Guy
Tremblay:—This
case
was
heard
at
Belleville,
Ontario,
on
April
18,
1978.
1.
Point
at
Issue
The
point
at
issue
is
whether
the
respondent
is
correct
in
disallowing
the
sum
of
$306
claimed
by
the
appellant
for
meals
for
the
1975
taxation
year.
The
appellant
is
a
truck
driver
working
for
a
transport
company.
2.
Burden
of
Proof
The
appellant
has
the
burden
of
showing
that
the
respondent’s
assessment
was
not
justified.
This
burden
of
proof
is
based
not
on
a
particular
section
of
the
Income
Tax
Act
but
on
several
judicial
decisions,
among
them
a
decision
of
the
Supreme
Court
of
Canada
rendered
in
R
W
S
Johnston
v
MNR,
[1948]
CTC
195;
3
DTC
1182.
3.
Facts
3.1
At
all
material
times,
the
appellant
during
his
1975
taxation
year
was
employed
as
a
transport
driver
by
McCailum
Transport
Division
of
Dominion
Consolidated
Truck
Lines
Limited
at
Oshawa,
Ontario.
3.2
The
appellant,
in
his
1975
income
tax
return,
claimed
$1,938
for
meals
consumed
in
the
course
of
his
employment.
3.3
The
appellant
had
no
vouchers
to
file
evidence
because
he
had
chosen
the
“Simplified
Method’’
proposed
by
the
respondent
to
the
taxpayers
in
Information
Circular
73-21R
in
lieu
of
the
detailed
recordkeeping
method
to
which
an
expense,
to
be
admitted,
must
be
justified
by
a
voucher.
Here
is
the
"Simplified
Method’’
explained
by
the
respondent
in
his
bulletin:
When
following
this
method
the
Department
is
prepared
to
allow
a
maximum
of
one
meal
after
every
four
hours
from
the
check-out
time
at
$2.50
(1974
and
prior
years)
or
$3
(1975
and
subsequent
years)
per
meal,
to
a
maximum
of
three
meals
per
day.
3.4
The
appellant
filed
as
evidence
a
21
page
description
of
the
trips
made
during
the
year
in
question.
Here
are
a
few
examples:
Oshawa
to
Sarnia
to
Hamilton
to
Oshawa
24
hrs—4
meals—434
miles.
Markham
to
Oshawa
4
hrs—1
meal—54
miles
Sarnia
to
London
to
Ingersoll
to
Sarnia
to
Toronto
SE,
to
Concord
to
Oshawa
to
Belleville
to
Kingston
to
Coteau
to
Oshawa
80
hrs—16
meals—1,162
miles—2
sleeps
3.5
On
that
document
the
number
of
meals
totals
646;
and
the
total
expenses
are
$1,938
(646
x
3).
3.6
However,
according
to
the
respondent,
because
of
the
condition
of
3
meals
per
day
provided
in
the
bulletin
73-21R,
there
are
only
544
meals
and
consequently
$1,632
(544
x
3)
of
deductible
expenses.
3.7
Before
the
notice
of
objection
dated
February
21,
1977,
to
the
assessment
dated
February
18,
1977,
the
respondent
had
accepted
only
522
meals.
However,
by
notice
of
reassessment
dated
June
8,
1977,
he
had
accepted
22
other
meals.
3.8
On
August
23,
1977,
an
appeal
was
lodged
before
the
Tax
Review
Board.
3.9
According
to
the
appellant,
he
sleeps
at
home
(Cobourg,
Ontario)
half
of
the
time
but
leaves
at
4:00
or
5:00
o’clock
in
the
morning
and
returns
home
at
8:00
pm.
3.10
The
other
50%
of
the
time
he
has
to
sleep
away
from
home,
ordinarily
in
a
motel
or
hotel
chosen
by
the
employer.
If
at
those
places
the
cost
of
the
room
was
not
expensive,
the
cost
of
the
meal
was
expensive.
Very
often
the
meals
were
between
six
and
seven
dollars,
and
sometimes
more.
3.11
It
is
quite
difficult
and
and
even
impossible
to
gather
all
the
bills
for
meals.
The
appellant
quoted
the
case
of
one
companion
who
had
collected
all
the
bills.
When
he
presented
all
the
vouchers
to
the
representative
of
the
respondent
in
application
of
the
detailed
recordkeeping
method
and
he
was
told
that
the
simplified
method
was
applied
and
the
vouchers
were
not
necessary.
4.
Law—Comments
4.1
The
main
section
of
the
new
Act
concerned
by
this
case
at
bar
is
paragraph
8(1
)(g),
which
reads
as
follows:
(g)
Transport
employee’s
expenses.—where
the
taxpayer
was
an
employee
of
a
person
whose
principal
business
was
passenger,
goods,
or
passenger
and
goods
transport
and
the
duties
of
the
employment
required
him,
regularly,
(i)
to
travel,
away
from
the
municipality
where
the
employer’s
establishment
to
which
he
reported
for
work
was
located
and
away
from
the
metropolitan
area,
if
there
is
one,
where
it
was
located,
on
vehicles
used
by
the
employer
to
transport
the
goods
or
passengers,
and
(ii)
while
so
away
from
such
municipality
and
metropolitan
area,
to
make
disbursements
for
meals
and
lodging,
amounts
so
disbursed
by
him
in
the
year
to
the
extent
that
he
had
not
been
reimbursed
and
is
not
entitled
to
be
reimbursed
in
respect
thereof:
4.2
The
Information
Circular
73-21R,
like
the
Bulletin
of
Interpretation,
is
not
the
law
but
it
is
like
a
settlement
giving
a
choice
to
the
taxpayer.
The
appellant
has
made
the
choice.
Since
the
choice
is
made,
is
the
Circular
and
its
simplified
method
strictly
construed?
It
seems
so
at
first
glance.
The
main
problem
is
how
to
calculate
the
number
of
meals
in
a
day.
Must
the
meals
be
calculated
according
to
the
ordinary
meaning
of
the
word
“day”
from
midnight
to
midnight
or
on
a
24-hour
basis,
Starting
at
any
time
during
a
day
as
there
is
no
definition
in
the
law
of
the
word
“day”.
The
ordinary
meaning
of
that
word
must
be
applied.
Consequently,
if
a
truck
driver
leaves
at
midnight
one
day
and
returns
at
midnight
the
next
day,
he
only
has
right
to
three
meals,
even
if
he
has
taken
four;
but
if
the
truck
driver
leaves
the
terminal
at
noon
one
day
and
comes
back
at
noon
the
next
day,
he
would
have
the
right
to
6
meals
for
that
24
hours.
From
that
point
of
view,
the
Board
is
ready
to
accept
that
the
number
of
meals
were
646.
So
the
amount
of
$1,938
claimed
(646
x
$3)
must
be
accepted.
Furthermore,
when
a
case
is
before
the
Board,
it
must
be
judged
according
to
the
evidence
given.
The
evidence
showed
also
that
the
average
cost
for
each
meal
can
certainly
be
$4
and
even
more.
Consequently,
even
if
the
Board
accepts
the
number
of
meals—544
(on
which
the
reassessment
was
based),
the
amount
of
$1,938
claimed
by
the
appellant
is
not
exaggerated
and
must
be
accepted
even
if
there
are
no
supporting
vouchers.
5.
Conclusion
The
appeal
is
allowed
and
the
matter
referred
back
to
the
respondent
for
reassessment
in
accordance
with
the
above
reasons
for
judgment.
Appeal
allowed.
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