Date: 20001123
Docket: 95-591-IT-I
BETWEEN:
J. R. MOORE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Margeson, J.T.C.C.
[1] This appeal is with respect to an assessment by the Minister of National Revenue (“Minister”), notice of which is dated July 20, 1989, by which the Minister assessed the Appellant’s income for the year 1988 for the amount of $15,000 which was received by the Appellant in that year from his employer, the Ministry of Revenue (“Ministry”), Province of Ontario, as a result the transfer of the Appellant from Stratford, Ontario where he lived, to Barrie, Ontario.
[2] The assessment was on the basis that the Appellant had received a benefit by virtue of his office or employment and that the benefit was properly included in the Appellant’s income pursuant to paragraphs 6(1)(a) and 6(1)(b) of the Income Tax Act (“Act”).
[3] The Appellant testified that the amount that he received was for relocation expenses under a relocation plan. He introduced a number of exhibits with the consent of the Respondent. These included the Enhanced Relocation Plan, Exhibit A-1; the Enhanced Relocation Plan – Calculation Worksheet, Exhibit A-2; a letter by way of memo to Mr. C.E. Winter, Director of Field Operations Branch from J.R. Moore, Regional Assessment Commissioner on the subject of the Enhanced Relocation Plan, dated August 23, 1988, which was marked Exhibit A-3 and a memo to Mr. C.E. Winter, Director of Field Operations Branch from J. R. Moore, Regional Assessment Commissioner, dated September 21, 1988 on the subject of the Enhanced Relocation Plan, which was marked Exhibit A-4. This included a cost comparison of features statement and a memorandum to Mr. R.H. Beach, Executive Director, Assessment Services Division from C.E. Winter, Director, Field Operations Branch on the subject of the Enhanced Relocation Plan – J.R. Moore – Region 16 (Barrie). This was dated August 29, 1988 and marked Exhibit A-5.
[4] The Appellant indicated that in February of 1988 he was asked to leave his position in the Huron Perth region to go to the County of Simcoe region to take up a new position with the Ministry. As a result of this move, the Appellant moved to Barrie, Ontario from Stratford, Ontario.
[5] The price of houses in the Barrie real estate market were higher than those in Stratford. According to the Appellant, in order for him to receive any benefit from the Ministry plan he was required to prove the loss to the Minister and it was not just a matter of the Minister handing out the amount of money in question here without any proof being given as to his increased expenses in the new relocated area.
[6] At the time of the application he was aware that according to the calculations of the Ministry he was entitled to receive an amount of $12,947.39. The maximum receivable under the plan was $15,000 and the Appellant sought to obtain the maximum amount. That was the purpose of Exhibit A-3. This material was prepared by the Appellant and was an effort by him to establish to the Minister that he was relocating to a higher-cost housing area. As indicated in his letter he requested consideration be given to approving his reimbursement to the maximum figure of $15,000 allowed under the Enhanced Relocation Plan.
[7] This memo was followed-up by a memo from the Appellant to the Ministry, Exhibit A-4. In this exhibit the Appellant pointed out a number of shortcomings of the plan and considered that he was being penalized because he had actually bought down even though there was a very valid economic reason for him doing just that. He ended up by asking the Minister to consider the additional items which were not accounted for in the calculation formula. He opined that the formula appeared to recognize principally the purchase price in Barrie less the sale price in Stratford. It did not take into account the other items which he listed in his letter of September 21, 1988. He believed that these additional items should form part of the consideration under the Enhanced Relocation Plan.
[8] In the attachment entitled Cost Comparison of Features, the Appellant indicated that he paid an additional $10,500 for his home, that he then owned a home which was 16 years older, with a smaller living area, a smaller family room of poorer quality, no fireplace, uncertain insulation, fewer bathrooms and far less storage space than that which he had before.
[9] In the end result the Minister looked favourably upon this request and the Appellant was granted the maximum amount allowable under the plan of $15,000.
[10] In his evidence the Appellant said that because of the real estate in Barrie he had to pay $40,000 more for a less comparable house to the one he had in Stratford. He had a smaller older home and had to improve it. Exhibit A-5 indicated the approval by the Minister for the maximum allowable to be provided to Mr. Moore in the amount of $15,000.
[11] The Appellant said that he took all of his Stratford money and put it into buying the more expensive house in Barrie. He received less for his money and had to increase his mortgage.
[12] In cross-examination he said that he moved from Stratford to Barrie in 1988. The old house was bought in 1987 for $120,000 and by 1987 the mortgage remaining on the property was about $108,500. In 1988 he sold his Stratford house which had a mortgage on it at a rate of 10¼% and a term of five years. When the property was sold the mortgage was paid off out of the sale price of $140,500. He took out a new mortgage on the new property in Barrie with the same mortgage company.
[13] The new property was purchased for $151,000 and had a mortgage on it of $122,000 with an interest rate of 11%. He retired in 1995 and still lives in the same property.
Argument of the Respondent
[14] In argument, counsel for the Respondent said that the sole issue was whether or not the $15,000 payment to the Appellant was taxable in the hands of the Appellant in the year 1988. Counsel opined that the Appellant was arguing that he should receive the full $15,000 payment from the Ministry because the price differential for a comparable house in Barrie was more than $15,000.
[15] However, this amount was paid to the Appellant because he moved and bought a new house in the higher priced area. He did not spend more than $15,000 on purchasing a new house because he bought a property of lesser value. The question to be asked is, “How is the amount to be treated for tax purposes?”
[16] He referred to sections 3, 5 and 6 of the Act. Section 3 requires taxpayers to include in their income for the year, income from employment. Section 5 requires taxpayers to include all amounts received by way of salary, wages and other remuneration. Section 6 requires taxpayers to include in their income any amounts received for board, lodging and other benefits. The question to be asked is whether or not the $15,000 payment to the Appellant fell under section 5 or 6 of the Act.
[17] He pointed out that housing subsidies have been considered frequently by the Courts. The general rule is that all benefits received by employees must be included in taxable income. He referred to the case of The Queen v. Savage, 83 DTC 5409 (F.C.A.) in support of his proposition that the amounts received, in order to be taxable, need not be referable to the employment. The triggering event is quite broad.
[18] One exception is where the taxpayer receives an amount to reimburse him for a loss suffered. This amount is not taxable. He referred to the case of Ransom v. M.N.R., 67 DTC 5235 in support of this proposition. That case found that the amount claimed was not taxable. However, the opposite conclusion was reached in The Queen v. Phillips, 94 DTC 6179 where the amount received was classified as taxable. It was not a non-taxable reimbursement for expenses incurred as a consequence of the employment. That case is equally applicable here.
[19] There was no decrease in the net worth of the Appellant as a result of the move. The payment made up for the decline in the net worth of the Appellant.
[20] He also referred to the case of Attorney-General of Canada v. Hoefele et al., 95 DTC 5602 where the Court considered that the taxpayer suffered a loss as a result of the move from Calgary to Toronto as a result of the higher mortgage rate at the new site. Therefore, the amount was a loss and not taxable. However, in the case at bar, the $15,000 was paid because if the Appellant had bought a comparable house it would have cost him more than the $15,000 which he received. Therefore, since he decided not to buy a more expensive house he should be in no different a position than if he had decided to buy the more expensive house in the new location because then he would have been entitled to a full $15,000 advance.
[21] He took the position that the amount in question did not cover the mortgage differential as argued by the Appellant and therefore the full amount was taxable in the taxpayer’s hands and the appeal should be dismissed.
Argument of the Appellant
[22] The Appellant argued that the mortgage differential in this case was three quarters of a per cent and not one quarter of a per cent as indicated by counsel for the Respondent. He said what was received by him was not a benefit. He referred to Phillips, supra, and distinguished that case by saying that the payment received there increased the taxpayer’s net worth. However, here, he did not see his net worth increase.
[23] He relied heavily upon the case of Hoefele, supra, and said that it is very important. He did not receive the $15,000 because a comparable house was too expensive for him to buy. He referred to page 2 of Exhibit A-4 in that regard where he asked the Minister to consider the additional items which were referred to in addition to the items shown in the calculation form. He pointed out that the formula appeared to recognize principally the purchase price in Barrie less the sale price in Stratford. However, he felt that the items that he included were very valid items and should form part of the consideration under the enhanced relocation plan.
[24] He also took the position that the increased mortgage rate and the increased property taxes were part of the calculation for the $15,000 payment.
[25] He also referred to the case of Savage, supra, in which Mr. Justice Dickson explained the principle which distinguishes taxable from non-taxable receipts when he said:
If it is a material acquisition which confers an economic benefit on the taxpayer and does not constitute an exemption, e.g., loan or gift, then it is within the all-embracing definition of s. 3.
In Hoefele, supra, the Court went on to say:
According to the Supreme Court of Canada, then, to be taxable as a “benefit”, a receipt must confer an economic benefit. In other words, a receipt must increase the recipient’s net worth to be taxable. Conversely, a receipt which does not increase net worth is not a benefit and is not taxable. Compensation for an expense is not taxable, therefore, because the recipient’s net worth is not increased thereby.
...Our jurisprudence has long accepted the focus on net gain as the basis for determining whether a receipt is a “benefit” and whether it is therefore taxable.
[26] He referred to the case of Ransom, supra, quoted with approval in Hoefele, supra, adopting the proposition of Noël J. that the amount, “cannot be considered a benefit because it adds nothing of value to the recipient’s economic situation.” He, Noël J. stated:
It appears to me quite clear that reimbursement of an employee by an employer for expenses or losses incurred by reason of the employment (which as stated by Lord McNaughton in Tenant v. Smith, (1892) A.C. 162, puts nothing in the pocket but merely saves the pocket) is neither remuneration as such or a benefit “of any kind whatsoever” so it does not fall within the introductory words of section 5(1) or within paragraph (a). It is equally obvious that it is not an allowance within paragraph (b) for the reasons that I have already given.
[27] He referred to the case of The Queen v. Splane, 92 DTC 6021 (F.C.A.) where Cullen J. stated:
The taxpayer gained no extra money in his pocket. Instead the payments only allowed him to maintain the same position as that which he occupied prior to his transfer, and prevented him from having accepted the lateral transfer position at a loss.
He argued that he also suffered a loss as a result of the move. He referred to page 5605 of the Hoefele case in support of his argument where the Court said:
Therefore, the question to be decided in each of these instances is whether the taxpayer is restored or enriched. Though any number of terms may be used to express this effect – for example, reimbursement, restitution, indemnification, compensation, make whole, save the pocket – the underlying principle remains the same. If, on the whole of a transaction, an employee`s economic position is not improved, that is, if the transaction is a zero-sum situation when viewed in its entirety, a receipt is not a benefit and therefore, is not taxable under paragraph 6(1)(a). It does not make any difference whether the expense is incurred to cover costs of doing the job, of travel associated with work or of a move to a new work location, as long as the employer is not paying for the ordinary, every day expenses of the employee.
[28] He also referred to page 5606 of the Hoefele case where the Court indicated:
. . .whether such a payment is legally a “benefit” according to paragraph 6(1)(a) is an entirely different question, one that depends on the specific facts of each individual case.
At the same page, the Court went on to say:
If a company gives a lump sum payment to an employee to offset higher housing costs on relocation, the payment is taxable, if he is better off as a result. But, if such aid comes by way of a reimbursement for the loss of a favourable mortgage rate, it is not taxable.
[29] He referred again to page 12 of the Hoefele decision and argued that the mortgage interest subsidy scheme did not increase his equity in his home. No economic gain accrued to him as a result of the subsidy. His net worth was not increased. Therefore paragraph 6(1)(a) was inapplicable. Further, at page 5607 the Court quoted Sobier T.C.C.J. when he said:
... A person’s economic position is not advanced by maintaining the same ownership in a more valuable asset.
He maintained that in the case at bar the amount of money received involved more than the mortgage interest subsidy. There was a loss in his equity position amounting to $32,000. He had a 23% equity in his old house but as a result of the increase in mortgage on the new house he had only a 19.2% equity. The new mortgage was at a higher rate and took longer for him to pay it off. The $15,000 that he received did not improve his equity position nor restore the equity position that he held before the move. He opined that he was in a negative position as a result of the move.
[30] He also took issue with the delay in this case coming to trial and of all the impediments that he has faced from the time that he was first assessed. He believed that the Court should allow him costs which would take into account the expenses that he incurred as a result of having this case wind its way through the Courts over a long period of time.
[31] With respect to the $2,395.98 figure which is set out in Exhibit A-2 as a mortgage interest rate subsidy, he agreed that these figures were for one year only and that his mortgage on the Stratford property was taken out for a three-year renewal term.
[32] He also referred briefly to the Property Tax Subsidy item but it was of little consequence and this matter was not pursued.
[33] He also pointed out that in the Stratford property he had an equity worth 23% of the sale price of $32,000 whereas in the Barrie property he had an equity of only $29,000 or 19% of the sale price. His equity loss was $3,000.
[34] He also pointed out that in Hoefele, supra, the Court took into account the 10-year period for the mortgage interest rate subsidy and that if this Court did likewise, the amount of the interest payments would be over $20,000 for that period of time based upon the mortgage interest rate subsidy figure as set out in Exhibit A-2. He did admit that the interest rate came down after three years from the date of the purchase so he took into account that in the second three-year period the mortgage rate subsidy might amount only to $6,600 and in the third three-year period the interest rate subsidy figure might amount only to $6,000 as there was a drop in the interest rate over those periods.
[35] The Court allowed counsel for the Respondent to reply to the matters raised by the Appellant in his argument. At this time counsel indicated that he was prepared to concede that the amount of $2,395.98 as set out in Exhibit A-2 might not be taxable in the Appellant’s hands as it was a mortgage interest rate subsidy.
[36] He took the position that it was necessary to look not only at the net worth position of the taxpayer but also at the form of the payment. He referred to Hoefele, supra, in this regard where that case indicated that the form of a transaction is important in the characterization process.
[37] With respect to the argument advanced by the Appellant that he should be allowed the mortgage interest rate subsidy for more than one year, counsel argued that there was nothing in the evidence to indicate that the amount of the payment that he received in that regard was for any more than one year and indeed the plan prohibited the Minister from granting the mortgage interest rate subsidy for any longer a period than one year.
[38] With respect to the $10,500 figure which is set out in Exhibit A-2 as the variance, counsel took the position that this is definitely taxable in the Appellant’s hands. The reason that the amount was given to him was because he bought a more expensive house and that is exactly what the housing cost differential was.
[39] Further, counsel took the position that the difference between the amount of $15,000 received and the total amount of $12,947.39 to which the Appellant was entitled according to the calculation worksheet was taxable in the Appellant’s hands. The only reason he received the additional amount was because the form did not take into account the fact that the Appellant bought a house which was not as luxurious as the one he had left. Therefore, he would not be entitled under the formula to receive as much as he might have if he had bought a more luxurious home when he may have qualified for the maximum benefit. In effect he was being penalized for being frugal and he should not have been. However, the amount received there was in respect to the more expensive house being purchased.
[40] With respect to whether or not the mortgage interest rate subsidy should be granted for more than one year, counsel took the position that the plan, consequently the amount received, only provided for this adjustment to be made in one year, and in that regard characterization of the amount received and the formula should rule. Under the formula the government was only entitled to pay him for the one year for the subsidy.
[41] The Court must ask: “What did the plan subsidize?” In this case it is not enough to say I suffered a loss. The Appellant must prove that the amount that he received was compensating him for this loss in order for it to be tax exempt.
[42] In further rebuttal the Appellant again referred to Hoefele at page 11 in support of his various positions. He also took the position that the difference between the $15,000 received and the $12,947.39 calculated under the formula set out in Exhibit A-2 was to cover his extra expenses over the years and that this should not be taxable. It was his position that the case law has developed to the extent that the Courts have allowed these extra expenses to be tax free. He referred to the case of McNeill v. The Queen, 86 DTC 6477 (F.C.T.D.) in that regard. He was prepared to admit that the limitations of the plan enabled him only to be paid for one year’s mortgage interest rate subsidy but he should not be limited to the one year.
[43] He also pointed out that what he received was not a lump sum payment up front without anything more. He had to demonstrate the loss that he suffered. He convinced the Ministry that he would have a loss over the years and that is why he was granted the $15,000 maximum payment.
[44] The appeal should be allowed with costs.
Analysis and Decision
[45] As can be seen from a recitation of the facts, as indicated above, they are not complicated and the issue that has to be decided is clear, although the resolution of that issue is not so simplistic. As counsel for the Respondent has pointed out, the type of issue involved in this case has been considered on many occasions by many Courts at different levels. As these cases point out, each case must be decided on its own facts and the difference in facts in any one case could produce a different result although the issue in each would appear to be the same.
[46] A review of the cases referred to by counsel for the Respondent and those referred to by the Appellant clearly indicate that there are a number of principles involved in the consideration of the issue here. It is clear from the cases that in order for the amount that has been received to be taxable, it must be brought within the provisions of the Act and in the case at bar counsel for the Respondent has argued that the amount is taxable under the provision of sections 5 and 6 of the Act, and should be included in the computation of the Appellant’s income in the year in question under section 3. More particularly, he argued that this was remuneration under section 5 received by the taxpayer in the year in question and that it amounted to “a benefit received by the taxpayer in respect of, in the course of, or by virtue of an office or employment...” under paragraph 6(1)(a) of the Act.
[47] In the case of McNeill, supra, relied upon by the Appellant, Rouleau, J. was unable to find that all of the amount that was sought to be taxed by the Minister came under any of these provisions and consequently he allowed the appeal and declared that the Accommodation Differential Allowance in the amount of $15,571 paid to the plaintiff by Her Majesty the Queen in the Right of Canada was not taxable but that the Social Disruption Allowance in the amount of $2,155.41 was to be included in computing the taxpayer’s income for the year in question.
[48] It is clear therefore, that it is not a situation where the whole of the amount in question is either taxable or non-taxable but it is open to this Court, based upon the facts and an interpretation of the law to conclude that part of the amount in question may be taxable and fall under the above mentioned provisions and part of the amount may not be taxable because it does not fall under the appropriate provisions.
[49] In the case at bar the Appellant argued that all of the amount was non-taxable and initially the Respondent argued that all of the amount was taxable. At the end of the day, the Court is satisfied that the Respondent has conceded that a portion of this amount is not taxable and it should not have been included in the Appellant’s income for the year in question.
[50] Counsel was only prepared to concede the amount of $2,395.98 which was the amount of the mortgage interest rate subsidy for one year and consequently his position is that the balance of the amount in issue is taxable.
[51] It is clear from the cases reviewed that there has been developed, “the net gain concept” which in essence indicates that a receipt cannot be considered a benefit when it adds nothing of value to the taxpayer’s economic situation, such as in the case of a reimbursement for “out of pocket expenses” as a result of a move. Similarly, if, “the taxpayer was simply being restored to the same economic situation he was in before his employer ordered him to incur the expense,” it is not taxable. Similarly, if, “the taxpayer gained no extra money in his pocket, instead the payments only allowed him to maintain the same position as that which he occupied prior to his transfer, and prevented him from having accepted the lateral transfer position at a loss,” the amount is not taxable. However, intrinsic in this is the statement in Hoefele, supra, at page 5605 that:
...It does not make any difference whether the expense is incurred to cover costs of doing the job, of travel associated with work or of a move to a new work location, as long as the employer is not paying for the ordinary, every day expenses of the employee.
[52] Insofar as this Court is concerned a reasonable argument put forth by counsel for the Respondent was that the Court must consider all of the circumstances of the case and consider not only the nature or characteristic of the payment but also the form of the payment. Further, counsel argued that it is not enough for the Appellant to say that he suffered a loss but he must prove that the amount that he received was compensation for the loss.
[53] This Court is satisfied that in order to resolve the issue in question here, it must look at the form of the payment, the nature of the payment and the characteristics of the payment. In essence that requires the Court to consider what the payment was for.
[54] There is clear evidence in this case, as presented by the Appellant himself, Exhibit A-2, that the payment was made up of three components: 1) Housing Cost Differential which showed a variance in the price of the houses in question here of $10,500 between Barrie and Stratford. 2) Mortgage Interest Rate Subsidy. It is clear from looking at Exhibit A-2 that $2,395.98 of the amount in question was intended to cover the difference in the mortgage rate that existed between the property in Stratford at 10.25% and the new mortgage rate on the property in Barrie at the rate of 11%. It is further clear that the term that was being considered by the Minister in granting the payment was for one year despite the fact that the Appellant took out his new mortgage for a period of three years after which it was to be renewable. 3) The Property Tax Subsidy which is an insignificant amount of $51.41.
[55] Further evidence adduced by the Appellant himself indicated that when he initially made the application for the payment it was decided that he would not obtain the maximum payment of $15,000. The Appellant was not satisfied with that and because of his persistence and ingenuity he was able to convince the Ministry that he should receive the maximum payment.
[56] The first letter that he wrote, dated August 23, 1988, Exhibit A-3 was an attempt by the Appellant to satisfy the Minister that he was moving into a higher cost housing area, he was attempting to determine the actual cost differential of comparable living accommodations in Barrie as opposed to Stratford. This letter also dealt with the difference in the interest rate question. The Appellant requested further consideration be given to approving the maximum figure of $15,000 allowed under the enhanced relocation plan.
[57] On September 21, 1988 the Appellant wrote a further letter to the Ministry. The Appellant indicated that he had received the calculations under the plan, pointed out that it did not take into account “the actual cost differential of comparable living accommodation” and he listed a number of factors which he did not think were giving him proper consideration, such as buying down in quality because of the higher market area, the empty nest situation indicating that a large house was not required, the holding off in buying a new car by taking some equity out of the sale of the house, therefore buying a house of lesser quality. Further, the money received must be declared as taxable income thereby the actual net amount that he would receive under the subsidy was reduced. He also acknowledged that the mortgage subsidy assistance was only for one year.
[58] He indicated that he was actually being penalized for buying down although he might have very valid reasons for doing so. He further admitted that it was a promotional move but due to the added expenses he might not actually end up in a better position.
[59] Considering these letters and the other evidence as well, it is clear that the initial amount of $10,500 as referred to in Exhibit A-2 as the Housing Cost Differential was just that. This was an amount paid to the Appellant because of the fact that the house he was buying in Barrie was going to cost $151,000 whereas the former residence sold for $140,500. Therefore, the payment was merely because of the fact that he bought a more expensive house even though he may have obtained what he considered to be a less than comparable house. The fact remains that he received that amount of money because he bought a more expensive house. Receipt of this amount by the Appellant was clearly an advantage to him because had he not received it, his net worth would have been less than it was after he received it. This was clearly a benefit or an advantage to him on the basis of all of the facts and such a finding does not offend the principle of net advantage as referred to in the cases.
[60] In respect of the difference between the amount of $12,947.39 which was the amount calculated under the “enhanced relocation plan” and the amount of $15,000 that the Appellant actually received because of his representations to the Ministry, that amount in essence was received because the Appellant was able to convince the authorities that if he had bought a more expensive house he would have been entitled to receive the maximum amount of $15,000. Because he chose to economize he should not be penalized by only being entitled to receive the $12,947.39. This differential was clearly given to him to compensate him for increased housing costs on the purchase of a replacement property and further to take into account other expense factors which the Appellant set out in his representations to the Minister. Clearly some of these fall into the category of ordinary, every day expenses of the employee and are not tax free.
[61] The case of Phillips, supra, is applicable to this point.
[62] As indicated by the Appellant himself, in rebuttal, the difference between the $12,947.39 and the $15,000 was to cover extra expenses over the years.
[63] With respect to the Appellant’s argument that he should be entitled to the mortgage interest rate subsidy for more than one year, the Court rejects that argument. In that regard the form and characterization of the payment in question are significant. It is clear from all of the evidence that the payment in question was intended to cover only one year and indeed that was the maximum amount of coverage that could take place under the plan. Therefore, the only amount that would be non-taxable in the Appellant’s hands is the amount of the mortgage interest rate subsidy for one year.
[64] The Court is satisfied that it does not make any difference that the payment that the Appellant received was a lump sum payment up front. He argued that he had to demonstrate to the Ministry that he had suffered a loss over the years and that is why they gave him the amount that they did. As indicated above, it is clear as to what this payment represented and the Court is satisfied that it is taxable.
[65] With respect to the amount of $51.21, the property tax subsidy, that was paid because the Appellant had purchased a more expensive house and the taxes were higher, that amount was taxable.
[66] In the end result, the appeal is allowed and the matter is referred back to the Minister of National Revenue for reassessment and reconsideration based upon the Court’s findings that the amount of $2,395.98 was not taxable in the year in question but the remainder of the amount was taxable.
[67] The Appellant is entitled to no further relief.
[68] The Appellant is entitled to no costs because he was not substantially successful in this appeal.
Signed at Ottawa, Canada, this 23rd day of November 2000
"T.E. Margeson"
J.T.C.C.