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Citation: 2004TCC365
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Date:20040512
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Docket: 2003-3010(IT)I
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BETWEEN:
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LANCE KAYLL,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Beaubier,
J.
[1] This
appeal pursuant to the Informal Procedure was heard at Prince George, British
Columbia on May 6, 2004. No evidence was called and the appeal was conducted
respecting the law relating to subsection 6(6) of the Income Tax Act
only.
[2] In
these circumstances, the assumptions in paragraph 10 of the Reply to the Notice
of Appeal are the facts in this case. Paragraphs 5 to 12 of the Reply read:
5. The Minister
of National Revenue initially assessed the Appellant for the 2001 taxation year
on April 8, 2002.
6. In computing
income for the 2001 taxation year the Appellant deducted the amount of
$2,907.00 as employment expenses, comprised of the following:
(a) Travel $2,364.88
(b) Meals
115.50 (being 50% of $231.00)
(c) Lodging 427.52
Total $2,907.90
(collectively, the
"Expenses").
7. In
reassessing the Appellant for the 2001 taxation year, the Minster disallowed
the deduction of Expenses.
8. The Appellant
filed a Notice of Objection dated October 31, 2002, received by the Minister on
November 8, 2002.
9. On May 30,
2003, the Minister confirmed the reassessment.
10. In reassessing
and confirming, the Minister relied on the following assumptions:
a) at all
material times, the Appellant was employed by Kemess Mines Ltd. (the
"Employer");
b) the Appellant
was not employed in the year in connection with the selling of property or
negotiating of contracts for the Employer;
c) under the
contract of employment, the Appellant was required to pay his own expenses, if
any;
d) under the
contract of employment, the Appellant did not receive an allowance from the
Employer;
e) in order to
perform the duties of his employment, the Appellant travelled from his personal
residence to a pre-arranged departure point, at his own expenses;
f) from the
pre-arranged departure point, the Appellant was transported at the Employer's
expense to a remote mine site;
g) while at the
remote mine site, the Appellant received board and lodging from the Employer,
at the Employer's expense;
h) the
Employer's place of business was the remote mine site;
i) the
Appellant was not ordinarily required to carry on the duties of his employment
away from the Employer's place of business; and
j) the
Appellant was not ordinarily required to carry on the duties of his employment
in different places.
B. ISSUES TO BE
DECIDED
11. The issue is
whether the Appellant is entitled to deduct the Expenses in the 2001 taxation
year.
C. STATUTORY
PROVISIONS RELIED ON
12. He relies on
section 3, 5, 6, 8, 67, 67.I, 248 and, particularly, on subsections 6(6), 8(2),
8(4), 8(10) and paragraphs 8(1)(h), 8(1)(h.1) of the Income
Tax Act.
[3] Subsection
6(6) of the Income Tax Act reads:
(6) Notwithstanding subsection (1), in
computing the income of a taxpayer for a taxation year from an office or
employment, there shall not be included any amount received or enjoyed by the
taxpayer in respect of, in the course or by virtue of the office or employment
that is the value of, or an allowance (not in excess of a reasonable amount) in
respect of expenses the taxpayer has incurred for,
(a) the taxpayer's board and lodging
for a period at
(i) a special work site, being a location
at which the duties performed by the taxpayer were of a temporary nature, if
the taxpayer maintained at another location a self-contained domestic
establishment as the taxpayer's principal place of residence
(A) that was,
throughout the period, available for the taxpayer's occupancy and not rented by
the taxpayer to any other person, and
(B) to which, by
reason of distance, the taxpayer could not reasonably be expected to have
returned daily from the special work site, or
(ii) a location at which, by virtue of its
remoteness from any established community, the taxpayer could not reasonably be
expected to establish and maintain a self-contained domestic establishment,
if the period during which the taxpayer was
required by the taxpayer's duties to be away from the taxpayer's principal
place of residence, or to be at the special work site or location, was not less
than 36 hours; or
(b) transportation between
(i) the principal place of residence and
the special work site referred to in subparagraph (a)(i), or
(ii) the location referred to in
subparagraph (a)(ii) and a location in Canada or a location in the
country in which the taxpayer is employed,
in respect of a period described in
paragraph (a) during which the taxpayer received board and lodging, or a
reasonable allowance in respect of board and lodging, from the taxpayer's
employer.
[4] The
evidence is that the Appellant drives from his principal residence to a
departure point. (13(e)). From there, the employer transports him to a remote
mine site (13(f)). The remote mine site is the employer's place of business
(13(h)). That is where the employee's duties of employment were. (13(i)).
[5] On
these facts, the departure point was not a "remote location" because
the Appellant was not employed there, contrary to subparagraph 6(6)(b)(ii).
Rather, he was transported by the employer from the departure point to the
remote mine site where he was employed.
[6] For
these reasons, the Appellant does not fall within the clear wording of subsection
6(6).
[7] The
appeal is dismissed.
Signed at
Saskatoon, Saskatchewan, this 12th day of May 2004.
Beaubier,
J.
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