Baillargeon v. The Queen, docket 2000-2229-IT-I (Informal Procedure)

[OFFICIAL ENGLISH TRANSLATION]

2000-2229(IT)I

BETWEEN:

MICHEL BAILLARGEON,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeals heard on September 19, 2001, at Montréal, Quebec, by

the Honourable Judge P. R. Dussault

Appearances

For the Appellant:                                The Appellant himself

Counsel for the Respondent:                Mounes Ayadi

JUDGMENT

          The appeals from the assessments made under the Income Tax Act for the 1997 and 1998 taxation years are dismissed.

Signed at Ottawa, Canada, this 24th day of September 2001.

"P. R. Dussault"

J.T.C.C.

Translation certified true

on this 25th day of February 2003.

Erich Klein, Revisor

[OFFICIAL ENGLISH TRANSLATION]

Date: 20011025

Docket: 2000-2229(IT)I

BETWEEN:

MICHEL BAILLARGEON,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

P. R. Dussault, J.T.C.C.

[1]      These are appeals from assessments for 1997 and 1998. Through those assessments, the Minister of National Revenue ("the Minister") disallowed the deduction of $5,724 and $4,751 as employment expenses for those two years respectively.

[2]      In making the assessments, the Minister assumed the facts set out in subparagraphs (a) to (g) of paragraph 7 of the Reply to the Notice of Appeal:

[TRANSLATION]

(a)         during the period under appeal, the appellant was employed as a diagnostic X-ray technologist at the Centre Hospitalier et Centre de Réadaptation Antoine-Labelle ("the employer");

(b)         at all times relevant to this case, the appellant was required under his contract of employment to be available evenings, nights and weekends and could be called back to work (on-call service);

(c)         the employer required the appellant to use his car to respond if his services were needed when he was on call;

(d)         as compensation for his travel, the appellant received an allowance in the form of paid time totalling $6,720 for the 1997 and 1998 taxation years, which was included in his salary and on his T4 slips;

(e)         under his contract of employment, the appellant was not ordinarily required to carry on the duties of his employment away from his employer's place of business or in different places;

(f)          the employer did not sign the prescribed form, T2200, certifying that the conditions set out in paragraph 8(1)(h) of the Income Tax Act ("the Act") were met for the 1997 and 1998 taxation years; and

(g)         the appellant, in computing his income for the 1997 and 1998 taxation years, cannot deduct as employment expenses the expenses relating to accounting and legal fees and to supplies and the motor vehicle expenses referred to in Schedule A appended hereto.

Schedule A

Statement of Employment Expenses

Michel Baillargeon

1997 - 1998

	1997	1998
Accounting and legal fees	$    319.00	$    322.00
Supplies	362.00	709.00
Motor vehicle expenses (Note 1)	5,043.74	3,720.59
Total employment expenses	$ 5,724.74	$ 4,751.59
Note 1:	1997	1998
Motor vehicle expenses:
Kilometres driven to earn employment income	19,200	14,550
Total kilometres driven in the year	25,600	19,400
Employment-use portion	75%	75%
Fuel	$ 2,248.00	$ 1,830.00
Maintenance and repairs	3,446.00	2,207.00
Insurance	540.00	523.00
Licence and registration	197.00	195.00
Capital cost allowance	293.99	205.79
Total	6,724.99	4,960.79
Minus: personal-use portion (25%)	-1,681.25	-1,240.20
Total motor vehicle expenses	$ 5,043.74	$ 3,720.59

[3]      The appellant is in agreement with all the facts assumed by the Minister except the conclusion set out in subparagraph (g).

[4]      The reasons for the judgment dismissing the appeals were explained in detail to the appellant at the hearing. I will provide a summary of those reasons here.

[5]      Subsection 8(2) of the Income Tax Act ("the Act") provides that no employment expenses may be deducted except as permitted by section 8. The expenses designated by the appellant as "accounting and legal fees" and "supplies" are not among those permitted by section 8. It should be noted that paragraph 8(1)(b) and subparagraph 8(1)(i)(iii) are not applicable here.

[6]      As for the motor vehicle expenses, paragraph 8(1)(h.1) of the Act requires first of all, as a condition of entitlement to a deduction, that the taxpayer have been ordinarily required to carry on the duties of his or her office or employment away from the employer's place of business or in different places. This is not the case here. Nor did the employer certify that the conditions set out in paragraph 8(1)(h.1) were met in the appellant's case during the years at issue, since it could not do so in the circumstances. When the conditions enunciated in paragraph 8(1)(h.1) are met, such certification on the prescribed form, which must be signed by the employer and attached to the taxpayer's tax return, is an additional condition that must be satisfied in order for one to be entitled to the deduction provided for in that paragraph.

[7]      As a result of the foregoing, the appeals are dismissed.

Signed at Ottawa, Canada, this 25th day of October 2001.

"P. R. Dussault"

J.T.C.C.

Translation certified true

on this 25th day of February 2003.

Erich Klein, Revisor