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Citation: 2005TCC79
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Date: 20050124
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Docket: 2004-2957(IT)I
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BETWEEN:
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PERCY BROYDELL,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
O'Connor, J.
[1] The issue in this appeal is
whether in the 2002 taxation year the Appellant is entitled to a
deduction of $16,343.89 as moving expenses in calculating his
income for that year.
[2] The relevant facts may be
summarized as follows:
1. In 2002 the Appellant
moved from Innisfil, Ontario ("Old Residence") to South
Barrie, Ontario ("New Residence"). There is reference
to the move occurring in 1999 but this is not material as neither
party raised the issue and the moving expenses are claimed in the
2002 taxation year.
2. At all relevant times,
that is to say while living at the Old Residence and at the New
Residence the Appellant was an employee of Falcon Lumber Limited.
In other words he did not move to change his employer. Moreover
he did not move to change his work location.
3. The principal reason
for the move was that, while living at the Old Residence (which
was further from the work location than the New Residence) and
because of communication problems (GO train difficulties) he
missed work a number to times during winter months. This created
problems for his employer and the management of the employer
informed the Appellant that he should move closer to the work
location. Note there is also reference to asthma and pneumonia
problems of the Appellant's wife which were also a motivation
for the move but this is not germane to the issue in this
appeal.
4. The Appellant's
claim is based upon subsections 62(1) and 248(1) of the Income
Tax Act ("Act"). All of the conditions of those
provisions as to distance (s. 248(c)), both
residences being in Canada (s.248(b)) and any other
conditions necessary to entitle the Appellant to the deduction,
save one, have been met. The only condition in question is
whether the Appellant qualifies under s. 248(a) for an
"eligible relocation", i.e. did the relocation occur to
enable the Appellant to be employed at a new work location or
whether special circumstances existed to permit the Court to
expand that concept to a notion of relocating to retain
employment at the same work location.
Submissions of the Appellant
[3] The following extracts from the
Appellant's Notice of Appeal outline the two issues that the
Appellant raises:
1. On the first issue, the
Appellant's Notice of Appeal states as follows:
...
I didn't move to be closer to work. My move was to be near
public transportation where I would have no problem getting to
work regardless of weather conditions and ensure my continued
employment.
I am quoting the Gary Adamson v. The Queen ruling where he
moved to a larger office. He did not change employment and
didn't qualify based on distance as his move was not closer
to his employment. He did not meet the requirements of the Act
but still qualified based on the special circumstances.
...
2. On the second issue
which relates to advice given by Revenue Canada representatives,
the Appellant's Notice of Appeal states as follows:
...
When I first contacted Revenue Canada about the possibility of
claiming my moving expenses based on the special conditions. The
Agent kept me on the phone while she checked the Income Tax act,
and after checking with her Supervisors advised me to claim the
expenses and gave me a list of expenses I could claim.
I submitted my 2002 Tax Return and enclosed a letter stating I
was claiming the moving expenses. I informed them of my telephone
conversation with Revenue Canada that I had not changed jobs and
my special reasons for making the claim. They approved my claim
and forwarded my refund. Later, Revenue Canada withdrew my
qualification and asked me to repay the refund.
...
Analysis and Conclusion
[4] The Appellant's first
submission cannot succeed. The conditions of the applicable
sections 62 and 248 of the Act, in particular paragraph
248(a) include the condition that the relocation must
occur to enable the taxpayer to be employed at a new work
location in Canada. This condition is not met and I cannot
perceive any special circumstances, such as those demonstrated in
the Adamson case, to stretch the words so as to entitle
the deduction claimed by the Appellant in this appeal.
[5] In Adamson v.
Canada, [2001] T.C.J. No. 609, this Court determined that
an eligible relocation occurred when the Appellant in that case
was required to work from his home. Adamson was found to have
selected a new work location which was an office in his new home.
In other words he selected both a new work location and a new
home. The facts in Adamson are distinguishable from the
facts in this case. In this appeal, the Appellant did not have a
new work location and consequently does not meet one of the
requirements of the sections cited above.
[6] Reference is also made to Ray
v. Canada, [2004] F.C.J. No. 1. In that case the Federal
Court of Appeal in dealing with a different fact situation
stated:
... it is not open to this Court, or the Tax Court, to
disregard statutory requirements imposed by Parliament, even if
they are difficult to rationalize on policy grounds. ...
As mentioned, Ray dealt with a different fact situation, but
the principle is the same namely that Courts are bound by the
statutory requirements and cannot extend them to capture a
situation not envisaged by those statutory requirements.
[7] See also Howlett v. Canada,
[1998] T.C.J. No. 1035, where this Court, in dismissing the
appeal, stated the following:
...
10. In the present appeal,
the Appellant met two conditions: the old residence and the new
residence. As to the work location it did not change. The
Appellant's working pattern changed due to his new position
as sales manager. His change of residence was only for the
purpose of being closer to the branch office situated at the same
location as before moving from one residence to the other.
...
[8] The second issue raised by the
Appellant relates to reliance on the advice of Revenue Canada. On
this point reference is made to Wong v. Canada, [1996]
T.C.J. No. 1237, where Bowman T.C.J. of this Court, as he then
was, in reference to a different fact situation, cited with favor
and applied the following extract from Goldstein v. Canada [1995]
2 C.T.C. 2036:
...
"It is sometimes said that estoppel does not lie against
the Crown. The statement is not accurate. It seems to stem from a
misapplication of the term estoppel. The principle of estoppel
binds the Crown as do other principles of law. Estoppel in pais,
as it applies to the Crown, involves representations of fact made
by officials of the Crown and are relied and acted upon by the
subject to his or her detriment. The doctrine has no application
where a particular interpretation of a statute has been
communicated to a subject by an official of the government,
relied upon by that subject to his or her detriment and then
withdrawn or changed by the government. In such a case the
taxpayer sometimes seeks to invoke the doctrine of estoppel. It
is inappropriate to do so, not because such representations give
rise to an estoppel that does not bind the Crown, but rather
because no estoppel can arise where such representations are not
in accordance with the law. Although estoppel is now a principle
of substantive law it had its origins in the law of evidence, and
such relates to representations of fact. It has no role to play
where questions of interpretation of the law are involved because
estoppels cannot override the law."
[9] The foregoing describes what has
been decided in numerous cases, namely that representations or
advice given by representatives of Revenue Canada on questions of
interpretation of the law cannot override the law.
[10] For all of the above reasons the appeal
is dismissed
Signed at Ottawa, Canada, this 24th day of January 2005.
O'Connor, J.
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