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How Language Can be Taxing

Income tax is one of the Government’s main sources of funding and fiscal measures cover all aspects of our lives, from cradle to grave. The concepts are complex, and the terminology concerns every area of human activity. Translating tax laws is therefore a major challenge. In this article, the authors provide a brief history of Québec’s Taxation Act and then call on their experience as translators and revisers of Québec tax laws to discuss the language issues they face daily.

Patrick Tye and Nathalie Polet

Patrick Tye and Nathalie Polet are Translators-Revisers of bills respecting Québec tax laws at the Direction de la traduction et de l’édition des lois of the Assemblée nationale du Québec

Origin and Evolution of Québec’s Taxation Act

The origin and even the purpose behind the taxation of income comes from a measure many assumed to be temporary, implemented towards the end of the First World War. To fund military spending and replenish state coffers, the federal government resolved in 1916 to tax business income by adopting the Business Profits War Tax Act (S.C. 1916, 6-7 Geo. V, c. 11). In 1917, the Income War Tax Act (S.C. 1917, 7-8 Geo. V, c. 28), an eleven-page Act, broadened the scope of income taxation to include the earnings of the wealthiest individuals. These Acts signaled the beginning of a shift in the Government’s sources of funding as, up to that point, two-thirds of its income came from customs duties.

In 1940, Québec followed the lead of the federal government in adopting a law that applied to persons as well as corporations, namely the Quebec Income Tax Act (S.Q. 1940, 4 Geo. VI, c. 16). However, during the Second World War, at the request of the Government of Canada and in return for an annual indemnity, the provinces agreed to stop levying “personal income and corporation taxes […] for the duration of the war and for a certain re-adjustment period thereafter.”1 After the war, Québec began to reclaim its rights by adopting the Corporation Tax Act (S.Q. 1947, 11 Geo. VI, c. 33) and, a few years later, by reintroducing the taxation of personal income under the Provincial Income Tax Act (S.Q. 1953–54, 2-3 Eli. II, c. 17). These measures enabled Québec to diversify its tax base, which up to that point consisted mainly of property taxes and succession duties.

The size of the Taxation Act (CQLR, c. I-3) has significantly increased as the definition of income has become better refined, as equity measures have been introduced, and as means have been implemented to counter the circumvention of tax rules. The Quebec Income Tax Act was a mere nine pages long when it was assented to and comprised 10 definitions, 23 sections and a total of 2,810 words. A person’s income tax represented “fifteen per centum (15%) of the amount of the tax payable to His Majesty in the rights of the Dominion of Canada by any such person in virtue of the Income War Tax Act.”2 An undeniable sign that legislation has become more complex in order to adapt to our ever-changing financial realities is that section 1 of the current version of the Taxation Act includes over 270 definitions, only a fraction of the definitions contained in the Act itself. To fully grasp its scope, note that currently section 1 alone is 15,178 words or over five times as long as the original Act.

Simply reading the 1940 version reveals that terminology has certainly evolved. The text contains a plethora of pronominal adverbs ranging from “here” (hereafter, hereby, herein and hereunder) to “there” (thereafter, therefor, therefrom, therein, thereof, thereto and thereunder). Assets and goods were “situate” wherever they were and the Treasurer or Minister could authorize a person to “distrain the goods and chattels” of a taxpayer in default of payment. Lastly, the Act offers a glimpse of another era where Québec had a “Comptroller of Provincial Revenue” and it was the “sheriff of the city, county or district” who was tasked with seizing the goods of taxpayers who defaulted on a payment.

Translation and Distinctive Features of Québec’s Fiscal Laws

Like the laws of the Parliament of Canada, the laws of the Legislature of Québec must be published and adopted in both official languages under section 133 of the Constitution Act, 1867. In Québec, laws are drafted in French and translated into English, and both versions have the same legal value.

Consequently, the translation process must be rigorous and quality control is essential. To that end, translators in need of clarification to understand the text can submit questions to the legislative drafters which, in turn, may lead to some adjustments. Similarly, the legislative drafters sometimes comment on or question translation choices.

Tax laws can be particularly complex and relatively dry. The laws contain mathematical formulas, of course, but for the most part calculations are spelled out, requiring one to perform linguistic mental gymnastics. For example, a mathematical phrase may be as straightforward as “B is 10% of the amount by which the eligible individual’s income for the year exceeds $100,000”3 or as challenging as “the product obtained by multiplying the fraction obtained when

1 is subtracted from the reciprocal of the fraction [applicable], by the amount designated.”4

However, tax law terminology goes beyond the fields of accounting and finance. Sections to be translated cover a wide array of topics and may require research on specific terminology regarding racehorses and, on the same day, items related to breastfeeding. This variety is due to the fact that taxation affects all aspects of life and that tax credits, among other tax measures, are a quick and effective way of encouraging individuals and legal persons to adopt or maintain certain behaviours. For example, a tax credit for home improvement could seek to promote environmentally responsible renovation while a tax credit aimed at the digital illustration industry can serve to create jobs. Whether the goal is to encourage new graduates to work in resource regions or to support scientific research and experimental development, the areas targeted are vast and diverse.

Because of their impact on our everyday lives, Québec’s tax laws are bound to evolve. They have already been substantially amended by the Act to harmonize certain legislative provisions of a fiscal nature with the Civil Code of Québec (S.Q. 1997, c. 3). This omnibus, assented to in March 1997, aimed to make amendments related to the adoption of the new Civil Code of Québec (CQLR, c. CCQ-1991). The 189-page terminology adjustment exercise concerning mainly French terms essentially consisted in replacing 10 or so terms in Québec’s fiscal laws. Thus, in the French version, the word “société” was replaced by “société de personnes” and was then used to replace the expressions “corporation” and “entité corporative.” Among other changes and depending on the context, the word “guarantee” was replaced by “security,” the word “prothonotary” by “clerk,” and the expression “corporate name” simply became “name.”

Sometimes, the linguistic challenges stem from the fact that a term in one language has no exact equivalent in another or, on the contrary, has several equivalents. Among the terminology used to refer to certification documents, the French expressions “attestation (d’admissibilité)” and “certificat (d’admissibilité)” sometimes have both been translated as “certificate” in the Taxation Act. As coming across these terms in the same section would pose an obvious problem, their translation was standardized and the terms are now rendered by “certificate” and “qualification certificate,” respectively, regardless of the presence or absence of the “d’admissibilité” specification.

Harmonization of Certain Québec and Federal Tax Laws

Measures announced in Québec’s Budget Speech and information bulletins are implemented in tax bills. When the federal government announces tax measures, the Ministère des Finances du Québec first analyzes the federal bill. It then determines which measures are to be retained in whole or in part, depending on whether or not they correspond to the characteristics of the Québec tax system, in order to harmonize the application of measures common to both levels of government. In certain contexts, harmonization includes replacing a reference to a federal “return of income” by a reference to a Québec “fiscal return.” In the case of property imported into Canada, harmonization means that same property will be said to have been brought into Québec.

While the federal government strives to take Québec civil law into account when drawing up measures, Québec takes into account certain linguistic features that arise from the cohabitation of common law and civil law. The challenge for translators is to adjust terminology to reflect this state of affairs. For example, “hypothèque” is translated “hypothec or mortgage” and “succession assujettie à l’imposition à taux progressifs,” rendered by “graduated rate estate” in the federal text, is translated “succession that is a graduated rate estate” in the Québec version.

Other Language Considerations

Language is constantly evolving, and a few linguistic trends influence the translation of laws. For many years now, translators have been striving to use gender-free language in the English version. Various techniques make it possible to avoid the pronouns “he, she, his, her, himself and herself” such as repeating the subject, writing in the passive voice, rephrasing in the plural or using the singular “they.”

The Assemblée nationale’s translation team also endeavours to apply certain plain English principles, including opting for clearer, simpler vocabulary. While it may be relatively easy to replace certain terms such as “aforementioned,” “hitherto,” and “said,” other terms call for broader reflection: does the bill allow for all occurrences of the term in the English version of the Act to be replaced? If not, would the legislative drafters in charge of the French version be open to adding instructions to change the remaining occurrences? Could the term be integrated gradually, as the Act gets updated over time, or would we run the risk of undermining internal coherence? Are the sections concerned quoted in other Acts? What impact would such a change have? Does replacing the term genuinely make the text more comprehensible? Does this adequately convey the legislative drafter’s intention and help the reader? In the case of “shall,” for example, doing away with the term altogether would be inconceivable as some contexts are better suited to it. The translation team’s approach has been to avoid using “shall” in new laws while retaining it in older ones if it is present in neighbouring sections, barring certain exceptions. While the concept is simple, applying the principles of plain language in tax legislation is very complex.

One of the distinctive features of the Taxation Act is the length of some of its sections and their division into multiple paragraphs and subparagraphs. Moreover, the sentences themselves are generally longer than in other Acts. Punctuation is therefore a key element that translators need to consider with great care. Commas help the reader, by setting off parenthetical statements, to better identify the structure of the sentence, to better define the different components of the paragraph or subparagraph, to emphasize a part of the sentence, or to delimit a sequence or list of elements. Punctuation may differ between the French and English versions. Sometimes, the English version will have parentheses or em dashes, something rarely seen in the French version. Such punctuation is used to improve the legibility of sentences that are often half a page long or more.

Over the years, various stakeholders in Québec have raised the possibility of simplifying the Taxation Act. Whereas the Action démocratique du Québec party was considering the introduction of a 20 per cent flat tax rate in 2002,5 others have suggested reviewing the tax laws from top to bottom, as a few countries (namely Australia and New Zealand) have done by rewriting their tax laws using more accessible language and revisiting the logical structure of the law.6,7 Meanwhile, the United Kingdom, by means of minor changes, has also undertaken to make its income tax legislation clearer and easier to use.8,9 Whether or not Québec reforms its tax laws as well, the language used will always be a major concern and the translators’ priority will remain the same: to find the right word to faithfully reflect the source text and ensure the public has the most accurate information possible.

Notes

1. The Dominion-Provincial Taxation Agreement Act, 1942 (S.C. 1942, 6 Geo. VI, c. 13., s. 2).
2. Quebec Income Tax Act (S.Q. 1940, c. 16, s. 3).
3. Taxation Act (CQLR, c. I-3, s. 1029.8.116.42).
4. Taxation Act (CQLR, c. I-3, ss. 257 and 257.4).
5. “Dumont on defensive over taxes, health”, CBC, October 7, 2002, https://www.cbc.ca/news/canada/ dumont-on-defensive-over-taxes-health-1.312874
6. The second reading speech for the Tax Law Improvement Bill (No. 1) 1998 touches on the three main phases of the Australian Tax Law Improvement Project, which resulted in a more logical structure, an improved numbering system and plain language drafting. See: https://www. ato.gov.au/law/view/print?DocID=SRS%2F19980046
7. New Zealand’s Income Tax Act 2007 was “the fourth and final stage in the rewrite of income tax legislation using plain drafting techniques”. See: https://www. taxtechnical.ird.govt.nz/new-legislation/act-articles/ income-tax-act-2007/introduction-and-summary-of-the- act
8. The long title of the Act amending the United Kingdom’s tax legislation specifies that rewriting consisted of minor changes. See: https://www.legislation.gov.uk/ ukpga/2007/3/introduction/enacted
9. The fifth explanatory note of the amending Act mentions the rewrite was designed to make the income tax legislation clearer and easier to use. See: https://www. legislation.gov.uk/ukpga/2007/3/notes