Storrow v. The Queen, 78 DTC 6551, [1978] CTC 792 (FCTD)

Collier, J:—The plaintiff is a barrister and solicitor. Until July 1975 he resided and worked in Ottawa. He was employed there by the defendant. In July 1975 he moved to British Columbia. He took up new employment in Vancouver. He sold his residence in Ottawa. He purchased a new residence in Vancouver.

He alleges he incurred, as moving expenses, an amount of $32,283.08. His new employer contributed $3,000. He, in calculating his taxable income for 1975, claimed as a deduction $29,283.08.

The Minister of National Revenue, in assessing and reassessing, allowed certain of the deductions claimed, and disallowed others. It is in respect of the latter this appeal is brought.

The disputed amounts are set out in the statement of claim as follows (para 6):

(a) $22,750 being the amount paid by the plaintiff, in excess of the amount received by him as proceeds from the sale of his old residence, to acquire his new residence,

(b) $1,094.84 being the mortgage interest paid in 1975 attributable to the amount of $22,750 referred to above,

(c) $135.20 being the amount paid in 1975 as Land Registry Office fees on the purchase of the plaintiff’s new residence.

(d) $15 being the amount paid in 1975 as an installation fee for telephone service at the plaintiff’s new residence,

(e) $22.50 being the amount paid in 1975 as an installation fee for cablevision service at the plaintiff’s new residence.

(f) $107.49 being the amount paid in 1975 for the installation of the dishwasher at the plaintiff’s new residence, and

(g) $112 being the amount paid in 1975 to install new locks on the outside doors of the plaintiff’s new residence.

At trial, the defendant agreed to the allowance of items (d) and (e). The serious difference of opinion is, of course, in respect of items (a) and (b).

The parties agreed to the following facts:

1. The plaintiff’s old residence in the City of Ottawa was a two-storey brick, four bedroom house having in excess of 2,000 square feet of interior space constructed in or about 1961 and located in the Alta Vista area;

2. The plaintiff’s new residence acquired in Vancouver, British Columbia is a two-storey, stucco, three bedroom house having total interior space of less than 2,000 square feet constructed in or about 1928 and is situated in the Shaughnessy district;

3. The plaintiff's new residence is smaller, of inferior construction and older than his old residence but in all other respects the two houses are essentially similar in character, convenience, condition, lot size and location in relation to amenities and to the plaintiff’s place of employment.

4. The difference between the amount which the plaintiff received on the sale of his old residence and the amount which he was required to pay to acquire his new residence arises solely from the difference in the level of real estate prices between Ottawa and Vancouver in the Spring of 1975. In fact by all indicia other than market criteria the plaintiff’s old residence should have been more valuable than his new residence.

I set out, next, what I think to be the relevant portions of the relevant provisions of the Income Tax Act”, [1] as they stood in 1975:

62. (1) Where a taxpayer

(a) has, at any time,

(i) ceased to carry on business or to be employed at the location or locations, as the case may be, in Canada at which he ordinarily so carried on business or was so employed,

and commenced to carry on a business or to be employed at another location in Canada (hereinafter referred to as his “new work location’’),

and by reason thereof has moved from the residence in Canada at which, before the move, he ordinarily resided on ordinary working days (hereinafter referred to as his ‘‘old residence’’) to a residence in Canada at which, after the move, he ordinarily so resided (hereinafter referred to as his “new residence’’), so that the distance between his old residence and his new work location is not less than 25 miles greater than the distance between his new residence and his new work location, in computing his income for the taxation year in which he moved from his old residence to his new residence or for the immediately following taxation year, there may be deducted amounts paid by him as or on account of moving expenses incurred in the course of moving from his old residence to his new residence, to the extent that

(3) In subsection (1), “moving expenses’’ includes any expense incurred as or on account of

(a) travelling costs (including a reasonable amount expended for meals and lodging), in the course of moving the taxpayer and members of his household from his old residence to his new residence,

(b) the cost to him of transporting or storing household effects in the course of moving from his old residence to his new residence,

(c) the cost to him of meals and lodging near the old residence or the new residence for the taxpayer and members of his household for a period not exceeding 15 days,

(d) the cost to him of cancelling the lease, if any, by virtue of which he was the lessee of his old residence, and

(e) his selling costs in respect of the sale of his old residence.

“Moving expenses’’ is not, in the statute, otherwise defined.

The main issue, in this appeal, is whether the additional monies laid out by the taxpayer, when he moved, in acquiring a new residence reasonably comparable to his old residence, were

amounts paid by him as or on account of moving expenses incurred in the course of moving from his old residence to his new residence.

I agree with certain initial propositions put forward by counsel for the plaintiff:

(a) Where a definition section uses the words “includes”, as it does in ss 62(3), then the expression said to be defined includes not only those things declared to be included, but such other things “. . . as the word signifies according to its natural import.” The King v BC Fir and Cedar Lumber Co Ltd, [1932] AC 441 at 448 (JCPC).

(b) The words “moving expenses” must be construed in their ordinary and natural sense in their context in the particular statute*. [2]

The plaintiff submits that a moving expense is an expense of moving from one dwelling to another; it includes all costs directly and solely related to the move from the time of the decision to leave to the time of resettlement. The additional monies laid out to acquire a comparable residence in Vancouver, the interest on that amount, and the costs of registration, of installing the dishwasher and new locks were all incurred, it is said, because of the move from one residence to another.

For the defendant, it is contended the amounts in issue are not really expenses at all; they are the extra costs incurred, in this case, in replacing an asset, the old residence.

I agree generally with the defendant’s contention.

The disputed outlays were not, to my mind, moving expenses in the natural and ordinary meaning of that expression. The outlays or. costs embraced by those words are, in my view, the ordinary out-of-pocket expenses incurred by a taxpayer in the course of physically changing his residence. The expression does not include (except as may be specifically delineated in subsection 62(3)) such things as the increase in cost of the new accommodation over the old (whether it be by virtue of sale, lease, or otherwise), the cost of installing household items taken from the old residence to the new, or the cost of replacing or re-fitting household items from the old residence (such as drapes, carpeting, etc). Moving expenses, as permitted by subsection 62(3), do not, as I see it, mean outlays or costs incurred in connection with the acquisition of the new residence. Only outlays incurred to effect the physical transfer of the taxpayer, his household, and their belongings to the new residence are deductible.

The disallowance by the Minister of items (a) (b) (c) (f) and (g), set out in the statement of claim is confirmed. The assessment is referred back to the Minister for reassessment in respect of the allowance of items (d) and (e). The defendant is entitled to costs.