Jean Marcel Croteau v. Minister of National Revenue, [1981] CTC 2307, 81 DTC 286

D E Taylor [TRANSLATION]:—This appeal which was heard in the city of Montreal (Quebec) on June 10, 1980, was brought following tax assessments in which the Minister of National Revenue refused to allow certain deductions for “meals and lodging” claimed by the taxpayer in 1974, 1975 and 1976. The appellant was employed as a truck driver by Provincial Oil Carriers (POC).

In the course of the various trips he made for his employer the appellant incurred expenses of $2,041.75 in 1974, $3,530.10 in 1975 and $3,620 in 1976. He was only partially reimbursed for these expenses by his employer: $1,315 for 1975 and $1,140 for 1976. He was not reimbursed by his employer for the remaining expenses of $2,041,75 for 1974, $2,215.10 for 1975 and $2,480 for 1976.

The respondent based his assessment of the appellant on, inter alia, paragraph 8(1 )(g), subsection 8(2) and section 67 of the Income Tax Act, SC 1970-71-72, c 63, as amended, and claims that under the terms of his contract of employment the appellant was entitled to reimbursement of expenses for meals and lodging incurred in the performance of his duties and that consequently he is not entitled, under paragraph 8(1 )(g) of the Income Tax Act, to deduct the amounts in question. The respondent claims that the appellant was not able to show that he had spent the amounts that he wished to deduct from his income on meals and lodging while doing his job and that therefore the appellant cannot deduct the said amounts when calculating his income for the 1974, 1975 and 1976 taxation years. In addition, the respondent argues that the expenses claimed by the appellant are unreasonable and therefore not deductible under the Income Tax Act.

The appellant explained in his testimony that he thought he had a choice between asking his employer to reimburse him for the expenses and claiming them on his tax return. He had done the latter, using the “simplified” TPL-2 form applicable to paragraph 8(1 )(g) of the Act.

CONCLUSIONS

A taxpayer cannot choose to claim his expenses either from his employer or from the Department of National Revenue when there is an agreement between the employer and the employee concerning those expenses. (See William H Gauvin v MNR, [1979] CTC 2812; 79 DTC 696, and Donald H Price v MNR, [1980] CTC 2386; 80 DTC 1311.

Furthermore, even though the appellant used the simplified TPL-2 form he is still obliged to provide some proof concerning the expenses being claimed. (See R M Latta et al v MNR, [1978] CTC 3003; 78 DTC 1719, and Roy Leblanc v MNR, [1979] CTC 2360; 79 DTC 346.) The Board notes that in Roland Moreau v MNR, [1979] CTC 2094; 80 DTC 1075, the appellant presented his schedule, set out in detail and confirmed by the employer, as evidence. Even though Moreau’s schedule was not the best evidence, it was accepted by the Board in the circumstances of the case. In the case at issue there is nothing of a similar nature and the appellant is therefore not entitled to claim his expenses. Consequently, the problem of whether the expenses are reasonable or unreasonable does not arise.

DECISION

The appeal is dismissed.

Appeal dismissed.