“What effectively happened was that Tourbec used the revenues that it received from its regular sales, that is the
sales to the general public, to subsidize to a certain extent certain services that were reserved exclusively to its
customers who were students and young people.”
“Given the facts, I cannot accept the appellant’s submissions to the effect that it was an organization whose sole
purpose was among those referred to in section 149(1)(l) of the Act. The philanthropic aspect of its operations was
only incidental to its primary purpose which was to carry on a travel agency business. That incidental aspect could
not have been achieved unless it had been able to make profits from its primary business.”
While the reference to a “primary purpose” in Tourbec suggests that a secondary, profit-making purpose might be
acceptable for a 149(1)(l) entity, we are of the view that the decision in Tourbec means that, for paragraph 149(1)(l)
of the Act to apply, an organization’s “sole purpose” (or only purposes) must be something other than earning a
profit. 2 In our opinion, the decisions in Woodward’s and Tourbec support the position that where an organization
would be unable to undertake its not-for-profit activities but for its profitable activities, the organization cannot be a
149(1)(l) entity because it has a profit purpose.
We acknowledge that a 149(1)(l) entity may earn a profit as long as that profit is generally unanticipated and
incidental to carrying out the entity’s exclusively not-for-profit purposes: The Gull Bay Development Corporation v.
Her Majesty the Queen, 84 DTC 6040 (FCTD) (“Gull Bay”). In Gull Bay the court found that the corporate entity
in question was“operated “exclusively” for the purpose set out in section 149(1)(l) pursuant to its charter, even
though it may raise funds for this purpose by its commercial lumbering enterprise.”
We note that the situation reviewed by the court in Gull Bay was very unusual and that the decision of the court
turned greatly on the particular facts of that case, especially with respect to the finding that the profits were strictly
incidental to the not-for-profit objectives. Also, the decision in Gull Bay must be read in light of the court’s view
that the corporation might be a “charitable corporation” and in light of subsequent court decisions such as Tourbec
and BBM.
It is always a question of fact whether an organization is operating for the purpose of earning a profit. A “profit” is
generally considered to be the (positive) difference between an organization’s revenue and the expenses incurred to
earn that revenue: see the review of the meaning of “profit” in BBM. We are of the view that in determining the
expenses incurred by an organization to earn revenue, it is appropriate to take into account depreciation of capital
assets as well as ongoing current expenses. However, it is not appropriate to take into account the anticipated cost
of future capital projects, because that cost cannot, by its nature, be an expense incurred to earn the current revenue.
Thus, in considering whether an entity has a profit purpose, regard must be had to whether the entity is intentionally
generating profit in order to finance future capital projects.
In our view, if a 149(1)(l) entity could intentionally earn a profit to finance future capital projects on the basis that
this constituted operating at cost and therefore did not indicate a profit purpose, then any business where the
members did not require income distributions could be organized and operated as a 149(1)(l) entity and accumulate
wealth on a tax-free basis. In this situation, while members could not access the business’ income immediately, the
value of the organization, and consequently the value of the membership interests, would clearly increase. It would
not be difficult to maintain that there was no profit purpose, as the courts have pointed out that where a business
provides services to its members at cost, “t would be difficult to impute a profit purpose” (BBM). Consequently, it is
our view that in determining whether there is a profit purpose, “profit” should be given its ordinary commercial
meaning, which does not include deductions for amounts related to future capital projects.
There are instances when a 149(1)(l) entity may have funds on hand in excess of its immediate operating
requirements. While retaining excess funds may be evidence that an organization is operating with a profit purpose,
generally, this will not in and of itself result in the organization failing to qualify as a 149(1)(l) entity. For example,
in our view, a 149(1)(l) entity may accumulate members’ contributions over a period of years in order to finance a
planned, future capital project. Also, we acknowledge that the entity may earn reasonable investment income with
respect to such accumulated funds, even though such income might otherwise be considered anticipated profit.
However, if the excess funds were collected for the purpose of earning investment income rather than for the