Christie A.C.J.T.C.:
1 This appeal is governed by the Informal Procedure provided for under section 18 and following sections of the Tax Court of Canada Act. The year under review is 1994.
2 The Notice of Appeal reads:
In response to the Notification of confirmation by the Minister, I wish to file a Notice of Appeal by means of an Informal Procedure to the Tax Court of Canada.
I feel my letter dated 12 April 1996 to the Chief of Appeal in Sudbury, Ontario, fully explained the reasons for my claim for moving expenses. I cannot understand why I should be penalized for actions taken by the government of Canada in closing Canadian Forces Base Baden-Soellingen. Furthermore, I am being penalized because there simply were no jobs available in our area on my return to Canada.
Since then I have joined the Canadian Corps of Commissionaires in September 1995. This was immediately following a course at Loyalist College for one year. I worked full time as commissionaire at the College. The contract with the college was not renewed and I therefore lost that job. I then worked for the company that replaced the Commissionaires, and after three months I was let go.
I am not afraid of work, but there are no jobs. Presently, I receive Unemployment benefits. I have used all my RRSP's and cancelled all my life insurances and still owe Income Tax over $4000.00 not including the amount of the appeal. I have mortgaged my house and I cannot get another loan since I do not have any steady income, except for my military pension.
3 The letter of April 12, 1996 reads:
This letter is to appeal the decision you have made regarding moving expenses claim on my 1994 Individual Income Tax Return.
To this effect, I wish to state that I did not move on my own consent and would not have relocated back to Canada to a new life. The Canadian Government decided to close the Canadian Forces Base Baden-Soellingen in 1993. I was given a severance pay package, for which I paid taxes. I simply had to come back to, and start over in Canada. Because of the severance pay (four months pay) I had to wait 5 month before I was allowed Unemployment Insurance. I tried, but could not find a job anywhere (I have copies of letters to prove it). I was counselled by the Unemployment Office.
I was advised that I should upgrade and go to school and that they would pay for the duration of the course.
I completed a full year's course at Loyalist College in Belleville, Ontario. Even while going to school I still made every attempt to find employment. I started a full time job as Commissionaire of Canada in Sep 95.
I claimed moving expenses as I started a job and feel I am being penalized after working for the government of Canada for 33 years. (26 years military and 7 years as a civilian for the Canadian Forces Base Baden-Soellingen in Germany).
Furthermore, you are charging me for interest of $91.52. I feel this is also unfair as I did not receive the notice of reassessment until 1 Apr 96, nearly 6 months after I submitted the necessary paperwork.
There are no reference in your taxation guide that this claim cannot be made if the school is paid for by the Unemployment Insurance Commission.
I have always been fair and paid my taxes throughout my whole career and expect to be treated fairly in return. I know, that it was my decision to stay and work for the Canadian Government in Germany. Due to Base closure, we lost more than just the weight we had to pay for. We had to sell all our appliances because they don't work in Canada and many more articles that we ended up given away with a great loss. We can not claim any of those expenses. Also we had rented out our home which was in a terrible state upon our return. This damage to our home could also not be claimed.
As you can see Sir, I think we have been penalized enough in every way.
4 The opening paragraph and paragraphs numbered 1 to 12 inclusive of the Reply to the Notice of Appeal read:
In reply to the Notice of Appeal for the 1994 taxation year, deemed to have been filed on May 14, 1997, the Deputy Attorney General of Canada says:
A. Statement of Facts
1. He admits the facts stated in the first and third unnumbered paragraphs of the Notice of Appeal.
2. He has no knowledge of and says that the statements made in the remainder of the Notice of Appeal, are made principally by way of argument and does not admit any allegation of fact incidentally contained therein.
3. With respect to the two page letter dated April 12, 1996 referred and attached to the Notice of Appeal, he admits the fact stated in the first sentence of the sixth unnumbered paragraph of the first page of the said letter but he otherwise says that the statements made in the remainder of the said letter are made principally by way of argument and does not admit any allegation of fact incidentally contained therein.
4. By Notice of Assessment dated May 11, 1995, the Minister of National Revenue (the ‘Minister’) initially assessed the Appellant's income tax return for the 1994 taxation year.
5. In computing income for the 1994 taxation year, the Appellant deducted the amount of $1,977.00 as moving expenses.
6. By Notice of Reassessment dated April 1, 1996, the Minister reassessed the Appellant's income tax return for the 1994 taxation year and disallowed the said moving expenses referred to in paragraph 5 above.
7. By Notice of Objection dated April 12, 1996, the Appellant informed the Minister of the reasons for his objection with respect to the 1994 taxation year.
8. By Notification of Confirmation dated September 25, 1996, the Minister confirmed that the reassessment with respect to the 1994 taxation year was made in accordance with the provisions of the Income Tax Act (the ‘ Act’).
9. By letter dated January 20, 1997, the Appellant made an application for extension of time to file a Notice of Appeal with the Tax Court of Canada (the ‘Court’) with respect to the 1994 taxation year.
10. By Order dated May 14, 1997, the Court ordered that the time within which an appeal from the reassessment for the 1994 taxation year may be instituted be extended and consequently, the appeal, which was filed together with the application described in paragraph 9 above, was deemed valid and considered to have been filed on the date of the said Order.
11. In confirming the reassessment with respect to the 1994 taxation year, the Minister made the following assumptions of fact:(a) in or about the month of September of the 1993 taxation year, the Appellant at the time employed as a civilian for the Canadian Forces Base Baden-Soellingen in Germany, moved from Germany (in this Reply referred to as ‘the old residence’) to RR#2, Frankford, Ontario (in this Reply referred to as ‘the new residence’) following the closure of the said Base;
(b) during the 1993 taxation year, amounts were paid by the Appellant or on account of moving expenses incurred in the course of moving from the old residence to the new residence;
(c) of the amounts paid by the Appellant or on account of moving expenses incurred in the course of moving from the old residence to the new residence during the 1993 taxation year and referred to in subparagraph 11(b) above, the Department of National Defence (the ‘DND’) reimbursed the Appellant approximately $10,000.00;
(d) of the amounts paid by the Appellant or on account of moving expenses incurred in the course of moving from the old residence to the new residence during the 1993 taxation year and referred to in subparagraph 11(b) above, amounts totalling $1,977.00 were paid by the Appellant in respect of weight of goods, amounts which were not reimbursed by DND as they exceeded the reimbursable weight limit determined by DND;
(e) after the move, the Appellant had no income from carrying on a business at a new work location within the meaning of paragraph 62(1)(a) of the Act (in this Reply referred to as ‘the new work location’) for the 1993 nor the 1994 taxation years;
(f) after the move, the Appellant did not receive income for the 1993 nor the 1994 taxation years from an office or employment within the meaning of section 5 of the Act at the new work location;
(g) after the move, the Appellant was not required to include in computing his income amounts by virtue of paragraphs 56(1)(n) and 56(1)(o) of the Act for the 1993 nor the 1994 taxation years;
(h) the Appellant did not move from the old residence to the new residence to start to carry on a business or to be employed or to begin full-time attendance at an educational institution; and
(i) the moving expenses in the amount of $1,977.00 are not deductible expenses to the Appellant in computing his income for the 1993 nor the 1994 taxation years as they were personal or living expenses of the Appellant.
B. Issue To Be Decided
12. The issue is whether the Appellant is entitled to deduct, in computing his income for the 1994 taxation year, an amount for moving expenses.
5 The onus is on the appellant to show that the reassessment is in error. This can be established on a balance of probabilities. Where the onus lies has been settled by numerous authorities binding on this court. It is sufficient to refer to two judgments of the Supreme Court of Canada in this regard: R. v. Anderson Logging Co., [1925] S.C.R. 45 (S.C.C.)and Johnston v. Minister of National Revenue, [1948] S.C.R. 486 (S.C.C.).
6 The appellant has failed to discharge the onus that rests on him. In particular the assumptions relied on by the Minister of National Revenue have not been rebutted. The substance of what is before the Court is what is said in the Notice of Appeal and the letter of April 12, 1996 referred to therein.
7 The appeal is dismissed.
Email this Content