Shepherd v. The Queen, docket 2001-1869(IT)I (Informal Procedure)

Date: 20020228

Docket: 2001-1869-IT-I

BETWEEN:

JERRY EUGENE SHEPHERD,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasonsfor Judgment

Teskey, J.

[1]            The Appellant in his Notice of Appeal wherein he appealed his reassessment of income tax for 1997 elected the informal procedure.

[2]            The sole issue before the Court is whether the Appellant is entitled to a deduction in respect of a clergyman's residence pursuant to the provisions of paragraph 8(1)(e) of the Income Tax Act (the "Act").

[3]            A reader of this provision will see that it contains two tests, that is a status test and a function test. This provision reads:

(8)(1)        In computing a taxpayer's income for a taxation year from an office or employment, there may be deducted such of the following amounts as are wholly applicable to that source or such part of the following amounts as may reasonably be regarded as applicable thereto:

...

(c)            Clergyman's residence — where the taxpayer is a member of the clergy or of a religious order or a regular minister of a religious denomination, and is in charge of, or ministering to a diocese, parish or congregation, or engaged exclusively in full-time administrative service by appointment of a religious order or religious denomination, an amount equal to

...

[4]            In this appeal, the Respondent acknowledges that the Appellant meets the status test.

Facts

[5]            The full and proper name of the facility in Edmonton is: North American Baptist College and Edmonton Baptist Seminary (the "College"). The professors are hired to teach at either the College or the Seminary and never both.

[6]            The Minister of National Revenue (the "Minister") admitted that the Appellant's primary task at the Edmonton Baptist Seminary (the "E.B.S.") is that of teaching, as stated by the Appellant in his Notice of Appeal.

[7]            The Minister also admitted that:

(a)            the E.B.S. exists to prepare ministers for the North American Baptist Conference (the "Conference");

(b)            that the Appellant is a minister of the Conference; and

(c)            that the Appellant is an associate professor and teacher of biblical interpretation and doctrine at the E.B.S.

[8]            The Minister claimed that in assessing the Appellant, he made the following assumptions of fact:

·          the College is an educational ministry of and is funded by the Conference;

·          the primary purpose of the College is to train men and women for pastoral and other vocational Christian ministries;

·          the Appellant's primary function with the College was to teach;

·          at no time during the 1997 taxation year was the Appellant in charge of, or ministering to, a diocese, parish or congregation; and

·          at no time during the 1997 taxation year was the Appellant engaged exclusively in full-time administrative service by appointment of a religious order or religious denomination.

·         

[9]            The Appellant, as well as giving testimony on his own behalf, called two witnesses on his behalf namely Ronald David Berg, also a Baptist Minister and a faculty member at the College, and James Stephen Leveiett, PhD., who is the Academic Vice President of the E.B.S.

[10]          The Appellant is an associate professor of Old Testament at the E.B.S., he holds a PhD in divinity.

[11]          The Appellant is the chair of the Student Life Committee. The E.B.S. has a faculty handbook which deals with the Student Life Committee which sets out the duties of the chair, they are:

·          organize and administer activities which will promote the spiritual growth of members of the E.B.S. community which includes:

-           planning and implementing a program of chapel services for this year;

-           planning and implementing the program for the Day of Prayer each semester;

-           organizing the Seminary community in prayer groups;

-           appointing leaders for and supervising the activities of the prayer groups;

-           reviewing the activities designed to foster spiritual growth and recommend changes to the faculty;

[12]          Each faculty member is in charge of an individual prayer group and is responsible for spiritual council and advice, encouragement and prayer in these prayer groups.

[13]          The Appellant's lecturing load is 12 hours in one semester and 9 in the next, that is four 3-hour courses in the first and three 3-hour in the second semester.

[14]          The Appellant lectures in courses in Old Testament Introduction, the Hebrew language, a course on interpretation of the Bible, the Book of Isaah, the Book of Ezekiel, the Book of Psalms, the Wisdom Literature, and a course called Hebrew skills.

[15]          Between preparation time and marking of papers the Appellant spends approximately one hour for this type of course for every hour of lecturing each and every week.

[16]          The Appellant does not consider his duties as chair of the Student Life Committee as his primary function at the Seminary.

[17]          Besides being a spiritual advisor to his students he also provides advice and monitoring with respect to other aspects of a student's well-being, such as personal, physical, intellectual, social, vocational and financial well-being.

[18]          Each professor at the E.B.S. is expected to give Sunday Sermons at local churches throughout the year. They are paid by the various congregations and are entitled to keep the remunerations. Each professor is invited by the various churches to come and preach. In 1997, the Appellant performed 31 church services at various churches, as well as teaching Sunday school in the Church that he is a member of but not the pastor.

[19]          When the Appellant was asked whether he would consider that preaching a series of sermons on a particular subject would be considered teaching, this question was answered in the negative. He stated: "In a teaching context I would argue that there is a sort of a give and take that takes place. But in a preaching context, in essence there is a certain authority attached to which the Minister says that is more or less helpful, more authoritative, more of a guide for the congregation."

[20]          The Appellant agreed that his preaching in the various churches was as a preacher rather than as a teacher.

[21]          The students at the E.B.S. are enrolled in various programs, the majority are enrolled in a Masters of Divinity Program.

[22]          There is a syllabus for each course offered at the E.B.S.

[23]          Some of the courses the Appellant lectures in are required courses and some are elective. His class size could be as low as three and as high as forty.

[24]          The Appellant does not consider himself to be engaged exclusively in full-time administration services.

[25]          Reverend Ronald David Berg, the area Minister for the North American Baptist Conference, confirms that all faculty members at the E.B.S. have the same statutes in the Conference as clergy. They are licensed to perform marriages and funerals and are listed in the Conference's book of registered clergy. He also stated that a professor could move from E.B.S. to a position of full-time church pastor at anytime without any required steps to be taken and that they all are recognized as North American Baptist Clergy.

[26]          James Stephen Leveiett, who has a PhD in divinity, is the Academic Vice President of the E.B.S. While comparing his role as a Baptist pastor for over twenty years and that of Vice President of the E.B.S. which he has been for approximately eighteen months, it is his opinion that as professors, they are also serving in a pastoral role. He also stated that: "in a sense the students are a part of our institution and in fact our congregation."

Analysis

[27]          The Appellant and his witnesses may look on their students as their congregation and that their teaching has a pastoral role. However the question to be decided is: does their actual duties and actions fit within the provisions of paragraph 8(1)(e) of the Act as Parliament has enacted?

[28]          This issue was dealt with by now Associate Chief Judge Bowman of this Court in Bissell v. The Queen, 99 DTC 721. The issue therein was squarely on point. Bissell was an ordained minister teaching students in a divinity class in what was clearly a denominational college, exactly like herein. The question being: "is that ministering to a parish or congregation?", as required by paragraph 8(1)(c) of the Act. He said in paragraphs 41 to 43:

[41]          It cannot be denied that ministering to a congregation involves in many instances teaching. It is an important part of the role of a minister. Among the many appellations given to Jesus Christ is "The Great Teacher". Nonetheless, although ministering may include teaching, the converse is not true.

[42]          It is important to put Reverend Bissell's activities in their proper perspective. He taught religion to persons intending to become ministers. No doubt he also counselled them, and probably prayed with them. He also preached from time to time to local congregations. Counsel for the appellants referred me to a number of cases in which the courts have recognized that ministering can include specialized ministries. I agree with this as a broad proposition, as far as it goes, but it does not in my view go far enough to assist Reverend Bissell. I do not think that teaching classes of students in a Bible college can be said to be ministering to a congregation in the sense in which I have used the expression in other cases, such as Miller and McGorman or Baker.

[43]          As noted above, teaching may well — and frequently does -- form a component of ministering, but teaching in itself is not ministering in any ordinarily accepted connotation of that term of which I am aware. Nor do I think that a group of students can be said to be a congregation in the sense of an assemblage or gathering of persons to whom a minister provides spiritual counselling, advice, illumination and inspiration. While for the reasons given in Kraft et al. I do not subscribe to the view of the word congregation expressed in McRae, I do not think that it encompasses a group of college students assembled for academic instruction.

[29]          Judgements of the same Court are not strictly binding on the judges of that court, however they are of strong persuasivevalue.

[30]          It is important to not only the Minister and the taxpayers of Canada that the judges be as consistent as the individual judges of this Court in their opinion can be.

[31]          I agree with the decision in Bissell (supra).

[32]          Herein, the Appellant argued that he was "called" to the position of associated professor of the College. This is just a polite way to say the College formally invited him to apply for the position and accepted his application.

[33]          The 1993 version of the New Shorter Oxford Dictionary defines "parish" as "a geographical area having a church with a priest or preacher with spiritual responsibility for the people living in that area."

[34]          "Congregation" is also defined as: "a body of people assembled for religious worship or to hear a preacher."; or "the body of people regularly attending a particular church."

[35]          I believe it is in this context that the words "parish" and "congregation" are used in paragraph 8(1)(c) of the Act.

[36]          The College is just not a parish or a church and the students are not assembled for religious worship but to gain religious knowledge and they are not a congregation for the purposes of paragraph 8(1)(e) of the Act.

[37]          For these reasons, the appeal is dismissed.

Signed at Toronto, Ontario, this 28th day of February, 2002.

"Gordon Teskey"

J.T.C.C.

COURT FILE NO.:                                                 2001-1869(IT)I

STYLE OF CAUSE:                                               Jerry Eugene Shepherd and The Queen

PLACE OF HEARING:                                         Edmonton, Alberta

DATE OF HEARING:                                           February 11, 2002

REASONS FOR JUDGMENT BY:                      The Honourable Judge Gordon Teskey

DATE OF JUDGMENT:                                       February 28, 2002

APPEARANCES:

For the Appellant:                                                 The Appellant himself

Counsel for the Respondent:              Brooke Sittler

COUNSEL OF RECORD:

For the Appellant:                

Name:                               

Firm:                 

For the Respondent:                             Morris Rosenberg

                                                                Deputy Attorney General of Canada

                                                                                Ottawa, Canada

2001-1869(IT)I

BETWEEN:

JERRY EUGENE SHEPHERD,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard on February 11, 2002 at Edmonton, Alberta by

the Honourable Judge Gordon Teskey

Appearances

For the Appellant:                                         The Appellant himself

Counsel for the Respondent:                         Brooke Sittler

JUDGMENT

          The appeal from the assessment made under the Income Tax Act for the 1997 taxation year is dismissed, in accordance with the attached Reasons for Judgment.

Signed at Toronto, Ontario, this 28th day of February 2002.

"Gordon Teskey"

J.T.C.C.