Citation: 2010 TCC 416
Date: 20100823
Docket: 2007-3170(IT)G
BETWEEN:
GORDON LERICHE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
AMENDED REASONS FOR JUDGMENT
D'Arcy J.
[1]
The issue in this appeal is the deductibility
under paragraph 8(1)(f) of the Income Tax Act (the “Act”) of
certain expenses incurred by the Appellant, a commission salesperson.
[2]
The Appellant is a successful insurance
specialist with CIBC Wood Gundy, who began selling insurance over 40 years ago.
He holds a university degree from Sir George Williams University (now Concordia University) and has several professional designations (chartered life underwriter
(CLU), certified financial planner (CFP), chartered financial consultant (CH.F.C.),
and trust and estates practitioner (TEP)).
[3]
The Appellant began his career selling life
insurance with London Life in Montreal in 1969. He operated independent
brokerage firms between 1975 and 1990, at which time he joined employee
benefits firm KRG Insurance. In 1998, he was recruited by Midland Walwyn. Merrill
Lynch acquired Midland Walwyn in late 1998 and then subsequently sold the
retail operations, in late 2001, to the Appellant's current employer, CIBC Wood
Gundy.
[4]
By 2003, the Appellant's duties at CIBC Wood
Gundy were substantial. He was responsible for providing estate‑planning
advice to CIBC Woody Gundy clients serviced by its branches in Simcoe, St. Catharines, Hamilton, Burlington, and Mississauga (two branches). He also provided
estate‑planning support to the 67 CIBC investment advisors located
at those branches.
[5]
In addition, the Appellant managed seven or
eight other estate‑planning specialists who were located at CIBC Wood
Gundy branches in London, Toronto (three branches), Mississauga, Barrie, and Brampton.
[6]
The Appellant and three assistants carried on
his operations from the CIBC Woody Gundy offices in Mississauga.
[7]
It was the Respondent's position that CIBC Wood
Gundy employed the three assistants. The Appellant testified that CIBC Wood Gundy
employed one of the assistants (Ms. Stevens) and he employed the other two (Ms.
Werner and his spouse, Mrs. LeRiche). I accept the testimony of the Appellant.
The Appellant employed Ms. Werner and Mrs. LeRiche; CIBC Wood Gundy merely
administered the payroll on behalf of the Appellant.
[8]
It appears that by reporting on Mr. LeRiche's T4
his income net of the amounts paid to Ms Werner and Mrs. LeRiche, CIBC Wood
Gundy understated the Appellant's gross commission income by the amounts paid
to Ms. Werner and Mrs. LeRiche.
As I will discuss below, that error does not affect my decision.
[9]
When filing his income tax return for the 2003
taxation year, the Appellant reported commission income of $119,957.07 and
employment expense deductions of $108,193.30.
[10]
The Minister of National Revenue (the
“Minister”) reassessed the Appellant on December 28, 2005. In reassessing the Appellant,
the Minister reduced the amount of deductible employment expenses to $34,526. The
Minister confirmed the reassessment in a Notice of Confirmation dated April 18,
2007. The Appellant has appealed this Notice of Confirmation.
[11]
At the hearing, the Appellant filed over 140
documents supporting the deduction of most of the items claimed on his tax
return. Through examination‑in‑chief and cross-examination, the
witnesses, over three days, reviewed nearly all of the exhibits in excruciating
detail.
The Law
[12]
Because of subsection 8(2) of the Act, an
employee can only make deductions from his/her employment income if the
deduction is expressly permitted under section 8.
[13]
Paragraph 8(1)(f) allows the deduction of
certain expenses by commission salespersons. That provision reads as follows:
8(1)(f) where the taxpayer was employed in
the year in connection with the selling of property or negotiating of contracts
for the taxpayer's employer, and
(i) under the contract of employment was required to pay the
taxpayer's own expenses,
(ii) was ordinarily required to carry on the duties of the employment away
from the employer's place of business,
(iii) was remunerated in whole or part by commissions or other similar amounts
fixed by reference to the volume of the sales made or the contracts negotiated,
and
(iv) was not in receipt of an allowance for travel expenses in respect of the
taxation year that was, by virtue of subparagraph 6(1)(b)(v), not
included in computing the taxpayer's income,
amounts expended by the taxpayer in the year for the purpose of earning the income
from the employment (not exceeding the commissions or other similar amounts referred
to in subparagraph 8(1)(f)(iii) and received by the taxpayer in the year) to
the extent that those amounts were not
(v) outlays, losses or replacements of capital or payments on account of
capital, except as described in paragraph 8(1)(j),
(vi) outlays or expenses that would, by virtue of paragraph 18(1)(l),
not be deductible in computing the taxpayer's income for the year if the employment
were a business carried on by the taxpayer, or
(vii) amounts the payment of which reduced the amount that would otherwise be
included in computing the taxpayer's income for the year because of paragraph 6(1)(e);
[14]
The provision allows the deduction of qualifying
expenditures where the following five conditions are satisfied:
1.
The taxpayer was
employed in the year in connection with the selling of property or negotiating
of contracts for his/her employer.
2.
The taxpayer was
required, under the contract of employment, to pay his/her own expenses.
3.
The taxpayer was
ordinarily required to carry on the duties of the employment away from the
employer's place of business.
4.
The taxpayer was
remunerated, in whole or in part, by commissions.
5.
The taxpayer was not in
receipt of a non-taxable subparagraph 6(1)(b)(v) travel allowance.
[15]
The Respondent's counsel noted during her closing
argument that the Appellant satisfied all of the five conditions during the
2003 taxation year. The Declaration of Conditions of Employment form,
which was completed by the Appellant's employer and filed by the Respondent,
supports such a conclusion.
The form indicates that the Appellant was required to pay his own expenses,
work away from his employer's place of business, pay expenses for which he
did not receive any allowance or repayment (supplies, computer equipment, staff expenses),
use a portion of his home for an office, pay for an assistant, and pay for
supplies that he used directly in his work. The form also shows that CIBC Wood Gundy
paid the Appellant a commission according to the volume of sales made or
contracts negotiated.
[16]
It is clear from the evidence that the Appellant
satisfied all of the conditions of paragraph 8(1)(f). I must now
consider whether the expenses at issue qualify for deduction under paragraph
8(1)(f).
[17]
An expense will only qualify for deduction under
paragraph 8(1)(f) if the expense represents an amount expended by the
taxpayer in the year for the purpose of earning income from the employment and
the expense was
•
not an outlay, loss or
replacement of capital or payment on account of capital (except for motor
vehicle and aircraft costs deductible under paragraph 8(1)(j));
•
not an outlay or
expense that is not deductible by virtue of paragraph 18(1)(l) (expenses
in respect of recreational facilities and club dues);
•
not an amount described
in paragraph 8(1)(f)(vii) in respect of paragraph 6(1)(e)
standby charges for an automobile;
•
reasonable in the
circumstances.
[18]
Paragraph 8(1)(f) limits the total amount
that may be deducted to the amount of commission income received in the year.
[19]
When determining whether an expense qualifies
for deduction under paragraph 8(1)(f), one must first consider the
purpose test contained in that paragraph: was the amount expended by the
taxpayer for the purpose of earning income from the employment?
[20]
The courts have consistently recognized that the
purpose test in paragraph 8(1)(f) is similar to the purpose test in
paragraph 18(1)(a): whether an outlay or expense was made or
incurred by the taxpayer for the purpose of gaining or producing income from
the business or property. As the Federal Court of Appeal noted in Verrier v.
M.N.R:
...The
legislative objective is apparent. A taxpayer entirely dependent on commissions
directly related to sales volume and not entitled to claim his expenses from
his employer is, in many respects relevant to the scheme of the Income Tax Act,
more comparable to a self-employed person than to a conventional salaried
employee.
[21]
This does not mean that the tests used to
determine the deductibility of expenses by a qualifying commission employee are
identical to the tests used to determine the deductibility of business expenses.
As the Supreme Court of Canada noted in its decision in Symes, it
is subsection 9(1) that authorizes the deduction of business expenses; the
provisions of subsection 18(1) are limiting provisions only.
[22]
In contrast, paragraph 8(1)(f) is the
provision that authorizes the deduction of certain expenses of a commission
salesperson. The paragraph does not contain a profit test; the sole test is the
paragraph 8(1)(f) purpose test: were the amounts expended by the
taxpayer in the year for the purpose of earning income from the employment?
[23]
While, theoretically, there may be differences
in the determination of the deductibility of business expenses and the expenses
of a commission salesperson, practically speaking, the differences are not
significant.
[24]
When determining if an expense satisfies the
purpose test in paragraph 8(1)(f), the Court is guided by the
following words of Justice Iacobucci in Symes:
As
in other areas of law where purpose or intention behind actions is to be
ascertained, it must not be supposed that in responding to this question,
courts will be guided only by a taxpayer's statements, ex post facto or
otherwise, as to the subjective purpose of a particular expenditure. Courts
will, instead, look for objective manifestations of purpose, and purpose is
ultimately a question of fact to be decided with due regard for all of the
circumstances. For these reasons, it is not possible to set forth a
fixed list of circumstances which will tend to prove objectively an income
gaining or producing purpose. . .
[25]
The first step when applying the paragraph 8(1)(f)
purpose test is to identify any expenditures that constitute personal expenses.
In most instances, if the expense in issue was not a personal expense then the
determination is made that the expense was incurred to earn commission income. However,
this will not always be the case. For example, in the present case, the Appellant
incurred non-personal expenses for the benefit of other employees of CIBC Wood Gundy.
The Appellant did not incur such expenses for the purpose of earning income
from his employment.
[26]
In assessing the Appellant, the Minister
identified sixteen expense categories and denied all or a portion of the
amounts claimed by the Appellant in six of the categories. The deduction of the
expense was denied for one or more of the following reasons: the expense was
not incurred for the purpose of earning income from the employment, the expense
was incurred on account of capital, or the expense was not reasonable in the
circumstances.
[27]
I will now consider each of the six expense
categories at issue.
Advertising and Promotion
[28]
The amount at issue is $7,610, calculated as
follows:
|
Amount claimed by Appellant
|
$12,647
|
|
Less:
|
|
|
Amount allowed after audit
|
(2,989)
|
|
Amount consented to by Respondent during
hearing
|
(2,048)
|
|
Amount at issue
|
$7,610
|
[29]
The Appellant filed approximately 100 receipts
to support the deduction of $6,657.02 of the expenses disallowed by the
Minister.
Counsel for the Appellant provided the Court with a spreadsheet that grouped the
receipts by expense categories that were referred to as "relationships."
The categories were investment advisors (the largest group), clients, clients
and prospects, colleagues, HO Staff, insurer supplier, office staff, prospects,
staff, staff and clients, and strategic alliances.
[30]
During the course of the hearing, the Respondent
consented to the deduction of $2,047.70 of the expenses noted on the spreadsheet.
This represented the total of the receipts provided in respect of the
promotional expenses incurred in respect of clients, prospects, and strategic
alliances.
[31]
It was the position of the Respondent that the
remaining expenses listed on the spreadsheet ($4,609) were
not deductible. These were expenses primarily incurred in respect of investment
advisors and staff. The Respondent denied the deductions on the basis that the Appellant
could "only claim for advertising and promotion expenses for items given
to his clients and prospective clients. Gifts to staff, sales associates,
colleagues, and family members are not allowable. The investment advisors
with whom he shares the commissions are all employees of CIBC World Markets,
like himself, and cannot be considered his clients." Counsel
for the Respondent argued that it was not reasonable for the Appellant to
deduct expenses for his staff and/or the investment advisors. She argued that
it was not reasonable for the Appellant to incur promotional expenses with
respect to the investment advisors, since they could only refer clients to CIBC
insurance advisors.
[32]
The evidence provided during the hearing does
not support the Respondent's position.
[33]
The CIBC investment advisors frequently referred
clients to the Appellant. They were an important source of business for the Appellant.
The CIBC investment advisors may have been required to refer clients to CIBC
insurance advisors; however, the Appellant was not the only insurance advisor
employed by CIBC. He competed with other CIBC insurance advisors for the
investment advisors' business. In addition, the Appellant noted that most of
the CIBC investment advisors had not, in the past, dealt with estate planning
advisors. As a result, it was important for him to meet with the investment advisors
to explain to them the services and products he could provide to their clients.
[34]
During her testimony, Ms. Power, a CIBC
investment advisor, noted that it was important for the Appellant to sell
himself to the investment advisors, to inform them of the insurance
products he sold and his ability to service their clients.
[35]
With respect to the Appellant's staff, it is
clear from the evidence, particularly the Appellant's testimony, that they were
an important part of his operations. They ran his office, dealt with his
clients, and performed numerous administrative tasks.
[36]
After considering the evidence, particularly the
testimony of the Appellant and Ms. Power, it is clear to me that the Appellant
incurred the expenses listed in Exhibit A-6 for the purpose of producing
commission income in the course of his employment. The expenses incurred with
respect to the CIBC investment advisors and the Appellant's staff were incurred
to maintain and increase the Appellant's commission income; they thus satisfy
the paragraph 8(1)(f) purpose test. The amounts noted were
deductible since they were reasonable and were not capital expenditures. In
summary, the Appellant was entitled to deduct $4,609 of the amount at issue.
Lodging
[37]
The amount at issue is $2,481, being the
difference between the amount claimed by the Appellant ($3,509) and the amount
allowed during the audit. The Appellant provided receipts and
testimony to support his position that $1,639.44 of the amount at issue was
deductible.
[38]
I agree with counsel for the Respondent that the
lodging expenses at the Marriott and Holiday Inn in Montreal were primarily
personal expenditures. The deductibility of the expense relating to the
Westin Prince is discussed under the Education heading.
[39]
The remaining item was a lodging expense at the Westin Harbour Castle in Toronto. The Appellant incurred that expense of $332.64 while
attending a CIBC national business conference. As a result, it was incurred in
the course of his estate-planning operations and was deductible under paragraph
8(1)(f).
Supplies
[40]
The amount at issue is $12,895, which was the
amount claimed by the Appellant on his income tax return.
[41]
During her closing argument, the Respondent's
counsel argued that the expenses were not deductible since CIBC Wood Gundy
provided the Appellant with supplies and the Appellant chose to purchase
duplicate and supplemental supplies, as he did not like those provided by CIBC
Wood Gundy. In the alternative, she argued that a number of the
expenditures were on account of capital.
[42]
The Appellant provided receipts for $10,401 of
the expenditures at issue.
The receipts related to approximately 35 expenditures, a number of which were
amounts under $100. During his testimony, the Appellant discussed the nature
of, and reasons for incurring, each of the expenses.
[43]
As noted previously, the application of the
paragraph 8(1)(f) purpose test must be based on objective factors. As
the same time, the Court must not second‑guess the business judgment of
the taxpayer. As former Chief Justice Bowman noted in Nichol, the
Court should not use the benefit of 20-20 hindsight to substitute its judgment
for the taxpayer's business judgment. The Appellant decided that supplies in
addition to those provided by CIBC Wood Gundy were required to effectively
carry on his operations. That decision was a business decision. It does not
represent an unreasonable error in judgment that would cause the Court to
question the business judgment of the Appellant.
[44]
After reviewing each of the invoices and
considering the testimony of the Appellant, I have concluded that each of the
expenditures, with the exception of two personal expenditures totalling $441.60, was
incurred by the Appellant for the purpose of gaining or producing commission
income in the course of his employment.
[45]
However, I have concluded that expenses totalling
$4,453 relating to computer software, a laser printer, computer equipment and a
projector were on account of capital and thus not deductible under paragraph
8(1)(f).
[46]
In summary, the Appellant was entitled to deduct
$5,506 in respect of the expenses listed on the last pages of Exhibit A-8 under
the heading Supplies.
Education Expenses
[47]
The amount at issue is $10,642, that is, the
difference between the amount claimed by the Appellant ($11,035) and the
amount consented to by the Respondent during the hearing ($393).
[48]
The amounts at issue in respect of education
expenses can be grouped into the following categories:
•
Personal development
for the Appellant (Strategic Coach and Corporate Vision) - $8,079
•
Books and CD's - $362
•
Fees paid to
professional organizations (includes seminars and computer training) - $2,512
[49]
The first issue I must consider is whether any
of the expenditures were made on account of capital.
[50]
This Court has noted in the past that
the general principles to be applied in considering whether education expenses
are capital in nature or not are correctly described in Interpretation Bulletin
IT-357R2.
The following paragraph of the Bulletin summarizes the principles:
Training
costs are not deductible as current expenses if they are capital expenditures. They
are considered to be capital in nature where the training results in a lasting
benefit to the taxpayer, i.e., where a new skill or qualification is acquired. Where,
on the other hand, the training is taken merely to maintain, update or upgrade
an already existing skill or qualification, the related costs are not
considered to be capital in nature.
[51]
After considering the testimony of the Appellant
and the documentary evidence before the Court, I have reached the following
conclusions with respect to the amounts at issue:
•
The Appellant took the
personal development courses in an attempt to learn new systems and skills that
would improve his presentation, time management and speaking skills. These
courses resulted in the Appellant acquiring skills that had a lasting benefit.
The related expenditures constituted capital expenditures and were not
deductible.
•
The remaining expenses
were incurred to maintain, update or upgrade an existing skill of the Appellant
or his staff, or were promotional expenditures. The books and CD's were
acquired either to improve the Appellant's general business skills or as gifts
for clients. The amounts paid to the professional organizations related to
computer training taken and various seminars attended by the Appellant and his
staff to improve their knowledge of the issues relating to planning for the
elderly. None of the expenditures were made on account of capital and all
were incurred for the purpose of earning commission income from the Appellant's
employment. These expenditures were deductible by the Appellant.
[52]
In summary, I find that the Appellant was
entitled to deduct $2,874 of the amount at issue.
Equipment Leases
[53]
The amount at issue is $16,819, namely, the
difference between the amount claimed by the Appellant ($25,417) and the
amount consented to by the Respondent during the hearing ($8,598).
[54]
The amount at issue relates to the leasing by
the Appellant of various computers, servers, audio-visual equipment, cameras,
printers, and electronic organizers.
[55]
On reassessment, the Minister denied the amount
deducted in respect of all lease payments. During the hearing, the Respondent
consented to the deduction of lease payments totalling $8,598 relating to the
lease produced as Tab 4 of Exhibit A-3. During her closing argument,
counsel for the Respondent argued that the lease payments in respect of the
remaining leases were not deductible as they related to payments for duplicate
equipment, were not reasonable, and were not incurred to earn commission
income.
[56]
I do not accept that argument. I believe counsel
is, under the guise of a reasonableness test, once again asking me to
substitute my own judgment for the business judgment of the Appellant. As noted
previously, this is not the role of the Court unless there is an unreasonable
error of judgment. There is no such error in the present appeal.
[57]
The Appellant provided copies of the relevant
lease agreements
and, during his testimony, described the leased equipment, noted the person who
used it and explained the reason for leasing each piece of equipment.
[58]
The Appellant confirmed that CIBC provided some
equipment (desktop computer, telephone, and access to a network printer);
however, he testified that the equipment did not satisfy his needs and the
needs of his employees. As a result, he leased the additional equipment. The
additional leased equipment included laptop computers, local printers,
projectors, screens, fax machines, and servers.
[59]
After reviewing the evidence, I have reached the
following conclusions with respect to the leases at issue:
•
The lease at Tab 1 of Exhibit A-3: No additional
amount was deductible by the Appellant in respect of this lease. There is no
evidence that the Appellant used the leased equipment in his operations; other
CIBC employees, who had previously worked with the Appellant, used most of the
equipment.
•
The lease at Tab 2 of Exhibit A-3: The Appellant
was entitled to deduct two-thirds of the lease payments made in the taxation
year. On the basis of the testimony of the Appellant, I have concluded that the
Appellant used approximately two-thirds of the leased equipment in his
operations and other CIBC employees used the remaining equipment.
•
The lease at Tab 3 of Exhibit A-3: The Appellant
was entitled to deduct 60% of the lease payments. The Appellant used most of
the leased equipment in his operations. However, there was significant personal
use of a camera, and a CIBC employee who did not work with the Appellant in
2003 used one of the printers.
•
The lease at Tab 5 of Exhibit A-3: The Appellant
was entitled to deduct 40% of the lease payments. The Appellant identified
three of the leased items as being equipment used in his operations. This
equipment constituted approximately 40% of the equipment noted on the lease.
[60]
On the basis of the foregoing, I have concluded
that the Appellant was entitled to deduct $9,464 of the amount at issue in
respect of the leased equipment.
Staff Expenses (also referred to
as Other Travel Expenses)
[61]
The amount at issue is $7,403, being the amount
claimed by the Appellant ($12,178)
less the amount consented to by the Respondent during the hearing ($4,775).
[62]
This expense category related to expenses
incurred in respect of the Appellant's three assistants, Ms. Stevens, Ms.
Werner, and Mrs. LeRiche.
[63]
Expenses totalling $2,976.84 were incurred by
Ms. Stevens and Ms. Werner for cellphones, cradles for the phones, and highway
tolls; this amount also includes miscellaneous out‑of‑pocket
expenses. It was determined during the hearing that the $2,976.84 had been deducted
twice: once as a staff expense and once as "salary or wages paid to an
assistant." The Minister allowed the deduction for "salary or wages
paid to an assistant." In short, no additional amount was deductible in
respect of the $2,976.84 paid to Ms. Stevens and Ms. Werner.
[64]
The remaining amounts deducted as staff expenses
related to car allowances provided by the Appellant to his staff. The
allowances were based upon an estimate of kilometres driven by each staff
member while carrying out her duties. During the hearing, the Respondent
consented to the deduction of the allowance paid to Ms. Stevens on the basis
that the allowance was a reasonable travel expense. However, the Respondent
continued to take the position that the allowances paid to Ms. Werner and Mrs. LeRiche
were not deductible.
[65]
In her argument, counsel for the Respondent
appeared to contend that the amounts were not reasonable since Ms. Werner and
Mrs. LeRiche did not maintain mileage logs.
[66]
I fail to see why the Appellant's deduction
should be denied merely because his employees did not maintain mileage logs. Deductibility
is dependent upon the purpose test in paragraph 8(1)(f) and a
determination of whether the amounts paid as allowances were reasonable.
[67]
Ms. Stevens, Ms. Werner, and Mrs. LeRiche each testified
during the hearing. They explained the nature of their duties and of the use of
their vehicles when performing their duties. On the basis of this evidence, I
have concluded that the Appellant incurred the expense with respect to the
allowances for the purpose of earning commission income and that the allowances
were reasonable. The Appellant was entitled to deduct the allowances paid
to Ms. Werner and Mrs. LeRiche.
[68]
In summary, the appellant was entitled to deduct
$4,426 of the amount at issue.
Summary
[69]
In determining his income for the 2003 taxation
year, the Appellant was entitled to deduct $77,630 under
paragraph 8(1)(f). The $77,630 is based upon the
following:
|
Amount allowed
by Minister
|
$34,526
|
|
Amount consented
to by Respondent during hearing
|
15,892
|
|
Amounts allowed
by Court
|
|
|
Advertising and Promotion
|
$4,609
|
|
Lodging
|
333
|
|
Supplies
|
5,506
|
|
Education Expenses
|
2,874
|
|
Equipment Leases
|
9,464
|
|
Staff Expenses
|
4,426
|
|
Total amount
allowed by Court
|
27,212
|
|
Total amount
deductible under paragraph 8(1)(f)
|
$77,630
|
[70]
The amount deductible, $77,630, is less than the
total commission income of $119,957.07 reported by the Appellant and thus is
fully deductible under paragraph 8(1)(f). This would also be the
result if the Appellant's commission income were calculated as his gross
commission income before the deduction of the amounts paid to Ms. Werner and
Mrs. LeRiche.
Conclusion
[71]
For the foregoing reasons, the appeal with
respect to the reassessment made under the Income Tax Act for the 2003
taxation year is allowed, with costs to the Appellant. The reassessment dated
December 28, 2005 is referred back to the Minister for reconsideration and
reassessment on the basis that the Appellant was entitled to deduct $77,630 under
paragraph 8(1)(f) when determining his taxable income for the 2003
taxation year.
Signed
at Antigonish, Nova Scotia, this 23rd day of August 2010.
“S. D’Arcy”
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