Teskey
J.T.C.C.:
—
The
Appellant
in
his
Notice
of
Appeal,
wherein
he
appealed
his
reassessment
of
income
tax
for
the
year
1993,
elected
the
informal
procedure.
Issue
The
sole
issue
is
whether
the
Appellant
is
entitled,
in
1993,
an
Overseas
Employee
Tax
Credit
(“O.E.T.C.”).
Facts
The
Appellant,
a
telecommunication
expert,
was
employed
by
Care
Canada
(“Care”),
for
a
one-year
period
commencing
June
28,
1993.
For
the
one-year
period,
the
Appellant
was
in
the
former
Yugoslavia,
giving
civilian
help
to
the
military.
Care
was
operating
in
the
former
Yugoslavia
on
a
contract,
the
same
as
a
normal
business,
with
an
office
duly
staffed
and
with
a
profit
motive.
Care
is
a
registered
charitable
organization
with
head
offices
in
Ottawa.
Its
obvious
preponderant
purpose
is
to
provide
aid
where
needed
around
the
world.
It
is
a
charitable
organization
depending
on
donations
and
is
not
“in
business”.
The
question
to
be
determined
is
whether
Care
can
be
said
to
be
in
business.
The
operative
portion
of
section
122.3,
which
reads
as
follows,
requires
an
employer
to
be
carrying
on
business
for
its
employees
to
be
eligible
for
overseas
employment
tax
credit:
Section
122.3:
Deduction
from
tax
payable
where
employment
out
of
Canada.
(1)
Where
an
individual
is
resident
in
Canada
in
a
taxation
year
and,
throughout
any
period
of
more
than
6
consecutive
months
that
commenced
before
the
end
of
the
year
and
included
any
part
of
the
year
(in
this
subsection
referred
to
as
the
“qualifying
period”).
(a)
...
(b)
performed
all
or
substantially
all
the
duties
of
the
individual’s
employment
outside
Canada
(i)
in
connection
with
a
contract
under
which
the
specified
employer
carried
on
business
outside
Canada
with
respect
to
[Emphasis
added.]
Analysis
This
same
issue
was
dealt
with
by
Wetston,
J.
of
the
Federal
Court
-
Trial
Division
in
Timmins
v.
The
Queen,
[1996]
3
C.T.C.
175,
at
page
6378
(D.T.C.).
I
believe
that
Wetston
J.’s
reasons
in
Timmins
is
a
complete
answer
to
the
Appellant’s
position.
Care’s
main
or
preponderant
purpose
is
not
profit
nor
can
it
be
said
to
be
in
business
with
a
reasonable
expectation
of
profit.
The
appeal
is
dismissed.
Appeal
dismissed.
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