Walter Wylde v. Minister of National Revenue, [1979] CTC 3041, 79 DTC 829

John B Goetz:—This appeal was heard at Halifax, Nova Scotia, on July 27, 1979, and is against a reassessment of the appellant’s income tax liability for his 1976 taxation year.

At the outset of the hearing the appellant and the respondent agreed to certain calculations and figures which will be referred to later in these Reason for Judgment.

Facts

The appellant is an interpretation officer employed by the Nova Scotia Provincial Tax Commission and as such was required to have the use of a motor vehicle. His duties included going into the field away from his office to advise people with respect to interpretation by the Provincial Tax Commission of the provisions of the Health Services Act. It would appear from the evidence that these field trips only constituted 30 /2 days of the total work year of the appellant.

The appellant felt that he should be allowed expenses for travelling to and from his place of business; that he should be allowed the full capital cost allowance on his vehicle; and, further, that he should be reimbursed for parking expenses, registration fees, toll fees, and insurance, in that he said his vehicle was required at all times.

In reassessing the appellant, the respondent relied, inter alia, upon paragraphs 6(1 )(b), 8(1)(h) and (j) and section 67 of the Income Tax Act, SC 1970-71-72, c 63 as amended.

The real issue in this case is whether the appellant’s position comes within the meaning of subparagraph 8(1 )(h)(i) of the new Act. The appellant was requested by the Minister to complete the Declaration of Conditions of Employment Applicable to Expense Claims, namely form T2200, which was filed with his return. He was also asked to present a mileage record broken down between business and personal mileage. The appellant in 1976 travelled a total mileage of 15,779, 3567 miles of which were incurred in the course of his employment in the field. It was also indicated that the appellant travelled 4400 miles to and from his office.

On January 6, 1978, the assessing section of the Department of National Revenue sent a letter to the appellant. A portion of that letter is herein set out:

Law

The sections of the Act involved in the present case are paragraph 8(1)(h) and subsection 8(2) which read as follows:

8. Deductions allowed.

(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) Travelling expenses.—where the taxpayer, in the year,

(i) was ordinarily required to carry on the duties of his employment away from his employer’s place of business or in different places,

(ii) under the contract of employment was required to pay the travelling expenses incurred by him in the performance of the duties of his office or employment, and

(iii) was not in receipt of an allowance for travelling expenses that was, by virtue of subparagraph 6(1)(b)(v), (vi) or (vii), not included in computing his income and did not claim any deduction for the year under paragraph (e), (f) or (g),

amounts expended by him in the year for travelling in the course of his employment;

8.(2) Except as permitted by this section, no deductions shall be made in computing a taxpayer’s income from a taxation year from an office or employment.

Counsel for the respondent submitted to the Board a number of cases to be considered as relating to appellant’s situation and the following cases, in particular, would appear to be most relevant:

The Queen v E L Lavers, [1978] CTC 341; 78 DTC 6230;

L A Kreiger v MNR, [1979] CTC 2283; 79 DTC 269;

The Queen v E E Diemert, [1976] CTC 301; 76 DTC 6187;

Robert Guay v MNR, [1970] Tax ABC 1201; 70 DTC 1781.

I find that of the above cases, the most applicable to this case is that of Leonard A Krieger v MNR, which decision was rendered by my colleague, Guy Tremblay, Esq, CGA.

The appellant must, if he is to succeed in his appeal, come within the four corners of paragraph 8(1)(h) and this, I am afraid, he has failed to do. He was only away from his place of business 30 /2 days during his working year and further he was allowed, on account of mileage, the sum of $448.32. It is trite law that the appellant is not entitled to car expenses relating to travelling to and from his work. See Her Majesty the Queen v Eric L Lavers (supra).

Certainly, the nature of his employment did not warrant his charging as an expense the cost of parking his vehicle while he was working at his employer’s place of business.

The appellant has failed to meet the requirements of paragraph 8(1)(h) and that being so, I must, with regret, dismiss his appeal.

Appeal dismissed.