Docket: 2009-721(IT)I
BETWEEN:
JEAN‑B. BROCHU,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Appeals heard on April 7, 2010, at Timmins, Ontario.
Before: The Honourable
Justice Patrick Boyle
Appearances:
|
For the appellant:
|
The
appellant himself
|
|
Counsel for the respondent:
|
Jonathan Charron
|
____________________________________________________________________
JUDGMENT
The appeals of the reassessments made under
the Income Tax Act for the 2004 and 2005 taxation years are dismissed in
accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 18th day of
May 2010.
« Patrick Boyle »
on this 18th day
of May 2010.
Erich Klein,
Reviser
Citation: 2010 TCC 274
Date: 20100518
Docket: 2009-721(IT)I
BETWEEN:
JEAN‑B. BROCHU,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Boyle J.
[1]
Mr. Brochu has
appealed under the Court’s informal procedure his 2004 and 2005 reassessments, claiming
that as an employee he is entitled to deduct his car expenses to the extent that
they relate to his work.
[2]
Mr. Brochu is a heavy
equipment operator employed by Abitibi Bowater Inc. (“Abitibi”) to work in the Iroquois Falls area. For several months each winter he reports to
work at the beginning of the week at a logging camp about 190 kilometres
from his home in Smooth Rock Falls and returns home on Friday. Under the terms
of his collective agreement, Abitibi pays him $20 each week towards his travel
expenses. Abitibi does not provide any alternate means of travel to the winter
camp.
[3]
The rest of the year
Mr. Brochu reports to work daily at Abitibi’s Stimson Depot or drives to
Abitibi’s parking lot and marshalling point in Cochrane and is then taken by an
Abitibi shuttle to a “commuter” logging camp. The Cochrane marshalling point is
about 60 kilometres from his home in Smooth Rock Falls. Almost every day Mr. Brochu drives to the
Cochrane marshalling point whether he is to work at the Stimson Depot or a “commuter”
camp. Work assignments are set by Abitibi weekly and are normally carried out
at the same location every day for one to three months. There are only
occasional departures from this routine. On the rare occasions when
Mr. Brochu works at more than one location in a day, transportation is
most often provided by Abitibi and only exceptionally does he need to use his
car in such instances. Under the terms of the collective agreement Abitibi pays
Mr. Brochu $8 per day towards his expenses for his daily commute.
[4]
At the Stimson Depot,
Abitibi has a permanent business location consisting of a garage with three
service bays, a stockroom and some office space.
[5]
At Cochrane, the
marshalling point consists of a large parking area with plug‑ins for
Abitibi’s vehicles and those of its workers as well as a fuel storage tank.
This site is maintained and used year‑round.
[6]
Mr. Brochu asked
Abitibi to provide him with a signed T2200 form but his request was refused. He
asked several times with the assistance of his accountant and his union
steward, but Abitibi would not provide him with a signed form.
[7]
It is Mr. Brochu’s
position that he was given an unusually low car allowance by his employer and
should therefore be able to deduct his actual car expenses to the extent that they
exceed that allowance. This would be consistent with the comments by Bowman
C.J. (as he then was) in paragraph 8 of Henry v. The Queen, 2007 TCC 451,
2007 DTC 1410, and this Court’s reasons in Landry v. The Queen,
2007 TCC 383, 2007 DTC 1396 (affirmed by the Federal Court
of Appeal, 2009 FCA 174, 2009 DTC 5123), provided that Mr. Brochu
meets all of the other requirements of paragraph 8(1)(h.1).
[8]
The general rule is
that neither employees nor self‑employed persons are entitled to deduct
their motor vehicle expenses associated with getting to and from work. The
exceptions are limited and specific. The only deduction potentially available
to Mr. Brochu would be under paragraph 8(1)(h.1). That
deduction has several mandatory requirements. First, the employee must be
required by the terms of his employment to travel to work somewhere other than
his employer’s place of business or in different places. Secondly, the employee
must be required to bear those travel expenses. Thirdly, pursuant to
subsection 8(10), the employer must certify on the T2200 form that these
requirements are met.
[9]
Each of the winter
camp, the “commuter” camps and the Stimson Depot is clearly a place of business
for Abitibi. The winter camp has offices, washrooms, residences and dining
facilities in addition to everything else needed to operate a logging camp for
several months at a time. Abitibi’s place of business is not limited to its
head office in Iroquois Falls. While the Cochrane marshalling point is a simple and
unconventional place of business, Mr. Brochu reported there daily most of
the year for travel by Abitibi’s shuttle to his assigned workplace.
[10]
Mr. Brochu only
very rarely drove his car for any other work‑related purpose than getting
to and from his work each day or, during the winter, each week. Except when he
worked at the winter camp, this involved his driving only to and from the
Cochrane marshalling point. He worked each day at one of his employer’s places
of business and only exceptionally worked at more than one such place in the
course of a day, and even more rarely, did he have to use his own car to get to
a different place of business. For this reason, Mr. Brochu’s appeals must
be dismissed.
[11]
I would also note that
the language of subsection 8(10) requires that a duly completed and signed
T2200 form be filed, and that none was provided to Mr. Brochu. While it
may be possible that in exceptional circumstances a paragraph 8(1)(h.1)
claim could succeed if an employer unreasonably refused, or was unable, to complete
and sign a T2200 form, this is clearly not such a case. An officer of Abitibi
testified that Abitibi did not complete and sign such a form with respect to Mr. Brochu
because it did not believe he met the requirements and because Abitibi had
previously obtained a written opinion from the Canada Revenue Agency (“CRA”) that
it did not believe employees of Abitibi in circumstances such as those of
Mr. Brochu qualified. This Court has reached the same conclusion. The
absence of the T2200 form in this case requires that these appeals be dismissed.
[12]
I should add in closing
that the CRA reassessed Mr. Brochu, excluding from income under
subparagraph 6(1)(b)(vii.1) his total Abitibi travel allowance for
each of the years at issue, even though Mr. Brochu was of the opinion that
the allowance was unreasonably low. The Court expresses no opinion on whether
subparagraph 6(1)(b)(vii.1) authorizes the exclusion of a less −
than − reasonable travel allowance beyond noting this Court’s comments in
Henry, above, and Landry, above, that an unreasonably low
allowance cannot be excluded under subparagraph 6(1)(b)(vii.1) and that,
therefore, a paragraph 8(1)(h.1) deduction could be permitted in
qualifying circumstances. Neither does this Court need to express an opinion on
whether, in these particular circumstances, Abitibi’s travel allowances were
unreasonably low, reasonable, or unreasonably high, as any finding in that
regard would not save Mr. Brochu’s claim.
[13]
Mr. Brochu claims
to have received advice favourable to him from both his accountant and the CRA
in response to his original queries. That is unfortunate, but it does not in
this case estop or prevent the respondent from insisting that the law be
properly applied by the Court.
[14]
The appeals are
dismissed.
Signed at Ottawa, Canada, this 18th day of May 2010.
« Patrick Boyle »
on this 18th day
of May 2010.
Erich Klein, Reviser
CITATION: 2010 TCC 274
COURT FILE NO.: 2009-721(IT)I
STYLE OF CAUSE: JEAN‑B.
BROCHU v. HER MAJESTY THE
QUEEN
PLACE OF HEARING: Timmins,
Ontario
DATE OF HEARING: April 7, 2010
REASONS FOR JUDGMENT BY: The
Honourable Justice Patrick Boyle
DATE OF JUDGMENT: May 18, 2010
APPEARANCES:
|
For the
appellant:
|
The appellant himself
|
|
Counsel for the
respondent:
|
Jonathan Charron
|
COUNSEL OF RECORD:
For the appellant:
Name:
Firm:
For the respondent: Myles J. Kirvan
Deputy Attorney General of Canada
Ottawa, Canada
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