Arthur Crampton v. Minister of National Revenue, [1980] CTC 2269, 80 DTC 1233

John B Goetz:—This is an appeal from an assessment by the Minister whereby the appellant was refused a deduction in the amount of $4,036 in respect of moving expenses claimed in his 1976 taxation year.

Facts

The appellant acceded to the truth of the allegations in paragraphs 3(a) to (f) inclusive in the reply to the notice of appeal which read as follows:

By an assessment, notice of which was given 9th May, 1978, the Respondent disallowed a deduction amount of $4,236 in respect of moving expenses claimed by the Appellant and says in so doing he acted, inter alia, on the following assumptions:

(a) The Appellant, during the 1976 taxation year, was employed as an electrician and worked for eight different employers.

(b) The Appellant was employed by Daken Installations Limited to work at the Four Seasons Hotel in Vancouver from February 6 to March 1,1976 with the exception of February 18, 19, 20 and March 1, 1976 when he was employed by Daken Installations Limited to work at Furniture Fair in Burnaby.

(c) From March 4 to April 10,1976 the Appellant was employed by CHE Williams Company Limited to work at the Standard Oil Refinery in Burnaby.

(d) From April 14 to April 30, 1976 the Appellant was employed by Daken Installations Limited to work at Park Royal in West Vancouver.

(e) On March 31, 1976 the Appellant moved from his residence at 12451-202nd Street, Maple Ridge, British Columbia to 1324 St Andrews Street, North Vancouver, British Columbia.

(f) Subsequent to the move to North Vancouver the Appellant moved to

Burnaby.

The appellant is an electrician by trade and has been so for 18 years. He has lived in Maple Ridge, British Columbia, from the years 1957 to 1976. During this period of time he worked for a large number of electrical contractors on a pro tem basis in that he was hired from union rolls whereby the union would give him a list of jobs available and he would pick the one that he wished to work on. He declared that he was part of a mobile labour crew because as he says he is not permanently employed by anyone contractor but prefers to work for different ones on different jobs at different sites but all basically in the Vancouver area. This was the nature of his work while he lived in Maple Ridge between 1957 and 1976 when he moved from Maple Ridge to 1324 St Andrew Street, North Vancouver, British Columbia, on March 31, 1976, when he rented a home. Subsequent to that he moved from North Vancouver to Burnaby, British Columbia. He said that he was transient between job sites and employers by the nature of his work that he wished to do and this all is in a general region, basically downtown Vancouver, North Vancouver or Burnaby. The appellant, in one of his moves from one employer to another and from one site to another, selected an employer who was performing a contract at Park Royal and it was on this basis that he suggests he is entitled to expenses for moving from Maple Ridge although all that he earned at Park Royal was for $1,008 for the year 1976. The appellant maintained that the move was precipitated by a change of employment from an oil refinery in Burnaby, British Columbia, where he worked for CHE Williams Company Limited and took a job with Daken Installations Limited, at Park Royal Shopping Centre, West Vancouver. The evidence also indicated that the appellant wanted to sell his home at Maple Ridge for quite some period of time but he was unable to do so because of his mother-in-law living with him.

Findings

The appellant, in order to succeed, must come squarely within the provisions of section 62 of the Income Tax Act, SC 1970-71-72, c 63 as amended, the relevant portions of which read as follows:

(1) Where a taxpayer

(a) has, at any time,

(i) ceased to carry on business or to be employed at the location or locations, as the case may be, in Canada at which he ordinarily so carried on business or was so employed,

and commenced to carry on a business or to be employed at another location in Canada (hereinafter referred to as his ‘new work location’)

and by reason thereof has moved from the residence in Canada at which, before the move, he ordinarily resided on ordinary working days (hereinafter referred to as his “old residence”) to a residence in Canada at which, after the move, he ordinarily so resided (hereinafter referred to as his “new residence”), so that the distance between his old residence and his new work location is not less than 25 miles greater than the distance between his new residence and his new work location, in computing his income for the taxation year in which he moved from his old residence to his residence or for the immediately following taxation year, there may be deducted amount paid by him as or on account of moving expenses incured in the course of moving from his old residence to his new residence, to the extent that

(c) they were not paid on his behalf by his employer,

(d) they were not deductible by virtue of this section in computing the taxpayer’s income for the preceding taxation year,

(e) they would not, but for this section, be deductible in computing the taxpayer’s income,

(f) the aggregate of such amounts does not exceed

(i) in any case described in paragraph (a), the taxpayer’s income for the year from his employment at his new work location or from carrying on the new business at his new work location, as the case may be, or . . . and

(g) any reimbursement received by him for such expenses has been included in computing his income for the year.

There was some dispute between the appellant and the respondent as to the distance between Maple Ridge and the new work location at Park Royal. The appellant was saying that the distance was 36 miles and the respondent was saying that it was less than 25 miles. However, my decision in this case will not rest on this point.

The appellant’s income tax return for 1976, by the T-4 forms filed, indicates that he worked for nine different employers at nine different sites or work locations in that year, all in the greater Vancouver area.

The question to be resolved is: Did the appellant cease to be employed at a location at which he was ordinarily so employed prior to his move from Maple Ridge to his new home in North Vancouver? The evidence seems quite clear that the appellant was an itinerant perambulatory electrician, quite Satisfied to work for different employers at different job sites in the greater Vancouver area for quite some number of years and all the while living at Maple Ridge, British Columbia. There was no real difference in the nature of his employment or location of work sites before or after the move for which the appellant claims the deduction. Many of the sites at which the appellant worked in years prior to 1976 were beyond 25 miles from his principal residence in Maple Ridge.

The appellant, in seeking the deduction, must come strictly within the letter of the Law and from the facts stated above, I find that the very nature of his work and his employment with various electrical contractors at different sites in the greater Vancouver area does not bring him within the provisions of section 62, in that he ordinarily worked, while living in his old residence, at many different job sites prior to establishing a new residence. As a result, I must dismiss the appeal.

Appeal dismissed.