Very generally, then, in order for an organization to be a 149(1)(l) entity, the organization must not be a charity,
must be organized and operated for a purpose other than profit, and its income cannot be payable to or made
available for the benefit of its members.
You have asked whether an organization can compete against taxable entities and still qualify for the exemption
provided by paragraph 149(1)(l) of the Act. The wording of paragraph 149(1)(l) does not restrict an organization
from undertaking any particular type of activity, including commercial activity. This issue was most recently
reviewed by the courts in BBM, 1 in which the Tax Court of Canada commented:
“While these are very strict and rigid requirements, and potentially permit a very broad review or inquiry into an
organization’s purposes, the analysis can be considerably abbreviated by the fact that the statutory language does not
mandate a qualifying purpose but permits the organization to have any purpose or purposes other than the one
disqualifying purpose of profit.”
Consequently, an organization can compete against taxable entities and still be exempt from tax under paragraph
149(1)(l) of the Act.
(ii) 149(1)(l) Entity-Earning, Retaining and Using a Profit
You have asked whether a 149(1)(l) entity can earn a profit, and whether the answer to this question depends on how
the entity uses this profit. Specifically, you would like to know if a 149(1)(l) entity can intentionally earn a profit as
long as the profit is used to support the objectives of the 149(1)(l) entity.
Paragraph 149(1)(l) of the Act requires that an organization be organized and operated “exclusively” for “any other
purpose except profit” in order to be exempt from tax under that provision. In our view, the use of the word
“exclusively” indicates that while an organization may have many purposes, none of those purposes may be to earn
a profit. Thus, where an organization intends, at any time, to earn a profit, it will not be exempt from tax under
paragraph 149(1)(l) even if it expects to use or actually uses that profit to support its not-for-profit objectives.
The CRA accepts that a 149(1)(l) entity can earn a profit; otherwise, the tax exemption provided would be
unnecessary. Earning a profit, in and of itself, does not prevent an organization from being a 149(1)(l) entity.
However, the profit should generally be unanticipated and incidental to the purpose or purposes of the organization.
For example, an organization might budget with the intention of not earning a profit, but ultimately find itself with a
profit because of expenses that were less than anticipated or that were reasonably expected but not actually
incurred. If the original budget was reasonable, the profit earned would not, in and of itself, cause the organization
to cease to be a 149(1)(l) entity.
The Supreme Court of Canada commented on the issue of a purported 149(1)(l) entity earning a profit in
Woodward’s Pension Funds v. The Queen, 62 DTC 1002 (“Woodward’s”):
“... it is true that ... the appellant was organized for the stated object and purpose of assisting in the provision of
funds for pensions to be paid to employees and ex-employees of the stores. Nevertheless, this last-named purpose
could not be achieved without the share sale plan which was designed to make a profit to enable the payments to be
made to the pension trustees. ... The appellant has entirely failed to establish that it was organized and operated
exclusively for a purpose other than profit and the findings of the learned President that it was both organized and
operated for a profitable purpose are unassailable.”
The Tax Court of Canada followed the Woodward’s decision in Tourbec (1979) Inc. v. M.N.R, 88 DTC 1442
(“Tourbec”). Tourbec involved an organization that sponsored travel for young people through the operation of a
travel agency. On the issue of whether the organization operated for a purpose other than profit the court found: