Docket: A-336-13
Citation: 2014 FCA 280
|
CORAM:
|
DAWSON J.A.
WEBB J.A.
SCOTT J.A.
|
|
|
|
BETWEEN:
|
|
PATRICK JOSEPH BARRY
|
|
Appellant
|
|
and
|
|
HER MAJESTY THE QUEEN
|
|
Respondent
|
REASONS FOR
JUDGMENT
DAWSON J.A.
[1]
In the 2008 and 2009 taxation years the
appellant had two jobs: a permanent position as a full-time teacher and a
part-time position as a group home counsellor with the Eastern Residential
Support Board Inc. (ERSB). The ERSB operates a number of group homes in the St. John’s area and the appellant could be told to report to one of a number of them for a
particular shift.
[2]
The Minister of National Revenue denied certain
expenses claimed by the appellant in respect of the 2008 and 2009 taxation
years, namely:
i.
Motor vehicle expense claims.
ii.
Cell phone expense claims.
iii.
Employee and Partner GST/HST rebates associated
with the disallowed expenses.
[3]
For reasons cited as 2013 TCC 221, 2013 DTC 1176
a judge of the Tax Court of Canada dismissed the appellant’s appeal from the
Minister’s reassessments. This is an appeal from that decision.
[4]
Before turning to the substantive issues raised
on this appeal, at the commencement of the hearing of the appeal the appellant
made an oral motion, without notice, asking that the Court admit new evidence.
The new evidence consisted of:
i.
A letter dated March 10, 2011, from the
appellant to the Chief of Appeals responding to the reassessments at issue, and
attaching correspondence with the Canada Revenue Agency.
ii.
An e-mail chain between the appellant and the ERSB
from April 2011 in which they exchange views on the reassessments.
iii.
A letter dated May 30, 2011 from the appellant
to the Income Tax Rulings Directorate about paragraphs 8(1)(h) and (h.1)
of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (Act).
[5]
After hearing oral submissions on the motion,
for reasons of time management, the Court reserved its decision on the
admissibility of the correspondence. What follows is my reason for proposing that
the motion to admit new evidence be dismissed.
[6]
The correspondence and e-mail chains are nothing
more than position statements made from time to time by the appellant,
representatives of the Minister and the ERSB. As such, they provide no
assistance to the resolution of the issues raised on this appeal. They,
therefore, do not meet the test for the admission of new evidence (Shire
Canada Inc. v. Apotex Inc., 2011 FCA 10, 414 N.R. 270, at paragraph 17).
[7]
On this appeal the appellant frames the issues
as follows:
i.
The Judge erred in interpreting paragraph 8(1)(h.1)
of the Act.
ii.
The Judge erred in finding that travel expenses,
which the appellant incurred when commuting to and from various group homes,
were not incurred in the performance of his employment duties.
iii.
The Judge erred in law or unreasonably found
that the appellant was not required by his employment contract to have a cell
phone.
[8]
For the following reasons, I am satisfied that
the Judge did not err as asserted by the appellant.
[9]
First, paragraph 8(1)(h.1) provides:
|
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
|
8. (1) Sont
déductibles dans le calcul du revenu d’un contribuable tiré, pour une année
d’imposition, d’une charge ou d’un emploi ceux des éléments suivants qui se
rapportent entièrement à cette source de revenus, ou la partie des éléments
suivants qu’il est raisonnable de considérer comme s’y rapportant :
|
|
[…]
|
[. . .]
|
|
(h.1) where the
taxpayer, in the year,
|
h.1) dans le cas où
le contribuable, au cours de l’année, a été habituellement tenu d’accomplir
les fonctions de son emploi ailleurs qu’au lieu d’affaires de son employeur
ou à différents endroits et a été tenu, aux termes de son contrat d’emploi,
d’acquitter les frais afférents à un véhicule à moteur qu’il a engagés dans
l’accomplissement des fonctions de sa charge ou de son emploi, les sommes
qu’il a dépensées au cours de l’année au titre des frais afférents à un
véhicule à moteur pour se déplacer dans l’exercice des fonctions de son
emploi, sauf s’il a, selon le cas :
|
|
(i) was ordinarily
required to carry on the duties of the office or employment away from the
employer’s place of business or in different places, and
|
|
|
(ii) was required
under the contract of employment to pay motor vehicle expenses incurred in
the performance of the duties of the office or employment,
|
|
|
amounts expended by
the taxpayer in the year in respect of motor vehicle expenses incurred for
travelling in the course of the office or employment, except where the
taxpayer
|
|
|
(iii) received an
allowance for motor vehicle expenses that was, because of paragraph 6(1)(b),
not included in computing the taxpayer’s income for the year, or
|
(i) reçu une
allocation pour frais afférents à un véhicule à moteur qui, par l’effet de
l’alinéa 6(1)b), n’est pas incluse dans le calcul de son revenu pour
l’année,
|
|
(iv) claims a
deduction for the year under paragraph 8(1)(f);
|
(ii) demandé une
déduction pour l’année en application de l’alinéa f);
|
[10]
The Judge made no reviewable error when she
interpreted paragraph 8(1)(h.1) to require the appellant to be required
under his contract of employment with the ERSB to personally pay the motor
vehicle expenses. The Judge’s interpretation of the provision was consistent
with its plain meaning and with the jurisprudence of this Court (The Queen
v. Henry Cival, [1983] 2 F.C. 830). The appellant’s interpretation
would require words to be read into subparagraph 8(1)(h.1)(ii) to
the effect that the taxpayer “was required under the
contract of employment to pay motor vehicle expenses or chose to use their own
vehicle when the duties effectively required the employee to use their own
vehicle.”
[11]
Finally on this point, Canada Revenue Agency
administrative documents relied upon by the appellant may represent the Canada
Revenue Agency’s interpretation of the relevant provision of the Act, but such
statements do not supplant judicial interpretation of the Act.
[12]
Second, the Judge found that the appellant’s
contract of employment did not require him to have a car. This finding of mixed
fact and law was amply supported by the terms of the relevant collective
bargaining agreement, and by the testimony of the Director of Corporate
Services of the ERSB, Mr. English.
[13]
I have carefully considered the appellant’s
reliance on the decision of the Federal Court in Rozen v. Canada, [1985]
F.C.J. No. 1002, 85 DTC 5611. However, as the Judge noted at paragraph 22 of
her reasons, Rozen is distinguishable from the present case. There, the
Federal Court noted that to determine whether a taxpayer was required to pay
travelling expenses “[o]ne must consider the terms of the
contract of employment […]”. In the absence of an express written term,
the Federal Court implied a term that a taxpayer was required to pay travelling
expenses. In the present case, the terms of the collective bargaining agreement
are express and were supported by Mr. English’s testimony that the appellant
was not required to pay motor vehicle expenses.
[14]
Third, the Judge made no error in finding that
motor vehicle expenses, which the appellant incurred when commuting from his
home to his assigned group home, and then from whichever group home he was at
when he finished his shift to his home, were not incurred in the performance of
the appellant’s duties. The appellant failed to show that he was performing any
services or employment obligations while commuting. He was simply getting
himself to work. It is this lack of evidence that distinguishes this case from Evans
v. The Queen, 1998 CanLII 148 (T.C.C.), 99 DTC 168, another case relied
upon by the appellant.
[15]
Travel expenses incurred by a taxpayer travelling
between his home and place of employment are generally considered to be
personal expenses. They are not generally travelling costs encountered in the
course of a taxpayer’s employment duties.
[16]
Fourth, the Judge made no error in interpreting
subparagraph 8(1)(i)(iii) of the Act as it applied to cell phone
expenses. As the Judge correctly held, for an expense to be deductible under
this provision, an employee must be “required by the
contract of employment” to incur the expense.
[17]
Finally, the Judge made no palpable and
overriding error in finding the appellant was not required by his employer to
own a cell phone. This finding was supported by the testimony of Mr. English.
[18]
For these reasons, I would dismiss the appeal
with costs.
“Eleanor R. Dawson”
“I
agree.
Wyman W. Webb
J.A.”
“I
agree.
A.F. Scott
J.A.”
Email this Content