Judge Flanigan (orally: April 8, 1974):
1 This is an appeal by Donald F Homme against a reassessment of the Minister of National Revenue for the 1971 taxation year. Briefly, the facts are that the appellant is a resident of Windsor, Ontario, Canada and is employed as a truck driver hauling heavy equipment in the United States of America. His general area of travel is from Detroit to the eastern seaboard, usually along throughways and interstate highways which are controlled access highways and which provide eating facilities along the way. His route also takes him as far west as St Louis, Missouri and as far north as Milwaukee, Wisconsin.
2 The issue is twofold in this case. First of all, is the appellant entitled to his full claim for meal expenses in the amount of $1,998 or is the Department correct in applying a figure of $2.50 per meal, which has been set out in an interpretation bulletin as being the maximum amount acceptable without vouchers?
3 The second issue is whether or not long-distance telephone calls in the amount of $140 made by the appellant to his family residence while on these trips in the course of his employment should be an allowable deduction from his income.
4 Two sections of the old Income Tax Act are involved directly, I think. One being subsection 11(7) which is conceded to apply and under which the appellant is entitled to an allowance for meal expenses.
5 The other section referred to by the representative of the Minister is subsection 5(1) which specifies, and I paraphrase, that expenses, to be deductible, must be covered by the Act.
6 There is a third section hovering in the background of this case, and that is section 125 of the old Act which deals with keeping of books and records. As I say, this section really just hovers in the background because this man was not really in a business which would require him to keep books and records such as envisaged by section 125, but the Minister is, I suppose, entitled to rely on it if a taxpayer goes outside of the bounds that have been deemed to be fair and reasonable.
7 As I have said during the course of argument, I have been quick to chastise the Department of National Revenue for its inconsistency from case to case in Canada in the various taxation offices, and I am now faced with an interpretation bulletin, which although not law, does lay down some guidelines which are consistent for all truck drivers.
8 Mr Homme has said in evidence that his American co-workers are allowed $10 per day by the Internal Revenue Service of the Treasury Department of the United States, but I am not bound by, nor do I take judicial notice of, this fact. However, from a practical point of view, he is travelling the same routes and perhaps eating in the same locations as his American counterparts. He has said that he has calculated what his bare minimum—I don't think he went that far even—I think he said, to use his words, that he “didn't think you could spend less than $1.80 for breakfast, $2.25 for lunch and $3.50 to $4 for dinner”. I think that those prices would be “a bare minimum”, in my own words, that could be spent in the areas that he is travelling in. He has said that he and other workers have calculated the absolute minimum that they could spend for food, and that minimum came to $9 per day, and that is what he has claimed. He does not have vouchers to support this, but he bases his claim in dollars on nine times the number of days he has been away on the trips that he has taken.
9 As I have said, I am not bound by the interpretation bulletin, yet I am loath to find otherwise without sound discretion applicable to this type of taxpayer over others in the same employment operating in Canada.
10 I don't think that the price of meals would be any less in the major areas of Canada than they would be on the routes described by this appellant. However, I feel certain that, in arriving at the $7.50 a day figure for Canadian truck drivers, the Department of National Revenue considered the overall picture in Canada and arrived at this figure. I think I am justified, therefore, in acknowledging, as is stated by Mr Homme in the witness-box, that it is quite a bit more expensive to eat on the routes that he travels than it is in Canada. Therefore, I find that on all the evidence the sum of $9 per day is fair and reasonable under all the circumstances. In coming to this conclusion, I am trying to apply some consistency to my own decisions, and here I am referring to findings made by me in Belleville some two weeks ago allowing a similar sum for expenses without vouchers in a non-related occupation. There, again, although it is an unreported decision, the Department acknowledged that some allowance for meals was justified and it was a question of what the fair and reasonable figure should be.
11 With respect to the telephone calls, it was urged upon me by the appellant that such communication is, in fact, emotional food for mental sustenance comparable to the sustaining of physical well-being by the purchase of regular food. I could not agree more with that assertion. When one looks at the income tax return of the appellant, one sees that in the material year he had two children dependent upon him, one 18 and one 15. Due to the age of his children, communication was difficult enough when he was physically present. The type of job that he had would make it even more necessary to try to maintain some contact, even though it had to be accomplished by long distance telephone calls. As I have said in many cases, it is regrettable that Parliament in its wisdom did not see fit to give to this Board or to the Federal Court the power to exercise some judicial discretion where, in the opinion of the presiding member or judge, it seems evident that such a discretion should be exercised in favour of the appellant. However, the fact is that it is not strictly covered by the Income Tax Act. Again, as I have said many times, it would be impossible for legislators to cover every conceivable permutation and combination of factors that might affect the individual taxpayer in this country. But they do not give to this Board that discretionary power and, although my sentiments are that I should breach the contents of the Act and make such an allowance, to do so would be to open the flood-gates and leave myself and my colleagues open to pressure to allow every expense that might be claimed by a taxpayer to be emotionally justifiable.
12 Therefore, notwithstanding the fact that I feel that this should be a deductible expense, I find that it is specifically precluded from being allowed to the taxpayer because it is a strictly personal expense and, therefore, the appeal with respect to the claim of $140.55 for telephone calls must be dismissed.
13 As a result, the appeal will be allowed in part and the matter referred back to the Minister for reassessment, allowing a deduction in respect of meal expenses of $1,998 although in all other respects, the appeal is dismissed.
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