Barrett v. R., [1998] 1 CTC 2138

Watson D.J.T.C.:

This appeal was heard under the Informal Procedure at St. John’s, Newfoundland on October 2, 1997.

In reassessing the Appellant for the 1994 taxation year, the Minister of National Revenue (the “Minister”) included in his employment income the amount of $2,280.00 received by him from his employer as an allowance for board and lodging.

In so reassessing the Appellant, the Minister relied on the following allegations of fact:

(a) the Appellant was an employee of Newfoundland Offshore (Nodeco), an employer who was situated at the Bull Arm work site in Newfoundland and was involved in the construction of a gravity based offshore drilling platform for the drilling program Hibernia;

(b) the Hibernia work site has been classified as a “special work site” pursuant to a decision of Revenue Canada Taxation, and all duties performed by employees at the site are considered to be of a temporary nature;

(c) due to the lack of sufficient accommodations at the work site, employees who agreed to live off the site and to provide their own living accommodations were provided by the employer with an allowance of $40.00 per day for board and lodging;

(d) in December 1992, the Appellant’s address, as well as that of his spouse, was P.O. Box 309, R.R. #1, Hillview, Newfoundland;

(e) the Appellant and his family moved to Mount Pearl, Newfoundland in February 1993;

(f) the Appellant commenced work at the Bull Arm work site in March, 1993 and occupied accommodations provided by the employer at the site;

(g) in February, 1994, the Appellant and his wife separated and the Appellant claimed to have moved into a residence at 5 Wadland Crescent, St. John’s, Newfoundland.

(h) the Appellant continued to live at the work site until August, 1994, when he rented accommodations in the Hodges Cove area at P.O. Box 300, R.R. #1, Hillview, Newfoundland;

(i) the Appellant was required to file a Revenue Canada TD4 form which indicated that he was subject to the exempting provisions under subsection 6(6) of the Income Tax Act (the “‘Act’’);

(j) the TD4 form, which was completed by the Appellant in August 1994, indicated that the Appellant’s permanent residence was located at 52 Wyatt Blvd., Mount Pearl, Newfoundland, and that his temporary residence was located at P.O. Box 300, R.R. #1, Hillview, Newfoundland;

(k) as of December 31, 1994, the Appellant’s address was P.O. Box 300, R.R. #1, Hillview, Newfoundland and the address of his spouse, from whom he had been separated since February, 1994, was 52 Wyatt Blvd., Mount Pearl, Newfoundland;

(l) there is no evidence that the Appellant was maintaining a self-contained domestic establishment as his principal place of residence other than at P.O. Box 300, R.R. #1, Hillview, Newfoundland during the period of August to December 1994 when he was in receipt of the allowance from his employer.

At the hearing of the appeal, the Appellant, who was the only witness heard, admitted paragraphs (a) to (d), (f), (h) to (j), the second part of paragraph (k) and (1); in his testimony, he stated that he moved to St. John’s instead of Mount Pearl in February 1993, that he moved into a residence at 5 Wadland Crescent, St. John’s in July 1994 and not February 1994 and that as of December 31, 1994, his address was 5 Wadland Crescent, St. John’s instead of P.O. Box 300, R.R. #1, Hillview, Newfoundland.

The only issue before the Court is whether the Appellant was entitled to exempt the board and lodging allowance provided by his employer from his income from employment, pursuant to subsection 6(6) of the Income Tax Act.

The Appellant has the onus of establishing, on a balance of probabilities, that the Minister’s reassessment was ill-founded in fact and in law.

Considering all of the circumstances of this appeal, including the testimony of the Appellant, the admissions and documentary evidence, I am satisfied that the Appellant has failed to establish that during the period he was at the Hibernia work site, he “maintained at another location a self- contained domestic establishment as his principal place of residence....that was, throughout the period, available for his occupancy and not rented by him to any other person and...to which, by reason of distance, he could not reasonably be expected to have returned daily” from the Hibernian work site.

Accordingly, the appeal is dismissed.

Appeal dismissed.