Antonella Armstrong v. Her Majesty the Queen, [1996] 3 CTC 2175 (Informal Procedure)

McArthur J.T.C.C.: — This appeal was heard in Toronto, Ontario, on April 26, 1996, under the Informal Procedures of this Court.

The issue is whether the Appellant is entitled to deduct $3,555.16 for the use of her automobile during the 1993 taxation year.

The Appellant set out the following in her Notice of Appeal:

I did not keep a detailed daily log as I was not informed to keep one by my employer. When I started working for the Victorian Order of Nurses (VON) as a Registered Nurse, I inquired about receiving a form which would acknowledge use of my own car as this was a new policy for the organization.

During 1993 we were also provided with fax machines to enable us to work from home. In essence, my office was in my home, and therefore I travelled from my home to my patient’s homes. VON only reimbursed us for mileage from our first patients’s home to the last. My vehicle was used for work-related purposes only, with odd trips to the corner store. As indicated by the work maintenance worksheet, there were $1,771.38 in maintenance expenses not including auto insurance costs.

The total kilometres put on the vehicle during 1993 was 18 240. This is not an overestimate as I worked in Stoney Creek which is approximately 15-20 km from my home. A total of 30-40 km were driven to and from Stoney Creek each day.

Unfortunately, due to my ignorance of the tax laws and my employers lack of instructions, my claim has been disallowed. I do not feel this is adequate as I used my vehicle for employment purposes. By disallowing my claim they are not acknowledging that my car was used for business purposes. Form T2200 was provided verifying this information.

The Minister’s Reply to Notice of Appeal contained the following:

- in the 1993 taxation year, the Appellant was employed by Victorian Order of Nurses (the “Employer”), which issued a T4 slip as a record of employment income earned by the Appellant;

- the remuneration paid to the Appellant by her Employer in the 1993 taxation year is income from pensionable employment for purposes of the Canada Pension Plan and insurable employment for purposes of the Unemployment Insurance Act;

- the Appellant was not ordinarily required to carry on the duties of employment away from the Metropolitan Toronto Area where she ordinarily reported for work for the Employer, for more than twelve hours;

- under the contract of employment, the Appellant was reimbursed for 6458 business kilometres as a non-taxable allowance in the amount of $2,094.00 for the use of her personal automobile in the duties of employment;

- the expenses disallowed were not made or incurred, or if made and incurred, were not made or incurred for the purpose of earning employment income;

- the expenses disallowed were personal or living expenses.

The Respondent submitted:

- that in the 1993 taxation year, the Appellant’s income from her Employer was income from an office or employment pursuant to subsection 5(1) of the Act, and that pursuant to subsection 8(2) of the Act, the Appellant was not entitled to any deductions from that employment income, except as permitted by section 8 of the Act.

He further submits:

- that the Appellant was not entitled to deduct any motor vehicle and travel expenses pursuant to paragraphs 8(1 )(h), 8(1 )(h. 1 ) or 8(1 )(j) of the Act.

The Appellant worked for the Victorian Order of Nurses VON in the Hamilton area. She used her own automobile to attend patients in their own home. She received instruction from VON via a fax machine in her own home setting out her daily schedule. The mileage assistance she received from her employer represented the distance from her first patient she attended to the last patient she attended in any given work day.

The Appellant takes the position that she is entitled to claim automobile expenses and mileage in a greater amount received from the VON to include an allowance for travelling to and from her home in Stoney Creek together with maintenance expenses.

Analysis

The Appellant was an employee of the VON. Her place of employment was the residences in which she cared for patients. It is clear from an abundance of jurisprudence that the Appellant is not entitled to a deduction for automobile expenses of commuting to and from her home to her place of employment. She was reimbursed by her employer for 6458 business kilometres as a non-taxable allowance in the amount of $2,094.00. The Appellant claims this was inadequate to cover her car expenses. She kept no detailed records of her travelling expenses while carrying out her duties of employment.

The Respondent directed the Court to Lemire v. R. (sub nom. Lemire v. Canada), [1995] 1 C.T.C. 2847, 94 D.T.C. 1772 wherein, at page 2850 (D.T.C. 1773), Teskey, T.C.C.J. stated:

It appears to me that the test whether the allowance is woefully inadequate to cover reasonable expenses of owning and maintaining a motor vehicle is an objective test. I believe that to make such a determination, I not only must have evidence as to how the allowance was calculated by the employer, but the intent of the employer when setting the allowance. I must also have the complete history of the vehicle such as the expenses over the years and allowance was received.

I find that the reasoning of Judge Teskey in Lemire (supra) applies to the present case. The evidence before me is inadequate for me to conclude that the allowance paid to the Appellant by her employer was inadequate.

For these reasons, the appeal is dismissed.

Appeal dismissed.