A
W
Prociuk
(orally:
April
8,
1976):—The
appellant,
Graham
L
Harle,
under
appeal
No
75-1,
appeals
from
the
respondent’s
reassessments
of
his
income
in
respect
of
the
taxation
years
1972
and
1973
wherein
the
amounts
of
$1,770
and
$3,450
respectively,
representing
sub-
sistence
allowance
which
he
received
in
the
said
years
as
a
Member
of
the
Legislative
Assembly
of
Alberta,
were
added
to
his
income
on
the
ground
that
this
was
an
allowance
within
the
meaning
of
paragraph
6(1)(a)
of
the
Income
Tax
Act,
being
an
allowance
for
personal
or
living
expenses.
The
appeal
of
Calvin
E
Lee
is
essentially
on
the
same
point
and
it
was
agreed
by
the
parties
hereto
that
the
decision
herein
will
govern
that
appeal
as
well.
The
appellant
Graham
L
Harle
was
at
all
times
material
hereto
ordinarily
resident
in
Stettler,
Alberta,
where
he
actually
resided
and
supported
his
wife
and
child.
He
also
carried
on
a
law
practice
in
the
town
of
Stettler.
As
a
Member
of
the
Legislative
Assembly
of
Alberta
he
was
obliged
to
travel
to
Edmonton,
where
he
acquired
for
himself
a
temporary
residence
for
the
purpose
of
attending
the
legislative
sessions
of
the
Assembly.
Pursuant
to
the
provisions
of
The
Legislative
Assembly
Act,
RSA
1970,
c
204
as
amended,
he
was
paid
an
indemnity
allowance
of
$4,800
in
1972
and
$9,000
in
1973,
and
expense
allow-
ances
of
$2,400
and
$4,500,
respectively,
which
latter
amounts
were
not
taxable
pursuant
to
subsection
(2)
of
section
81
of
the
Income
Tax
Act,
SC
1970-71-72,
c
63.
Subsection
56(1)
of
The
Legislative
Assembly
Act
for
the
Province
of
Alberta
(as
amended)
also
provided
that
a
Member
of
the
Legislative
Assembly
who
leaves
his
ordinary
place
of
residence
and
acquires
a
temporary
residence
in
Edmonton
is
allowed,
and
shall
be
paid,
for
each
day
during
the
session
that
the
member
is
necessarily
absent
from
his
ordinary
place
of
residence,
a
subsistence
allowance
of
$15
per
day
for
the
taxation
year
1972,
and,
by
amendment,
of
$30
per
day
for
the
taxation
year
1973.
In
this
regard
the
appellant
was
paid
the
above
stated
sums,
that
is,
$1,770
in
1972
and
$3,540
in
1973.
In
filing
his
income
tax
returns
for
the
said
taxation
years,
the
appellant
did
not
include
the
said
subsistence
allowance
in
his
declared
income,
on
the
ground
that
the
provisions
of
subsection
(6)
of
section
6
of
the
Income
Tax
Act
permitted
him
to
treat
the
said
sums
as
non-taxable.
For
the
purposes
of
convenience,
I
shall
quote
subsections
(6)
and
(7)
of
the
said
section
6,
which
read
as
follows:
6.
(6)
Notwithstanding
subsection
(1),
in
computing
the
income
of
a
taxpayer
for
a
taxation
year
from
an
office
or
employment,
there
shall
not
be
include
(a)
the
value
of,
or
an
allowance
(not
in
excess
of
a
reasonable
amount)
in
respect
of
expenses
incurred
by
him
for,
board
and
lodging
received
by
him
(i)
in
respect
of,
in
the
course
of
or
by
virtue
of
his
office
or
employment
at
a
special
work
site
from
which,
by
reason
of
distance
from
the
place
where
he
maintained
a
self-contained
domestic
establishment
(in
this
subsection
referred
to
as
his
‘ordinary
place
of
residence’)
in
which
he
resided
and
actually
supported
a
spouse
or
a
person
dependent
upon
him
for
support
and
connected
with
him
by
blood
relationship,
marriage
or
adoption,
he
could
not
reasonably
be
expected
to
return
daily
to
his
ordinary
place
of
residence,
and
(ii)
in
respect
of
a
period
while
he
was
required
by
his
duties
to
be
away,
for
a
period
of
not
less
than
36
hours,
from
his
ordinary
place
of
residence;
or
(b)
the
value
of,
or
an
allowance
(not
in
excess
of
a
reasonable
amount)
in
respect
of
expenses
incurred
by
him
for,
transportation
between
his
ordinary
place
of
residence
and
the
special
work
site
referred
to
in
subparagraph
(a)(i),
received
by
him
(i)
in
respect
of,
in
the
course
of
or
by
virtue
of
his
office
or
employment
described
in
subparagraph
(a)(i),
and
(ii)
in
respect
of
a
period
described
in
subparagraph
(a)(ii),
during
which
he
received
board
and
lodging,
or
a
reasonable
allowance
in
respect
of
expenses
incurred
by
him
for
board
and
lodging,
from
his
employer.
(7)
For
the
purposes
of
subsection
(6)
‘‘special
work
site”
in
respect
of
a
taxpayer
means
a
site
(a)
at
which
the
duties
performed
by
him
were
of
a
temporary
nature,
or
(b)
the
location
of
which
was
such
that
the
taxpayer
could
not
reasonably
be
expected
to
establish
and
maintain
a
self-contained
domestic
estab-
hishment
for
his
spouse
or
a
person
described
in
subparagraph
(6)(a)(i)
at
or
near
the
site.
Counsel
for
the
appellant
argued
that
when
Parliament
enacted
this
legislation
it
broadened
the
scope
of
the
provisions
of
subsection
(2)
of
section
5
of
the
former
Act
to
include,
not
only
construction
workers,
but
also
other
personnel
who
would
be
required
to
report
at
a
special
work
site,
formerly
referred
to
as
‘‘construction
site”,
to
perform
their
duties.
Subsection
(2)
of
section
5
of
the
former
Act
reads
as
follows:
5.
(2)
Notwithstanding
subsection
(1),
in
computing
the
income
of
a
taxpayer
for
a
taxation
year
from
an
office
or
employment,
where
the
taxpayer
was,
during
the
year,
employed
as
a
construction
worker,
there
shall
not
be
included
(a)
the
value
of,
or
an
allowance
(not
in
excess
of
a
reasonable
amount)
in
respect
of
expenses
incurred
by
him
for,
board
and
lodging,
received
by
him
i)
in
respect
of,
in
the
course
of
or
by
virtue
of
his
employment
as
a
construction
worker
at
a
construction
site
from
which,
by
reason
of
distance
from
the
place
where
he
maintained
a
self-contained
domestic
establishment
(hereinafter
in
this
subsection
referred
to
as
his
“ordinary
place
of
residence”)
in
which
he
resided
and
actually
supported
a
spouse
or
a
person
dependent
upon
him
for
support
and
connected
with
him
by
blood
relationship,
marriage
or
adoption,
he
could
not
reasonably
be
expected
to
return
daily
to
his
ordinary
place
of
residence,
and
(ii)
in
respect
of
a
period
while
he
was
required
by
his
duties
to
be
away,
for
a
period
of
not
less
than
36
hours,
from
his
ordinary
place
of
residence;
or
(b)
the
value
of,
or
an
allowance
(not
in
excess
of
a
reasonable
amount)
in
respect
of
expenses
incurred
by
him
for,
transportation
between
his
ordinary
place
of
residence
and
the
construction
site
referred
to
in
subparagraph
(i)
of
paragraph
(a),
received
by
him
(i)
in
respect
of,
in
the
course
of
or
by
virtue
of
his
employment
described
in
subparagraph
(i)
of
paragraph
(a),
and
(ii)
in
respect
of
a
period
described
in
subparagraph
(ii)
of
paragraph
(a),
during
which
he
received
board
and
lodging,
or
a
reasonable
allowance
in
respect
of
expenses
incurred
by
him
for
board
and
lodging,
from
his
employer.
Counsel
for
the
respondent
conceded
that,
while
the
appellant
qualified
in
all
other
respects
under
subsection
(6)
of
section
6
of
the
current
Income
Tax
Act,
he
was
not
employed
at
a
special
work
site.
The
issue,
accordingly,
is
whether
or
not
the
Legislative
Buildings
in
Edmonton,
in
which
the
legislative
sessions
are
held
from
time
to
time,
is
a
special
work
site
when
elected
members,
living
some
distance
from
Edmonton,
are
obliged
to
leave
their
ordinary
residences
to
attend
the
said
sessions.
While
it
is
never
possible
to
state
with
any
degree
of
certainty
what
Parliament
had
in
mind
in
enacting
the
definition
contained
in
subsection
(7)
of
section
6,
I
think
it
is
at
least
reasonably
certain
that
Parliament
did
not
in
its
wildest
dreams
consider
a
provincial
legislative
building
such
as
the
one
in
Edmonton
to
be
a
special
work
site
the
location
of
which
was
such
that
the
appellant
could
not
reasonably
be
expected
to
establish
and
maintain
there
a
self-contained
domestic
establishment
for
his
wife
and
child.
Nor
can
it
be
said
that
the
appellant’s
duties
as
a
Member
of
the
Legislative
Assembly
for
Alberta
were
of
a
sufficiently
temporary
nature
to
qualify
within
the
meaning
of
paragraph
(a)
of
subsection
(7)
of
section
6
of
the
Act.
It
seems
to
me
that
the
solution
to
the
appellant’s
problem
and
that
of
his
colleague
Calvin
Lee
would
lie
in
a
proper
amendment
to
the
relevant
provisions
of
the
provincial
statute.
From
an
historical
point
of
view,
the
quoted
subsections
of
section
are
indeed
a
broadening
of
the
scope
of
the
former
subsection
(2)
of
section
5
which
now
relates
not
only
to
construction
sites
but
to
other
work
sites
located
in
outlying
areas
where
the
duties
of
the
employee
would
be
temporary
or
where
the
availability
of
the
usual
amenities
of
life
is
non-existent
at
or
near
the
site.
The
appellant’s
alternative
ground
of
appeal
is
that
his
remuneration
for
committee
work
at
the
rate
of
$40
per
day
ought
to
be
added
to
the
indemnity
allowance
received,
which
would
enable
him
to
claim
more
than
he
received
under
subsection
(2)
of
section
81
of
the
Income
Tax
Act
as
an
allowance
for
expenses
incident
to
the
discharge
of
his
duties
as
a
Member
and
he
should,
accordingly,
be
permitted
to
add
the
difference
from
the
subsistence
allowance
received
to
reach
the
maximum
allowance
under
subsection
81(2)
and
that
he
should
be
taxed
on
the
remaining
amount
of
the
subsistence
allowance,
that
is
to
say,
in
1972,
his
remuneration
for
committee
work
was
$1,600,
and
if
this
were
added
to
the
indemnity
allowance,
he
would
be
able
to
claim
an
additional
$800
of
the
said
$1,770
as
an
expense
allowance
pursuant
to
subsection
81(2)
and
be
taxed
on
the
remaining
$970
for
that
year.
In
my
view
this
ground
is
untenable,
because
subsection
81(2)
refers
only
to
indemnities
in
respect
of
attendance
at
a
session
as
“the
maximum
fixed
amount”
which
is
comprised
of
the
sessional
allowance,
the
amount
of
which
is
fixed
by
statute.
It
does
not
provide
for
the
addition
thereto
of
any
remuneration
received
for
doing
committee
work
between
sessions
of
the
Legislative
Assembly.
In
my
humble
opinion
the
appellant
cannot
succeed
in
this
appeal,
because
there
is
no
provision
in
the
Income
Tax
Act
to
permit
him
to
exclude
the
subsistence
allowance
he
received
in
the
said
years.
Accordingly,
the
appeal
is
dismissed.
For
the
reasons
stated
in
this
appeal,
the
appeal
of
Calvin
E
Lee,
(appeal
No
75-94),
is
similarly
dismissed.
Appeals
dismissed.
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