Roland Moreau v. Minister of National Revenue, [1980] CTC 2094, 80 DTC 1075

Delmer E Taylor [TRANSLATION]:—This appeal, which was heard in the City of Montreal, Quebec on October 9, 1979, was brought following tax assessments in which the Minister of National Revenue disallowed certain deductions the taxpayer had claimed for “meals and accommodation” in 1975 and 1976. In his reply to the notice of appeal, the respondent relied, in- ter alia, on sections 3, 5, paragraph 8(1)(a) and section 67 of the Income Tax Act, SC 1970-71-72, c 63, as amended.

Background

During the years in question the appellant was employed as a driver by “Autobus Drummondville Ltée” on the Montreal-Victoriaville bus route. He claimed the sum of $2,388.75 for “meals” for each of 1975 and 1976 and the sum of $388.80 for “accommodation” for 1976. The amounts claimed for meals for each of the years in question represented the total amount calculated on the basis of 3 meals each day of work, that is, 15 meals per work week, at a cost of $3.25 per meal. The respondent reduced the amount allowed under this heading to an amount justified by the appellant’s work schedule, that is, 9 meals per work week, at a cost of $3 per meal. The sum of $388.80 claimed as accommodation expenses during 1976 was disallowed.

Contentions

The appellant stated the following in his notice of appeal:

[TRANSLATION]

According to the law I did not need receipts to file my tax return for 1975-1976. It was not until October 19, 1977 that I was told that receipts were required for the previous years. It was then that the government claimed a reimbursement of $431.61 plus interest from me.

My schedule is proof I spent 5 consecutive days away from home and the company does not pay any of my expenses.

In his reply to the notice of appeal the respondent maintained the following:

[TRANSLATION]

The appellant’s home base, for purposes of his employment, was in Montreal, at the request of and/or with the approval of the appellant;

The appellant did not provide the respondent with any documents to justify the amounts thus claimed for meals;

According to the appellant, the sum of $388.80 was spent in Montreal on accommodation expenses;

The appellant was not able to prove to the respondent that this expense had been incurred in the year in question.

Evidence

The appellant himself submitted a copy of his work schedule (Exhibit A-1), which is set out in full:

Monday:

Montreal	8.10 am	Victoriaville	10:50 am	100
Victoriaville	12:05 pm	Montreal	2:15 pm	100
Montreal	2:45 pm	Drummondville	4:00 pm	66
Drummondville	4:15 pm	Montreal	5:45 pm	66
				332
Tuesday:
Montreal	8.10 am	Victoriaville	10:50 am	100
Victoriaville	12:05 pm	Montreal	2:15 pm	100
Montreal	2:45 pm	Drummondville	4:00 pm	66
Drummondville	4:15 pm	Montreal	5:45 pm	66
				332
Wednesday and Thursday: Off
Friday:
Montreal	12.30 pm	Victoriaville	3:00 pm	100
Victoriaville	4:35 pm	Montreal	7:00 pm	100
Montreal	8:10 pm	Victoriaville	10:40 pm	100
Victoriaville	10:40 pm	Plessisville	11:00 pm	16
Plessisville	11:00 pm	Victoriaville	11:20 pm	16
	(dead)			332
Saturday:
Victoriaville	12:35 pm	Montreal	3:00 pm	100
Montreal	3:45 pm	Victoriaville	6:10 pm	100
				200
: Total distance
			(Signed) Moreau

The appellant needed accommodation in Victoriaville on Friday and Saturday, which cost an average of $12.98 a night. His meals cost him an average of $3.25 per meal, for three meals a day, five days a week. The company gave him accommodation in Montreal for the other nights free of charge.

Argument

Counsel for the appellant suggested that his client had two “home bases’’ (Montreal and Victoriaville) and referred to two cases, in particular to the following passages: Robert Grosse v MNR, 24 Tax ABC 325; 60 DTC 367, at 326 and 368 respectively:

The employer’s establishment was just as much at Melville as at Winnipeg, where the appellant was concerned, the former being a divisional centre and, moreover, the place where the appellant was paid for his services. . . . Moreover, both places were at opposite ends of his scheduled railway trip and whether he lived at one end of the run, or the other, impresses me as immaterial in the circumstances. In either event he would have been away from home when arriving at the other end of his lengthy run and in need of meals and sleeping quarters. The cost thereof would have to come out of his own pocket and such cost was deductible from appellant’s income by virtue of the provisions of section 11(7).

Keith P Fraser v MNR, [1970] Tax ABC 1274; 71 DTC 24, at 1282 and 29 respectively:

The appellant’s employment required him to travel away from where he was living to the municipality where the employer had his establishment and where the appellant was obliged to report for work. . . . But, from that establishment he had to use his car to pick up the locomotive he had to drive.

In support of his position counsel for the respondent relied on Her Majesty the Queen v Thomas E Little, [1974] CTC 678; 74 DTC 6534, and Her Majesty the Queen v Ervin E Diemert, [1976] CTC 301; 76 DTC 6187.

Findings

Contrary to what is alleged in his notice of appeal, the taxpayer is not entitled to deductions merely by virtue of the fact that he spent “five consecutive days away from home and the company did not pay any of his expenses’’. Moreover, the Board does not see any significant points in the cases cited by counsel for the appellant, especially when they are compared to other more recent cases, particularly those cited by counsel for the respondent.

Furthermore, it is obvious that the appellant’s accommodation was paid for in Victoriaville but not in Montreal, one of the presumptions of the Minister.

The allegation contained implicitly in counsel for the appellant’s argument is that Moreau reported for work either in Montreal or in Victoriaville, depending on where his work schedule for a particular day commenced. The Minister’s position must essentially be that Moreau reported for work only once a week, on Friday afternoon, in Montreal.

The significant point, in my view, concerns the appellant’s testimony to the effect that he himself paid for his Friday and Saturday nights in Victoriaville, but not those in Montreal, as the Minister presumed. This fact could be to the appellant’s advantage if Montreal were “the establishment’’ for the entire week. But it is the appellant’s position that he “reported for work’’ in Victoriaville on Saturday and Sunday. If I accept the position of counsel for the appellant, it would follow that when Moreau arrived in Victoriaville at 11:20 on Friday evening, he had finished his work for the day

and Montreal was no longer the place of his work “establishment”. Therefore only the expenses outside Victoriaville were deductible. He could not deduct two nights of accommodation for Friday and Saturday and could not deduct more than two meals for Saturday and one meal for Sunday. Moreover, because the “establishment’’ became Montreal once again at 11:00 pm on Sunday, it is difficult to see how the appellant had to pay for more than one meal a day outside Montreal on Monday and Tuesday. Finally, I am not convinced that he could prove expenditures for more than two meals on Fridays.

The Board notes that the appellant did not submit any supporting documents to prove his expenditures. Moreover, the Board had taken note of the fact that the Minister did not add any amount to the appellant’s income as a “benefit’’ for the accommodation provided by the company free of charge.

Although the Board’s view is slightly different from that of the Minister and it has not decided whether there was “one establishment” or “two establishments”, it is nevertheless true that the appellant has not established that the assessments are higher than the amounts for which he is liable.

Decision

The appeal is dismissed.

Appeal dismissed.