Duncan v. The Queen, docket 97-2303(IT)I (Informal Procedure)

97-2303(IT)I

BETWEEN:

EDWARD B. DUNCAN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard together with the appeals of Mary J. Duncan (97-2304(IT)I),

on August 21, 1998 at Calgary, Alberta, by

the Honourable Judge R.D. Bell

Appearances

For the Appellant:                                         The Appellant himself

Counsel for the Respondent:                         David Jacyk

JUDGMENT

          The appeal from the assessment made under the Income Tax Act for the 1994 taxation year is dismissed in accordance with the attached Reasons for Judgment.

          The Appellant having abandoned his appeal from the assessment made under theIncome Tax Act for the 1995 taxation year, it is dismissed.

Signed at Ottawa, Canada this 13^th day of November, 1998.

J.T.C.C.

Date: 19981113

Docket: 97-2303(IT)I

BETWEEN:

EDWARD B. DUNCAN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

Bell, J.T.C.C.

[1]      The issue is whether Edward B. Duncan ("Duncan") was entitled to a deduction for motor vehicle travel expenses in respect of his 1995 taxation year and whether Mary J. Duncan ("Mary") was entitled to such a deduction for her 1994 and 1995 taxation years. Although Edward filed a Notice of Appeal for his 1995 taxation year, he abandoned same at the hearing.

[2]      Paragraph 6(1)(b) of the Income Tax Act ("Act") sets forth a number of exceptions to the general rule that amounts received by a taxpayer from an employer are includable in income. Those exceptions include subparagraph (vii.1) which reads as follows:

reasonable allowances for the use of a motor vehicle received by an employee ... from the employer for travelling in the performance of the duties of the office or employment,

[3]      Edward did not make any claim for an allowance from the Calgary Board of Education as he was entitled to do and therefore received no such amount in 1994.

[4]      Mary did make such claim from the Calgary Board of Education for both 1994 and 1995 and received an allowance for each such year.

[5]      Paragraph 8(1)(h.1) of the Act permits the deduction of amounts expended in respect of motor vehicle expenses incurred for travelling in the course of the office or employment where the taxpayer:

(i) was ordinarily required to carry on the duties of the office or employment away from the employer's place of business or in different places, and

(ii) was required under the contract of employment to pay motor vehicle expenses incurred in the performance of the duties of the office or employment,

However, by virtue of paragraph (iii) a taxpayer was not entitled to such deduction where that taxpayer:

received an allowance for motor vehicle expenses that was, because of paragraph 6(1)(b) not included in computing the taxpayer's income for the year, ...

[6]      The appeals were heard together. Neither Appellant adduced any evidence to establish the requirement under a contract of employment to pay motor vehicle expenses. Specifically, no employment contract was presented to the Court and no union contract from which it may have been possible to infer the existence of such requirement was produced.[1] Further, there was no evidence from any official of the Calgary Board of Education respecting such requirement or from anyone else who might have been able to testify to the existence of same.

[7]      Accordingly, the requirement in subparagraph 8(1)(h.1)(ii) above was not met.

[8]      The provision of services by using a motor vehicle performed by each of the Appellants, particularly by Mary, was in excess of the specified services for which reimbursement from the Calgary Board of Education could be made. Mary testified that her vehicle was used for school board work, that she travelled to towns outside Calgary, that she travelled to camps at Kananaskis, attended a principals' conference in Banff, attended other conferences, attended a yearly camp for mentally handicapped children and made other trips including some of a compassionate nature. Her standard as a principal was higher than the apparent service requirement of the Calgary Board of Education. It may not have been higher than what the Board may have expected, but no provision for reimbursement of the costs of these services seems to have existed. Mary's evidence established a high standard of concern for her perceived duties in many hours of devoted effort and care to perform same. It is regrettable that contractual arrangements including payment for required services were not readily available in simple, comprehensible form to taxpayers in the Appellants' position so that appropriate financial results would arise.

[9]      The appeals are dismissed.

Signed at Ottawa, Canada this 13^th day of November, 1998.

J.T.C.C.

COURT FILE NO.:                             97-2303(IT)I

                                                          97-2304(IT)I

STYLE OF CAUSE:                           Edward B. Duncan v. Her Majesty the Queen

                                                          Mary J. Duncan v. Her Majesty the Queen

PLACE OF HEARING:                      Calgary, Alberta

DATE OF HEARING:                        August 21, 1998

REASONS FOR JUDGMENT BY:     The Honourable R.D. Bell

DATE OF JUDGMENT:                     November 13, 1998

APPEARANCES:

Counsel for the Appellant:         

Counsel for the Respondent:      David Jacyk

COUNSEL OF RECORD:

For the Appellant:

Name:                

Firm:                 

For the Respondent:                  Morris Rosenberg

                                                Deputy Attorney General of Canada

                                                          Ottawa, Canada

97-2304(IT)I

BETWEEN:

MARY J. DUNCAN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeals heard together with the appeal of Edward B. Duncan (97-2303(IT)I),

on August 21, 1998 at Calgary, Alberta, by

the Honourable Judge R.D. Bell

Appearances

For the Appellant:                                         The Appellant herself

Counsel for the Respondent:                         David Jacyk

JUDGMENT

          The appeals from the assessments made under the Income Tax Act for the 1994 and 1995 taxation years are dismissed in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada this 13^th day of November, 1998.

J.T.C.C.