The
Assistant
Chairman:—This
is
the
appeal
of
William
Futoransky
from
an
income
tax
assessment
in
respect
of
the
appellant’s
1970
taxation
year.
The
appellant
who
is
a
resident
of
Edmonton
was
employed,
in
the
year
pertinent
to
this
appeal,
as
foreman
in
charge
of
ten
electricians
at
a
power
plant
construction
project
at
Sundance,
Alberta
by
Hume
&
Rumble
Ltd.
In
1970
he
was
employed
on
the
Sundance
construction
project
for
8
months.
During
this
time
he
had
the
opportunity
of
either
living
at
a
camp
site
provided
by
Calgary
Power
or
travelling
69
miles
daily
to
and
from
his
residence
in
Edmonton
to
Sundance.
The
appellant
chose
to
travel
daily
to
work,
for
which
he
was
reimbursed
at
a
rate
of
$14
a
day
and
received
in
1970
an
amount
of
$3,318
for
travelling
expenses.
The
respondent
included
this
amount
in
computing
his
income
for
1970
and
a
notice
of
objection
and
a
notice
of
appeal
were
filed
by
the
appellant
on
the
grounds
that
such
a
reimbursement
for
travelling
expenses
was
not
taxable.
Subsections
11(9)
and
5(2)
of
the
Income
Tax
Act
establish
specific
circumstances
and
conditions
under
which
travelling
allowances
are
exempt
from
taxation.
Subsection
11(9)
states:
11.
(9)
Travelling
expenses.—Where
an
officer
or
employee,
in
a
taxation
year,
(a)
was
ordinarily
required
to
carry
on
the
duties
of
his
employment
away
from
his
employer’s
place
of
business
or
in
different
places,
(b)
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
(c)
was
not
in
receipt
of
an
allowance
for
travelling
expenses
that
was,
by
virtue
of
subparagraph
(v),
(vi)
or
(vii)
of
paragraph
(b)
of
subsection
(1)
of
section
5,
not
included
in
computing
his
income
and
did
not
claim
any
deduction
for
the
year
under
subsection
(5),
(6)
or
(7),
there
may
be
deducted,
in
computing
his
income
from
the
office
or
employment
for
the
year,
notwithstanding
paragraphs
(a)
and
(h)
of
subsection
(1)
of
section
12,
amounts
expended
by
him
In
the
year
for
travelling
in
the
course
of
his
employment.
From
the
facts
of
this
appeal
the
appellant
for
8
months
in
1970
was
ordinarily
required
to
carry
on
the
duties
of
his
employment
at
Sundance,
Alberta,
where
his
employer
was
engaged
in
the
construction
of
a
power
plant
at
which
the
appellant
reported
daily
for
work,
and
from
which
he
commuted
daily
to
his
place
of
residence.
Notwithstanding
the
fact
that
the
head
office
of
Hume
&
Rumble
Ltd
was
in
some
city
other
than
Sundance,
or
that
the
company
was
engaged
at
other
construction
sites,
the
company’s
place
of
business
for
which
the
appellant
was
employed
and
where
he
actually
worked
was
at
Sundance.
So
the
appellant
was
not
ordinarily
required
to
carry
on
duties
of
his
employment
away
from
his
employer’s
place
of
business.
Nor
was
he
required
by
contract
of
employment
to
pay
travelling
ex-
penses
incurred
by
him.
Moreover,
the
appellant,
contrary
to
paragraph
11(9)(c),
was
in
receipt
of
a
$14
a
day
allowance
for
travelling
expenses
while
he
worked
at
Sundance.
Even
though
subsection
11(9)
of
the
Income
Tax
Act
is
not
the
most
applicable
section
dealing
with
the
facts
of
this
case,
the
appellant
nonetheless
does
not,
in
my
view,
meet
the
requirements
of
that
subsection
and
cannot
therefore
benefit
from
the
tax
deduction
provided
therein.
Subsection
5(2)
of
the
Income
Tax
Act
concerned
specifically
with
construction
workers
is,
in
my
opinion,
the
section
which
effectively
deals
with
the
issue
in
this
appeal
and
establishes
clear
conditions
under
which
a
construction
worker
may
deduct
certain
allowances
from
his
income.
Subsection
5(2)
states:
5.
(2)
Construction
workers.—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
(li)
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.
The
appellant
in
commuting
daily
to
and
from
his
place
of
work
cannot
be
said
to
have
been
away
from
his
ordinary
place
of
residence
for
not
less
than
36
hours.
The
deductibility
of
the
transportation
allowance
provided
for
in
subparagraphs
5(2)(b)(i)
and
(ii)
is
strictly
limited
to
construction
workers
who
are
employed
at
a
construction
site
which
is
so
distant
from
the
worker’s
residence
that
he
cannot
reasonably
be
expected
to
return
home
daily
as
spelled
out
in
subparagraphs
5(2)(a)(i)
and
(ii).
The
appellant’s
employment
and
the
facts
of
this
appeal
do
not
meet
requirements
of
subsection
5(2)
of
the
Income.
Tax
Act
and
the
appellant
does
not
fall
within
the
exception
provided
for
in
that
subsection
of
the
Act.
I
conclude,
therefore,
that
the
respondent
in
computing
the
appellant’s
income
for
1970
properly
included
the
amount
of
$3,318
received
by
the
appellant
in
that
year
as
an
allowance
for
travelling
expenses.
The
appeal
is
dismissed.
Appeal
dismissed.
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