Denis Verrier v. Her Majesty the Queen, [1988] 2 CTC 274

Strayer, J.:

Introduction

This is an appeal from a decision of the Tax Court of Canada with respect to assessments of the plaintiff's income for 1979 and 1980. He claimed that the amounts of $6,629.01 expended by him in 1979, and $8,236.75 expended by him in 1980 were expended for the purpose of earning commission income and that he is therefore entitled to deduct them from his income for those years respectively. It was agreed at trial that with respect to the year 1980 there is included in the amount in dispute an item of $845.47 representing bank charges which should be referred back to the Minister for further review.

In the years in question the plaintiff was an automobile salesman employed by Birchwood Motors, an automobile dealer in Winnipeg. He was remunerated by commissions computed by reference to the volume of sales of automobiles made by him. The expenses which he claims to be entitled to deduct from his income include gas and oil for his demonstrator automobile (provided free of charge to him by his employer) and for the two "courtesy" cars owned and provided by him to his customers for their use when their cars were being serviced. The expenses claimed also include parking charges incurred while conducting business, advertising carried out by the plaintiff on his own to seek customers for himself, entertainment expenses (coffee and meals) incurred for the benefit of customers or prospective customers, and commissions or finders' fees paid by him to persons referring customers to him where the referral resulted in a sale.

Issues

The relevant portion of the Income Tax Act is paragraph 8(1)(f) which provides as follows:

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:

(f) where the taxpayer was employed in the year in connection with the selling of property or negotiating of contracts for his employer, and

(i) under the contract of employment was required to pay his own expenses,

(ii) was ordinarily required to carry on the duties of his employment away from his employer's place of business,

(iii) was remunerated in whole or part by commissions or other similar amounts fixed by reference to the volume of the sales made or the contracts negotiated, and

(iv) was not in receipt of an allowance for travelling expenses in respect of the taxation year that was, by virtue of subparagraph 6(1)(b)(v), not included in computing his income,

amounts expended by him in the year for the purpose of earning the income from the employment (not exceeding the commissions or other similar amounts fixed as aforesaid received by him in the year) to the extent that such amounts were not

(v) outlays, losses or replacements of capital or payments on account of capital, except as described in paragraph (j), or

(vi) outlays or expenses that would, by virtue of paragraph 18(1)(l), not be deductible in computing the taxpayer's income for the year if the employment were a business carried on by him.

It is agreed that the only matters in dispute in this case involve the interpretation and application of subparagraphs (i) and (ii) and the requirement that the amounts claimed must have been expended "for the purpose of earning the income from the employment. . . ." If the plaintiff can establish that he meets these requirements, it is agreed that he would be entitled to the deductions claimed. It is common ground that if such requirements are met, the expenses deductible under subparagraph 8(1)(f) are not limited to those which are attributable to the fact that the plaintiff was ordinarily required to carry on the duties of his employment away from his employer's place of business. In other words once he can show that he meets the requirements of subparagraph 8(1)(f)(ii) and that he was required to pay his own expenses in accordance with subparagraph 8(1)(f)(i) then any expenses how so ever incurred for the purpose of earning income from his employment are deductible. The illogicality of this provision will be discussed later.

Conclusions

The learned judge of the Tax Court of Canada dismissed the plaintiff's appeal on the ground that the plaintiff had not established that he was "ordinarily required” to carry on his duties away from the Birchwood dealership, his employer's place of business. Having concluded that, it was not necessary for him to consider whether the plaintiff met the other requirements indicated above. I am unable to discern any significant difference in the evidence presented at the new trial before me, and I am in respectful agreement with the learned trial judge both on his findings of fact and his principal conclusions of law.

It is difficult to give a purposive interpretation of the words “ordinarily required” within the context of paragraph 8(1)(f) because the expenses deductible under that paragraph bear no necessary relationship to the fact that a taxpayer is “ordinarily required to carry on the duties of his employment away from his employer's place of business". Once he establishes that he is so required, he can then deduct any expenses incurred for the purpose of earning income from the employment. The logic of this provision is far from apparent. For example, there are no doubt many commission salesmen (e.g. of clothing or furniture) who are never obliged to leave their employer's place of business for work purposes but who may well incur promotional expenses such as sending greeting cards to, or buying coffee for, customers or prospective customers. They are unable to claim under this paragraph. Similarly, salaried persons cannot claim under it, even though in many employment situations it is thought advantageous for those in supervisory roles to entertain members of their staff, at their own expense. Paragraph 8(1)(f) creates a special advantage for commission salesmen who are ordinarily required to carry on their duties away from their employer's place of business: in effect this is an exception to the general rule of subsection 8(2) that no deductions are to be made in computing a taxpayer's income from employment. As such, I believe a taxpayer must show that he clearly comes within the exception.

Considering first the meaning of "ordinarily", the jurisprudence indicates that this term describes activities which are normal, or of regular occurrence; in other words, activities which are not rare or abnormal or minimal. The Federal Court of Appeal in interpreting the word "ordinarily" in subsection 8(4) has said that it means “in most cases" or "as a general rule". [1] While the trend in the jurisprudence appears to be away from a purely quantitative test of time spent away from the employer's place of business as determinative, it must still be of some relevance in ascertaining whether such duties to be performed away are so trivial or insignificant as not to detract from the employer's place of business as the essential focus of the employer's work.

With respect to the meaning of "required" the defendant contends in essence that this means that there must be a fairly specific contractual obligation on the part of the employee to carry on activities away from the place of business of his employer. The plaintiff on the other hand contends that if such activity is as a practical matter important in the satisfactory performance of the employee's duty (as in this case) to sell as many cars as possible, then that activity is "required". It is common ground that such an activity can be "required" by an implied term of the contract and it need not be expressly specified in the contract of employment whether written or oral.

In my view for an activity to be "required" for the purposes of this paragraph it must be one which is specifically understood by both the employer and the employee to be necessary for the proper performance of the contract. If the contract is essentially for the achievement of certain ends and the activity in question is one of the means merely chosen by the employee to achieve that end then that activity is not "required" within the meaning of subparagraph 8(1)(f)(ii). Some of the leading cases relied on by the plaintiff in which an activity was held to be “required” appear to me to involve specific obligations to perform the activities in question. For example in the Shangraw case [2] the taxpayer was a commission salesman in the floor covering department of T. Eaton Co. Limited. He frequently provided in-home services to customers which could only be provided at their home, including measuring the exact size of rooms for carpeting, bringing samples to match existing wall and furniture coverings, etc. These services were advertised by the employer and he clearly could not carry out his job without performing them. In the Hoedel case [3] the Federal Court of Appeal found that “it was mandatory for the appellant to take the dog along with him when he was off-duty”, the appellant being a policeman seeking to deduct under paragraph 8(1)(h) travelling costs for taking his trained police dog with him wherever he went. The obligation to have the dog with him at all times was specific, a means required by the contract to achieve the ends of “socializing” the dog. In three fairly recent decisions of the Federal Court-Trial Division, Winnipeg school principals were held to be “ordinarily required" to carry on duties of their employment away from the school in attending meetings of principals, making home visits, organizing community meetings, attending committees established by the school board, driving children to camp and attending such camps, etc. [4] Each of these cases turns on its own facts, of course, and in each the court was able to find a sufficiently specific obligation on the principals to engage in these particular activities. It should also be noted that all of these cases involved paragraph 8(1)(h) and the specific travelling expenses for participating in such activities, and did not involve establishment of a status for the purpose of deducting all expenses connected with earning income as is involved in the present case for the plaintiff to bring himself within paragraph 8(1)(f). The onus on the taxpayer as a practical matter may well be heavier in the latter case.

Applying these principles to the present case, I do not believe the plaintiff has established that he was “ordinarily required to perform the duties of his employment away from his employer's place of business”. It is true that certain activities were clearly required by the contract to be performed, in a literal sense, outside of the dealership premises. These included taking customers for test drives by starting out from and returning to the dealership; where cars were sold by the plaintiff under a contract which required for the addition of certain items not available at the dealership, taking the vehicle to the supplier where such items were installed or applied to the car; and sometimes delivering cars to purchasers. While there was no written contractual requirement covering these matters, it is not disputed that both the employer and the employee understood that these specific functions were part of the plaintiff's job. I do not think that these activities are sufficient to bring the plaintiff within paragraph 8(1)(f). In the first place errands done from the dealership base can hardly amount to "duties . . . away from his employer's place of business”. The most obvious example is the test drive which, it was admitted, would normally be conducted leaving from and returning to the dealership with the salesman accompanying the prospective buyer. This no doubt happened regularly and was required by the plaintiff's contract of employment, but it is an activity which is based on the employer's place of business and it is only incidental that one must employ public streets and highways to conduct a test drive before returning to the dealership. Similarly such incidental functions as taking cars for "addons" or delivering them to purchasers are really activities based on the dealership. I agree with the plaintiff that it is irrelevant that these particular activities did not normally involve expenditures by him, but I do not think that they can be regarded as significant enough to establish that he was ordinarily required to carry on his duties away from the Birchwood dealership.

However most of the activities relied on by the plaintiff involve means employed by him at his discretion to find customers, to encourage them to buy cars from him, and to encourage them to come back to him for future purchases through various follow-up services offered by him. Such activities include making contact with "bird-dogs" (persons encouraged by the plaintiff to refer customers to him), the demonstration of vehicles at the home or place of business of clients, picking up from customers cars already purchased to take them in for servicing and leaving with the customer a "courtesy car" owned by the plaintiff, entertaining customers with coffee or meals, etc. It is clear from the evidence that none of these activities of the plaintiff were specifically required by his employer. As Mr. Gary Gillis, who was general manager of Birchwood at the time in question, testified, "we would expect him to service his clientele as he deemed necessary". What the employer was interested in was results, i.e. sales. The plaintiff was a very successful salesman. No doubt the particular means which he employed were important to that success. But they were means chosen by him and to the extent that they took him away from the dealership that was his choice. I do not believe that he has met the burden of proof which is on him to show that these many activities performed by him away from the dealership were “ordinarily required" to be so performed.

The appeal will therefore be dismissed except for a reference back to the Minister for further review of whether the bank charges of $845.47 are properly deductible in respect of taxation year 1980. The defendant is entitled to costs.

Appeal dismissed.