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Citation: 2003TCC336
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Date: 20030513
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Docket: 2002-547(IT)I
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BETWEEN:
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BRAD GIGNAC,
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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
Bowie, J.
[1] Mr. Gignac appeals his income tax
assessments for the years 1997, 1998 and 1999. The appeals were
heard under the Court's informal procedure at Prince George,
British Columbia. The matter in dispute is his claim that he is
entitled to deduct certain automobile expenses under the
provisions of paragraph 8(1)(h.1) of the Income
Tax Act (the Act). The expenses relate to his travel
from his home in Prince George to various parts of the province
where he worked, and also his travel in those other centres
during the periods that he was working there.
[2] Mr. Gignac is a locomotive
engineer. He became qualified in 1996, and he immediately began
work for BC Rail Ltd. His home station was, and is, Prince
George. Mr. Gignac gave evidence as to the nature of his work for
BC Rail, and as to the conditions of his employment relating to
the places at which he was required to report for work from time
to time. He also entered into evidence, without objection,
certain documents. These included a copy of the collective
agreement between BC Rail and the union representing its
engineers, a letter from an executive of BC Rail, and a form
T2200 for each of the years in issue. The latter documents
purport to establish that the Appellant was required to work away
from his home station from time to time during the years in
issue, and that he was required to use his automobile without
reimbursement or allowance on those occasions. There is little in
the evidence that is clear; however, it is clear that this letter
and the forms T2200 are not accurate. It is pleaded by the
Appellant in his Notice of Appeal, and agreed to by the
Respondent, that BC Rail did pay certain allowances for travel to
the Appellant at the rate of $0.34 per kilometre. For the years
in issue, these aggregate:
1997
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$1,833.12
1998
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$1,771.40
1999
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$1,096.84
[3] According to the Appellant's
evidence, these amounts were paid to him when deadheading under
Article 5 of the collective agreement to a point away from Prince
George. Clause 5.9 reads:
An engineer deadheading on pay and authorized to use his own
automobile will be compensated for the automobile mileage on the
same basis as that currently established with respect to all
employees.
Other clauses in Article 5 provide that engineers are paid for
their time spent deadheading. Deadheading, however, and the
compensation for it, apply only when the employee is required by
the employer to report for work at a location other than his
normal place of work.
[4] Mr. Gignac's claim for
expenses is based on the proposition that he was frequently
required to work away from Prince George because, as a new
engineer, he had little seniority and therefore was subject to
frequent layoffs at Prince George. On these occasions he was able
to work elsewhere on the system, but had to travel there at his
own expense. He therefore claimed his total travel expenses for
each year, net of the allowances he received, as deductions under
paragraph 8(1)(h.1) as follows:
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1997
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1998
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1999
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Total expenses
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$2,545.12
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$9,824.15
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$14,347.05
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Less: allowances to be included in income under
subsection 6(1)
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$1,833.12
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$1,771.40
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$1,096.84
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Deduction claimed
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$712.00
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$8,052.25
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$13,250.21
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[5] What was not clear, either from
Mr. Gignac's evidence or from the collective agreement, was
whether, apart from those times when he was deadheading, and
therefore was paid an allowance, Mr. Gignac was travelling to
work at a location remote from Prince George because he was
required by BC Rail to do so, or whether he was travelling of his
own volition because work was available to him there, and it was
preferable to travel rather than face layoff for lack of work in
Prince George. For the reasons that follow, I do not believe that
it is necessary to answer that question, However, if it were
necessary to do so, I would have to conclude that Mr.
Gignac's evidence did not establish that any specific portion
of that travel could be attributed to assignments that he was
required by BC Rail to carry out, as opposed to travel that he
elected to do in order to avoid layoff.
[6] The Appellant makes his claim to
deduct the expense of travelling by automobile under paragraph
8(1)(h.1) of the Act.
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:
(a) ...
(h.1) where the taxpayer, in
the year,
(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,
amounts expended by the taxpayer in the year in respect of
motor vehicle expenses incurred for travelling in the course of
the office or employment, except where the taxpayer
(iii) 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, or
(iv) claims a deduction
for the year under paragraph (f);
As Rip J. pointed out in O'Neil v. The Queen,[1] there are four
conditions that must be satisfied for a taxpayer to qualify for a
deduction under this provision:
[16] The issue before me is not
whether the appellant's automobile is
"work-related". The issue is whether the appellant
incurred the automobile expenses in the course of his employment.
Paragraph 8(1)(h.1) requires four conditions to be
satisfied for a taxpayer to deduct automobile expenses:
(i) the
taxpayer was ordinarily required to carry on his or her duties of
employment away from the employer's business or in different
places;
(ii) the taxpayer
was required to pay automobile expenses under his or her contract
of employment; and
(iii) the expenses were
incurred in the performance of the duties of employment;
(iv) provided, that if the
expenses were incurred in performing the duties of
employment, the taxpayer did not receive a non-taxable
allowance from the employer for motor vehicle expenses pursuant
to paragraph 6(1)(b) of the Act.
[7] As I have said, it is not
established by the evidence that any particular vehicle expenses
incurred by the Appellant can be attributed to an
employer-imposed requirement to work elsewhere than at
Prince George. I have reviewed the collective agreement and have
found nothing in it that requires an engineer to use an
automobile and to pay the expenses of doing so. In fact,
clause 23.4.4 provides:
Employees who are authorized to use private automobile in
Railway service will be compensated in accordance with current
Railway policy.
It is under this clause, as well as clause 5.9, that Mr.
Gignac was paid certain allowances for the use of his
vehicle.
[8] The third requirement is that the
expenses must be incurred in performance of the duties of
employment. The evidence simply does not satisfy that
requirement. Mr. Gignac's travel to points other than Prince
George to report for work there was not shown to be a duty of
employment. From the evidence, I infer that on those occasions
when his travel was mandated by the employer, and therefore was a
duty of employment, he received the deadheading allowances that I
have referred to pursuant to the collective agreement. The
remaining travel that Mr. Gignac undertook was simply travel
between his home and the place at which he worked from time to
time, and therefore subject to the long-established rule that
such travel is a personal expense: see Ricketts v.
Colquhoun,[2]
Hogg v. The Queen,[3] O'Neil v. The Queen.[4]
[9] The appeals are therefore
dismissed.
Signed at Ottawa, Canada, this 13th day of May, 2003.
J.T.C.C.
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