Date: 19990927
Docket: 98-2352(IT)I
BETWEEN:
ROBERTO FICIUR,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(Delivered orally from the bench
at Calgary, Alberta on June 9, 1999)
Beaubier, J.T.C.C.
[1] This appeal pursuant to the
informal procedure was heard at Calgary, Alberta, on June 8,
1999. The Appellant was the only witness.
[2] Paragraphs 4 to 11 inclusive of
the Reply to the Notice of Appeal read:
4. In
computing income for the 1995 and 1996 Taxation Years, the
Appellant deducted the amounts of $1,735.47 and $1,703.46
respectively as motor vehicle travel expenses.
5. In
reassessing the Appellant for the 1995 and 1996 Taxation Years,
the Minister of National Revenue (the "Minister")
decreased the amounts of motor vehicle expenses referred to in
paragraph 4 above as follows:
|
TAXATION YEAR
|
CLAIMED
|
ALLOWED
|
DISALLOWED
|
|
1995
|
$1,735.47
|
$200.25
|
$1,535.22
|
|
1996
|
1,703.46
|
52.49
|
1,650.97
|
6. In response
to the Reassessments referred to in paragraph 5 above, the
Appellant served on the Minister Notices of Objection dated
February 25, 1998 with respect to the 1995 and 1996 Taxation
Years.
7. In response
to the Notices of Objection served by the Appellant for the 1995
and 1996 Taxation Years, the Minister confirmed the Reassessments
by Notification of Confirmation dated June 8, 1998.
8. In so
reassessing the Appellant, the Minister made the following
assumptions of fact:
(a) the Appellant
was, at all material times, employed by Prairie Rose Regional
Division No 8 (the "Employer");
(b) as an employee
of the Employer, the Appellant was assigned to the Winnifred
Hutterite Colony School;
(c) the
Appellant's ordinary place of residence in the 1995 and 1996
Taxation Years was Bow Island, Alberta, (the
"Home");
(d) the Appellant
calculated 11,580 and 11,758 as kilometres driven in the
performance of his duties of an office or employment in 1995 and
1996 respectively;
(e) of the total
amount of travel referred to in subparagraph 8(d) above, 1,372
and 686 kilometres represents the Appellant's travel in
attending monthly meetings in the 1995 and 1996 Taxation Years
respectively;
(f) the
Appellant received a non-taxable allowance in the amount of 30
cents per kilometre in respect of the travel referred to in
subparagraph 8(e) above;
(g) of the total
amount of travel referred to in subparagraph 8(d) above, the
remaining 10,208 and 11,072 kilometres represents the
Appellant's travel from the Appellant's Home to the
Winnifred Hutterite Colony School (hereinafter the
"School");
(h) the Appellant
incurred travel expenses in the performance of his duties of an
office or employment during trips between his Home and the
School;
(i) the
Appellant was required to pick up the School's mail at
Senator Gershaw School in Bow Island and deliver it to his place
of employment at the School;
(j) the
Appellant was required to perform the duties referred to in
subparagraph 8(i) above on a weekly basis;
(k) the Appellant
did not receive an allowance or reimbursement from the Employer
with respect to the travel referred to in subparagraph 8(h)
above;
(l) the School
is located approximately 30 kilometres from the Appellant's
Home;
(m) one trip per week for
a period of 9 months was travel by the Appellant from Senator
Gershaw School in Bow Island to the Employer's place of
business in the performance of his duties of an office or
employment in each year;
(n) of the total
amount of travel referred to in subparagraph 8(h) above, the
Appellant travelled no more than 1,080 kilometres in performing
his duties of an office or employment with the Employer in each
year;
(o) during the years
under appeal, the Appellant did not maintain a mileage log book,
record of appointments or any other books and records to
ascertain the nature of his travels and the mileage travelled for
business purposes;
(p) travel in excess
of 1,080 kilometres in each year between the Appellant's Home
and his Employer's place of business where the Appellant
performed his duties is personal; and
(q) the Appellant is
entitled to a deduction for motor vehicle travel expenses for
travel in the performance of his duties of an office or
employment based on no more than 1,080 kilometres in each of the
1995 and 1996 Taxation Years.
B.
ISSUES TO BE DECIDED
9. This issue
is whether the Appellant is entitled to a deduction for motor
vehicle travel expenses based on more than 1,080 kilometres
travelled in the performance of his duties of an office or
employment for the 1995 and 1996 Taxation Years.
C.
STATUTORY PROVISIONS, GROUNDS RELIED ON AND RELIEF
SOUGHT
10. He relies on, inter
alia, section 3, subsections 8(2) and 8(3) and on paragraph
8(1)(h.1) of the Act as amended for the 1995 and 1996
Taxation Years.
11. He submits that the
Appellant is entitled to a deduction for motor vehicle travel
expenses in the performance of his duties of an office or
employment based on no more than 1,080 kilometres pursuant to
paragraph 8(1)(h.1) of the Act, and is therefore,
prohibited by subsection 8(2) of the Act from claiming
expenses in excess of those based upon 1,080 kilometres, as set
out in Schedule "A".
[3] Assumptions 8(a), (b), (c), (d),
(e), (f), (g), (h), (i), (k), and (l) are true or were not
refuted.
[4] The Appellant was at all material
times the school principal at the school which was located on the
Winnifred Hutterite Colony (the colony). The school premises was
owned by the colony. The Appellant received all of his school
mail and school material by picking it up at the Senator Gershaw
School in Bow Island and delivered all of his school mail and
material there.
[5] Respondent's counsel argued
that the Senator Gershaw School was equivalent to a postal drop.
However, it was more than that. At the very least, it was the
Appellant's employer's only business premises to which
the Appellant had access during the school week. It was where he
received his instructions from his employer respecting his duties
of employment. The Appellant carried these duties out in part
when he picked up and delivered material and mail from and to the
Senator Gershaw School, when he did his teaching at the Winnifred
School and in other parts when he did other acts and activities
on the instructions of his employer.
[6] The Appellant's residence in
Bow Island was about five blocks from the Senator Gershaw School.
Senator Gershaw School was about thirty kilometers from the
Winnifred School. Based on the evidence, there was only one
courier delivery by the employer to Senator Gershaw School each
week. This required between one and two pick ups by the Appellant
each week depending on what came in for him from different
sources. It also required one trip each week when the Appellant
delivered his mail and material to the Senator Gershaw School for
the courier. These trips were between school premises, that is to
say, between his work places. One was where he taught and wrote
reports; the other was where he received instructions and
materials and where he delivered his reports and materials. He
was required to be at each every school week as part of his
duties of employment. He was also required to take the mail and
materials to and from both schools as part of his duties of
employment. He had to pay his costs to carry out these duties.
Both schools were places of employment of the Appellant. The
evidence is clear that the Appellant could not reside on the
Colony near the Winnifred School. Thus, while at first glance it
would seem that a one-way trip was sufficient, each trip one way
required a return the other way between the schools since the
material came to and from Senator Gershaw School, but it was
required to go from and to Winnifred School. As a result, a round
trip was implicit every time. The evidence is that at least two
rounds trips were required each week. At times, a third round
trip was also required but the number of these third trips is not
in evidence. The onus is on the Appellant to establish that
evidence required, and he has not done so. There were four or
five school days in each school week. The employer required the
Appellant to make round trips for two days each week between the
schools as part of the duties of his employment in both 1995 and
1996. The Appellant is entitled to deduct the cost of travel for
four times the one-way trips totaling 1,080 kilometers each year
that were allowed by the Respondent as stated in assumptions 8(p)
and (q).
[7] His employer allowed him 30 cents
per kilometre which is reasonable. Thus the following deductions
are allowed: 1995, 4,320 kilometres times 30 cents equals $1,296;
1996, 4,320 kilometres times 30 cents equals $1,296; total
$2,592.
[8] The Appellant was originally
allowed a total of $252.74 and claimed $3,438.93, a difference of
$3,186.19. He has won in excess of half of the difference and
therefore he is entitled to receive his costs which amount to his
disbursements to prosecute his appeal and conduct it in
Calgary.
[9] The appeal was called at 9:30 a.m.
and heard at approximately 10:00 a.m. This required an overnight
stay in Calgary since it is approximately two hundred kilometres
from Bow Island to Calgary. In addition, he incurred his
disbursements for photocopying, postage, and phone calls to
prosecute the appeal. He is awarded $350 for his out-of-pocket
disbursements.
Signed at Ottawa, Canada this 27th day of
September, 1999.
J.T.C.C.
Email this Content