Brulé,
TCJ:—
Issue
This
is
an
appeal
against
an
income
tax
assessment
for
the
year
1981
in
which
the
Minister
of
National
Revenue
disallowed
as
an
automobile
expense
the
deduction
of
$1,486.
The
appellant
was
employed
by
Bell
Canada
as
a
customer
service
adviser
which
duties
required
her
to
travel.
There
was
no
vehicle
available
from
the
Bell
Canada
fleet
but
if
she
supplied
her
own
vehicle
Bell
Canada
would
pay
her
a
mileage
allowance.
The
appellant
did
not
have
a
vehicle
but
chose
to
lease
one
personally.
The
cost
of
the
leased
vehicle
for
business
purposes
and
the
payment
to
her
of
a
mileage
allowance
resulted
in
a
shortfall
which
the
appellant
sought
to
deduct
as
an
expense
from
taxable
income
under
subparagraph
8(1
)(h)(ii)
of
the
Income
Tax
Act.
The
appellant
gave
evidence
to
the
fact
that
having
the
vehicle
enabled
her
to
pursue
her
career
to
her
advantage.
She
admitted
that
the
decision
to
have
her
own
vehicle
was
not
a
condition
of
employment
but
that
she
had
an
oral
contract
to
use
her
own
vehicle.
This
was
not
proven.
She
stated
that
she
would
not
have
been
dismissed
if
she
did
not
provide
a
vehicle
for
her
travel
duties.
In
support
of
her
argument
that
this
was
a
deductible
expense,
the
appellant
produced
to
the
Court
an
assessment
notice
from
her
1983
taxation
year
indicating
that
a
similar
expense
in
that
later
year
was
allowed.
Paragraph
8(1
)(h)
of
the
Income
Tax
Act
is
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:
(h)
where
the
taxpayer,
in
the
year,
(ii)
under
contract
of
employment
was
required
to
pay
the
travelling
expenses
incurred
by
him
in
the
performance
of
the
duties
of
his
office
or
employment.
In
this
case
the
appellant
was
not
required
to
pay
her
travelling
expenses.
She
voluntarily
used
her
vehicle
and
was
given
the
company's
standard
mileage
allowance.
Nothing
else
was
agreed
upon
and
there
was
no
mandatory
requirement
for
the
appellant
to
use
her
vehicle
in
her
work.
The
facts
in
this
case
are
similar
to
those
in
that
of
The
Queen
v
Henry
Cival,
[1983]
CTC
153;
83
DTC
5168
in
which
the
Federal
Court
of
Appeal
disallowed
a
claim
for
expenses
over
and
above
those
received
under
an
arrangement
with
the
appellant’s
employer.
As
to
the
same
type
of
expense
being
allowed
in
a
later
year
to
the
appellant,
I
would
like
to
make
a
few
comments.
First
of
all
even
though
the
facts
in
both
these
years
may
be
materially
identical,
the
particular
year
not
under
appeal
is
entirely
irrelevant.
The
Minister
has
decided
to
assess
for
the
1981
taxation
year
in
accordance
with
paragraph
152(4)(c)
of
the
Income
Tax
Act
but
as
of
the
date
of
this
appeal
has
not
chosen
to
assess
similarly
for
the
1983
taxation
year.
This
is
the
prerogative
of
the
Minister
and
as
such
has
no
bearing
on
this
present
appeal
for
1981.
It
is
also
recognized
that
this
Court
has
no
jurisdiction
at
the
present
time
to
deal
with
the
1983
assessment
and
hence
the
only
matter
to
be
considered
is
the
merit
of
the
1981
appeal.
In
respect
to
the
1981
year,
the
appellant
at
her
option
chose
to
use
a
vehicle
leased
by
her
knowing
that
the
only
obligation
of
her
employer
was
to
pay
a
mileage
allowance.
If,
unfortunately,
the
expenses
incurred
by
her
were
greater
than
the
allowance
received
(due
presumably
to
the
leasing
costs
of
the
vehicle),
the
appellant
must
personally
bear
the
difference.
These
expenses
are
not
deductible
as
sought
under
subparagraph
8(1
)(h)(ii),
and
accordingly
this
appeal
is
dismissed.
Appeal
dismissed.
Email this Content