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Citation: 2004TCC252
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Date: 20040407
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Docket: 2003-4280(IT)I
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BETWEEN:
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ROBERT LOUIS STEVENSON,
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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
Beaubier, J.
[1] This appeal pursuant to the
Informal Procedure was heard at Nanaimo, B.C., on March 26,
2004. The Appellant was the only witness.
[2] Paragraphs 4 to 9 inclusive of the
Reply to the Notice of Appeal outline the matters in dispute.
They read:
4.
The Minister reassessed the Appellant's 2000 and 2001 taxation
years on February 27, 2003 to disallow the Expenses and the GST
Rebate and accordingly issued notices on that date.
5.
The Appellant objected to the reassessments by serving on the
Minister a Notice of Objection dated April 4, 2003.
6.
The Minister confirmed the reassessments to the Appellant's 2000
and 2001 taxation years on September 12, 2003 and accordingly
issued a notification on that date.
7.
In so reassessing and confirming the Appellant's 2000 and 2001
taxation years, the Minister relied on the same following
assumptions of fact:
a) during 2000, the Appellant
was employed by Highway Constructors Ltd. (the
"Employer");
b) during 2000, the Appellant
earned employment income of $59,858 from the Employer;
c) during 2001, the Appellant
earned employment income from the following employers:
Employer
Income
Highway Constructors - Jan. to July
2001
$32,232
Tracker Contracting
Ltd.
$1,151
Willms Enterprises
Ltd.
$796
Formula Transport
Ltd.
$5,808
d) during the 2000 and 2001
taxation years, the Appellant did not maintain a mileage log;
e) the Appellant did not
maintain any records respecting the Expenses;
f) the Appellant did
not file Forms T2200 "Declaration of Conditions of
Employment" with the filing of his 2000 and 2001 income tax
returns, but filed them at a later date;
g) the Expenses included amounts
incurred by the Appellant in connection with travel from his home
and his job sites and back;
h) the Appellant claimed the Expenses based on various
rates;
i) the Appellant did not incur the Expenses in the course of
his employment.
B. ISSUE TO BE
DECIDED
8.
The issue is whether the Appellant is entitled to deduct the
Expenses.
C. STATUTORY
PROVISIONS RELIED ON
9. He relies
on subsections 8(1), 8(2) and 8(10) and paragraph 8(1)(h)
and 8(1)(h.1) of the Income Tax Act,
R.S.C. 1985, c. 1 (5th suppl.), as amended
(the "Act").
[3] Assumptions 7(e), (f) and (i) were
the only ones refuted. Respecting them, the Court finds:
(e) The Appellant is now a 63
year old truck and construction equipment operator. He kept his
expense records but after the years 2000 and 2001 when he worked
on the Island Highway from his home in Campbell River, B.C. and
then in Alberta, he expected that he would have to move to find
work. In the course of a probable move, he threw out the records
in question.
(f) The Appellant obtained
suitable form T2200's for the years in question from Highway
Contractors Ltd. after these assessments occurred and he learned
that he needed them. They were filed as exhibits.
(i) The Appellant did incur
expenses in the course of his employment when he drove in his
pick-up truck from job site to job site as directed by his
employer when various portions of jobs had to be stopped due to
environmental or engineering obstacles being encountered. These
drives were over rough construction or mountain trails which
often required a four wheel off-road pick-up. These expenses
amounted to about two-thirds of his total due to the harsh
terrain and the mechanical and tire problems it created.
[4] The result is that the Appellant
proved the fact that he incurred expenses in the course of
employment and the form T2200's enable him to claim them. The
problem is that he no longer has his receipts and his accountant
claimed them on varying per kilometre basis that included
personal as well as employment mileage. These per kilometre rates
corresponded with government mileage rates in British Columbia at
those times and varied slightly with each area.
[5] There are a number of problems
with the Appellant's case that began when his accountant
prepared his income tax returns in question. They include:
1. The fact that he then
had no T2200 forms which should have been included in his tax
returns at that time.
2. The known fact that an
employee must claim expenses which can be verified, and not a
mileage rate.
3. The known fact that
travel to and from home to a place of employment and personal
travel expenses cannot be claimed by a business person or an
employee.
All of these facts were violated.
[6] The Appellant could only estimate
his personal travel in his truck when he testified and he neither
estimated his actual expenses nor could he verify them.
[7] The result is that the Court
believes that the Appellant incurred some allowable travel
expenses, but the Appellant was not able to establish what they
were. Moreover, these problems existed and could have been
corrected when he filed his income tax returns.
[8] Therefore the appeals are
dismissed.
Signed at Regina, Saskatchewan, this 7th day of April,
2004.
Beaubier, J.
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