Citation: 2012 TCC 312
Date: 20120925
Docket: 2011-643(IT)I
BETWEEN:
LAIRD STEVENS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Favreau J.
[1]
These are appeals under
the informal procedure concerning the 2007 and 2008 taxation years.
[2]
The points at issue are
whether the Minister of National Revenue (the “Minister”) was justified in denying
the deduction of the following expenses:
|
|
2007
|
2008
|
|
Delivery (couriers and taxi)
|
$ 869.00
|
$1,075.00
|
|
Meals
|
$ 500.00
|
$ 500.00
|
|
Entertainment
|
$ 583.22
|
$ 693.11
|
|
Travel
|
$15,418.98 (reduced to $14,327.58 at
hearing)
|
Nil
|
[3]
During the 2007 and
2008 taxation years, the appellant was a part-time professor of English at Concordia University in Montreal and carried on professional activities as a writer.
[4]
In his 2007 tax return,
the appellant reported a loss from professional activities in the amount of
$21,368, which loss was claimed against a gross professional income of $667.
[5]
In his 2008 tax return,
the appellant reported a loss from professional activities in the amount of
$5,699, which loss was claimed against a gross professional income of $702.
[6]
The appellant testified
at the hearing and described himself as being a writer, musician and
philosopher. In 2010, he published a novel called The Death Fairy and,
in 2011, he published a book for children aged 3 to 8 called Millie the
Mouth. From 2002 to 2007, he worked on a novel entitled Paradise Lost,
which was still unpublished at the time of the hearing.
[7]
Concerning his claim for
travel expenses incurred in 2007, the appellant explained that the claim was in
respect of a 30-day stay in Paris, France, and a 7‑day stay in London, England. The appellant was accompanied by his spouse, his mother-in-law and his
three-year-old son. The details of the travel expenses (as revised during the
audit) were as follows:
Travel (revised)
Paris and England
Paris
Return airfare $
1,192.04
Accommodation** $ 10,272.00
Per diem (30 days) $
3,000.00
Total $ 14,464.04
England
Return airfare $
254.94
Accommodation $
0
Per diem (7 days) $
700.00
Total $
954.94
Paris and England $ 14,464.04
$
954.94
Grand total $ 15,418.98
(up
from $15,116.98)
** Accommodation includes:
Rent 4,800
euros
Agency fee 1,476
euros
Compulsory insurance
144 euros
Total 6,420
euros
Conversion to Canadian
dollars x 1.6
Total in Canadian dollars $ 10,272
(reduced
to $9,180.60 at the hearing)
[8]
The appellant explained
that the purpose of his stay in Paris was to conduct research for his book Paradise
Lost in which part of the action takes place in Paris. The appellant
referred the Court to some excerpts from the book containing local
descriptions. The appellant pointed out that the main research for the book was
done in 2001 and that he returned to Paris every year from 2007 to 2011. No
travel expenses were claimed by the appellant for the 2008 trip.
[9]
His accommodation in Paris was a three-bedroom apartment with a kitchen located in the Latin Quarter (5th
arrondissement) near the 6th arrondissement. The appellant found the
accommodation by consulting the Michelin Guide; he considered that it was
cheaper to rent an apartment than to rent a hotel room. The agency fee
represented 30% of the amount of the rent and the per diem claimed was $100.
[10]
The appellant explained
that the purpose of his stay in London was to show his ex-spouse the manuscript
of his book. His ex-spouse, a former editor, took the week off to read his manuscript.
During that week, the appellant and his family stayed at his ex-spouse’s house
and no accommodation expenses were claimed. The appellant claimed a per diem of
$100 and he paid the meals of his ex-spouse for that week. The appellant stated
that he made changes to the wording of his manuscript as a result of his ex-spouse’s
review of it.
[11]
Concerning his claims
for delivery expenses incurred in 2007 and 2008, the appellant explained that
he did not own a car and that he did not have a driver’s licence. Usually, he
used a bus pass to go to downtown Montreal, but the days on which he taught at
Concordia (Mondays and Wednesdays from 8 p.m. to 10 p.m.), he took a taxi in order
to be able to work at the Concordia library before teaching. His work at the
Concordia library consisted in rewriting his book Paradise Lost which
took him five years to write and is 650 pages long. The appellant also said
that he occasionally took a taxi to visit bookstores to see what was available there,
and that is apparently why he wrote Millie the Mouth. The appellant
acknowledged that none of his taxi receipts indicated either the starting point
or the destination of the trip. The appellant referred to the fact that, in the
2002 and 2004 audits, all his taxi receipts were accepted by the Canada Revenue
Agency (“CRA”).
[12]
Concerning his claims
for meal expenses incurred in 2007 and 2008, the appellant explained that the
meals in question were taken with his spouse and his son so that they could discuss
the philosophical content and the illustrations of his book Millie the Mouth.
Meal expenses totalling $500 per year were accepted by the CRA in a previous
audit.
[13]
Concerning his claims
for entertainment expenses incurred in 2007 and 2008, the appellant explained
that the expenses were for music CDs because he likes listening to music,
mainly piano, when he writes, and for children's films because he intended to
write a script for a movie and a cartoon series.
[14]
In cross-examination,
the appellant confirmed that his book Paradise Lost was finished during spring
break in 2007.
[15]
Mr. Serge Martin, an appeals
officer with the CRA, testified at the hearing. He explained that, at the
objection stage, the appellant had provided only a general description of the
amounts of the various expenses claimed. No receipts were submitted by the appellant
to the CRA even though the auditor had questioned whether the expenses claimed
were business expenses. At a meeting with the appellant held on October 29,
2010, Mr. Martin asked him to provide the receipts so that it could be
determined whether the expenses claimed were incurred for personal or for
business purposes. In a letter dated November 9, 2010, the appellant refused to
provide the receipts to the CRA. Despite the fact that the appellant's activities
did not generate any profit, Mr. Martin accepted the activities of the appellant
as being of a commercial nature on the basis of Interpretation Bulletin IT-504R2
and he allowed a deduction of $871.00 for 2007 and $2,443.00 for 2008 for
professional expenses. The receipts for the expenses claimed were finally submitted
to the CRA by the agents of the appellant shortly before the hearing of the
case.
Position of the
Appellant
[16]
The appellant’s agents submitted
that the trip to Paris and London was not a vacation trip. The purpose of the Paris portion of the trip was to do research for Paradise Lost because he had
decided to rewrite the two chapters in the novel that concerned Paris. The appellant is a very meticulous person and his book had to be exact and
authentic. In making the trip, the appellant was meeting a professional
obligation. The purpose of the London portion of the trip was the revision of
his manuscript by a former editor.
[17]
Concerning the delivery
expenses (couriers and taxi), it was submitted that those expenses were
incurred by the appellant in order to do research for his book at Concordia University, to check out the competition by seeing what was being offered by
bookstores, and to work with his spouse on the illustration of his book.
[18]
As far as the
entertainment expenses were concerned, it was submitted that music was
important and useful for the writing of the appellant’s books. The children's DVDs
were not exclusively for personal purposes.
[19]
Concerning the meal
expenses, it was submitted that they were incurred to meet other authors and
members of the writers' association and to discuss ideas with his spouse and
son for the illustration of his books.
[20]
The appellant’s agents
also raised the issue of the reasonableness of the expenses claimed and referred
specifically to the $100 per diem for the Paris/London trip, to the 160 euros
per day for board and lodging in Paris, and to the $500 claim for meals. It was
also mentioned that the appellant did not claim any deductions for the trips to
Paris made in subsequent taxation years.
Position of the Respondent
[21]
Counsel for the respondent
submitted that the Minister was justified in refusing the deduction of the
delivery, courier and taxi expenses and the meal, entertainment and travel
expenses in accordance with paragraphs 18(1)(a) and 18(1)(h)
of the Act as those expenses were not supported by any valid receipt and
were incurred for personal purposes and were not related to the earning of
income from the appellant’s business in the 2007 and 2008 taxation years.
[22]
Alternatively, counsel
for the respondent submitted that (i) should the Court find the meal and
entertainment expenses to be deductible, the appellant should only be allowed the
amounts provided for in sections 67 and 67.1 of the Income Tax Act
(the "Act") and, (ii) should the Court find that the travel
expenses were incurred in relation to the business of the appellant, they would
be capital outlays and, pursuant to paragraph 18(1)(b) of the Act,
not deductible.
Analysis
[23]
Paragraphs 18(1)(a),
18(1)(b) and 18(1)(h), section 67, subsection 67.1(1)
and the definition of “personal or living expenses” in subsection 248(1)
of the Act read as follows:
Section 18
(1) General limitations. In computing the income of a
taxpayer from a business or property no deduction shall be made in respect of
(a)
General limitation — an outlay or expense except to the extent
that it was made or incurred by the taxpayer for the purpose of gaining or
producing income from the business or property;
(b)
Capital outlay or loss — an outlay, loss or replacement of capital, a
payment on account of capital or an allowance in respect of depreciation,
obsolescence or depletion except as expressly permitted by this Part;
.
. .
(h)
Personal and living expenses — personal or living expenses of the
taxpayer, other than travel expenses incurred by the taxpayer while away from
home in the course of carrying on the taxpayer’s business;
Section 67 General limitation re expenses.
In
computing income, no deduction shall be made in respect of an outlay or expense
in respect of which any amount is otherwise deductible under this Act, except
to the extent that the outlay or expense was reasonable in the circumstances.
Section
67.1(1) Expenses for food, etc. Subject to subsection (1.1), for the
purposes of this Act, other than sections 62, 63, 118.01 and 118.2, an amount
paid or payable in respect of the human consumption of food or beverages or the
enjoyment of entertainment is deemed to be 50 per cent of
the lesser of
(a) the amount
actually paid or payable in respect thereof, and
(b)
an amount in respect thereof that would be reasonable in the
circumstances.
Section
248
(1)
Definitions. In this Act,
“personal
or living expenses” — “personal or living expenses” includes
(a)
the expenses of properties maintained by any person for the use or benefit of
the taxpayer or any person connected with the taxpayer by blood relationship,
marriage or common-law partnership or adoption, and not maintained in
connection with a business carried on for profit or with a reasonable
expectation of profit,
(b)
the expenses, premiums or other costs of a policy of insurance, annuity
contract or other like contract if the proceeds of the policy or contract are
payable to or for the benefit of the taxpayer or a person connected with the
taxpayer by blood relationship, marriage or common-law partnership or adoption,
and
(c)
expenses of properties maintained by an estate or trust for the benefit of the
taxpayer as one of the beneficiaries.
[24]
What is at issue in
this appeal is not the existence of a source of income but the relationship
between the expenses and the source to which they are purported to relate.
Paragraph 18(1)(a) requires that the expenses be incurred for the
purpose of gaining or producing income from a business of the taxpayer, and
paragraph 18(1)(h) specifically disallows the deduction of personal
or living expenses. In Stewart v. Canada, 2002 SCC 46, [2002] 2 S.C.R.
645, the Supreme Court of Canada made a clear distinction between the existence
of a source of income and the deductibility of expenses in the following terms
at paragraph 57:
. .
. The fact that an expense is found to be a personal or living expense
does not affect the characterization of the source of income to which the
taxpayer attempts to allocate the expense, it simply means that the expense
cannot be attributed to the source of income in question. As well, if, in
the circumstances, the expense is unreasonable in relation to the source of
income, then s. 67 of the Act provides a mechanism to reduce or eliminate the
amount of the expense. Again, however, excessive or unreasonable expenses
have no bearing on the characterization of a particular activity as a source of
income.
[25]
In Symes v. Canada,
[1993] 4 S.C.R. 695, at page 736, Iacobucci J. made the following comment
concerning the Courts' standpoint when called upon to consider the
deductibility of expenses:
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. . . .
[26]
Most of the expenses
claimed by the appellant in the present case could be described as “borderline”
because they have a significant personal component and an economic benefit was received
by members of the appellant’s family.
Travel Expenses
[27]
The travel expenses in
this case are not expenses incurred to produce income from a business or
property but are, rather, personal or living expenses. The business component
of the trip appears to have been only incidental to what was, in essence, a
personal trip.
[28]
The reservation of the
accommodation in Paris was made on October 23, 2006. At that time, the novel
was supposedly finished according to the following extract from the appellant’s
notice of objection for the 2007 and 2008 taxation years:
Why
was I in Paris, and why was I claiming this as an expense? In 1998, I visited Paris for the first time since I had lived there as a boy. It was there I had an idea for
a novel. I did not begin actually writing the novel until 2002 and did not
finish until 2006. However, I went back there in both 2001 and 2004 to do
research for the novel. Then in 2007, I decided that I needed to rewrite the
two chapters in the novel that concerned Paris, and so went back again to do
yet more research. (The novel is called Paradise Lost. It is divided up
into six chapters of about one hundred pages each.)
[29]
During that trip to Paris and London, the appellant was accompanied by his spouse, his son and his
mother-in-law. The appellant regularly made trips to Paris both before and
after the 2007 trip. The appellant spent 30 days in Paris on that trip, which
is a long and expensive stay for a business trip.
[30]
Concerning the London portion of the trip, I am not convinced that the appellant had to be present with
his ex-spouse while she was reading his manuscript. Here again, the business
component of the London trip appears to have been only incidental to what was
in essence a social trip.
[31]
In Henrie v. The
Queen, 2009 TCC 356, a case similar to the present case, I came to the
conclusion, at paragraph 10, that the travel expenses incurred by the appellant
(a writer) seemed to have been directed towards creating the ability to
generate income by providing inspiration for new books, rather than towards generating
additional income. The travel expenses were considered to be capital outlays,
the deduction of which was prohibited by paragraph 18(1)(b) of the Act.
The same reasoning applies in the present case.
[32]
It is appropriate in this
context to refer to the “once and for all test” adopted by Viscount Cave LC in British Insulated and Helsby Cables v. Atherton, [1926] A.C. 205 at pages 213-214:
. . . when an expenditure is
made, not only once and for all, but with a view to bringing into existence an
asset or an advantage for the enduring benefit of a trade, I think that there
is very good reason (in the absence of special circumstances leading to an
opposite conclusion) for treating such an expenditure as properly attributable
not to revenue but to capital. . . .
[33]
This test was
subsequently referred to by the Supreme Court of Canada in Johns-Manville Canada
Inc. v. The Queen, [1985] 2 S.C.R. 46 at pages 60-61.
[34]
The book Paradise
Lost was still unpublished at the time of the hearing of the case. The
writing of a book like Paradise Lost requires a long-term investment in
terms of time and money, and the expenses incurred by a writer in writing a
book are generally considered to bring into existence an asset or an advantage
for the enduring benefit of a trade.
[35]
In this case, as in the
Henrie case cited above, there is no cause and effect relationship between
the expenses incurred and the income generated by those expenses. The travel
expenses claimed for 2007 are clearly unreasonable considering the gross
professional income of $667 earned by the appellant in 2007. In the
circumstances, the deduction of travel expenses claimed in the appellant’s
calculation of income for his 2007 taxation year is prohibited under
section 67 of the Act.
Delivery Expenses
[36]
In Daniels v. The
Queen, 2004 FCA 125, the Federal Court of Appeal clearly stated that travel
expenses incurred by a taxpayer in travelling to and from his home to his place
of work are considered personal expenses. At paragraph 7, Desjardins J.A. said:
[7]
It is well established that travel expenses incurred by a taxpayer in
travelling to and from his home to his place of work are considered personal
expenses. They are not travelling costs encountered in the course of the
taxpayer's duties. Rather, they enable him to perform them . . . .
[37]
The evidence in the
present case was that the appellant did not have an office at Concordia University from which he could perform his duties on a regular basis. The explanation
given by the appellant that, on the days when he taught, he took a taxi to
Concordia University in order to be able to work on his book before teaching is
not sufficient to establish that the expenses were incurred exclusively for
business purposes. They were not for travel from one place of work to the other
and were not incurred by the appellant in the performance of the duties of his
office.
[38]
The travelling expenses
incurred by the appellant are also not allowed because the taxi receipts are
deficient in that they show neither the starting point nor the destination of
the trips.
Meals
[39]
The cost of meals
should be treated as a personal expense given that this is an expense that
would have been incurred in any event. Almost all, if not all of the meals were
taken by the appellant with his spouse and son. The fact that, during such
informal gatherings, some time was devoted to a discussion of work matters,
such as the illustration of a book, is not a sufficient reason to allow the deduction
of the costs in question for tax purposes.
[40]
The appellant’s spouse
did not testify at the hearing. She could have added evidence relevant to the
disputed facts by confirming the principal purpose of the aforementioned
gatherings. The appellant failed to adduce that evidence and an adverse inference
should be drawn against him in that regard.
Entertainment Expenses
[41]
I have concluded that
the entertainment expenses claimed by the appellant are personal and living
expenses as they were incurred for the personal enjoyment of the appellant. The
evidence was not sufficient to permit a determination that they were incurred
exclusively for business purposes.
Conclusion
The appeals from the reassessments dated
January 13, 2011 for the 2007 and 2008 taxation years are therefore dismissed.
Signed at Ottawa, Canada, this 25th day of September 2012.
"Réal Favreau"
Email this Content