Citation: 2013 TCC 65
Date: 20130614
Docket: 2009-3477(IT)G
BETWEEN:
RICHARD ALLAN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
AMENDED REASONS FOR JUDGMENT
Pizzitelli J.
[1]
The parties
acknowledged that this appeal is only in respect of the 2001 taxation year
notwithstanding that the Notice of Appeal refers to an appeal from the
confirmation of the Minister of National Revenue (the “Minister”) in respect of
the taxation years 2000 and 2001.
[2]
The Appellant appeals
from an assessment for his 2001 taxation year that denied the deduction of
legal fees totalling $48,164 and a sum of $70,000 surrendered to Her Majesty
the Queen in right of Ontario with respect to an agreement reached in the
context of criminal proceedings against the Appellant for charges of living off
the avails of prostitution.
[3]
The evidence not in
dispute is that the Appellant managed the escort business carried on mainly in
Toronto by two corporations; namely Nu-Deal Holdings Inc.(“Nu-Deal”) and D.J.A.
Holdings Inc (“DJA”) (together the “Corporations”); which were jointly owned by
the Appellant and his brother in 2001 until the Appellant sold his shares to
his brother in January, 2001. The Appellant admitted he owned 50% of such
shares as assumed by the Minister.
[4]
As part of the sale
transaction, the Appellant entered into an Employment Agreement with DJA, dated
August 1, 2001 (the “Employment Agreement”) that specified he was to be
employed until July 31, 2004, a period of three years, unless terminated earlier,
and pursuant to paragraph 2.1 thereof, in the position of “Supervisor” to
“perform such duties and exercise such powers pertaining to the management and
operation of the Corporation as may be determined from time to time by the
board of directors of the Corporation consistent with the office of the
Executive” and pursuant to paragraph 3.1 thereof “to report to the person
holding the office of President of the Corporation”, for remuneration pursuant
to paragraph 4.1 of “$96,000.00 per annum payable in monthly installments of $8,000
in arrears less all required employee source deductions”.
[5]
Notwithstanding that
the Employment Agreement required him to devote his full time and attention to
the Corporation or its Affiliates, the Appellant described his role in such
Corporation as that of a consultant after the sale of his shares to his brother,
who would step in and replace his brother and “take care of things” in his
absence from time to time even though the Appellant acknowledged that he never
billed the Corporations for any consulting fees, only received the remuneration
agreed to in the Employment Agreement until April of 2009 when operations
ceased and is never referred to as a consultant or independent contractor in
the Employment Agreement. The Appellant’s role prior to the sale of shares had
been that he effectively managed the Corporations including handling the books,
making bank deposits, paying bills and setting escort schedules but all this
changed when he sold his shares and as he testified “got out of the business”.
[6]
Shortly after his sale
of shares, the Appellant and his brother were criminally charged as aforesaid
and the Appellant spent at least about 30 days in jail until he was released on
bail in a Toronto courtroom and for the next 18 months while awaiting trial was
required as a condition of bail to report in once weekly or bi‑weekly and
thus was unable to otherwise work and did not. The evidence is that he had no
other source of income in 2002 or 2003, other than about $24,000 in 2002
representing the amounts earned under the Employment Agreement for the first
three months of that year. It should be noted that the business of the two Corporations
effectively ceased operating because of criminal charges against the Appellant
and his brother. The Appellant testified the delays in getting to trial and his
inability to work were among the reasons he agreed to execute an agreement
titled “Surrender” pursuant to which he surrendered any interest in various
properties including $70,000 he held in a bank account, all of which he
admitted in such Surrender were derived from his criminal activities and which
his counsel described as a settlement with the Crown.
[7]
The Appellant arranged
to file his tax returns for the 2001 and 2002 taxation years only in 2007
because his records had been seized from him, his accountant and his brother by
the Canada Revenue Agency (“CRA”) and not returned until some years later and
because after the return of the seized materials his accountant, who first
indicated would prepare and file his returns, changed his mind and the Appellant
was forced to retain the services of a new accountant, a Mr. L., sometime in
2006.
[8]
With the assistance of
Mr. L., to whom he had brought all the documents and met with, his 2001 T1
General Return was prepared, reviewed by the Appellant and executed by the
Appellant showing employment income of $98,000 from DJA, other employment
income of $12,666 from Nu-Deal and other taxable dividends and taxable capital
gains, but no self-employment income. In fact, the evidence adduced by the
Respondent and admitted by the Appellant was that the Appellant had not had
self-employment income or income from a business for the years since 1998 until
the present as earlier discussed.
Position of the Parties
[9]
The Appellant takes the
position that he can be considered to have been in the business of running an
escort service due to his role in the Corporations and that the legal fees and
surrender fees in issue are expenses directly relating to that business. The Appellant
also argues that at the least the Appellant is an employee and that such
expenses were incurred in order to protect and preserve his source of income,
notwithstanding that they were both incurred in 2003 but were claimed with
respect to the 2001 taxation year. The Appellant argues that notwithstanding
when the expenses were incurred, they were in relation to the process which
started shortly after his arrest in relation to the business and were funded
from the income he received from the Corporations’ business and hence under
accounting principles the deduction should be matched to the income that
supported them.
[10]
The Respondent takes
the position that the Appellant was not engaged in any business but was just an
employee and thus cannot claim deductions for the items in dispute as they were
not expended for the purpose of gaining or producing income, nor deductible as
expenses from employment. The Respondent basically argues these were personal
expenses incurred to defend himself from criminal charges or settle his affairs
with the Crown pertaining to his criminal activities and are not deductible.
The Law
[11]
The relevant provision
of the Income Tax Act (the “Act”) are set out below:
8.(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
…
Legal expenses of employee
(b) amounts paid by the
taxpayer in the year as or on account of legal expenses incurred by the
taxpayer to collect or establish a right to salary or wages owed to the
taxpayer by the employer or former employer of the taxpayer;
…
Sales expenses
(f) where the taxpayer was
employed in the year in connection with the selling of property or negotiating
of contracts for the taxpayer’s employer, and
(i)
under the contract of
employment was required to pay the taxpayer’s own expenses,
(ii)
was ordinarily required
to carry on the duties of the employment away from the employer’s place of
business,
(iii)
was remunerated in whole
or part by commissions or other similar amounts fixed by reference to the
volume of the sales made or the contracts negotiated, and
(iv)
was not in receipt of an
allowance for travel expenses in respect of the taxation year that was, by
virtue of subparagraph 6(1)(b)(v), not included in computing the
taxpayer’s income,
amounts expended by the taxpayer in the year for the
purpose of earning the income from the employment (not exceeding the
commissions or other similar amounts referred to in subparagraph 8(1)(f)(iii)
and received by the taxpayer in the year) to the extent that those amounts were
not
(v)
outlays, losses or
replacements of capital or payments on account of capital, except as described
in paragraph 8(1)(j),
(vi)
outlays or expenses that
would, by virtue of paragraph 18(1)(l), not be deductible in computing
the taxpayer’s income for the year if the employment were a business carried on
by the taxpayer, or
(vii)
amounts the payment of
which reduced the amount that would otherwise be included in computing the
taxpayer’s income for the year because of paragraph 6(1)(e);
…
General limitation
(2) Except as permitted by this section, no
deductions shall be made in computing a taxpayer’s income for a taxation year
from an office or employment.
…
18.(1) In computing the income of a taxpayer from a business or property no
deduction shall be made in respect of
General limitation
(a) an outlay or expense
except to the extent that it was made or incurred by the taxpayer for the
purpose of gaining or producing income from the business or property;
…
Personal and living expenses
(h) personal or living
expenses of the taxpayer, other than travel expenses incurred by the taxpayer
while away from home in the course of carrying on the taxpayer’s business;
Analyses
[12]
I will first deal with
the issue as to whether the Appellant can deduct the claimed expenses as
expensed incurred to gain or produce income from a business or property
pursuant to paragraph 18(1)(a).
1. Deduction of expenses to gain or produce income
from a business
[13]
The Appellant agrees
that although he was not a shareholder of the Corporations after the sale of
his shares to his brother in January of 2001, his duties were basically running
the companies when his brother was not there and hence he should be treated as
running a business. Frankly, I find this argument totally unconvincing.
[14]
Firstly, the Appellant was
not directly operating the escort business he purported to run, the Corporations
were. It is trite law in this country that corporations are considered a
separate legal entity from their shareholders or employees and the Act
acknowledges this by defining a “person” in subsection 248(1) as including a
corporation.
[15]
Secondly, the Appellant
himself admitted that after he sold his shares he effectively got out of the
business and his duties changed and went from managing and running the
businesses to entering into an Employment Agreement pursuant to which he himself
suggested only required him “to take care of things” in his brother’s absence
when his brother needed him, which he suggested was infrequently. By his own
evidence, he cannot be said to have carried such an important role as to
suggest he personally should be considered to be operating the business even if
that argument was feasible.
[16]
Thirdly, even if the Appellant
had continued to manage the business of the Corporations on a full-time basis
after the sale of his shares, I cannot find any basis in law to suggest a manager
or executive is deemed to operate the business of the corporation he works for.
[17]
There is absolutely no
evidence in this matter that the Appellant operated any business in 2001, nor
at any time from 1998 to 2003, in effect since he and his brother incorporated
the business sometime in 1997 as per his own testimony. He admits he
reported no income from self-employment in 2001 nor since 1997 and earned
income from employment from the Corporations in 2001. The Appellant not having
carried on a business he cannot then claim to deduct expenses for the purpose
of gaining or producing income therefrom under paragraph 18(1)(a) of the
Act, whether it be for legal fees or a forfeiture of assets.
[18]
The Appellant relied on
the case of Partykan v. The Minister of National Revenue, 80 DTC 1475, a
1980 decision of the Tax Review Board that allowed a taxpayer to deduct the
legal fees and value of shares relinquished in favour of his former employer in
settlement of a claim for misuse of confidential information being client lists
on the basis such payment allowed the taxpayer to use such information in his
own business and thus compete for the business of clients. The Appellant
suggests that this supports his position that expenses that allow him to work
are deductible.
[19]
With respect to the Appellant,
there was no dispute that the taxpayer in that case was found to be in business
and funds were expended to allow him to compete and produce income from
business or property. In the Appellant’s case, he has no source of business
income from which to claim his deductions as he has no business.
[20]
The Appellant also
argued that the legal fees were necessary to preserve the business in order to
protect his source of income but frankly, the evidence of the Appellant himself
is that the business of the Corporations was finished once he and his brother
were arrested and nothing in the invoice refers to any action taken by the
solicitors with a view to allowing the Corporations to continue the escort
business. The invoice for legal services references only the criminal charges
in relation to the Appellant as indicated above.
[21]
The Appellant relied on
the Tax Review Board’s decision in St-Germain v. The Minister of
National Revenue, 83 DTC 36, which found that pursuant to paragraph 18(1)(a),
a medical doctor could deduct his legal expenses in defending himself from a
criminal negligence charge where a conviction would effectively prohibit him
from practising as a medical doctor and thus from carrying on his business.
Again, in the case at hand, the Appellant was not carrying on any business
prior or after the expenses incurred so that case is clearly distinguishable
and of no assistance to the Appellant.
2. Deductions from Employment
[22]
The Appellant also
argues that he is entitled to deduct such expenses from his employment. There
is no argument the Appellant was an employee of the Corporations during the
2001 taxation year. He admitted it. The evidence shows he was issued T4 income
slips from the Corporations and the Corporations filed payroll returns
evidencing them. While the Appellant attempted to suggest the CRA issued those
returns, there is no evidence of that and frankly the evidence of the
Respondent clearly suggests the CRA processed such corporate returns within a
reasonable time after filing for 2001 and I accept the evidence of the CRA as
more credible on this matter. No other evidence was tendered by the Appellant to
suggest otherwise.
[23]
There is no dispute the
Appellant was an employee of the Corporations in 2001 and that the Appellant
earned income from such employment. The evidence is clear that he was an
employee prior to the sale of his shares and afterwards where the Employment Agreement
clearly describes his relationship as that of an employee paid a monthly amount
subject to “required employee source deductions” as set out in paragraph 4.1 of
such agreement. Moreover, there is evidence that DJA issued a T4 Statement of
Remuneration to the Appellant evidencing income from employment while Nu-Deal
issued a T4A Statement of Pension, Retirement, Annuity or other income to the Appellant.
The Appellant admitted he received no commission income from the Corporations
nor reported or earned any income from self employment as earlier alluded to.
[24]
The Appellant argues
that the legal fees incurred in 2003 were incurred to resolve the matter and
protect his source of income and dignity and should be deductible. With respect
to the Appellant, subsection 8(2) of the Act is clear in that it limits
deductions from employment only to those deductions enumerated in subsection
8(1). The only relevant paragraph of subsection 8(1) relating to any of the two
deductions taken is paragraph 8(1)(b) which explicitly requires that
amounts paid by the taxpayer must be “paid” in the year as well as “incurred by
the taxpayer to collect or establish a right to salary or wages owed to the
taxpayer by the employer or former employer”.
[25]
The invoice for legal
services claimed was clearly issued on July 24, 2003 and was paid by the Appellant
in that year according to his testimony. Accordingly, it is clear that if such
amount was deductible it is only deductible in the year it is paid. Here the Appellant
paid the account in 2003 and claimed a deduction in 2001 while late filing that
return and accordingly such legal fees are not deductible in 2001 pursuant to
the specific wording of paragraph 8(1)(b). This clearly puts to rest the
Appellant’s argument on the timing of the deduction.
[26]
Aside from the timing
issue, the other requirement of the paragraph is that the expense must be
incurred to collect or establish a right to a salary or wages owed to the
taxpayer by the employer or former employer. There is nothing in the invoice
from the Appellant’s solicitors referencing any action or discussions with any
of the Corporations to collect salary or remuneration due. The invoice
references only matters pertaining to such lawyer’s representation of the Appellant
in the criminal matter and includes references to attendance at bail hearing,
a pre‑trial, attempts to obtain access to funds seized, dealing with
police, and discussions regarding suspended jail sentences and probation for
the Appellant. There is absolutely nothing in my opinion that relates to any
claim by the Appellant for wages or salaries due under the Employment Agreement
or otherwise and I am of the view such legal fees were incurred only in
relation to the criminal charges against the Appellant, which have nothing
directly to do with salary or wages owed. Accordingly, the other requirement of
subparagraph 8(1)(b) are not met either.
[27]
In Wilson v. Canada,
90 DTC 6382, the Federal Court - Trial Division, which at the time heard
appeals from decisions of the Tax Court of Canada, found that a salaried school
teacher could not deduct legal expenses incurred in defending charges of rape
and unlawful confinement. Addy J. stated on page two thereof:
I
agree also with the finding of His Honour Judge Sarchuk to the effect that the
words in that section [referring to paragraph 8(1)(b)] are clear and
unambiguous and that the taxpayer must establish that the expenses were
incurred in the collection of salary or wages and, therefore, they must be
incurred in some sort of proceeding against the employer or the person who owes
the salary or wages.
[28]
The Appellant’s
argument is more remote. He is in fact saying that it was essential to resolve
the criminal matter in order to enable him to preserve his dignity and
reputation and continue to work.
[29]
In Esposito v.
Canada, 2004 TCC 102, [2004] 2 C.T.C. 2840, a police officer attempted to
claim legal fees incurred in defending himself against charges of assaulting a
prisoner and was acquitted of such charges, yet nevertheless was denied the
right to deduct such legal fees. The police officer had argued that a defence
of such charges was necessary to enable him to continue to work as a police
officer. Woods J. of this Court stated at paragraph 7:
… Based
on the evidence presented at the hearing, the legal fees incurred in defence of
the criminal charges were incurred to protect a future source of income. They
were not incurred to collect salary that was owed.
[30]
In my opinion, the Appellant
is in the most general sense trying to protect future income in this case as
well.
[31]
The Appellant also relies
on the decision in Raphael v. Canada, 2008 TCC 202, 2008 DTC
3559, wherein McArthur J. allowed a taxpayer who was an investment broker to
deduct the award granted by a court of $49,759 in favour of his former employer
for breach of employment contract plus court costs and legal fees incurred by
the Appellant. However in that case, the taxpayer was a commissioned
salesperson who switched employers and the basis for deductibility was under paragraph
8(1)(f) of the Act and not paragraph 8(1)(b) of the Act.
The same can be said for the taxpayer in Douthwright v. Canada,
2007 TCC 560, 2007 DTC 1614, also relied upon by the Appellant, who was
therein allowed to deduct legal fees and settlement costs for breach of
employment contract incurred to enable him to take a higher paying job. The
taxpayers in those cases were able to rely on a specific other deduction from
employment income provided under subsection 8(1) as commissioned salespersons.
[32]
The Appellant in this
case admitted he received no commissions and accordingly could not fall under the
provisions of paragraph 8(1)(f) of the Act as did the taxpayers
in the above-mentioned cases.
[33]
I also take note that
in respect of the Appellant’s claim to deduct the $70,000 he surrendered to the
Crown above as expenses from employment, I can find no provision in subsection
8(1) that would otherwise specifically permit it and the Appellant has not
pleaded any. Subsection 8(2) is clear that there shall be no deductions from
employment unless specifically permitted under subsection 8(1).
[34]
The Appellant has not demonstrated
any basis for claiming these deductions from salary or wages pursuant to
section 8 of the Act.
Fairness Arguments
[35]
I should like to
address the other basis for relief sought by the Appellant as expressed in his
Notice of Appeal and in argument for fairness and justice in light of the
hardships the Appellant has had to endure from the loss of employment and in
respect to the processes involving the criminal charges he dealt with.
The Appellant also complained in his pleadings about the conduct of the
CRA and suggests, inter alia, that with respect to the Surrender of the bank
account item at least, that the Minister was not clear as to the basis for its
position throughout the objection stage. This Court is empowered pursuant to section
171 of the Act to deal with the assessment only and not the conduct of
the CRA or questions of fairness outside the scope of the Act. This
Court cannot grant the equitable relief sought by the Appellant as it has no
jurisdiction to ignore its findings relevant to the assessment and otherwise
come to the assistance of the Appellant on grounds of hardship or fairness. As
for the Appellant’s suggestion the Minister was inconsistent in its reasons for
disallowing some of the expenses, I simply do not agree that suggesting he was
not carrying on a business and then suggesting there is no provision of the Act
that allows such deduction to be inconsistent as I have come to just that
conclusion.
Conclusion
[36]
Based on the above, I
must find that the Appellant has no legal basis for the deduction of either the
legal fees or the value of his bank account balance surrendered to Her Majesty
the Queen in right of Ontario as claimed either under subsection 18(1) or
section 8. Accordingly, the appeal for 2001 is dismissed. In addition, as
the parties agreed, this appeal was not in respect of the 2000 taxation year so
the appeal with respect to such year is also dismissed. The Respondent
shall be entitled to costs.
This Amended Reasons for Judgment is
issued in substitution of the Reasons for Judgment dated February 22, 2013.
Signed at
Ottawa, Canada, this 14th day of June 2013.
“F.J. Pizzitelli”
Email this Content