 166-67:
Contrary to an ordinary taxing statute a tax treaty or convention must be given a liberal interpretation with a view to implementing the true intentions of the parties. A literal or legalistic interpretation must be avoided when the basic object of the treaty might be defeated or frustrated in so far as the particular item under consideration is concerned.
... A similar position underpins American jurisprudence. In Bacardi Corp. of America v. Domenech, 311 U.S. 150 (1940), the Supreme Court of the United States held at p. 163 that a treaty should generally be "... construe[d] ... liberally ... to give effect to the purpose which animates it." ...
and finally at page 5398:
I now turn to another set of extrinsic materials, other international taxation conventions and general models thereof, in order to help illustrate and illuminate the intentions of the parties to the Canada-U.S. Income Tax Convention (1980). Articles 31 and 32 of the Vienna Convention on the Law of Treaties (Can. T.S. 1980 No. 37) indicate that reference may be made to these types of extrinsic materials when interpreting international documents such as taxation conventions; see also Hunter Douglas Ltd. v. The Queen, 79 DTC 5340, (F.C.T.D.), at pp. 5344-5345 and Thiel v. Federal Commission of Taxation, 90 A.T.C. 4717 (H. C. Aus.), at p. 4722.
Of high persuasive value in terms of defining the parameters of the Canada-United States Income Tax Convention (1980) is the O.E.C.D. Model Double Taxation Convention on Income and Capital (1963, re-enacted in 1977): Arnold and Edgar, eds., Materials on Canadian Income Tax (9th ed. 1990), at p. 208. As noted by the Court of Appeal, it served as the basis for the Canada-United States Income Tax Convention (1980) and also has world-wide recognition as a basic document of reference in the negotiation, application and interpretation of multi-lateral or bi-lateral tax conventions. ...
[32] Following the guidance of the Supreme Court, counsel put before me the O.E.C.D. Model Tax Convention on Income and on Capital updated to April 2000. In particular, Article 17 of the O.E.C.D. Model Convention states:
Article 17
ARTISTES AND SPORTSMEN
1. Notwithstanding the provisions of Articles 7 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsman from his personal activities as such exercised in the other Contracting State, may be taxed in that other State.
[33] The O.E.C.D. Commentary on Article 17 of the O.E.C.D. Model Convention includes the following passage:
3. Paragraph 1 refers to artistes and sportsmen. It is not possible to give a precise definition of "artiste", but paragraph 1 includes examples of persons who would be regarded as such. These examples should not be considered as exhaustive. On the one hand, the term "artiste" clearly includes the stage performer, film actor, actor (including for instance a former sportsman) in a television commercial. The Article may also apply to income received from activities which involve a political, social, religious or charitable nature, if an entertainment character is present. On the other hand, it does not extend to a visiting conference speaker or to administrative or support staff (e.g. cameramen for a film, producers, film directors, choreographers, technical staff, road crew for a pop group etc.). In between there is a grey area where it is necessary to review the overall balance of the activities of the person concerned.
[34] Respondent's counsel relies on the above passage to argue that any U.S. resident whose primary activity in Canada is to broadcast on radio is a radio artiste. It is obvious that the Appellant is not a "behind the scenes" man like a producer or sound engineer. Also, broadcasting is not a negligible part of what he does to earn his income in Canada. My concern is that if I disregard the content of what the Appellant broadcasts into a radio microphone, then I am not giving effect to the choice of the word "artiste" in Article XVI.
[35] If I were to accept the Respondent's argument, any television "news anchor" like Lloyd Robertson or Peter Mansbridge in contemporary Canada would be a television artiste. I regard any one of those prominent news anchors as a highly competent journalist but not as a television artiste. Peter Gzowski as a radio personality may have been in the grey area between journalism and the performing arts but, in my view, he was a radio artiste because of the creative way in which he used his interview skills to shape the program. For the television news anchor, it is current events which shape the program. An artiste must have creative talent.
[36] I do not find the evidence of the expert witnesses helpful but will comment briefly on the evidence of Tom Hedrick, called as an expert on behalf of the Respondent. Mr. Hedrick's report (June 27, 2001) to counsel for the Respondent is Exhibit R-6. Mr. Hedrick's resumé is at pages 23 and 24 of Exhibit R-6. Although the resumé speaks for itself, it is useful to note that Mr. Hedrick has had a long career as a play-by-play radio broadcaster of football games including seven years with the Kansas City Chiefs, three Super Bowls for CBS and nine Cotton Bowls. Mr. Hedrick was asked to express his opinion on the question: What is the role of a major league baseball play-by-play broadcaster?
[37] In Mr. Hedrick's opinion, the top radio announcer of a major league team has three basic skills. First, he must be able to describe the plays accurately. Second, he must be able to "fill in the blanks" because baseball is a slow-moving game. He must be able to fill the "down time" with stories, anecdotes, statistics and strategy. He has an obligation to entertain the audience and keep the broadcast lively, especially when the home team (i.e. Blue Jays) is losing. And third, he must be a salesman for the home team, getting the audience involved in the game and selling the fans on the idea of coming out to a home game (i.e. SkyDome) to watch a particular player.
[38] I have no reason to challenge the opinion of Mr. Hedrick but his answer to the stated question seems to reinforce the view which the Appellant has of himself. The Appellant regards himself as a sports broadcast journalist. There is no perfect analogy but, if I think in terms of newspaper journalism, the Appellant is like a combined reporter and columnist with respect to Mr. Hedrick's first two basic skills. The political reporter describes accurately what is happening at city hall or in the legislature or on parliament hill just as the Appellant describes accurately the play on the field. The op-ed political columnist draws on his knowledge, experience and daily contact with politicians to comment on and express opinions on the political machinations of the day just as the Appellant draws on his knowledge, experience and daily contact with players and managers to fill the "down time" when there is no motion on the field. I see the Appellant as a journalist and not as a performing artist.
[39] The headings used in any document may be helpful when construing that document. The heading for Article XVI is "Artistes and Athletes" and the heading for Article 17 of the O.E.C.D. Model Convention is "Artistes and Sportsmen". The Appellant is not performing as an athlete or sportsman when he comes to Canada to broadcast on radio the Blue Jays home games. It is obvious that athletes and sportsmen "perform" in their chosen athletic avocation; and their performance is inherently entertaining. The baseball fan who turns on the radio to hear a particular Blue Jays game wants to know how the Blue Jays athletes are performing on the field. The Appellant may be able to hold the attention and interest of the fan with his "down time" commentary but he is not the reason why the fan turns on the radio.
[40] The Appellant is not a radio artiste. He is a very skillful and experienced radio journalist. The appeals are allowed, with costs.
Signed at Ottawa, Canada, this 31st day of January, 2002.
|
"M.A. Mogan" |
J.T.C.C.
COURT FILE NO.: 1999-1113(IT)G
STYLE OF CAUSE: Thomas F. Cheek and
Her Majesty the Queen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 31 and August 1, 2001
REASONS FOR JUDGMENT BY: The Honourable Judge M.A. Mogan
DATE OF JUDGMENT: January 31, 2002
APPEARANCES:
Counsel for the Appellant: Clifford L. Rand and David Muha
Counsel for the Respondent: David E. Spiro
COUNSEL OF RECORD:
For the Appellant:
Name: Clifford L. Rand
Firm: Wildeboer Rand Thompson Apps & Dellelce
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
1999-1113(IT)G
BETWEEN:
THOMAS F. CHEEK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals heard on July 31 and August 1, 2001, at Toronto, Ontario, by
the Honourable Judge M.A. Mogan
Appearances
Counsel for the Appellant: Clifford L. Rand and David Muha
Counsel for the Respondent: David E. Spiro
JUDGMENT
The appeals from assessments of tax made under the Income Tax Act for the 1993, 1994, 1995 and 1996 taxation years are allowed, with costs, and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the Appellant is exempt from income tax in Canada under Article XVI of the Canada-United States Income Tax Convention, 1980 because the Appellant is not a radio artiste.
Signed at Ottawa, Canada, this 31st day of January, 2002.
|
"M.A. Mogan" |
J.T.C.C.