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This translation was prepared by Tax Interpretations Inc. The CRA did not issue this document in the language in which it now appears, and is not responsible for any errors in its translation that might impact a reader’s understanding of it or the position(s) taken therein. See also the general Disclaimer below.
Principal Issues: [TaxInterpretations translations]
Various questions concerning the application of subparagraph 6(6)(a)(i) of the Act with regard to employees who are assigned to employment duties in Europe.
Position:
General comments.
Reasons:
Most of those questions are factual questions. We have therefore made comments based on previously taken positions, the provisions of the Act and the purpose of the provisions.
February 9, 2000
XXXXXXXXXX Tax Services Office Headquarters
Ghislaine Landry, CGA
Business Audit (613) 957-8953
XXXXXXXXXX
Attention: XXXXXXXXXX
7-993046
1999-000806
Request for interpretation concerning the application of subparagraph 6(6)(a)(i) of the Act
File: XXXXXXXXXX
This is in response to your memo of November 18, 1999 in which you sought our opinion on the above subject.
For the purposes of this memorandum, the following names will be replaced as follows:
XXXXXXXXXX: Employer Inc.
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX: Related corporation(s)
Income Tax Act: The Act
XXXXXXXXXX: Subcontractor
FACTS
1. XXXXXXXXXX.
2. Employer Inc. had new employees sign an employment letter. Those employment letters specified the position to be filled, the hiring date, the agreed salary, the benefits and the employee's obligations. In addition, some letters of employment specified the date of assignment to projects in Europe. All these letters of employment specified that they were permanent employment contracts.
3. The employer also used a subcontractor for the services of employees. XXXXXXXXXX of those employees have also worked in Europe for a number of years in the same capacity as the employees of Employer Inc. They benefited from the same working conditions.
4. Employees who worked in Europe obtained various benefits, namely:
- reimbursement of the rent for a house or apartment;
- reimbursement of various expenses related to a residence in Europe (heating, electricity, telephone, cable, etc.);
- payment of a monthly allowance of approximately $XXXXXXXXXX to cover various living expenses (food, laundry, cleaning products, various leisure activities, school expenses (where children), various transportation expenses). An additional sum of $XXXXXXXXXX was paid monthly for each member of the family accompanying the employee;
- a car was made available to the employee. Also, on occasion, car rental expenses were reimbursed to the employee;
- in general, the employee did not bear any car running costs.
5. The employees who were assigned to XXXXXXXXXX resided in XXXXXXXXXX. From the place where they resided, they provided services to some of the related corporations. For example, an employee might spend a few months in the same place or the employee might work in several locations during the same week.
6. The employees who were assigned to XXXXXXXXXX resided in XXXXXXXXXX and services were provided to one of the related corporations only.
QUESTIONS
In general, you asked whether subparagraph 6(6)(a)(i) of the Act can apply to the employees of Employer Inc. and of the subcontractor who worked in Europe. You asked us various questions regarding the conditions for the application of that subparagraph. In addition, some of your questions dealt with the calculation of the benefit under paragraph 6(1).
YOUR POSITION
XXXXXXXXXX
In general, in your request, you made the following comments regarding the situation of the employees:
- To determine whether the work performed was of a temporary nature, you are of the view that even if the on-site work involved several sub-projects at different locations (factories), it was the time spent in Europe that determined whether or not the work was temporary, since the work was carried out in the same discipline, for the same partner, and this for several years.
- It is difficult to establish the facts known at the beginning of the employment to determine whether the work performed was of a temporary nature. The employee could assume that if the employee did not like the stay abroad, the employee would be able to return. The employer, if not satisfied with the employee, could lay off the employee. There was also the constraint of the availability of work on site. However, you are of the view that in the normal course of an individual's employment and in the normal course of a corporation's business, from the moment an employee accepts an employment abroad as in the present case, it can be assumed that the employment will normally last more than two years.
- You are of the view that it is the place where the employee is assigned (XXXXXXXXXX) that is the particular worksite and not the various places where the employee works on site.
POSITION OF THE TAXPAYER
The taxpayer's representative, in his letters of October 25 and November 15, 1999, makes, among other things, the following comments concerning the situation of the employees:
- The employees who go to XXXXXXXXXX are assigned to a particular project. This assignment therefore has a start date and an end date. Those employees are not permanently assigned to a factory or an office of the corporation. They are assigned to a specific project, one of the characteristics of which is that once the objectives have been achieved, the project ends. Consequently, since each of the projects is distinct from the other, they are of the view that each of those assignments constitutes a particular project and not the total stay in Europe. Given that the duration of each of those projects is less than two years, they are of the view that the work is of a temporary nature.
- In support of his position, the representative refers to the case of Dubé v. The Queen, (Case Files 98-454-(IT)I, 98-455(IT)I, 98-456(IT)I and 98-457(IT)I).
OUR COMMENTS
We will first present a detailed analysis of the conditions for the application of subparagraph 6(6)(a)(i). We will then answer your questions in the order in which you submitted them.
In general, subparagraph 6(6)(a)(i) provides that a taxpayer does not have to include in computing income a benefit under subsection 6(1) if that benefit represents the value of, or an allowance (not in excess of a reasonable amount) in respect of expenses the taxpayer has incurred for the taxpayer’s board and lodging for a period at a special work site. That special work site (or that “particular workplace” as indicated in our last interpretation #9826537) must be a place where the work performed by the taxpayer was of a temporary nature. In addition, the taxpayer must maintain at another location a self-contained domestic establishment as the taxpayer’s principal place of residence that was, throughout the period, available for the taxpayer’s occupancy and not rented by the taxpayer to any other person, and to which, by reason of distance, the taxpayer could not reasonably be expected to have returned daily from the special work site.
The purpose of subparagraph 6(6)(a)(i) is to recognize that where an employee is required to work temporarily at a place of work a significant distance from where the employee usually resides, it would be unreasonable to expect the employee to give up the employee’s current residence and move to the new location for a short period of time. Furthermore, that subparagraph recognizes that where an employee continues to incur expenses in order to maintain the employee’s principal place of residence without receiving rental income in return, a benefit is not granted to the employee if the employer provides, or reimburses the employee for expenses incurred in relation to, a temporary residence at the special work site.
Subparagraph 6(6)(a)(i) therefore applies with respect to the board and lodging expenses of an employee at a special work site that is a place where the duties performed are of a temporary nature. It is therefore necessary to determine where the taxpayer works and incurs expenses for board and lodging, and then to determine whether the work performed at that location is of a temporary nature. To determine the place of work, we believe that all the facts and circumstances must be examined. In this case, the work agreement between Employer Inc. and the employee stipulates that the latter has to work in specific regions of Europe. The employer is the supplier of XXXXXXXXXX for the related corporations that are located in those regions. In general, the employment is for an indefinite period.
In the case of an employee assigned to a region of XXXXXXXXXX, who occupies a residence in one place and from that place goes daily to different workplaces, we are of the view that the total duration of the employee's employment in that region must be considered in order to determine whether the work is of a temporary nature. In our view, the duration of the employee's work at each factory or in relation to each project on which the employee works is not relevant. Nor do we agree with considering Europe as a construction site. The employee was hired or accepted a work assignment in that region with the knowledge that the employee would have to work at different locations as part of the employment. It is not a new employment when the employee goes to work in another factory in the region; it is still the same employment for which the employee was hired or to which the employee was assigned.
In order to determine the temporary nature of an employment, we therefore consider that the total duration of an employee's employment in a given region must be considered. Consequently, if an employee is assigned to work in a region, the expected period of work in that region will have to be considered. However, if an employee is assigned to a region for a certain period of time, then to another region or country, such that the employee is required to settle (in terms of board and lodging) in that other region or country, each region or country could be considered separately to determine the temporary nature of the work.
In our view, this position fulfils the aim of subparagraph 6(6)(a)(i). If an employee moves to a city in a region and travels from the employee’s residence in that city to work at various factories in the region, and that work is of an indefinite duration, we are of the view that that situation would not be covered by subparagraph 6(6)(a)(i). On the other hand, if an employee is required, as part of their employment duties, to work for a year in one region, for another year in another region or another country, and so on for a few years and they must therefore move every time they change workplace during that period, we are of the view that that situation could be covered by subparagraph 6(6)(a)(i).
Another condition for the application of subparagraph 6(6)(a)(i) is that the work must be of a temporary nature. In paragraph 6 of Interpretation Bulletin IT-91R4, Employment at Special Work Sites or Remote Work Locations, the following comments are made regarding the term “temporary”:
… as a general rule, duties will be considered to be of a temporary nature if it can reasonably be expected that they will not provide continuous employment beyond a period of two years. The determination of the expected duration of employment must be made on the basis of the facts known at its commencement. In this regard, particular consideration should be given to the following factors:
- the nature of the duties to be performed by the employee (certain types of work are, by their nature, short term engagements, such as repair work or trades which are involved only during a certain phase of a project);
- the overall time estimated for a project, or a particular phase of a project, on which the employee is engaged to perform duties; and
- the agreed period of time for which the employee was engaged according to the employment contract or other terms of the engagement.
In determining whether the work of employees is of a temporary nature, it is necessary to rely on the facts known at the beginning of the employment. In the present situation, since the letters of employment signed by the employees indicate that the employment contract was for an indefinite period, and no other document clearly indicates the duration of the employee's assignment to a specific location, we are of the view that the burden of proof rests with the employee to clearly demonstrate that it was the employee’s intention to be assigned to that employment on a temporary basis. It is therefore a question of fact on which it is impossible to give a definite answer. However, we agree with you that, according to the information available in the file, in general, the employees of Employer Inc. or the subcontractor were assigned to a workplace for indefinite periods. It may be that for various reasons an employee had not stayed in one place for more than 2 years, but this does not mean that the intention was for this work to be temporary in nature. If the employment is for an indefinite period, the fact that that employment or assignment ends before a period of 2 years does not make that employment temporary in nature and eligible for the application of subparagraph 6(6)(a)(i).
Another condition for the application of subparagraph 6(6)(a)(i) is that the employee maintain at another location a self-contained domestic establishment as the employee’s principal place of residence. The determination of the employee's principal place of residence is also a question of fact. Where the employment contract is for an indefinite period and where an employee settles with the employee’s family in a place for a long period of time without any indication as to when the employee should return to the employee’s former residence, it could be argued that that former residence is no longer the employee’s principal place of residence but rather that the new residence or accommodation has become the principal place of residence. In our view, an employee can only have one principal place of residence. Furthermore, the fact that the employee's family resides with the employee in a place of residence seems to be a factor supporting the position that that place of residence is the employee's principal place of residence. However, there may be situations where that factor will not be decisive in itself.
With regard to the decision of the Tax Court of Canada in Dubé v. The Queen, we are of the view that that decision is based on the particular facts of that case and the judge's comments do not allow us to apply that decision to other cases.
We will now answer your questions. In these answers, you will find additional comments regarding the application of subparagraph 6(6)(a)(i) in relation to the situations you have encountered in this case.
Question 1:
When an employee resides in Europe and a member of the employee’s family (other than a spouse or children) resides in the employee’s self-contained domestic establishment during the employee’s absence, can it be said that the employee's principal place of residence remained available to the employee throughout the period?
Response:
The fact that a person remains in the employee's residence during the employee’s absence is not in itself conclusive to say that that residence was not available to the employee during the period of absence. Since that determination is based on a question of fact, all the factors relating to a particular situation must be considered. For example, factors such as: did the employee's furniture remain in the residence, could the employee return to occupy the residence with the employee’s family without notice, could be important factors.
Question 2:
Situation identical to Question 1, however, the family member reimburses the employee $300 to cover part of the household expenses. Should the residence be considered to have been rented?
Response:
In our opinion, it cannot be said that the employee rented the residence simply because the person occupying the residence pays part of the expenses.
However, subparagraph 6(6)(a)(i) only applies if the taxpayer maintained a self-contained domestic establishment as their principal place of residence. In the English version of the Act, the term “maintained” is used. In our opinion, in the context of that subparagraph, the term “maintained” should be interpreted as meaning incurred expenses in respect of the residence. In a situation where the person occupying the residence reimburses a portion of the expenses, there could be an argument that the employee no longer maintained the residence, depending on the amount of the expenses reimbursed by that person and whether there are still expenses to be borne by the employee.
Question 3:
Does the fact of renting out one's residence in Canada for a single month exclude an employee's eligibility under subparagraph 6(6)(a)(i) for the entire year or for the entire period during which the employee works at the special work site?
Response:
Subparagraph 6(6)(a)(i) provides that no amount shall be included in computing an employee's income under subsection 6(1) for a taxation year in respect of the employee’s board and lodging if inter alia throughout the period the self-contained domestic establishment was not rented to any other person. Since the calculation of the benefit under subsection 6(1) is made for a taxation year, we are of the view that the period referred to in subparagraph 6(6)(a)(i) is that occurring in the given taxation year. Consequently, if the employee rents out the employee’s residence for one month of a taxation year, the exemption under subparagraph 6(6)(a)(i) will not be available for that year since the residence was rented out at a particular time during the year. However, if the employee is still at the special work site the following year and all the other conditions for the application of subparagraph 6(6)(a)(i) are met, the employee may benefit from the exemption for that year if the residence is not rented out in that year. However, particular attention should be paid to the question of whether that self-contained domestic establishment constitutes the employee's principal place of residence throughout that year.
Question 4:
What factors should be considered in determining whether the work is temporary in nature or not?
Response:
This question was answered at the beginning of the presentation of our comments and details are provided in the following questions.
Question 5:
On XXXXXXXXXX, an employee of Employer Inc. signs an employment contract that provides for a 2-month training period at XXXXXXXXXX followed by 24 months of work at XXXXXXXXXX. The contract stipulates a period of work abroad for 26 continuous months. Is the work of a temporary nature? If after the training period, the work planned at XXXXXXXXXX lasted 23 months. Would your position remain unchanged?
Response:
An employee whose employment contract expressly provides for a training period of 2 months at XXXXXXXXXX followed by work for a period of 24 months at XXXXXXXXXX would, in our opinion, be eligible for exemption under subparagraph 6(6)(a)(i), provided that all the other conditions for the application of that subparagraph are satisfied.
The 2-month training period at XXXXXXXXXX would be considered temporary work at that special work site. The 24-month or 23-month work period at XXXXXXXXXX must be considered separately from the training period since it involves a different special work site. That period of work will be considered to be work of a temporary nature at that special work site since the intention of the parties at the beginning seems to be that this work does not constitute continuous employment for more than 2 years. However, if the intention of the parties at the beginning of the period of work is not clearly indicated and that period actually lasts for more than 2 years, it is considered that the work was never work of a temporary nature. On the other hand, if the period of work is extended, if this extension could not reasonably have been anticipated at the beginning of the period and if the circumstances (for example delays in the realization of a project) mean that the period of work lasts more than 2 years, this work could be considered as work of a temporary nature if the period of extension can be considered as a temporary period.
Question 6:
An employee has now been working in XXXXXXXXXX for five consecutive years. The employment contract did not provide for a stay abroad. The intention to leave for that country could not be demonstrated by any document. The client's representative wrote the following comments:
- This stay was always intended to be temporary, particularly for family reasons (language, the difficulty for the family in creating a network of friends, the lack of services, the school system, the standard of living lower than our norms, etc.).
- Other facts also demonstrate that the work in XXXXXXXXXX is temporary in nature. There is, in fact, a succession plan that has been prepared by the directors of Employer Inc. for that employee. However, recruitment is very difficult. The person sought will need to have a Western profile. The term of that employee was therefore extended due to events beyond the employee’s control. The employee would like, and the directors would also like, this term to come to an end soon;
- The intention of a temporary stay is also demonstrated by the employee’s significant investment in the employee’s home.
Is the employee's work of a temporary nature?
Response:
No. When the duration of an assignment to a particular workplace is not clearly indicated at the outset by the employee and the employer and that period in fact lasts more than 2 years, the work is considered never to have been of a temporary nature. Since in the present situation no document precisely indicates the period of assignment in XXXXXXXXXX, the employee has the burden of demonstrating that the extension of the period of assignment over a period exceeding 2 years could not be foreseen at the beginning of the period and that that extension is also temporary. Since the employee has been working at that location for 5 years now, we are of the view that this work cannot be said to be temporary in nature.
Question 7:
On XXXXXXXXXX, an individual signed an employment offer with a first assignment in Europe scheduled for XXXXXXXXXX. The employment contract is for an indefinite period. The individual is still working in Europe today. Is the work of a temporary nature?
Response:
It is not possible to answer this question since you do not specify where in Europe the employee is working, for what period of time, is the period of assignment to each location expected to last less than or more than 2 years, does the employee remain in one location and, from there, work at different factories in the region and return home at the end of each day.
However, to help you answer that question, we would like to make the following clarifications:
• an employee who lives in one place and, from that place, works at different factories in the region and returns home at the end of each day: to determine the temporary nature of that work, one must consider the total expected duration of that employment in this region, and not the duration of employment at each factory or on each project;
• an employee who works in different regions of a country or in different countries, and who is required to settle in each place of assignment, the temporary nature of the work should be determined by considering the expected duration of the work in each place separately, rather than the total duration of the assignment in Europe. Please note, however, that it will probably be more difficult for an employee who is assigned for several years in different regions or countries to demonstrate that the employee’s principal place of residence is still the employee’s residence in Canada.
Question 8:
An employee is assigned for 24 months in XXXXXXXXXX and then for 12 months in XXXXXXXXXX. Is the employee’s work of a temporary nature?
Response:
As indicated above, to determine the temporary nature of the employment in this situation, we are of the view that the work at each of the locations should be considered separately, since the employee must move to another location during the transfer to XXXXXXXXXX.
However, this does not necessarily mean that the work is temporary in nature at both locations. In fact, to determine the temporary nature of the employment in XXXXXXXXXX, the expected duration of that assignment at the outset must be considered. The fact that the employee did not stay in one location for more than 2 years is not, in our view, sufficient evidence in itself to demonstrate the intention at the beginning of the employment or assignment. If the employment in XXXXXXXXXX was for an indefinite period and after 2 years the employee or employer decided to transfer to XXXXXXXXXX, we are of the view that that work would not be of a temporary nature. The same remark applies with regard to the employment in XXXXXXXXXX.
Question 9:
The living expenses paid to employees cover food, laundry, cleaning products, various leisure activities, etc. Are all such expenses included in the application of subparagraph 6(6)(a)(i)?
Response:
Subparagraph 6(6)(a)(i) applies with respect to an allowance (not exceeding a reasonable amount) relating to expenses incurred by the employee for board and lodging only. A reasonable distribution of the monthly allowance received by the employee must be made on the basis of the expenses actually incurred by the employee for board and lodging. The portion of the allowance attributable to expenses such as various leisure activities, school expenses (where children) and various transportation expenses is not eligible for the exemption provided for in subparagraph 6(6)(a)(i). We are of the view that an allowance of $XXXXXXXXXX per day cannot be considered reasonable, as proposed by the taxpayer's representative, if that amount does not correspond to the expenses actually incurred by the employee.
Question 10:
Are the costs of storing furniture in Canada taxable? Does the application or non-application of subparagraph 6(6)(a)(i) influence your position?
Response:
In our view, the cost of storing furniture in Canada incurred by an employee constitutes a personal expense of the employee. Consequently, if the employer reimburses that expense to the employee, that amount constitutes a taxable benefit for the employee under paragraph 6(1)(a) or (b). Whether or not subparagraph 6(6)(a)(i) applies does not affect that position since this subparagraph does not apply to expenses incurred by the employee at the employee’s former place of residence.
Question 11:
In your opinion, the distance travelled between the employee's residence in Europe and the various workplaces is considered personal travel. Do you support that position?
Response:
In the situation of an employee who lives in one place and, from that place, goes to work in different factories in the region and returns home at the end of the day, we are of the view that the distance travelled between the residence and the different places of work constitutes personal travel by the employee and not travel undertaken as part of the duties of an employment. Our position is based on the fact that an employee may have different places of business for the employer, i.e., a place for which the employee has been hired, where the employee is assigned and where the employee normally reports for work. You can consult documents F9611115 and F9806005 in the LIB or other computerized databases, which present a detailed analysis of that position.
On the other hand, if an employee usually works in one place and occasionally has to go to another place, it is possible that the travel between the employee’s residence and this other place constitute travel made as part of the duties of the employee’s employment.
For your information, a copy of this memorandum will be severed using the Access to Information Act and will be available in the Legislative Access Database (LAD) located on the mainframe of the Canada Customs and Revenue Agency. A severed copy will also be distributed to the commercial tax publishers for inclusion in their databases. The severing process will remove all material that is not subject to disclosure, including information that could disclose the identity of the taxpayer. Should your client request a copy of this memorandum, the Legislative Access Bank version can be provided. Alternatively, the client may request a severed copy using the Privacy Act criteria, which does not remove client identity. Requests for this latter version should be made by you to Ms. Jackie Page at (819) 994-2898. A copy that has been severed in accordance with the Privacy Act will be sent to you for delivery to the client.
We hope that our comments will enable you to settle the matter. If you require any further information regarding this matter, please do not hesitate to contact us.
Ghislain Martineau
Acting Manager
Individuals and Businesses Section
Businesses and Publications Division
Income Tax Rulings Directorate
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