Rowe
D.J.T.C.
(orally):
The
Appellant
appeals
from
an
assessment
of
income
tax
for
his
1994
and
1995
years.
During
the
years
in
question,
he
was
a
resident
in
Canada
and
was
employed
by
Care
Canada,
a
national
charitable
institution,
as
a
satellite
technician
under
the
direction
of
the
United
Nations
Protection
of
Forces
in
Croatia
and
Bosnia.
He
worked
outside
of
Canada
for
more
than
six
consecutive
months
in
1994
and
1995,
and
Care
Canada
was
his
specified
employer
as
defined
in
subsection
122.3(2)of
the
Income
Tax
Act.
The
problem
is
that
Care
Canada
is
not
a
business
as
defined
by
the
Supreme
Court
of
Canada
in
the
Moldowan
v.
R.
(1977),
[1978]
1
S.C.R.
480
(S.C.C.)
decision
and
in
the
jurisprudence
thereafter.
As
a
consequence,
the
overarching
requirement
that
the
employer
specified
be
in
business
is
one
that
is
paramount.
As
a
consequence,
the
decision
of
Mr.
Justice
Wetson
in
Timmins
v.
R.
(1996),
96
D.T.C.
6378
(Fed.
T.D.),
and
the
subsequent
decision
of
Judge
Teskey
of
the
Tax
Court
of
Canada
in
the
case
of
Clark
v.
R.,
[1996]
3
C.T.C.
2727
(T.C.C.)
apply.
In
the
Clark
case,
the
Appellant
was
a
telecommunications
expert
employed
by
Care
Canada
in
Yugoslavia.
Judge
Teskey
found
Care
to
be
a
registered
charitable
organization
with
head
offices
in
Ottawa,
and
that
it
was
not,
as
required
by
the
section,
an
organization
whose
preponderant
purpose
was
profit,
and
that
it
could
not
be
said
that
it,
therefore,
had
a
reasonable
expectation
of
profit
and
met
the
business
test.
It
is
regrettable
because
I
think
in
a
general
sense
the
object
and
spirit
of
this
overseas
tax
credit
probably
should
embrace
the
kind
of
activity
that
was
engaged
in
by
the
Appellant.
My
jurisdiction
is
to
determine
purely
and
simply
whether
or
not
the
assessment
complained
of
was
correct.
The
Minister
of
National
Revenue
correctly
applied
the
law.
As
a
consequence,
therefore,
the
appeals
for
the
1994
and
1995
taxation
years
are
hereby
dismissed.
Appeal
dismissed.
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