2000-2005(IT)I
BETWEEN:
BRUCE GILLESPIE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on October 17, 2000 at Victoria, British Columbia, by
the Honourable Judge D.W. Beaubier
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Kristy Foreman Gear
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1998 taxation year is allowed, and the matter is referred to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
The Appellant is awarded costs fixed in the amount of $200.00.
Signed at Ottawa, Canada, this 9th day of November, 2000.
|
"D. W. Beaubier" |
J.T.C.C.
Date: 20001109
Docket: 2000-2005(IT)I
BETWEEN:
BRUCE GILLESPIE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Beaubier, J.T.C.C.
[1] This appeal pursuant to the Informal Procedure was heard at Victoria, British Columbia on October 17, 2000. The Appellant was the only witness. He has appealed the disallowance of moving expenses which he claimed with respect to his 1998 taxation year. In addition, at the hearing, he referred to a further claim of $2,572.29 which he incurred in 1998 maintaining his house in Victoria while he lived in Courtenay, British Columbia and awaited the sale of his house in Victoria.
[2] Paragraphs 9 to 12 inclusive of the Reply to the Notice of Appeal read:
9. The Minister of National Revenue (the "Minister") initially assessed the Appellant for the 1998 taxation year by Notice dated May 6, 1999 and disallowed the Moving Expense.
10. In so assessing the Appellant, the Minister relied on the following assumptions of fact:
a) the Appellant worked for Highway Constructors Ltd. (the "Company") from June 22 1998 to October 5, 1998;
b) the Company was responsible for contracts awarded for the construction of Inland Highway on Vancouver Island;
c) in December 1998, the Appellant moved from Victoria to Comox, British Columbia;
d) the Appellant's new residence in Comox was within 100 km of the job site that he had worked at during his employment with the Company from June 22, 1998 to October 5, 1998 (the "Work Location"); and
e) the Appellant was not employed at the time of the move.
B. ISSUES TO BE DECIDED
11. The issue is whether the Appellant is entitled to a deduction of the Moving Expense for the 1998 taxation year.
C. STATUTORY PROVISIONS RELIED ON
12. He relies on section 62 and subsection 248(1) of the Act as amended.
[3] Assumptions 10(a) and (b) are correct.
[4] The Appellant was requested to take this job by Highway Constructors Ltd. on June 16, 1998. He is and was a skilled hydraulic drill operator who is accustomed to drilling and operating equipment in association with explosives. The project was the new Island Highway then under construction on Vancouver Island. The Appellant moved immediately from Victoria to Courtenay and rented premises where he lived within 25 km of his job site and put his house in Victoria up for sale. He had work and pay at the job site until he was laid off on October 5, 1998. He was rehired on the same job by the same contractor in May, 1999. He stayed at Courtenay in the interval and after his Victoria house sold in December, 1998 he purchased a home in Courtenay where he still lives and is employed.
[5] Subsection 62(1) of the Income Tax Act ("Act") reads in part:
62.(1) Where a taxpayer has, at any time, commenced
(a) to carry on a business or to be employed at a location in Canada (in this subsection referred to as "the new work location"),
...
and by reason thereof has moved from the residence in Canada at which, before the move, the taxpayer ordinarily resided (in this section referred to as "the old residence") to a residence in Canada at which, after the move, the taxpayer ordinarily resided (in this section referred to as "the new residence"), so that the distance between the old residence and the new work location is not less than 40 kilometres greater than the distance between the new residence and the new work location, in computing the taxpayer's income for the taxation year in which the taxpayer moved from the old residence to the new residence or for the immediately following taxation year, there may be deducted amounts paid by the taxpayer as or on account of moving expenses incurred in the course of moving from the old residence to the new residence, to the extent that ...
[6] Moving expenses are deductible to assist people such as the taxpayer to find gainful employment. In fact the Appellant did move to gainful employment in June, 1998, became employed, and earned wages in that employment. But he was only able to sell his house in December. Thereupon his accountant completed his claim for moving expenses on the basis that the move occurred at the date of sale, December 17, 1998, when the Appellant was laid off. That form was completed incorrectly and the Court so finds.
[7] It is in the light of these findings that subsection 62(1), as quoted, must be examined. In Corporation Notre Dame de Bon-Secours v. Communaute Urbaine de Quebec and City of Quebec, 95 DTC 5017, Gonthier, J. stated at the end of Section A of his analysis:
The rules formulated in the preceding pages, some of which were relied on recently in Symes v. Canada [1993] 4 S.C.R. 695, may be summarized as follows:
- The interpretation of tax legislation should follow the ordinary rules of interpretation;
- A legislative provision should be given a strict or liberal interpretation depending on the purpose underlying it, and that purpose must be identified in light of the context of the statute, its objective and the legislative intent; this is the teleological approach;
- The teleological approach will favour the taxpayer or the tax department depending solely on the legislative provision in question, and not on the existence of predetermined presumptions;
- Substance should be given precedence over form to the extent that this is consistent with the wording and objective of the statute;
- Only a reasonable doubt, not resolved by the ordinary rules of interpretation, will be settled by recourse to the residual presumption in favour of the taxpayer.
[8] Referring to subsection 62(1),
- the taxpayer commenced to be employed at Courtenay, B.C. on June 22, 1998;
- for that reason he moved to Courtenay from Victoria on June 22, 1998;
- before June 22 he ordinarily resided at his house in Victoria;
- after June 22 he ordinarily resided in Courtenay;
- his new work location was 22 km from his workplace, rather than 212 km as was the case from his house in Victoria.
[9] For these reasons, the appeal is allowed. The Court also finds that his submission of additional expenses of $2,572.29; if properly backed up with appropriate records and reasons, appear to be claimable respecting the move.
[10] The Appellant had to come to Victoria from Courtenay to prosecute his appeal. He is awarded $200 on account of out of pocket expenses incurred in proceeding with the appeal.
Signed at Ottawa, Canada this 9th day of November, 2000.
|
"D. W. Beaubier" |
J.T.C.C.
COURT FILE NO.: 2000-2005(IT)I
STYLE OF CAUSE: Bruce Gillespie v. The Queen
PLACE OF HEARING: Victoria, British Columbia
DATE OF HEARING: October 17, 2000
REASONS FOR JUDGMENT BY: The Honourable Judge D. W. Beaubier
DATE OF JUDGMENT: November 9, 2000
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Kristy Foreman Gear
COUNSEL OF RECORD:
For the Appellant: The Appellant himself
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada