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"Mammas, don't let your babies grow up to be cowboys. Don't let 'em pick guitars and drive them old trucks. Make 'em be doctors and lawyers and such." - from Ed and Patsy Booth's 1976 song, later re-recorded by Willie Nelson and Waylon Jennings

Well, maybe you shouldn't be made to be lawyers, either. Here, on a long weekend heading into July, is a short cautionary tale about how you could spend whole chunks of your lawyerly career fighting over tiny facets of taxation law, and how, just maybe, you might want to find better goals in life.

This is the tale of the Snow Boogie Astra Sled, HBC Imports/Zellers Inc., the Canadian Border Services Agency and "tariff item No. 9506.99.90 of the Schedule to the Customs Tariff, S.C. 1997, c. 36."

HBC wanted to import the Astra sled, the CBSA wanted to charge duty on it.

HBC felt the sled should be imported under Section 95.03 of the Schedule to the Customs Tariff Act, arguing that it should be considered under subclause v: "Toys designed to be ridden by children but not mounted on wheels, e.g., rocking horses."

The CBSA felt Section 95.06 would be more appropriate: "Articles and equipment for general physical exercise, gymnastics, athletics, other sports ... or outdoor games, not specified or included elsewhere in this Chapter; swimming pools and paddling pools."

Presumably, the two sections have different levels of duty payable.

The CBSA applied 95.06: HBC appealed to the Canadian International Trade Tribunal and, according to the Federal Court, "an Astra sled was submitted to the tribunal as an exhibit," but the CBSA's interpretation was upheld. Court documents say, "The tribunal found that "the essential purpose of the good in issue is to enable children (and adults) to partake in the outdoor activity of sledding or sliding on snowy hills."

HBC then appealed the decision to the Federal Court, which delivered its verdict this week. After much minute examination of the issue, two judges ruled.

"The only example given in paragraph (v) is a rocking horse. It must be remembered that the question in this appeal is whether the decision of the tribunal is reasonable, not whether it is correct. Because the only example of 'toys designed to be ridden by children' is a rocking horse, a reasonable conclusion could be that only 'toys designed to be ridden by children' that are like rocking horses are the toys that are to be included as 'other toys' under this paragraph. While a rocking horse is ridden, the rocking horse will not transport the child from one place to another. The Astra Sled is easily distinguished from a rocking horse and therefore, a reasonable conclusion is that the Astra Sled, even if it is a toy, is not to be included as 'other toys' under this paragraph. Since this paragraph is the only paragraph of Note (D) that specifically refers to toys designed to be ridden by children, it also seems that it is reasonable to conclude that the Astra Sled, even if it is a toy, is not to be included in 'other toys' for the purposes of heading 95.03."

CSBA 1, HBC 0. Game over? Not quite.

A third judge found that "The tribunal found, and it is now undisputed, that the Astra Sled is designed for sliding down a snowy hill and is something like a toboggan," and said, because of that, the sled should pay a third and different kind of duty. Which leaves the whole issue potentially up for appeal.

Maybe "cowboy" was a better choice all along.

Organizations: CBSA, HBC, Federal Court Zellers Inc. Canadian International Trade Tribunal

Geographic location: Ed

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